After Human Rights Council Resolution on Internet Rights, Four Key Tasks for International Lawyers

In a Press Release the UN Human Rights Council has provided interesting material on the adoption without a vote of Thursday's groundbreaking resolution A/HRC/20/L.13 regarding the promotion, protection and enjoyment of human rights on the Internet (see my previous blog).
In particular, the statements made by states before the adoption illustrate what challenges remain for the international community when it comes to ensuring human rights online.

1) We have to bridge the digital divide(s). 

Or, as Tunisia put it, "the Internet as a vector for the enjoyment of human rights with enormous potential and [...] access to it should be guaranteed for everyone". Indeed, bridging the digital divides is essential for ensuring that the Internet can have the catalytic impact on the enjoyment of all human rights.

2) We have to ensure that Internet Governance is legitimate - without making states the only legitimating actors.

Brazil welcome the resolution, but underlined that "[d]emocratic governance for the Internet was essential for the full enjoyment of this technological tool." This is problematic insofar as references to "democracy" and "democratic" decision-making in Internet Governance usually mean that states should play a bigger role, as they are considered (notably by states, incidentally) as the only vessels through which democratic legitimacy can be challenged. 

They are not the only ones. They are, however, indeed, still the most important ones. What we have to therefore is to think about new avenues of transnational and transstatal legitimacy for Internet Governance. I'm thinking of a combination of input and throughput legitimacy, and am currently working on publishing a larger piece on these issues.

3) We have to ensure that illegal content can be effectively fought. The fight, however, must not be used by states as a fig leaf for widespread censorship. 

China stressed that "online gambling, pornography and hacking were increasingly becoming a threat to the legal rights of society, particularly minors. States therefore were bound to run the Internet legally, otherwise the free flow of unhealthy and negative information would obstruct the function of the Internet."

The exact meaning of "unhealthy and negative information" is open to debate. Authoritarian countries would probably find democracy-promotion unhealthy and open critique of their human rights records negative. 

Also, the "function of the Internet" cannot - can never - be to be a clean, completely safe, and conflict-free zone of unlimited consumerism. The best approach seems to me to follow Frank La Rue's list of legitimate cases of censorship, including threats to terrorism, hate speech amounting to calls for violence, exploitation of children. 

As I have argued previously 

In a second step the international community needs to highlight the differences between illegal content and content that is harmful, offensive, objectionable, or undesirable. Illegal content should be dealt with by the authorities thus enforcing the informal social contract between users. But ideas that only, the words of the European Court of Human Rights in Handyside v. UK, "shock, offend and disturb" a society or parts of it, need protection. 

4) We have to substantiate what it means that the same rights that people have offline must also be protected online. 

This is probably the most important task. The Council, in para. 1, of its resolution clearly commits states to an equality of protection of human rights in online and offline environments: 

"the same rights that people have offline must also be protected online [...]."

Now, what are these rights? In preambular para. 1 the Council sheds some light on the rights to be applied online: 

"Reaffirming the human rights and fundamental freedoms enshrined in the Universal Declaration of Human Rights and relevant international human rights treaties, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights [...]"

Of course, all other international human rights treaties are applicable as well, if states have ratified them or if they have crystallized into international customary law. 

To make things easier for states and to highlight the special challenges of applying pre-Internet rights to an Internet age, the  Civil Society Internet Governance Caucus has put together a list of statements and declarations on human rights on the Internet. 

One the most holistic is the Charter on Internet Rights and Principles of the Internet Rights&Principles Coalition which also exists in a handy abbreviated version: the 10 Rights and Principles for the Internet. 

Who is stealing the bread?

Concluding, we now know that offline human rights also apply online. We therefore do not need to reinvent human rights. But we need to study them to understand their reach and relevance for Internet settings. 

The commitment to ensuring all human rights in a technology-neutral way was an important first step by the Human Rights Council.

Now, in the run-up to the IGF in Baku and the WCIT in Dubai, we need to showcast what exactly this means. 

China referred to the "function" of the Internet. Though I doubt that we can (or should) agree on a function, as the Internet is a network of networks and thus function-neutral, the notion is interesting. 

We should look at the Internet in a functional way. We should consider it as a tool to ensuring a higher level of human rights protection - offline as well. 

I've once heard a story about a human rights activist from Africa who was asked at the WSIS summit whether it wasn't more important to ensure that his fellow citizens had bread - instead of Internet access.

His reply? 

"If we don't have Internet access, we can't tell the world who is stealing our bread".
 

Let's tell.