The Internet has quickly become the most dynamic and important medium for modern discourse and freedom of expression in most countries around the world. States face the challenge of reforming their laws to keep pace with the digital revolution, while civil society faces the challenge of ensuring that new rules respect international standards, and represent appropriate adaption of offline rules to online contexts, which all too often is not the case. Another challenge is the role that increasingly powerful intermediaries play in terms of moderating users freedom of expression. CLD is working with a range of partners and in a range of ways to address these challenges, with a focus on developing policy and new standards for freedom of expression and the Internet.
Colombia: Amicus Brief Challenging Rules Allowing Zero Rating
In February 2022, CLD submitted an amicus curiae (friend of the court) brief to the Constitutional Court of Colombia outlining freedom of expression concerns raised by an exception to Colombia’s net neutrality protections. The exception enables “zero-rating” schemes, whereby Internet access providers effectively give free access to certain services, content or applications (i.e. access which is not counted as using up the data on a user’s plan). While zero-rating schemes may seem like a free perk to customers, they channel traffic towards dominant services such as Facebook or Whatsapp and, in most cases, prevent or delay users from transitioning to access to the full Internet.
Article 56(1) of Colombia’s Law 1450 of 2011 enables zero-rating schemes without setting conditions on their use and regardless of their impact on access to the Internet. CLD’s brief argues that such schemes are legitimate only if they do not undermine the progressive achievement of universal access to the whole Internet. In the case of Colombia, no due diligence has been conducted to assess the impact of these schemes and no conditions are placed on their use, leaving their operation entirely to the discretion of commercial companies. While zero-rating schemes, if subjected to appropriate conditions, may be appropriate in countries with very low Internet access rates, as Internet access increases such schemes often leave users in “walled gardens” instead of increasing access to the full Internet.
Mauritius: Analysis of Repressive Proposals to Monitor and Control All Social Media Traffic
In May 2021, the Centre for Law and Democracy (CLD) released two documents analysing, respectively, Mauritius’ Information and Communication Technologies Act 2001 (ICT Act) and proposed amendments to that Act. The first is a Note highlighting current human rights problems with the ICT Act, including the lack of independence of media regulators and overbroad content restrictions. The second was submitted in response to the Consultation Paper on Proposed Amendments to the ICT Act for Regulating the Use and Addressing the Abuse and Misuse of Social Media in Mauritius (Consultation Paper), issued by the Mauritian Information and Communication Technologies Authority (ICTA) on 14 April 2021.
The ICT Act already imposed undue restrictions on the rights to freedom of expression and privacy. The 14 April 2021 proposals would require all social media traffic to and from Mauritius to be routed through a proxy server run by the ICTA, and establish systems to break any encryption provided by social media platforms and conduct official surveillance of all of this traffic. The goal is to enforce existing (very problematical) content restrictions in the ICT Act and to add new responsive measures, including widespread powers to block offending social media pages and content. Implementation would be done by a technical enforcement agency operating under the ICTA, which is not independent of government, and a new content-adjudication agency, which is also unlikely to be independent.
The submission on the 14 April 2021 Consultation Paper is available here.
The Note that assesses the existing ICT Act can be found here.
UN Special Rapporteur on Freedom of Expression: Submission on Disinformation
In March 2021, CLD provided a Submission on disinformation to the UN Special Rapporteur on Freedom of Expression. The Submission was in response to a call by the Special Rapporteur for inputs into her June 2021 report to the Human Rights Council, which focuses on disinformation and freedom of expression. CLD’s Submission reviews the main responses by both States and intermediaries to disinformation, analyses them from the perspective of freedom of expression and makes recommendations for future action.
Myanmar: Analysis of Digital IDs and Human Rights
In December 2020, CLD released a Human Rights Analysis of Biometric Digital ID Systems, providing insight into the issue of developing a human rights compliant biometric digital ID system. The Analysis reviews the human rights that may be negatively impacted by a biometric digital ID system and describes how to avoid such harms. It also reviews digital ID developments in Myanmar, as well as in a selection of countries where courts have limited implemented or planned biometric digital ID systems.
As detailed in this Analysis, India, Jamaica and Kenya, senior courts have either limited or halted entirely biometric digital ID systems, primarily on the basis of privacy but also other rights, such as social and economic rights which can be impacted through denial of access to services provided by both public and private actors.
Recommendations for Responsible Tech
In June 2016 CLD and its partners drafted a major report on human rights and the responsibilities of private sector online intermediaries, along with recommendations for tech companies regarding policies and practices that safeguard rights. Theeport includes a discussion on Background Issues about the role of private online actors as key mediators of human rights and their resulting responsibility to protect and promote rights. It then explores six specific impact areas:
• Expanding Access, and how intermediaries should work to mitigate various digital divides.
• Net Neutrality, which intermediaries should respect and uphold.
• Moderation and Removal of Content, which should be done in a fair and transparent manner.
• Addressing Privacy Concerns Online, including through strong security practices such as encryption and data minimisation.
• Transparency and Informed Consent, including through proactive reporting on requests and actions affecting content and privacy, and through having clear, accurate and accessible terms of service.
• Responding to State Attacks on Freedom of Expression, including how best to push back against human rights abuse and when to divest entirely from a market.
Travel Guide to Digital World-Surveillance
In August 2014 CLD and Global Partners Digital published Travel Guide to the Digital World – Surveillance and International Standards, by CLD Legal Officer Michael Karanicolas. The Guide explores how online surveillance takes place and how it stacks up against international human rights standards, particularly in terms of privacy and freedom of expression. Drawing on international standards and better practice legislation from around the world, the Guide also presents a set of standards for regulating and conducting surveillance in a way which is consistent with human rights. It concludes with a discussion of emerging debates, and how the questions around online surveillance have altered the global discourse around human rights on the Internet.
Copyright, Freedom of Expression and the Digital Age
CLD also produced a major publication on copyright law, which is among the most contentious issues within freedom of expression today. The Report is entitled Reconceptualising Copyright: Adapting the Rules to Respect Freedom of Expression in the Digital Age, and it analyses the main problems with modern copyright law from a freedom of expression perspective and offers substantive recommendations for reform of the global framework. The recommendations were tested and refined at two workshops. The first, held in Halifax, Canada on 25 March 2013, featured artists, lawyers and other stakeholders. The second took place in Buenos Aires, Argentina on 24 June 2013. It was hosted by CLD along with the Centro de Estudios en Libertad de Expresión y Acceso a la Información (CELE) and Fundación Via Libre (FVL), and was attended by participants from across Latin America, and featured in-depth discussions in both English and Spanish.
Analyses of Online Communications Legislation
Misunderstandings about the nature of online communication, along with a desire, in some cases, to stifle dissent online has led several countries to pass or propose problematic legislation. CLD has carried out Analyses of several of these laws, often in coordination with local advocacy campaigns. These include the Philippines’ “Cybercrime Prevention Act”, Jordan’s “Press and Publications Law”, South Korea’s “Copyright Act”, the European Union’s “Data Retention Directive” and Russia’s “Amendments to the Federal Statute ‘On the Protection of Minors against Information Detrimental to their Health and Development’ and to other legal Acts of the Russian Federation”. These analyses take on a variety of important topics in online regulation, including defamation, structural regulation of the Internet, content restrictions, copyright infringement, privacy and surveillance, access to the Internet and intermediary liability.
Assessment of the Internet from a Human Rights Perspective
In April 2012 CLD concluded a major research project on human rights and the Internet, releasing a report entitled, A Truly World-wide Web: Assessing the Internet from the Perspective of Human Rights. It analyses the critical role that the Internet plays in the actualisation of fundamental human rights, particularly the right to freedom of expression, and concludes that there is a human right of access to the Internet. The Report also examines the implications of the right to freedom of expression in terms of regulation of the Internet. The Report also examines the need to rethink regulatory regimes, such as laws on defamation and copyright, in order to ensure that they adequately respect the unique nature of online speech. The report is also available in Spanish.
Mapping Digital Media
CLD also published a paper on the Internet and media and defamation which discussed issues such as jurisdiction over defamatory content on the Internet, liability for user-generated content, the ‘reasonable publication’ rule as applied to Internet media, self-regulation and the issue of continuous publication on the Internet. The paper, Online Media and Defamation, was published in the ‘Digital Handbook’, which is part of the Open Society Media Program’s project on Mapping Digital Media.
Work with the Internet Governance Forum on the Charter of Human Rights and Principles for the Internet
In 2011, CLD has also produced a Commentary on the Charter of Human Rights and Principles for the Internet, providing a detailed analysis of the implications of a range of fundamental human rights for the Internet. The Charter itself was prepared by the Internet Rights and Principles Coalition, which in turn arose out of the Internet Governance Forum (IGF), a tri-partite gathering bringing together civil society, governments and the commercial sector to discuss regulatory issues relating to the Internet. The Commentary reviews the implications of a wide range of human rights for the Internet, including rights of systematic relevance, such as non-discrimination, freedom of expression and privacy, and more thematic rights, such as the rights to education, culture and work.
Online Freedom of Expression in the Maldives
In June 2010, a report on the Maldives, The Maldivian Digital Communications Environment: Freedom of Expression and the Media, Telecommunications and IT Sectors, was published by CLD and a number of other organisations. CLD played a leading role in preparing the report, which applied the UNESCO Media Development Indicators assessment tool to the digital communications environment.
UNESCO Report on Human Rights and the Internet
The UN Special Rapporteur on Freedom of Opinion and Expression hosted a meeting of experts on Human Rights and the Internet in June 2010, in which Toby Mendel, Executive Director of CLD participated. The meeting came up with some brainstorming ideas about how to ensure protection of various human rights on the Internet, including the rights to freedom of expression and privacy, as well as the issue of access to the Internet as a human right. Following up on this work, the UN Special Rapporteur hosted a series of follow up meetings, several of which included participation by CLD. These meeting contributed to the 2011 Annual Report of the Special Rapporteur, which focused on freedom of expression and the Internet, as well as the June 2011 Joint Declaration by the four specialized mandates of the UN, OAS, OSCE and African Commission tasking with promoting and protecting freedom of expression.