UN Freedom of Opinion and Expression Report. Document No. A/HRC/32/38 (David Kaye, 2016)

Report of the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression
Document type
Policy Document

This report, the first in a series concerning human rights in the digital age, focuses on the private sector. It lists key private actors in the Internet speech ecosystem, and identifies the United Nations Human Rights Council (UNHRC’s) Guiding Principles on Business and Human Rights as a framework for identifying their responsibilities.

In relation to Intermediary Liability, the report emphasizes the following trends:

  • Vague speech regulation laws leading to over-censorship by individuals and businesses (Paragraph 39).
  • Excessive intermediary liability laws leading to over-removal by intermediaries, sometimes because they are required to apply law to unclear claims. The Rapporteur linked this concern to the Right to Be Forgotten and the Google Spain case, stating that "the scope and implementation of this approach raises questions about the appropriate balance between the rights to privacy and protection of personal data on one hand, and the right to seek, receive and impart information containing such data on the other"  (Paragraphs 40-44).
  • Governments flagging content for removal based on companies’ voluntary community guidelines, instead of based on court-adjudicated illegality (Paragraphs 45, 53). The Report’s Conclusions state that governments must not disproportionately interfere with free expression by pressuring private companies to remove content without legal basis (Paragraph 85).
  • The implementation of over-broad blocking and filtering. The rapporteur expressed concern about necessity and proportionality, and noted that filtering mandated in one jurisdiction may affect content not restricted in other jurisdictions (Paragraphs 46-47).
  • Network or service shutdowns. The report noted that these have been observed in in many countries and are considered a "particularly pernicious means of enforcing content regulations" (Paragraph 48).
  • Lack of appeal process for users whose content is removed under platforms’ discretionary “TOS” standards (Paragraph 52) .

The Report urges increased transparency about content removals, from both state and private actors. (Paragraphs 63-66, 88-90). It also urges improved remedial or grievance mechanisms for Internet users affected by removal of their online expression. (Paragraphs 67-71).


Topic, claim, or defense
General or Non-Specified
Privacy or Data Protection
Right to Be Forgotten
Freedom of Expression
Document type
Policy Document
Issuing entity
Transnational Organization (Includes Bilateral Agreement)
Type of service provider
General or Non-Specified
Search Engine or Index
Issues addressed
Trigger for OSP obligations
Procedural Protections for Users and Publishers
Limitation on Scope of Compliance (Geographic, Temporal, etc.)
OSP obligation considered
Block or Remove
Monitor or Filter