Michael Gilburt is a JD candidate at Osgoode Hall Law School.
Special Rapporteur Frank La Rue, author of the Report, argues that the Internet has become the primary medium by which expression can be exercised and calls upon UN member states to enact policies that “facilitate universal access to the Internet” and place as “little restriction as possible” on the flow of online information.
The Report was commissioned in response to a growing trend of state-imposed restrictions on online discourse intended to “mobilize people to challenge the status quo.” Commentators point to the recent information blackout in Syria and the Obama administration’s “war against whistleblowers” as examples of such conduct.
The Report directs UN member states to implement a number of policy reforms to better promote expressive freedom on the web. First, the Report recommends that states enact policies to protect the anonymity of Internet users. To achieve this goal, states are urged to abandon the use of “real-name registration systems” that require users to identify themselves before they can post comments or upload content.
Second, the Report recommends that governments “avoid or amend laws that criminalize online expression.” La Rue notes that states will justify laws that censor dissident political expression in order to “protect individual reputation (or) national security.” As such, the Report chastises the use of national security or counter-terrorism as a justification for enacting criminal sanctions against expression unless an “imminent legitimate threat is demonstrated.”
In addition, the Report calls for the elimination of provisions within the terms and conditions of social networking sites such as Facebook that allow governments to collect user names and passwords on the grounds of national security. La Rue argues that such provisions have enabled governments to “identify and track the activities of…opposition members,” thereby compromising the ability of human rights activists to express themselves anonymously. (The Tunisian government provides one case example.)
Commentators have commended La Rue’s Report for bringing to the forefront of policy discussions the use of state power to monitor the activities of Internet users. In addition, the Report has provided a modern interpretation of the UDHR by expressly including online expression within the scope of civil and political rights. Indeed, the Internet has become a valuable tool of empowerment for individuals, particularly in countries without independent media and access to other human rights.
However, La Rue fails to address a number of challenges associated with the practical implementation of his policy recommendations. First, the Report declares that any law that curtails Internet access and online expression violates the UDHR, even if that limitation is the result of intellectual property law. Indeed, certain IP policies, such as copyright protections, can limit user access for years. In addition, the Report’s blanket endorsement of user anonymity may frustrate attempts by states to impose regulations to combat Internet piracy.
In addition, the Report gives states little practical guidance on how to implement and protect the right to free online expression. Rather, the Report defers to the discretion of states to “adopt concrete strategies and policies” to reconcile domestic interests with international human rights obligations.