In a new report, the regional human rights expert on freedom of expression in the Americas identifies principles and standards to guide States in their regulation of online communication. On June 27, 2014, the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR) released the report, Freedom of Expression and the Internet, specifically addressing the challenges of protecting the right to freedom of expression in a digital world. [IACHR Press Release] Notably, the report draws on the standards and doctrine of the United Nations, African, and European human rights systems, in addition to those of the Inter-American system. The publication is a useful tool for activists, human rights advocates, civil society organizations, judges, regulators, and others who encounter challenges related to the intersections of online communication and fundamental rights.
Freedom of Expression in the Americas and Online
Article 13 of the American Convention on Human Rights states, “Everyone has the right to freedom of thought and expression.” The Inter-American Court of Human Rights has held that freedom of expression is not limited merely to the right to speak or write; it also encompasses the right to disseminate ideas and opinions through appropriate means to reach the maximum number of people. See I/A Court H.R., Palamara-Iribarne v. Chile. Merits, Reparations and Costs. Judgment of November 22, 2005. Series C No. 135, para. 73.
The right to freedom of expression, however, is not absolute. Id. para. 79. States can limit the right to the extent necessary to protect the rights or reputations of others, and to preserve the national security, public order, or public health or morals. Furthermore, certain forms of speech, such as propaganda for war and incitements to lawless violence against a person or group, do not qualify for protection.
The Internet has changed the way people share information and opinions. Like no other means of communication, the Internet has made it possible for individuals to communicate “instantaneously and inexpensively.” UN General Assembly, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, UN Doc. A/66/290, 10 August 2011, para. 10. Yet with its distinct benefits, the Internet also presents unique challenges to the right to freedom of expression. The interest in blocking or filtering certain forms of expression, such as direct and public incitement to genocide or child pornography, risks running into conflict with other, protected forms of speech.
The Special Rapporteur’s report, Freedom of Expression and the Internet, provides guidance on how to balance these competing interests. Highlighting the importance of finding an appropriate balance between preserving both the “original and special characteristics” of the Internet and its continual development, the report identifies core principles to guide the protection of the rights to freedom of thought and expression. The report also analyzes the standards related to this issue, suggests relevant best practices, and identifies relevant international doctrine and jurisprudence.
Guiding Principles on Protecting the Right to Freedom of Expression in a Digital World
The Report identifies four Guiding Principles that States should follow as they develop the “digital environment.” Freedom of Expression and the Internet, OEA/Ser.L/V/II, 31 December 2013, para. 14. These are:
These principles are intended as guideposts for preserving the “decentralized, open and neutral” nature of the online environment while regulating it.
The principle of access means that States should take steps to progressively promote universal access to the infrastructure of the Internet as well as the technology necessary for its use. Guaranteeing connectivity and access to the Internet accords with Principle 2 of the Declaration of Principles on Freedom of Expression, which states that everyone should have equal opportunities to “receive, seek and impart information by any means of communication without any discrimination for reasons of race, color, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social condition.” Universal access means maintaining the Internet’s “intrinsically accessible character.” Freedom of Expression and the Internet, para. 17.
Informational pluralism requires that States avoid reducing the “number of voices and amount of content available” online. Id. para. 19. By maximizing the number and diversity of the voices that are present on the Internet, States can help foster the democratic process.
The principle of non-discrimination means that all persons, including those who belong to vulnerable groups or who express criticism regarding matters of public interest, must be able to disseminate content and information under equal conditions. Adherence to this principle ensures that certain content is not favored over other content being treated discriminatorily.
Lastly, States must respect the privacy of individuals and make sure that third parties do not act in ways that could arbitrarily affect the privacy of individuals. This principle is closely tied to Article 11 of the American Convention, which states that “[n]o one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation.” States must respect the privacy of individuals and protect against interference or attacks on privacy in order to create a safe space for the exercise of freedom of expression.
Standards Related to Freedom of Expression and the Internet
In addition to the four guiding principles on protecting the right to freedom of expression, the Special Rapporteur’s report defines a series of standards related to freedom of expression and the Internet. These standards relate to the concept of net neutrality, approaches to online rights conflicts, permissible limitations on access to the Internet, the role of intermediaries, and cybersecurity.
The term “net neutrality” is a key term in the area of freedom of expression and the Internet. Net neutrality refers to the principle that there should be no discrimination in the treatment of lawful Internet data and traffic based on the device being used, the content, the author, and the origin or destination of the content, service, or application. Net neutrality is “[f]undamental to guaranteeing the plurality and diversity of the flow of information.” Id. para. 28.
In the report, the Special Rapporteur also emphasizes the standards of legitimacy and deliberative factors to aid in the resolution of “online rights conflicts.” Id. para. 52. In order to be legitimate, for example, restrictions on the right to freedom of expression must be proportional to the benefits that the restriction would have in protecting other interests. Factors to account for include not only the impact or cost of the restriction on the private parties affected, but also on the overall functioning of the Internet.
The report lays out a series of “essential requirements,” contained in Articles 8, 13, and 25 of the American Convention, which must be met by any restriction on the right to freedom of expression. Legal enshrinement means that laws must be clear and precise so as not to have a chilling effect on individual users participating in public debate. The restrictions should also be aimed at achieving “urgent objectives authorized under the American Convention,” such as protecting the rights of others, national security, public order, or public health or morals. Id. para. 59. The standard of “necessity” requires that restrictions on the right to freedom of expression be “adequate and sufficiently justified.” The imposition of liability for the exercise of freedom of expression on the Internet must accord with the guarantees of due process and judicial remedy provided for in Articles 8 and 25 of the American Convention. Lastly, jurisdiction over cases relating to expression on the Internet should correspond to those States to which the cases are closely associated, so as to prevent indirect barriers to speech from forming.
Intermediaries are those actors who provide Internet services such as “access and interconnection; transmission, processing and routing of Internet traffic; hosting and providing access to material posted by others, searching or referencing materials on the Internet; financial transactions; and connecting users though social networks, among other things.” Id. para. 91. Provided they do not specifically intervene in content or refuse to obey a court order to remove the content, intermediaries should not be held liable for content generated by others. In other words, liability should be imposed only on the authors of the Internet speech.
Office of the Special Rapporteur for Freedom of Expression
The Office of the Special Rapporteur has a variety of functions aimed at protecting and promoting the right to freedom of thought and expression in the Americas. Its functions include advising the IACHR in evaluating individual petitions and requests for precautionary measures, participating in public hearings, and preparing annual, thematic, and specific country reports. It conducts on-site visits to Member States of the Organization of American States (OAS) in order to gather information about the situation regarding freedom of expression in the countries. It also hosts seminars and workshops to promote and educate on the right to freedom of expression. Lastly, the Special Rapporteur issues special statements and declarations relevant to its mandate.
The current Special Rapporteur, Catalina Botero, will be stepping down this year, having served the maximum of two three-year terms. During its 151st Period of Sessions this month, the IACHR will interview the finalist candidates for the position and the selected candidate will begin serving as Special Rapporteur on October 6, 2014.
For more information and additional resources on the Inter-American system for the protection of human rights, visit IJRC’s Inter-American Human Rights System webpage.