A blog on why norms matter online

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I'm a Post-Doc Fellow at the Cluster of Excellence "Normative Orders" of the University of Frankfurt and lecturer at the Institute of International Law of the University of Graz, Austria. I've studied international law in Graz, Geneva and at Harvard Law School. I enjoy thinking and writing about Internet Governance and discussing and shaping the future of the Internet

Tuesday, July 24, 2012

Are there human rights protections gaps online? The example of online sit-ins

(c) Netherlands Nationaal Archief (2009), FlickR
As I have reported previously on my blog [here, here, here] and in other media and forums [EJIL Talk!, "Die Presse", jusPortal.at], the Human Rights Council has made the significant step to confirm the technological neutrality of human rights protection regimes in the easy to remember phrase that "the same rights that people have offline must also be protected online". 

As I have argued, we're not out of the woods yet, because there remain serious questions to be answered. For one, how to  operationalize  this commitment. 

Another interesting question is whether there exist human rights protection gaps. De facto, they do. De jure, they shouldn't . They exist de facto in the sense that not all human activity online that should be protected is protected by courts because they lag behind in applying human rights comprehensively and sensibily online. 

Indeed, since "the same rights that people have offline must also be protected online", any online gaps can be filled by interpreting existing human rights in a technology-sensitive way. 

An interesting case in point is the question whether there is an online equivalent to the right to offline assembly. 

Of course, the right to assembly is well protected by international law, and the right to access the Internet can be seen as a precondition to exercise the right to assembly offline in a meaningful way under the conditions of the information society. One motivation of Egyptian authorities in January 2011 for shutting down the Internet was, in fact, that civil society and opposition members should not be able to coordinate meetings. Of course, this backfired. 

But let's look at the online dimension of the right to assembly more closely. 

In the May 2012 final report of the 5th initiative [in German] of the Internet&Society Co:llaboratory, my colleagues and I queried whether virtual sit-ins should be covered by the right to assembly. The right to offline assembly can only be exercised under certain conditions (prior announcement, for one, and must meet certain limitations regarding length and duration). There is nothing that makes me think that we could not apply similar conditions to exercising the online freedom of assembly. Indeed, the three part test that we now from international human rights law should be applied mutatis mutandis: legality of interference, legitimacy of goal pursued by the interference, and proportionality of interference.

How would this look like?  

One way to exercise the online right to assembly would be virtual sit-ins, or online demonstrations, which take the form of repeated service queries by individuals to a particular server which may result in a slowing down of the reponse speed of that server to other non-involved queries or even make the server crash entirely. 

In that case we would speak of a DDoS attack, which will most likely not be covered by the right to assembly, while certain inconveniences for other users might still be. Just think of the following: Isn't it covered by the human right to offline assembly that it becomes a bit more difficult to enter a specific shop on a certain street at a specific time? My answer would be a clear yes, while to the legality of shutting down a shop completely my answer would be a clear no. 

Of course, there are grey areas, but the German government might just shed some light on the issue for us. 

Internet&Society Co:llaboratory expert Jeannine pointed out to me a query of the left-wing political group "Die Linke" in the German Bundestag in which the MPs asked the government to collect  information on the prosecution of teenagers who had participated, in June 2012, in a virtual protest action against the German music industry rights management company GEMA. 

The MPs argued that the action was not "Computersabotage" (computer sabotage, as penalized by the German Criminal Code), but rather a „eine Protestaktion, die die Kriterien einer Onlinedemonstration erfüllt“ ["a protest, that meets the criteria for online demonstrations"]. 

The original query [in German] makes for interesting reading. 

Of course, the "criteria for online demonstrations" are far from clear. 

But this is exactly what I (and others) predicted would happen. We have the commitment to the applicability of human rights online. We now need to hammer out what this means in practice. Cases such as this will help us gain a more nuanced understanding. 

Let's scrutinize them closely. 

5 Punchy Principles for Regulating the Internet

Internet regulation needs to be grounded in human rights
(at the Schoeckl mountain near Graz, Austria)
(c) Kettemann 2012
In a excellent analysis published in La Nacion and on his  blog, Eduardo Bertoni, director of the center for Studies of Freedom of Expression and Access to Information of the law faculty of the University of Palermo (Argentina), has highlighted the importance of the
JOINT DECLARATION ON FREEDOM OF EXPRESSION AND THE INTERNET 

of 1 June 2012. 

This declaration which really deserves more spotlight was adopted by the four international instruments on freedom of expression: 
  • The United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, 
  • the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, 
  • the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and 
  • the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information.
Pity that ASEAN's human rights protection regime has not yet evolved in a way to allow installing  a similar rapporteur. But the signs, in Asia as well, are encouraging.


In their  JOINT DECLARATION ON FREEDOM OF EXPRESSION AND THE INTERNET, the four FoE experts underline certain key principles which merit extensive citations (and the whole declaration deserves a thorough reading):

1. General Principles

a. Freedom of expression applies to the Internet, as it does to all means of communication. Restrictions on freedom of expression on the Internet are only acceptable if they comply with established international standards, including that they are provided for by law, and that they are necessary to protect an interest which is recognised under international law (the ‘three-part’ test).

b. When assessing the proportionality of a restriction on freedom of expression on the Internet, the impact of that restriction on the ability of the Internet to deliver positive freedom of expression outcomes must be weighed against its benefits in terms of protecting other interests.

c. Approaches to regulation developed for other means of communication – such as telephony or broadcasting – cannot simply be transferred to the Internet but, rather, need to be specifically designed for it.

d. Greater attention should be given to developing alternative, tailored approaches, which are adapted to the unique characteristics of the Internet, for responding to illegal content, while recognising that no special content restrictions should be established for material disseminated over the Internet.

e. Self-regulation can be an effective tool in redressing harmful speech, and should be promoted.

f. Awareness raising and educational efforts to promote the ability of everyone to engage in autonomous, self-driven and responsible use of the Internet should be fostered (‘Internet literacy’).

It seems difficult to me to express in a more condensed and illuminating way the biggest challenges that Internet regulations faces, but I've given it a try.



These are my five punchy principles for regulating the Internet 

1. Offlline human rights apply online, as do  the rules on restrictions. 
2. Internet access needs to be ensured - both to the infrastructure and to content. Restrictions need to be legal, pursue legitimate goals, and be proportionate. 
3. Content illegal under international law needs to be fought. Legal, but shocking or disturbing content, needs to be protected.
4. The Internet is a new entity. It needs some regulation. It deserves new regulatory approaches (the multi-stakeholder approach) and new regulatory instruments (outside of traditional treties).
5. Self-regulation should be the standard, co-regulation  should be used where necessary and direct regulation should be employed if neither of the former leads to legitimate results.

What do you think? Could these five principles be a  useful guideline for regulators? Am I missing something important? 


Of course, adding my principles to the principle hype of 2011 might not be the best approach. Perhaps we should stick with what has been accepted internatioally. 

Bertoni concludes his analysis with an interesting idea worth pursuing:

"Our lawmakers could sign onto a declaration with similar reach [as the Joint Declaration referenced above, MCK]. Or, the Executive could directly and formally adopt the criteria from the Joint Declaration. With this simple idea, we would be laying the groundwork for the development of public policies related to Internet regulation that wouldn’t jeopardize fundamental rights that are guaranteed by our constitution and international human rights conventions."


Monday, July 23, 2012

After Human Rights Council Resolution on Internet Rights, Some Tentative Answers

I've already blogged twice (here and here) about the interesting
resolution of the Human Rights Council on human rights on the Internet,
in which the Council confirmed that there's no need to reinvent the
wheel: offline human rights apply online.

But that's not the whole picture.

There are important questions of operationalization that have yet to be
asked and answered: 

  • Who is responsible fore respecting, protecting and implementing which rights? 
  • Do multistakeholder-based processes lead to more legitimate normative outcomes? 
  • Is self-regulation sufficient for effective human rights protection? 
  • How can international law be brought to bear on the Internet - with the goal of ensuring that state limits to Internet freedoms are, themselves, limited (Wolfgang Kleinwächter has edited an excellent multistakeholder-based collection of papers on what these limits may be [in German]).


Today, two pieces I've written elaborating on these issues were published.  A brief analysis in German in the legal section of the Austrian quality daily "Die Presse" and a longer discussion in English of the main points of the Resolution on the EJIL Talk! blog.

Here are the details: 








Matthias C. Kettemann, Grundrechte gelten auch im Internet [Fundamental Rights also
Apply to the Internet], Die Presse, 23 July 2012,
http://diepresse.com/home/recht/rechtallgemein/1269809/Grundrechte-gelten-auch-im-Internet







Matthias C. Kettemann, UN Human Rights Council Confirms that Human Rights Apply to the Internet, EJIL Talk,
http://www.ejiltalk.org/un-human-rights-council-confirms-that-human-rights-apply-to-the-internet/#more-5207

Don't forget / nicht vergessen: Völkerrechtlicher Call for Papers für den 6. Workshop des AjV in Graz



Markierung eines Wanderweges nahe
des steirisch-slowenischen Grenzflusses Mur


Grenzen, Grenzerfahrungen und Grenzüberschreitungen im Völkerrecht
20.-21. Oktober 2012 | Karl-Franzens-Universität Graz, Österreich

Call for Papers






Nun mit neuer Website: 
6. Workshop des Arbeitskreises junger Völkerrechtswissenschaftlerinnen und -wissenschaftler (AjV)



Themenvorschläge mit einem kurzen Exposé sollen zusammen mit einem Kurz-Lebenslauf bis zum 31. Juli 2012 an matthias.ketttemann@uni-graz.at geschickt werden. Bei einem Interesse an einer Teilnahme ohne Exposé bitten wir ebenfalls bis 31. Juli 2012 um Anmeldung.

Thursday, July 19, 2012

Asian and European human rights experts agree on importance of human rights on the Internet




Speaking at the ASEM Human Rights Seminar, June 2012.

In late June 2012 I was at the 12th Informal ASEM Human Rights seminar on "Human Rights and Information and Communication Technology” (27 – 29 June 2012, Seoul). 


If you have little time, have a look, at least, at the plenary presentation of the the two rapporteurs which sketches pretty much what is state of the art in human rights and ICT - and identifies the most burning questions. 



If you have a bit more time and are interested in which answers the seminar participants provided, then read on. 


The workshop was committed to studying the "unprecedented impact on the promotion and enjoyment of human rights" of ICTs. 


Organized by the Asia-Europe Foundation, the Raoul Wallenberg Institute (as delegated by Sweden), France and the Philippines, the 12th Seminar was hosted by the Korean Ministry of Foreign Affairs and Trade and the National Human Rights Commission of Korea. 



As assistant to Prof. Dr. Wolfgang Benedek, one of the two co-rapporteurs (the other being journalist and media activist Dr. Madanmohan Rao) I was involved in the elaboration of the background paper. It's absolutely worth a read, as is the concept note prepared by the organizers. Both raise some of the most important issues at stake as we define how human rights should be applied to ICTs.


After the workshop the rapporteurs cooperated with the organizers in formulating Key Messages to EU and ASEAN countries, but which are definitely generalizeable. 
Among the 15 key messages that cover a broad range of human rights issues - from bridging the digital divides to ensuring corporate responsibility and clear menas of redress for violations of online rights -  we find





1. States should use international human rights mechanisms, peer reviews, and bilateral dialogue to keep up with their Freedom of Expression (FoE) responsibilities. Clear, transparent and effective mechanisms should be spelled out for judicial redress, dispute resolution and mediation if there are accusations of FoE violations. [...]
2. Governments should publish lists of blocked sites, and the restrictions they place on Internet service providers. [...]
3. Recognition should be given to countries and companies that affirm rights not just in the abstract, but rights on the ground. More countries should be encouraged to expand the Freedom Online Coalition and more companies should join the Global Network Initiative.
4. There is a need for a common, coherent and international understanding of the concepts of privacy and data protection that is fully respectful of human rights guarantees. [...] 
5. States not yet having privacy and data protection laws should adopt them – for reasons of human rights protection as well as for reasons of legal security and in order to facilitate trade in ICTs, e-commerce, and the general vitality of the ICT sector. Notably, States should consider the opportunity to join the Council of Europe Convention (No. 108) on Data Protection, which is open globally.
6. Internet gatekeepers, such as search engines and social network providers, are increasingly harvesting user data in order to monetize their services. Governments have a responsibility to provide – both for internet intermediaries and companies more generally – a regulatory framework under which the rights of individuals are protected from the profit-driven data demands from the private sector. Self-regulation is not sufficient. Privacy by design and privacyenhancingtechnologies should be promoted. Remedies of individuals against violations ofhuman rights must not only exist de jure but also need to be effective.
7. Effective remedies need to be provided on the various levels of regulation and people to be made aware of them. In particular, States should create independent data protection authorities and/or ombudsman institutions. [...].
8. Digital inclusion is a right for all humans. ICTs are assuming an increasingly central role in all aspects of human and societal development across the world. As a result the ability to access and make effective use of ICTs has evolved into a necessary (albeit not sufficient) condition for the progressive realisation of a wide range of human and other fundamental rights.
9. This central importance of ICTs translates into strong and clear obligations for Governments to work towards digital inclusion by, inter alia, coordinating and intensifying investment in infrastructure; exerting regulatory oversight to counter oligopolistic market structures; promoting open, non-discriminatory standards and universal design; providing targeted ICT education; protecting user rights and fair access to content; ensuring that alternatives to online services remain in existence; and leading by example and embracing open government principles – all with a particular focus on supporting the groups at risk of digital exclusion.
10. A pro-active, structural approach is required to close digital divides sustainably and prevent new ones from emerging in the context of rapid technological progress. [...]
11. Governments should actively encourage the development of localisation tools and technology for and by minority, ethnic and indigenous peoples. [...] 
12. Where appropriate, Governments should provide policy frameworks in relation to publicly-funded information and culture that actively encourage the use of open standards where appropriate (open source, open data, open formats, open licences, open access and open education resources) so to ensure public access and re-use of publicly-funded information and culture.
13. Governments should always consider public interest when considering amending or introducing new Intellectual Property [...]
14. There are concerns that international trade treaties such as the Anti-Counterfeiting Trade Agreement (ACTA) and the Trans Pacific Partnership (TPP) promote corporate interests at the expense of citizens’ rights, and the interests of developed countries over those of developing countries. [...]
15. Governments should ensure that the rights of users and public institutions—and the fundamental rights and freedoms such as freedom of expression, right to information, right to privacy—are positively affirmed in both domestic legislation and international agreements on intellectual property.
For more information on the excellent Seminar series, see ASEF's website.





Friday, July 13, 2012

Call for Papers: Workshop on Borders in, and Limits of, International Law , 20-21 Oct 2012

The clocktower on top of the castle
mountain of Graz. (c) Kettemann 2012
On 20 and 21 October 2012 I am co-organizing the yearly workshop of the Association of Young International Lawyers (AjV) in Graz, Austria. 

It is dedicated to "Grenzen, Grenzerfahrungen und Grenzüberschreitungen im Völkerrecht" (Borders in, and Limits of, International Law, and their Transcendence). 

I am happy to announce that the workshop now has its own blog where you can find the call for papers and will, in future, also find updates.

Thursday, July 12, 2012

Out now: European Yearbook on Human Rights 2012

I am happy to announce that  the European Yearbook on Human Rights 2012 has just been published. It gives an excellent overview of human rights development in Europe in 2011. Please consider buying it and/or recommending it to your library. 

Content

In terms of both human rights and democracy, 2011 was a revolutionary year. The Arab Spring has put into sharp focus some long held assumptions of the international community. But this was not the only revolution in human rights thinking in 2011.

Defining and discussing key developments in human rights in Europe and in the world, the fourth edition of the European Yearbook on Human Rights brings together 28 contributions by renowned human rights experts that provide a much needed overview and sought-after analysis.




Edited jointly by representatives of four major European human rights research, teaching and training institutions, the Yearbook 2012 contains extensive sections on developments in the field of the three main organizations charged with securing human rights in Europe: EU, Council of Europe and OSCE. A further chapter contains contributions on the role of civil society in human rights protection and on cross-cutting topics.


Holistic in its approach, but detailed in its analyses, the European Yearbook on Human Rights 2012 provides its readers with a sweeping overview and comprehensive analysis of the events and issues that have shaped the human rights debate in Europe in 2011 and continue to shape it today.


The impressive array of authors – academics and diplomats, practitioners and human rights experts – makes the book essential reading for anyone interested in human rights in Europe and beyond.


Editors


Wolfgang Benedek (European Training and Research Centre for Human Rights and Democracy – ETC of the University of Graz), Florence Benoît-Rohmer (European Inter-University Centre for Human Rights and Democratisation – EIUC, Venice), Wolfram Karl (Austrian Institute for Human Rights – OIM, University of Salzburg), Manfred Nowak (Ludwig Boltzmann Institute of Human Rights – BIM, University of Vienna). Associate Editor: Matthias C. Kettemann (Institute of International Law and International Relations, University of Graz)


Contributions


I Topics of the Year


Mohsine EL AHMADI and Abdelaziz RADI: Arab Spring and Human Rights


Andreas ACCARDO, Jonas GRIMHEDEN and Klaus STARL: The Case for Human Rights at the Local Level: More than an Obligation?


II European Union


Wolfgang BENEDEK: EU Action on Human and Fundamental Rights in 2011


Theodor RATHGEBER: The EU’s Performance in the UN Human Rights Council in 2011 in Light of the Review Process and its Main Outcomes


Jeff KENNER: The Court of Justice of the European Union and Human Rights in 2011


Daniel AUGENSTEIN and Christian BEHRMANN: Partnering with Civil Society: The EU’s Approach to Promoting Human Rights and Decent Work in Bangladesh


Gosia GORSKA: Mutual Influence: The Case of the EU and the UN Guiding Principles on Business and Human Rights


Paul GRAGL: The Shortcomings of Dublin II: Strasbourg’s M.S.S. Judgment and its Implications for the European Union’s Legal Order


Rachel TOWERS: Recasting the Dublin II Regulation: Do the Draft Provisions on Appeal Rights, Detention and Access to Asylum Procedures Sufficiently Protect Asylum-Seekers’ Fundamental Rights?


Lidia Isabel ESTEVEZ PICON: Criminalizing Irregular Immigrants in the EU: A Human Rights Issue


Paolo BIONDI: The Externalization of the EU’s Southern Border in Light of the EU/Libya Framework Agreement: A Lawful Alternative or a Neo-Refoulement Strategy?


Birgit Angela WEIXELBAUMER, Maria HADJIPAVLOU and Kalliope AGAPIOU-JOSEPHIDES: The EU Facing the Human Trafficking Challenge: Reintegration as a Possible Shift Towards a Victim-Centred Approach


Sara DE VIDO: The European Contribution to the Recognition of the Human Right to Water


III Council of Europe


Tatjana CARDONA, Elisabeth HANDL-PETZ, Eva LECHNER and Brigitte OHMS: ECtHR Jurisprudence in 2011: An Overview


Tatiana MARTYNOVA: Implementation of European Court of Human Rights Judgments in the Russian Legal Order


Violeta BESIREVIC: A Short Guide to Militant Democracy: Some Remarks on the Strasbourg Jurisprudence


Pierre THIELBÖRGER: Positive Obligations in the ECHR after the Stoicescu Case: A Concept in Search of Content?


Agnieszka SZKLANNA: The Standing of Applicants and NGOs in the Process of Supervision of ECtHR Judgments by the Committee of Ministers


Lando KIRCHMAIR: The Right to Judicial Protection under the ECHR: A Yardstick for the Individual Action for Annulment after Lisbon?


Michaela POVOLNÁ: Protection of Medical Data in the Scope of Article 8 ECHR: An Analysis of the European Data Protection Safeguards


Markus MÖSTL: Monitoring Human Rights by Council of Europe Bodies: Quo Vadis?


IV OSCE


Manfred NOWAK and Karolina JANUSZEWSKI: Criminal Justice and Prison Standards in the OSCE Area


Hans-Joachim HEINTZE: The Unique Contribution of the OSCE in the Field of Minority Protection


V Civil Society/NGOs/Cross-Cutting Issues


Gábor HALMAI: From the “Rule of Law Revolution” to the Constitutional Counter-Revolution in Hungary


Enver HASANI, Dren DOLI and Fisnik KORENICA: Individual Complaint Mechanism as a Means to Protecting Fundamental Human Rights and Freedoms: The Case of the Constitutional Court of Kosovo


Vedrana SPAJIĆ VRKAŠ and Mitja ŽAGAR: Civic Education in South-Eastern Europe: Education and Training for Human Rights and Active Democratic Citizenship


Kira PRECKEL and Rosalind WILLI: The Role of Civil Society in the Universal Periodic Review: Human Dignity, in Your Hands?


Mirt KOMEL: Statelessness and the Right to Have Rights: Universalism of Human Rights within the Context of the UN and EU


Wednesday, July 11, 2012

Towards an Increased Role of Individuals in International Law: What Lessons Does Internet Law Hold?

I am happy to announce that as of today the University of Graz has conveyed upon me the title of Doctor iuris.

I received my doctorate for my thesis entitled "Revisiting the Interposition of States Between Individuals and International Law with Special Reference to International Internet Law". 

As I prepare the manuscript for the publisher, I would like to engage in an open discussion of some of my main themes.

Let me give you some background. 

50 years have passed since Georg Dahm was able to say in a discourse on the position of the individual in international law that “not long ago the topic […] would not have been understood or would have been conceived as devoid of any meaning. After all, it seems as if international law is the part of the legal order that has the least to do with humans.”

This has changed substantially. The German scholar could not have foreseen the emergence, over the last five decades, of the human rights regime and the reorientation of international law towards protecting and empowering individuals. Today, international law is probably the legal order that has the most to do with humans.

Yet still, this "humanization" is only imperfectly realized and both the actors recognized by international law and the instruments used to regulate international affairs are state-oriented and/or state-driven. 

In my thesis, I apply a different approach - the functional approach - and suggest to overcome intermediation by default and apply a more nuanced regimes of role allocation in international law. I focus specifically on the dynamics at play in International Internet Law, as it is an emerging normative field largely free of entreched actor roles. Also, it's a field I know well.

In the coming weeks I will post key elements of my thesis here and would welcome suggestions and thoughts. 

Key findings

As a first introduction, have a look at my key findings: 
  • Humanization as qualified by resovereignization is the key paradigm that will shape the evolution of international law in the future. It has a radiating effect on international legal regimes, processes, and institutions and explains and justifies disintermediation.
  • Traditional approaches favouring the interposition of states between individuals and international law by default and without reflection on the specificities of the regime are open to charges of dogmatic inconsistencies, and substantial effectivity and legitimacy deficits. 
  • A functional analysis of the interposition of states, however, has a transformative effect by asking how international law must look like in order to fulfill a certain purpose. This purpose is not inscribed in the approach itself but can be deduced, in line with ICJ case-law, from the “needs” of the international community: the protection of the individuals as the central and ultimate end of all international law.
  • International Internet Law, as an emerging legal regime without ‘entrenchment bias’ towards mediation of individuals by states, exhibits all characteristics of a post-interposition regime, including a commitment to multistakeholderism, non-traditional normative instruments and system-wide disintermediation.
  • The case study of International Internet Law validates transcending interposition in international law because the regime’s normative results are both largely legitimate and broadly effective.
  • Self-regulation through non-mediated multistakeholder structures in post-interposition regimes with states providing the societal frame and legal recourse is the most preferable model for design of international legal sub-regimes, if both the goals of the regime (and of international law as a whole) permit it and no outside constraints forbid it.
  • Functional analysis of disintermediation acts as a circuit breaker to ensure that interposition continues to be provided for where required to ensure international law’s function: protecting the individual.
  • While states continue to play an essential role in the international order, the post-interposition construction of International Internet Law leads to more effective and legitimate normation, is generalizable, and should be pursued, de lege ferenda in other regimes.
  • A post-interposition international law, as qualified by functionalism, is best able to respond to the regulatory challenges of an international order shaped by humanization as qualified by resovereignization. It does so by institutionalizing organically an allocation of roles, rights and responsibilities to states and individuals that is likely to lead to more effective and legitimate normative outcomes.  

A Hippocratic Oath for Techies and Policy-Makers: Please Contribute

A friend of mine, Max Senges, has developed a deeply interesting proposal for an individual morality-based approach to ensuring human rights and human dignity in making codes and making law.

Several important Internet luminaries have commented since and the proposal is now available here for public discussion.

What do you think? What ethical standards to you adhere to, when making code - or making laws? Share what motivates you and see whether your concerns are reflected in Max's proposal. If not, consider collaborating on a finished draft.

I'll keep you posted about the Oath's progress.

Monday, July 9, 2012

After Human Rights Council Resolution on Internet Rights, Four Key Tasks for International Lawyers

In a Press Release the UN Human Rights Council has provided interesting material on the adoption without a vote of Thursday's groundbreaking resolution A/HRC/20/L.13 regarding the promotion, protection and enjoyment of human rights on the Internet (see my previous blog).
In particular, the statements made by states before the adoption illustrate what challenges remain for the international community when it comes to ensuring 
human rights online.

1) We have to bridge the digital divide(s). 

Or, as Tunisia put it, "the Internet as a vector for the enjoyment of human rights with enormous potential and [...] access to it should be guaranteed for everyone". Indeed, bridging the digital divides is essential for ensuring that the Internet can have the catalytic impact on the enjoyment of all human rights.

2) We have to ensure that Internet Governance is legitimate - without making states the only legitimating actors.

Brazil welcome the resolution, but underlined that "[d]emocratic governance for the Internet was essential for the full enjoyment of this technological tool." This is problematic insofar as references to "democracy" and "democratic" decision-making in Internet Governance usually mean that states should play a bigger role, as they are considered (notably by states, incidentally) as the only vessels through which democratic legitimacy can be challenged. 

They are not the only ones. They are, however, indeed, still the most important ones. What we have to therefore is to think about new avenues of transnational and transstatal legitimacy for Internet Governance. I'm thinking of a combination of input and throughput legitimacy, and am currently working on publishing a larger piece on these issues.

3) We have to ensure that illegal content can be effectively fought. The fight, however, must not be used by states as a fig leaf for widespread censorship. 

China stressed that "online gambling, pornography and hacking were increasingly becoming a threat to the legal rights of society, particularly minors. States therefore were bound to run the Internet legally, otherwise the free flow of unhealthy and negative information would obstruct the function of the Internet."

The exact meaning of "unhealthy and negative information" is open to debate. Authoritarian countries would probably find democracy-promotion unhealthy and open critique of their human rights records negative. 

Also, the "function of the Internet" cannot - can never - be to be a clean, completely safe, and conflict-free zone of unlimited consumerism. The best approach seems to me to follow Frank La Rue's list of legitimate cases of censorship, including threats to terrorism, hate speech amounting to calls for violence, exploitation of children. 

As I have argued previously 
In a second step the international community needs to highlight the differences between illegal content and content that is harmful, offensive, objectionable, or undesirable. Illegal content should be dealt with by the authorities thus enforcing the informal social contract between users. But ideas that only, the words of the European Court of Human Rights in Handyside v. UK, "shock, offend and disturb" a society or parts of it, need protection. 
4) We have to substantiate what it means that the same rights that people have offline must also be protected online. 

This is probably the most important task. The Council, in para. 1, of its resolution clearly commits states to an equality of protection of human rights in online and offline environments: 
"the same rights that people have offline must also be protected online [...]."

Now, what are these rights? In preambular para. 1 the Council sheds some light on the rights to be applied online: 
"Reaffirming the human rights and fundamental freedoms enshrined in the Universal Declaration of Human Rights and relevant international human rights treaties, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights [...]"
Of course, all other international human rights treaties are applicable as well, if states have ratified them or if they have crystallized into international customary law. 

To make things easier for states and to highlight the special challenges of applying pre-Internet rights to an Internet age, the  Civil Society Internet Governance Caucus has put together a 
list of statements and declarations on human rights on the Internet. 

One the most holistic is the 
Charter on Internet Rights and Principles of the Internet Rights&Principles Coalition which also exists in a handy abbreviated version: the 10 Rights and Principles for the Internet

Who is stealing the bread?

Concluding, we now know that offline human rights also apply online. We therefore do not need to reinvent human rights. But we need to study them to understand their reach and relevance for Internet settings. 

The commitment to ensuring all human rights in a technology-neutral way was an important first step by the Human Rights Council.

Now, in the run-up to the IGF in Baku and the WCIT in Dubai, we need to showcast what exactly this means. 

China referred to the "function" of the Internet. Though I doubt that we can (or should) agree on a function, as the Internet is a network of networks and thus function-neutral, the notion is interesting. 

We should look at the Internet in a functional way. We should consider it as a tool to ensuring a higher level of human rights protection - offline as well. 

I've once heard a story about a human rights activist from Africa who was asked at the WSIS summit whether it wasn't more important to ensure that his fellow citizens had bread - instead of Internet access.

His reply? 

"If we don't have Internet access, we can't tell the world who is stealing our bread".
 
Let's tell.

Thursday, July 5, 2012

A Victory for the Internet? A Victory for Internet users!

Carl Bildt, foreign minister of Sweden, calls it a "victory for the Internet". I would go one step further: It is a victory for all Internet users - and for all those who have not yet been able to access the Internet due to the digital divide(s) in all its (their) forms. 


Now, what is that victory? 


Today, the  UN Human Rights Council has adopted a key resolution on promotion, protection and enjoyment of human rights on the Internet


GE.12-14710 UN Doc. A/HRC/20/L.13
Human Rights Council
Twentieth session Agenda item 3 Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development

draft resolution
20/… The promotion, protection and enjoyment of human rights on the Internet
The Human Rights Council,
Guided by the Charter of the United Nations,
Reaffirming the human rights and fundamental freedoms enshrined in the Universal Declaration of Human Rights and relevant international human rights treaties, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, 
Recalling all relevant resolutions of the Commission on Human Rights and the Human Rights Council on the right to freedom of opinion and expression, in particular Council resolution 12/16 of 2 October 2009, and also recalling General Assembly resolution 66/184 of 22 December 2011, 
Noting that the exercise of human rights, in particular the right to freedom of expression, on the Internet is an issue of increasing interest and importance as the rapid pace of technological development enables individuals all over the world to use new information and communications technologies,
Taking note of the reports of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, submitted to the Human Rights Council at its seventeenth session,1 and to the General Assembly at its sixty-sixth session,2 on freedom of expression on the Internet,
1. Affirms that the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights;
 2. Recognizes the global and open nature of the Internet as a driving force in accelerating progress towards development in its various forms;
3. Calls upon all States to promote and facilitate access to the Internet and international cooperation aimed at the development of media and information and communications facilities in all countries;
4. Encourages special procedures to take these issues into account within their existing mandates, as applicable;
5. Decides to continue its consideration of the promotion, protection and enjoyment of human rights, including the right to freedom of expression, on the Internet and in other technologies, as well as of how the Internet can be an important tool for development and for exercising human rights, in accordance with its programme of work.


The Resolution's approach is sound. It first underlines the basic tenet: that human rights offline also apply online. There is no need to reinvent human rights, rather they have to be refined and applied in light of new challenges.


The second paragraph is correct in that it identififes the Internet as a facilitator of progress towards development, but remains vague. What are the consequences, we may enquire, of that recognition. 


The call for states to promote and facilitate access in paragraph 3 is important for bridging the digital divide but could have been formulated more clearly. International cooperation aimed at the development of media and information and communication facilities seems to imply investment in infrastructure. This leaves out the content dimension of access. 


I feel that the Human Rights Council should have stated more clearly what the application of human rights to the the Internet applies. Namely, that states need to rethink their censorship policies and provide legitimate reasons (and ensuing proporational normative reactions) for content limitations.


Special procedures should indeed take the role of human rights on the Internet into account. Most special procedures will find that the Internet can impact their work, and be it in the collection of data on violations of the right they are charged with protecting.


Finally, the Human Rights Council decides to remain seized of the matter. This is good, because the first resolution on human rights on the Internet is a rather vague affair that would have benefitted from clear guidelines to states what the limits are to state limitations of Internet freedom. 


Centrally, what the Human Rights Council should have mentioned is the human rights-based duties of states to ensure the stability, functionality and integrity of the Internet. 


But the wide support the resolution had, with presenting countries including Brazil, Nigeria, Sweden, Tunisia, Turkey and the United States more nuanced and direct language would have impossible to agree on.


In his comment in the IHT, Carl Bildt concludes



"The governments of the Human Rights Council now for the first time have confirmed that freedom of expression applies fully to the Internet. A global coalition for a global and open Internet has been formed.
This is truly important, but we must not stop here. The challenge now is to put these words into action to make sure that people all over the world can use and utilize the power of connectivity without having to fear for their safety. This work is far from over."
 I agree. We need to put these words into actions. But, I would argue, we also need to put some more flesh on these words. What exactly does it mean for states that human rights that apply offline also apply online? This is a discussion that we should enter into globally, and quickly. 


(For readers of German: I've led an initiative on human rights and the Internet for the Internet&Society Co:llaboratory that has concluded in the publication, in May 2012, of a report on exactly these issue. It's worth a read.)