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Statement by Mr. David Kaye, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression at the 32nd Session of the Human Rights Council

Geneva, 16 June 2016

Mr. President, Excellencies,                                 

Thank you very much for the opportunity to present my annual report to the Human Rights Council.

As time is limited, I will first say a few words about communications and country visits and then highlight points raised in the thematic report that I am presenting to the Council today.

Communications and Country Visits

Between last June’s report and today, I have issued 258 allegation letters, urgent appeals or other legislative letters. Unfortunately, the response rate to these communications is about 40%, which includes responses merely confirming receipt.

Communications provide a window into the key trends in freedom of opinion and expression today. They also provide examples of practice, and I will aim in the upcoming year to make public more quickly my analysis of laws and regulations contained in communications.

In part to emphasize their importance, my report to the General Assembly in October will present a thematic overview of freedom of expression communications, highlight several of the most significant threats to freedom of expression, and identify steps that the General Assembly, the Council and Member States may take to address them.

I have also recently conducted official missions to Tajikistan and Japan. I will present full mission reports for each during my next presentation to the Council in June 2017. I will say a brief word about each.

Both Governments provided strong organizational support for the visit, for which I am deeply grateful.

My visit to Tajikistan took place in March. In short, laws, decrees and policies are eroding the country’s fundamental protections for freedom of expression, undermining the free press and intimidating journalists, limiting citizen access to government information, and blocking critical sources of information on the Internet. The recent Constitutional referendum and the harsh sentences handed to members of a principal opposition party, the Islamic Renaissance Party of Tajikistan, after closed trials and no public disclosure of evidence, underscore that freedom of expression is under serious assault. My strong hope is that I can engage the Government in a dialogue and encourage a return to Tajikistan's compliance with its human rights obligations.

In April I visited Japan, which has well-deserved pride in a Constitution that expressly protects the freedom of the press under Article 21. Online freedom is particularly protected and vibrant. Yet media independence faces serious threats: a weak system of legal protection, persistent exploitation of a media lacking in professional solidarity, and the Specially Designated Secrets Act. I identified specific ways in which Japan could protect media freedom, such as through revision of the Broadcast Act and creation of an independent third-party broadcast regulator, and I hope that the Government and I can continue to engage in constructive dialogue on these and other topics over the coming year.

I am also very pleased to note that, on the Government's invitation, I will be undertaking an official visit to Turkey which will take place during the week of November 14th of this year.

Introduction of A/HRC/32/38

Now I will turn to my current report on the private sector in the digital age.

While the digital era received its earliest impetus and financial support from governments and related public and academic sectors, more recently it has been the private sector that has been the driving force behind the greatest expansion of access to information in history. Its roles are pervasive: social media that connect us to one another and to events; search engines that index global knowledge; mobile technology that allows access far from our offices and homes; the infrastructure that allows access; surveillance tools sold to governments worldwide; and the vast array of devices and services on which our most important personal data are stored.

This is a net-positive. And yet, the digital age has brought with it new questions and problems that international human rights mechanisms have not yet fully addressed.

My current report maps the ways in which the private sector implicates freedom of expression and launches a multi-year effort to identify appropriate human rights norms for the private sector in digital space. This current mapping exercise rests on a fundamental question: to what extent should the ICT sector be responsible for the promotion and protection of freedom of opinion and expression? That said, the report and my future work will address not only private behavior but also governmental demands imposed upon the private sector - in other words, the intersection of the two.

States often facilitate or demand content removal, censorship and unnecessary or disproportionate restrictions on expression through private platforms and networks. One serious trend involves State demands that telecommunications and internet service providers shut down services in times of protest or event elections, when the free flow of information is so critical.

We see disturbing trends that track those seen in offline space: vague or repressive laws that result in chilling expression, excessive liability on internet intermediaries for third-party content, extra-legal demands that internet companies enforce terms of service, and disproportionate forms of censorship by filtering content or shutting down networks or services outright.

Meanwhile, private actors, with their tremendous authority over digital space, are themselves acting as regulators of expression. Most private actors develop their own rules for content removal, or private forms of censorship. 

Private companies' terms of service often preclude harassment, hate speech and direct threats, which may allow services to be available and non-discriminatory. Yet these rules are also frequently formulated in ways that make it difficult to predict with reasonable certainty what may be restricted and taken down. They may at once fail to protect members of vulnerable communities while at the same time engage in overzealous censorship of a wide range of legitimate if ugly expression. The processes of takedowns and appeals are generally opaque to individuals.

Moreover, the manner in which Internet companies curate, categorize and rank content affects what information users access and view on their platforms. Platforms deploy algorithmic predictions of user preferences and consequently guide the advertisements individuals might see, how social media feeds are arranged and the order in which search results appear – all with limited transparency to individuals.

The private sector also plays a critical role designing, manufacturing, engineering, or selling tools of surveillance and digital security.

The report does not seek to provide comprehensive answers. The framework for such guidance must begin with Article 19 of the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights, which protect everyone’s right to hold opinions without interference and seek, receive and impart information and ideas of all kinds, regardless of frontiers and through any media. We should also draw upon the UN Guiding Principles on Business and Human Rights and the work of a number of civil society and multi-stakeholder initiatives.

This report is truly a first step in an effort to identify the ways in which the freedom of expression may be protected and promoted in digital space. While preliminary in nature, it does make some interim points about core principles applicable right now:

One, governments 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 extra-legal means.

Two, 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.

Three, private entities should be evaluated on the steps they take both to promote and undermine freedom of expression, even in hostile environments unfriendly to human rights.

Four, among the most important steps that private actors should take is the development and implementation of transparent human rights assessment procedures.

Five, private entities should also integrate commitments to freedom of expression into internal policymaking, product engineering, business development, staff training and other relevant internal processes.

You may find my priority issues for study in Section V of the report. In the near-term, I will focus on restrictions on and responsibilities of telecommunications and Internet service providers and report to the Council on this subject in 2017. Over time I will also be addressing content restrictions under terms of service; liability for the hosting of third-party content; censorship and the surveillance industry; efforts to undermine digital security; access to the Internet particularly among those most in poverty; and Internet governance.

This project, to be effective, will depend upon the active participation of many stakeholders who make the digital era possible, especially States, private companies, civil society, technologists, academics, international organizations and others. I look forward to working with your governments and these other stakeholders as I address the issues I’ve identified today.

Thank you very much.