This report has been prepared pursuant to UN Human Rights Council (UNHRC) resolutions 7/36 and 16/4. The report deals with two aspects of the internet, access to content online and access to internet connection, with a focus on the types of expression that can be permissibly restricted by the State to comply with international human rights law. The Rapporteur recognizes the concerns in relation to privacy, specifically who collects personal information, the duration of storing such information and the way such information is used. The report refers to A/HRC/17/27 to highlight the Government’s role in “fully protecting the right to privacy of all individuals” without which the right to freedom and expression cannot be enjoyed” (Paragraph 11).
The international law regime to protect right to freedom and expression is relevant in the age where technological advancement is fast, specifically under Articles 19 of the Universal Declaration of Human Rights (‘UDHR’) (Paragraph 14).
As mentioned in other documents, the Rapporteur reiterates the three “cumulative” criteria for compliance of international law that require any restriction on freedom of expression must (Paragraph 15):
1. be defined with sufficient precision so that an individual can regulate himself and must be publicly accessible,
2. comply with Article 19 paragraph of the International Covenant on Civil and Political Rights (ICCPR) i.e. respecting the rights of others and protection of national security/ public order/ public health/ morals, and
3. be necessary and proportionate.
The Rapporteur recognizes that are different types of illegal content. Some content is mandatorily prohibited under international law. Other content may be considered harmful, offensive, objectionable or undesirable, but which States are neither required to prohibit or criminalize. Considering this, the rapporteur drafts a clear distinction between three types of expression:
1. expression that constitutes an offence under international law and can be prosecuted criminally;
2. expression that is not criminally punishable but may justify a restriction and a civil suit, and;
3. expression that does not give rise to criminal or civil sanctions, but still raises concerns in terms of tolerance, civility and respect for others. (Paragraph 18)
The types of expression that are required to be prohibited by international law are:
1. Child Pornography: The Rapporteur states that use of technology to block and filter the dissemination of such content should be precise and that there should be an independent and impartial regulating body to oversee and review. (Paragraph 22)
2. Direct and public incitement to commit genocide: The Rapporteur states that such acts should be prohibited by domestic law and the restrictions imposed by blocking or removing such content should be applied after an assessment of such expression (i.e. if the expression is direct, public and with mens rea taking into consideration factors such as the speaker, meaning of the content, intended audience etc.) (Paragraph 25)
3. Advocacy of national, racist or religious hatred that constitutes incitement to discrimination, hostility or violence: As there is no definition of “hate speech” in international law, the Rapporteur emphasizes that context is central in determining whether an expression constitutes incitement (Paragraph 28). Accordingly, any restriction must be formulated in a way that clearly articulates its purpose to protect individuals from hostility, discrimination or violence (rather than protecting belief systems, religious or institutions from criticism) (Paragraph 30).
4. Incitement to terrorism: considering the broad definition of terrorism, the Rapporteur expressed concerns for the margin of discretionary power to interpret what kinds of expression constitute incitement to terrorism. (Paragraph 32)
The Rapporteur notes that one of the most used methods to restrict the prohibited expressions (as listed above) is blocking content and recommends that the State should provide full details about the necessity and justification of blocking content. Such blocking should be carried out by a judicial authority or body (with no political, commercial or other unwarranted influences) and should not amount to censorship. The rapporteur considers that generic bans on websites are not compatible with paragraph 3 of Article 19 and neither is blocking a website solely because the site has content that is critical of the government or of the political/social system the government fosters. (Paragraph 39)
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 Subhajit Banerji. 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.