The Human Rights Council 34th session wrapped up at the end of last month. As we noted in our pre-session briefing, a number of internet-related human rights issues were on the agenda, ranging from a new resolution on the right to privacy in the digital age, to the renewal of mandates of Special Rapporteurs who play a key role in protecting human rights online. Here are some highlights of outcomes relating to internet rights at the session.
Right to privacy in the digital age
The HRC passed its second resolution on the right to privacy in the digital age, building on the resolution adopted by the UN General Assembly late last year. Led by Brazil and Germany, and adopted by consensus, the resolution marked significantly substantial progress in the following areas:
The resolution calls on states to ensure that any interference with the right to privacy is consistent with the principles of legality, necessity and proportionality. The previous resolutions only noted the "relevance of necessity and proportionality assessments in relation to surveillance practices," relying instead on the principles of non-arbitrariness and lawfulness. While states may try to justify mass surveillance as both legal and non-arbitrary, they certainly cannot claim that such measures are necessary and proportionate responses to any legitimate public security concern.
The resolution calls on states not to interfere with the use of encryption and anonymity, which it emphasises can be important to ensure the enjoyment of human rights, in particular the rights to privacy, to freedom of expression and to freedom of peaceful assembly and association. While the HRC has previously recognised the importance of encryption and anonymity for journalists, and UN Special Rapporteur on the right to freedom of opinion and expression David Kaye dedicated a report to the HRC on the need to safeguard encryption and anonymity in digital communications, this resolution marks the first time that the HRC broadly endorses the need for these technical solutions to protect the confidentiality of digital communications in order to enjoy human rights in the digital age.
The resolution expresses concern about the automatic processing of personal data for individual profiling, noting that it may lead to discrimination or decisions that otherwise have the potential to affect the enjoyment of human rights, including economic, social and cultural rights (ESCRs). This marks the first time that the HRC has made the link between violations of the right to privacy and the enjoyment of ESCRs. In APC's work on ESCRs, we have been concerned by the ways in which profiling and automated decision making can be discriminatory, in particular reinforcing gender inequalities, and can negatively impact the rights of all people to work, to health and to education, among other rights.
The resolution also includes stronger text on metadata, noting that its aggregation "can reveal personal information that can be no less sensitive than the actual content of communications and can give an insight into an individual's behaviour, social relationships, private preferences and identity."
Finally, the resolution requests the United Nations High Commissioner for Human Rights to organise an expert workshop "with the purpose of identifying and clarifying principles, standards and best practices regarding the promotion and protection of the right to privacy in the digital age, including the responsibility of business enterprises," which will feed into a report by the High Commission for Human Rights. The workshop is expected to take place in early 2018, and civil society as well as other stakeholders will have the opportunity to participate in it.
Elaboration of complementary standards to the International Convention on the Elimination of All Forms of Racial Discrimination
The HRC adopted by a vote (31-Yes, 4-No, 12 Abstentions) a resolution calling for negotiations on a draft additional protocol to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) "criminalizing acts of a racist and xenophobic nature", to begin within the next two years.
The resolution was controversial enough to go to a vote because it can be seen as part of a broader attempt by some states to broaden the language on criminalisation of expression within various UN bodies and processes, to propose new limitations on the right to freedom of expression. States that form part of the Organisation of Islamic Cooperation have generally argued that expression that "denigrates" Islam and/or its "symbols" should be understood to constitute both "hate speech" and "incitement to violence". This is the argument that the said states had raised earlier in relation to introducing "defamation of religion" as a basis for criminalising expression.
However, this framing goes beyond the limitations to freedom of expression as set out by international standards to prohibit advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, specifically Article 20 of the International Covenant on Civil and Political Rights and Article 4 of ICERD. Similarly, this is opposed to the approach to combating intolerance, negative stereotyping and stigmatisation of, and discrimination, incitement to violence and violence against, persons based on religion or belief set out by the Rabat Plan of Action and subsequent HRC resolutions on this issue.
This is relevant for freedom of expression online in particular, as ARTICLE 19 noted, because "More recently, some States have argued that new standards may be required to sanction 'hate speech' online, and counter the rise of nationalist populism or other forms of violent ideology, while remaining ambiguous on what they consider 'hate speech' to mean."
Advocacy of racism and xenophobia that constitutes incitement to discrimination, hostility or violence must be countered, including in online contexts, using existing international norms. This must not be confused with speech that may seem to be offensive on the basis of religion or religious sensitivities. We reiterate the need to repeal anti-blasphemy laws as they are contrary to international guarantees, on freedom of opinion and expression as well as the right to freedom of religion or belief. New laws purporting to address these threats are often abused to target dissent and minority voices, especially religious minorities.
More problematically, these laws often result in mob violence being unleashed against those accused of committing blasphemy, as was the unfortunate case with a student in Pakistan. We fear that the "new standards" that this resolution calls for developing will weaken existing protections for free expression without getting at the root cause of racial discrimination.
The HRC's annual resolution on the right to work was meant to focus on women and the right to work, according to the core group of states sponsoring the resolution. However, as the Global Initiative for Economic, Social and Cultural Rights observes, the resolution "missed the opportunity to engage with this topic in depth and instead made some simplistic overarching statements which did not really advance the issues." A report by the UN High Commissioner for Human Rights on "the relationship between the realisation of the right to work and the enjoyment of all human rights by women, with a particular emphasis on the empowerment of women", which was presented during this session, more meaningfully examined the issue.
This year's resolution acknowledges that "science, technology, engineering and mathematics, and lifelong learning opportunities and guidance for all, including women with disabilities, are necessary for the realization of the right to work" and stresses that the Sustainable Development Goals (SDGs) promote inclusive and sustained economic growth, including "higher levels of productivity and technological innovation". However, the resolution does not account for the gender digital divide, which can reinforce inequalities and discrimination in opportunities to advance the right to work through technology.
The resolution requests the UN High Commissioner for Human Rights to prepare an analytical report, with input from civil society and other stakeholders, on the relationship between the realisation of the right to work and the implementation of relevant targets in the SDGs to indicate the major challenges and best practice for the HRC's 37th session.
The theme of the annual resolution on the "Question of the realization in all countries of economic, social and cultural rights" was the 2030 Agenda for Sustainable Development. The resolution did not explicitly recognise the internet as a driving force in accelerating progress towards achieving the SDGs, as the HRC's July 2016 resolution on the internet and human rights (HRC/RES/32/13) did. However, the resolution reinforces a rights-based approach to achieving the SDGs, in particular by calling on states to implement the 2030 Agenda consistent with the principles of equality and non-discrimination, and encourages states to consider appropriate measures to promote de facto equality. Taken together with HRC resolution 32/13, this requires bridging the digital divides. The resolution also recognises that achieving the SDGs requires the collection of quality, accessible, timely and reliable disaggregated data.
Finally, the resolution requests the Secretary-General to prepare and submit to the HRC a report on "the role of economic, social and cultural rights in the transformation towards sustainable and resilient societies", which is aligned with the theme for the 2018 High Level Political Forum (HLPF), the New York-based follow-up of the Sustainable Development Agenda.
This year's annual resolution on the rights of the child focused thematically on the protection of the rights of the child in the implementation of the 2030 Agenda for Sustainable Development. Unlike last year's resolution, which addressed the sexual exploitation of children through ICTs, this year's resolution did not take on internet rights issues in a major way. It does, however, include some positive language regarding children's right to privacy and access to information through technology. The text encourages states to make "comprehensive and comparable disaggregated data and information on children publicly available in a timely manner, while protecting their privacy, and to ensure that children have access to information in child-friendly formats and in a manner they understand, and to this end, to make better use of the possibilities of digital solutions and technologies, as appropriate."
The bi-annual resolution on "Birth registration and the right of everyone to recognition everywhere as a person before the law" this year included text calling on states to use digital and new technologies as means to facilitate and universalise access to birth registration as an appropriate measure to permanently store and protect civil registration records and to prevent the loss or destruction of records, including due to emergency or armed conflict situations.
The resolution also calls on states to assess the potential risk to privacy and take steps to protect individuals from discrimination and harm when determining the information included in a birth certificate, particularly details concerning origin, race, ethnicity, religion and parents' marital status, and to consider reflecting on birth certificates only minimum information, such as the child's name, gender, date and place of birth, and when available, parents' names, citizenship and addresses.
Special Procedures mandates and appointments
The mandate of the Special Rapporteur on human rights defenders, Michel Forst, was renewed for a period of three years. The resolution passed by consensus with the broad support of over 80 states, despite a series of attempts by China, Cuba, Pakistan and the Russian Federation to weaken the text, aimed at reducing visibility and legitimacy of human rights defenders.
The mandate of the Special Rapporteur on the right to freedom of opinion and expression, David Kaye, was also renewed by consensus for a period of three years.
Annalisa Ciampi was appointed to be the Special Rapporteur on the rights to freedom of peaceful assembly and association, replacing Maina Kiai, whose term expired. Ciampi is an international human rights lawyer and professor from Italy, affiliated with the University of Verona.
APC @ HRC34
Delivered an oral statement on the privacy violations experienced by visitors at US borders.
Issued a written statement on freedom of expression and religion online in Asia.
Joined ISHR and a global coalition to support renewal of the Special Rapporteur on human rights defenders' mandate.
Organised a side event at UNHRC 34 on the situation of bloggers in Bangladesh: APC along with Front Line Defenders, FORUM-ASIA and CCPR Centre held a panel discussion on Human Rights Defence and Bloggers in Bangladesh. The panellists included Dr Ahmed Shaheed, UN Special Rapporteur on freedom of religion or belief; Ahmedur Chowdhury, a blogger originally from Bangladesh; Sultana Kamal, a human rights lawyer; and Andrea Rocca from Front Line Defenders. The panel discussed the dire situation of human rights defenders and bloggers in Bangladesh, who are being targeted by non-state actors for commenting on issues that may touch upon religion.
Participated in a side event on Freedom of Expression and the Right to Privacy: APC participated in a side event organised by ARTICLE 19 and the missions of Brazil, Germany, Austria, Liechtenstein and Switzerland, which discussed the relationship between the right to freedom of expression and the right to privacy - how they are mutually reinforcing, and how conflicts between them can be reconciled. Other speakers included Joseph Cannataci, UN Special Rapporteur on the right to privacy; David Kaye, UN Special Rapporteur on freedom of opinion and expression; Anita Koncsik, Hungarian Civil Liberties Union; Tomaso Falchetta, Privacy International; and Professor Lorna McGregor, University of Essex.