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UN Special Rapporteur Report on Freedom of Expression and the Private Sector: A Significant Step Forward

On 6 June 2016, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye, released a report on the Information and Communications Technology (“ICT”) sector and freedom of expression in the digital age. Vidushi Marda and Pranesh Prakash highlight the most important aspects of the report.

Background

Today, the private sector is more closely linked to the freedom of expression than it has ever been before. The ability to speak to a mass audience was at one time a privilege restricted to those who had access to mass media.  However, with digital technologies, that privilege is available to far more people than was ever possible in the pre-digital era. As private content created on these digital networks is becoming increasingly subject to state regulation, it is crucial to examine the role of the private sector in respect of the freedom of speech and expression.

The first foray by the Special Rapporteur into this broad area has resulted in a sweeping report, that covers almost every aspect of freedom of expression within the ICT sector, except competition which we will elaborate on later in this post.

Introduction

The report aims to “provide guidance on how private actors should protect and promote freedom of expression in a digital age”. It identifies the relevant international legal framework as Article 19 of the International Covenant on Civil and Political Rights, and Article 19 of the Universal Declaration of Human Rights.  The UN “Protect, Respect and Remedy” Framework and Guiding Principles, also known as the Ruggie Principles provide the framework for private sector responsibilities on business and human rights.

The report categorises different roles of the private sector in organising, accessing, regulating and populating the internet. This is important because the manner in which the ICT sector affects the freedom of expression is far more complicated than traditional communication industries. The report identifies the distinct impact of internet service providers, hardware and software companies, domain name registries and registrars, search engines, platforms, web hosting services, platforms, data brokers and e-commerce facilities on the freedom of expression.

Legal and Policy Issues

The Special Rapporteur discusses four distinct legal and policy issues that find relevance in respect of this problem statement: Content Regulation, Surveillance and Digital Security, Transparency and Remedies.
 

Content Regulation

The report identifies two main channels through which content regulation takes place: the state, and internal processes.

Noting that digital content made on private networks is increasingly subject to State regulation, the report highlights the competing interests of intermediaries who manage platforms and States which demand for regulation of this content on grounds of defamation, blasphemy, protection of national security etc. This tension is demonstrated through vague laws that compel individuals and private corporations to over-comply and err on the side of caution “in order to avoid onerous penalties, filtering content of uncertain legal status and engaging in other modes of censorship and self-censorship.” Excessive intermediary liability forces intermediaries to over-comply with requests in order to ensure that local access to their platforms are not blocked. States attempt at regulating content outside the law through extra legal restrictions, and push private actors to take down content on their own initiative. Filtering content is another method, wherein States block and filter content through the private sector. Government blacklists, illegal content and suspended accounts are methods employed, and these have sometimes raised concerns of necessity and proportionality. Network or service shutdowns are classified as a “particularly pernicious” method of content regulation. Non neutral networks also are a method of content regulation with the possibilities of internet service providers throttling traffic. Zero rating is a potential issue, although the report acknowledges that “it remains a subject of debate whether they may be permissible in areas genuinely lacking Internet access”.

The other node of content regulation has been identified as internal policies and practices of the private sector. Terms of service restrictions are often tailored to the jurisdiction’s laws and policies and don’t always address the needs and interests of vulnerable groups. Further, the report notes, design and engineering choices of how private players choose to curate content are algorithmically determined and increasingly control the information that we consume.  

Transparency

 The report notes that transparency enables those entities subject to internet regulation to take informed decisions about their responsibilities and liabilities in a digital sphere and points out, that there is a severe lack of transparency about government requests to restrict or remove content. Some states even prohibit the publication of such information, with India being one example. In respect of the private sector, content hosting platforms sometimes at least reveal the circumstances under which content is removed due to a government request, although this is rather erratic. The report recognises the need to balance transparency with competing concerns like security and trade secrecy, and this is a matter of continued debate.
 

Surveillance and Digital Security

Freedom of expression concerns arise as data transmitted on private networks is gradually being subjected to surveillance and interference from the State and private actors. The report finds that several internet companies have reported an increase in government requests for customer data and user information. According to the Special Rapporteur, effective resistance strategies include inclusion of human rights guarantees, restrictively interpreting government requests negotiations. Private players also make surveillance and censorship equipment that enable States to intercept communications. Covert surveillance has been previously reported, with States tapping into communications as and when necessary. When private entities become aware of interception and covert surveillance, their human rights responsibilities arise. As private entities work towards enhancing encryption, anonymity and user security, states respond by compelling companies to create loopholes for them to circumvent such privacy and security enhancing technology.

Remedies

Unlawful content removal, opaque suspensions, data security breaches are commonplace occurrences in the digital sphere. The ICCPR guarantees that all people whose rights have been violated must have an effective remedy, and similarly, the Ruggie principles require that remedial and grievance mechanisms must be provided by corporations. There is some ambiguity on how these complaint or appeal mechanisms should be designed and implemented, and the nature and structure of these mechanisms is also unclear.  The report states that it is necessary to investigate the role of the state in supplementing/regulating corporate mechanisms, its role in ensuring that there is a mechanism for remedies, and its responsibility to make sure that more easily and financially accessible alternatives exist for remedial measures.

 Special Rapporteur’s priorities for future work and thematic developments

  1. Investigating laws, policies and extralegal measures that equip governments to impose restrictions on the provision of telecommunications and internet services. Examining the responsibility of companies to respond in a way that respects human rights, mitigates harm, and provides avenues for redress.

  2. Evaluating content restrictions under terms of service and community standards. Private actors face substantial pressure from governments and individuals to restrict expression, and a priority is to evaluate the interplay of private and state actions on freedom of expression in light of human rights obligations and responsibilities.

  3. Focusing on the legitimacy of rationales for intermediary liability for content hosting, restrictions, conditions for removing third party content.

  4. Exploring censorship and surveillance within the human rights framework, and encouraging greater scrutiny before using these technologies for purposes that undermine the freedom of expression.

  5. Identifying ways to balance an increasing scope of freedom of expression with the need to address governmental interests in national security and public order.

  6. Internet access -  Future work will explore issues around access and private sector engagement and investment in ensuring affordability and accessibility, particularly considering marginalized groups.

  7. Internet governance - Internet governance frameworks and reform efforts are sensitive to the needs of women, sexual minorities and other vulnerable communities. Throughout this future work, the Special Rapporteur will pay particular attention to legal developments (legislative, regulatory, and judicial) at national and regional levels.

 

Conclusions and Recommendations

  1. States: The report recommends that states should not pressurise the private sector to interfere with the freedom of speech and expression in a manner that does not meet the condition of necessary and proportionate principles. Any request to take down content or access customer information must be based on validly enacted law, subject to oversight, and demonstrate necessary and proportionate means of achieving the aims laid down in Article 19(3) of the ICCPR.

  2. Private Actors: The Special Rapporteur recommends that private actors develop and implement transparent human rights assessment procedures, and develop policies keeping in mind their human rights impact. Apart from this, private entities should integrate commitments to the freedom of expression into internal processes and ensure the “greatest possible transparency”.

  3. International Organisations: The report recommends that organisations make resources and educational material on internet governance publicly accessible. The Special Rapporteur also recommends encouraging meaningful civil society participation in multi-stakeholder policy making and standard setting processes, with an increased focus on sensitivity to human rights.

 

CIS Comments

  1. CIS strongly agrees with the expansion of the Special Rapporteur’s scope that this report represents.  He is no longer looking solely at states but at the private sector too.

  2. CIS also notes that competition is an important aspect of the freedom of expression, but has not been discussed in this report. Viable alternatives to platforms, networks, internet service providers etc., will ensure a healthy, competitive marketplace, and will have a positive impact in resolving the issues identified above.

  3. Our work has called for maintaining a balanced approach to liability of intermediaries for their users’ actions, since excessive liability or strict liability would lead to over-caution and removal of legitimate speech, while having no liability at all would make it difficult to act effectively against harmful speech, e.g., revenge porn.

  4. CIS’ work on network neutrality has highlighted the importance of neutrality for freedom of speech, and has advocated for an evidence-based approach that ensures there is neither under-regulation, nor over-regulation.  The Special Rapporteur suggests that ‘Zero-Rating’ practices always violate Net Neutrality, but the majority of the definitions of Net Neutrality proposed by academics and followed by regulators across the world often do not include Zero-Rating.  Similarly, he suggests that the main exception for Zero-Rating is for areas genuinely lacking access to the Internet, whereas the potential for some forms of Zero-Rating to further freedom of expression, especially of minorities, even in areas with access to the Internet, provides sufficient reason for the issue to merit greater debate.

 
 
(Pranesh Prakash was invited by the Special Rapporteur to provide his views and took part in a meeting that contributed to this report)
 

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