This Report was published as a chapter of the 2016 Annual Report of the Office of the Special Rapporteur for Freedom of Expression (OSRFE), and approved on March 15, 2017 by the Inter-American Commission on Human Rights (IACHR). It represents the second and most recent thematic report that the OSRFE has issued devoted to the particular challenges presented by the Internet to freedom of expression since its Freedom of Expression and the Internet Report from 2013. This Report reprises and expands on the same underlying principles as the earlier document using new sources of interpretation and referring to contemporary debates like Network Neutrality, Internet Governance, and the Right to be Forgotten (RTBF)
The Report is divided into four sections. The first section defines the four Guiding Principles that should inform a State’s work, its policy-making activities, and the actions of private parties drawing from the recommendations of international bodies and certain national experiences. The first is the principle of a Free and Open Internet, understood both in terms of technical openness (interoperability) and also in economic terms (Network Neutrality) (Paragraphs 19 to 31). Next, the OSRFE highlights the principle of Access to the Internet as an enabling condition to the effective exercise of human rights and calls on states to take actions to progressively promote universal access, in terms of connection and digital literacy (Paragraphs 32 to 49). Among other concerns, the Report highlights the State’s duty to guarantee the quality and integrity of Internet service, protecting it in all cases from arbitrary blocking, interference, interruptions, or slowdowns. Similarly, the Report then enshrines the principle of Multi-stakeholder Governance through the model of multilateral, transparent and democratic participation proposed by United Nations as a safeguard for human rights in Internet policy (Paragraphs 50 to 56). The fourth principle identified by the OSRFE is Equality and Nondiscrimination, defined as the State’s obligation to address the specific Internet access needs that some particularly vulnerable groups, like racial or gender minorities, may have (Paragraphs 57 to 67).
The next section discusses the Right to Freedom of Thought and Expression on the Internet, as seen under the Inter-American system. The Report summarizes the current legal framework for freedom of speech as interpreted by the IACHR and the Inter-American Court of Human Rights, including the three-part test, the need to assign those decisions to an independent and impartial judge or court authority, the use of criminal law against speech and the role of privacy laws in relation to public interest information. Particularly, this section highlights the relevance of the Internet as a facilitator to the exercise of freedom of expression in all of its dimensions. About the site and service blocking debate, it states that any restriction on websites, blogs, applications or any other Internet-based electronic or other such information dissemination system or search engines, are permissible only to the extent that they are compatible with the conditions provided for the curtailment of freedom of expression. Although the OSRFE recognizes that certain blockings might be exceptionally admissible strictly pursuant to the terms of Article 13 of the American Convention on Human Rights, they should always include safeguards to prevent abuse, “such as transparency with regard to the content whose removal has been ordered, as well as detailed information regarding the measures’ necessity and justification.” On filtering, the Report says that systems run by governments or commercial service providers not controlled by the end-user constitute a form of prior censorship and do not represent a justifiable restriction on freedom of expression.
This Report analyzes these principles in five areas. About the Role of Private Sector, the OSRFE calls upon private intermediaries on the Internet to put in place effective systems of monitoring, impact assessments, and accessible, effective complaints systems in order to identify actual or potential human rights harms caused by their services or activities (Paragraphs 85 to 101). Regarding Intermediary Liability, the Report says that a model of strict liability is incompatible with the American Convention on Human Rights because it is disproportionate and unnecessary in a democratic society. The Report leans towards a conditional liability model as long as it is respectful of the right to due process and other applicable guarantees (Paragraphs 102 to 120).
The report discusses the broad array of entities that may be considered intermediaries, and observes that their "liability regime is fundamental for creating the appropriate incentives for the protection and guarantee of human rights. In all cases, the liability regime must follow the three-part test of legality, necessity, and proportionality." Accordingly, they should not be "liable for content generated by others, which is disseminated using those services, as long as they do not specifically intervene in that content or refuse to obey a court order to remove that content, where they have the capacity to do so (‘mere conduit principle’).” Subsequent liability "should be imposed upon the authors of the speech in question rather than on the intermediaries."
A strict liability regime, which would "encourage intermediaries to monitor and censor their own users," is, per the OAS report, "incompatible with the American Convention because it is disproportionate and unnecessary in a democratic society."
Addressing conditional liability or safe harbor regimes, the report says, "This model of intermediary liability does not impose a duty to monitor or filter content proactively. However, these systems do not always respect the right to due process and minimum guarantees, insofar as they shift the responsibility to examine and decide on the lawfulness or unlawfulness of the content subject to removal from the State to the intermediary. The Joint Declaration on Freedom of Expression and the Internet establishes that “At a minimum, intermediaries should not be required to monitor user-generated content and should not be subject to extrajudicial content takedown rules which fail to provide sufficient protection for freedom of expression (which is the case with many of the ‘notice and takedown’ rules currently being applied).” Along these lines, the Office of the Special Rapporteur cautions that this model will be compatible with the American Convention “to the extent that they establish sufficient safeguards for the protection of the users’ freedom of expression and due process, and do not impose vague or disproportionate obligations on intermediaries.” (Par 109)
Continuing, it explains, "Notice regimes must include a detailed notification procedure that states the location of the allegedly unlawful material, the legal basis for the unlawfulness, and an adequate option for counter-notice to the user who produced the content, with judicial oversight guarantees." (Par. 110) The Report discusses Brazil's "Internet Bill of Rights" as a model law and cites the Manila Principles as an important source of guidance. Best practices of this sort are important because "Intermediaries are still private entities with financial, social, and individual interests that differ from those of the State. Requiring them to function as a court that balances the rights of its users goes beyond the scope of their competence and may lead to and provide incentives for abuses, to the detriment of freedom of expression and access to information."
The Report continues with a discussion of self-regulatory and co-regulatory models, then turns to the issue of transparency in private content removal decisions. "Transparency in the intermediaries’ content removal policies is fundamentally important. The UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has stated that 'Lack of transparency in the intermediaries’ decision-making process also often obscures discriminatory practices or political pressure affecting the companies’ decisions.' In this regard, the Office of the Special Rapporteur considers it is of utmost importance that intermediaries provide clear information about the type of content that might be removed from the platform on its terms of service or community guidelines, as well as how the removal could take place and if there is any form of appeal by the user who feel that his or her content have been incorrectly removed."
The Report also discusses jurisdiction in legal cases relating to Internet content, saying it "should be restricted to States to which those cases have a real and substantial connection, normally because the author is established there, the content is uploaded there and/or the content is specifically directed at that State. Judges are responsible for preventing what is known as “libel tourism” or “forum-shopping,” recusing themselves when no substantial harm can be demonstrated in their jurisdiction." It discusses concerns arising in the context of the “right to be forgotten” in which "a judge from one country might order the delisting of a specific search result not only from the platform that is linked to the competent jurisdiction, but also from other countries (or even globally). This could result in an extra-territorial application of a national court order and rises complex questions regarding the future of jurisdiction on the Internet and its interplay with national sovereignty."
On the issue of Hate Speech on the Internet, the Report takes the stance that blocking or filtering content to combat it should be a measure of last resort, used only be used when necessary and proportionate to the compelling aim pursued (Paragraphs 121 to 125). For the OSRFE, the De-indexation and the “Right to Be Forgotten” as a right recognized in the Costeja case is not based on international human rights law (Paragraphs 126 to 142). Moreover, the Report establishes clearly that “the application to the Americas of a private system for the removal and de-indexing of online content with such vague and ambiguous limits is particularly problematic in light of the wide regulatory margin of the protection of freedom of expression provided by Article 13 of the ACHR.” Also, on the Intellectual Property and Access to Knowledge subsection, the OSRFE addressed the need to strike a balance between protecting copyright and protecting the rights to education, culture, and freedom of expression (Paragraphs 143 to 162). Particularly, the Report condemns several threats to freedom of speech derived from disproportionate enforcement regimes like disconnecting users, content filtering, criminal liability for non-commercial violations or blocking entire websites.
The third section covers the Right to Access to Information, as understood by the Inter-American system, and its exercise on the Internet (Paragraphs 163 to 182). The OSRFE puts an emphasis on the opportunities that the Internet opens for developing policies on proactive transparency and dissemination of information and ideas of all kinds, as well as the need to respect judicial remedies like habeas data.
Finally, the fourth section analyzes the Internet and the Protection of Privacy and Personal Data according to the international Human Rights standards (Paragraphs 183 to 265). For the OSRFE, the duty of ensuring freedom of speech is closely related to the protection of privacy as it is necessary for an individual to be able to freely form an opinion. Applying international law to current challenges, this Report discusses the protection of personal data; surveillance, monitoring, and collection; encryption and anonymity; “big data”; and the Internet of Things.
The summary of this document is part of the report produced on the Stanford Law School Intermediary Liability and Human Rights Policy Practicum and is based on the work of Miguel Morachimo. The full report “The ‘Right to Be Forgotten’ and Blocking Orders under the American Convention: Emerging Issues in Intermediary Liability and Human Rights”, can be accessed here.