Freedom of expression and the private sector in the digital age
The 2016 report of the Special Rapporteur on freedom of expression, David Kaye, to the Human Rights Council is now available online.
This report marks the launch of a new project exploring issues at the intersection of State action, the private sector and freedom of expression in a digital age. Online expression is increasingly mediated through private networks and platforms created, maintained and operated by a diverse range of companies commonly referred to as the Information and Communications Technology (“ICT”) sector. While the rapid growth of the ICT sector has led to unprecedented opportunities for access to information and communication, it has also triggered new forms of State regulation that threaten the very existence of a free and open Internet. The activities of the private sector also have an outsized impact on the freedom of expression of millions of users, given their role as gatekeepers of the global exchange of information and ideas.
This report provides an overview of the regulatory ecosystem that underpins the Internet and trends in State and private action that implicate freedom of expression online. Among the issues the Special Rapporteur discusses are the role of key participants in the ICT sector; the relevant human rights standards applicable to States and the private sector; and the legal and policy concerns that he will examine over the course of his mandate. While this report principally aims to map the private ICT sector, it also concludes with some general recommendations.
- States must not require or otherwise pressure the private sector to take steps that unnecessarily or disproportionately interfere with freedom of expression, whether through laws, policies, or extralegal means.
- Any demands, requests and other measures to take down digital content or access customer information must be based on validly enacted law, subject to external and independent oversight, and demonstrate a necessary and proportionate means of achieving one or more aims under article 19 (3) of the International Covenant on Civil and Political Rights. Particularly in the context of regulating the private sector, State laws and policies must be transparently adopted and implemented.
- Governments must also adopt and implement laws and policies that protect private development and the provision of technical measures, products and services that advance freedom of expression. They must ensure legislative, policymaking and other relevant norm-setting processes concerning rights and restrictions on the Internet in order to provide the private sector, civil society, the technical community and academia meaningful opportunities for input and participation.
- Among the most important steps that private actors should take is the development and implementation of transparent human rights assessment procedures. They should develop and implement policies that take into account their potential impact on human rights. Such assessments should critically review the wide range of private sector activities in which they are engaged, such as the formulation and enforcement of terms of service and community standards on users’ freedom of expression, including the outsourcing of such enforcement; the impact of products, services and other commercial initiatives on users’ freedom of expression as they are being developed, including design and engineering choices, and plans for differential pricing of or access to Internet content and services; and the human rights impact of doing business with potential government customers, such as the operation of telecommunication infrastructure or the transfer of content-regulation or surveillance technologies.
- Private entities ensure the greatest possible transparency in their policies, standards and actions that implicate the freedom of expression and other fundamental rights.
- Private entities should also integrate commitments to freedom of expression into internal policymaking, product engineering, business development, staff training and other relevant internal processes.
- International organizations provide meaningful public access to policies, standards, reports and other information concerning Internet governance created or generated by the organization and/or its membership, including through facilitating access to free online resources and public education initiatives. More generally, the multi-stakeholder process for Internet governance has been an important driver for policies supportive of freedom of expression. With that in mind, international organizations should ensure meaningful civil society participation in policymaking and other standard-setting processes, including through increasing the presence of technical experts sensitive to human rights concerns.
SUBMISSIONS TO THE REPORT
This report - and, more generally, the initial mapping phase of the project - benefited greatly from extensive public input and consultation. As of the date of publication, 15 States and 15 organizations responded to the Special Rapporteur's call for submissions. These are available below. The Special Rapporteur also convened two expert consultations with a wide cross section of civil society, the corporate sector, and international organizations in January and February 2016. The Special Rapporteur has prepared an additional companion document that summarizes the input received during these consultations.
Submissions from States:
Submissions from civil society: