By Guest author

The United Nations (UN) Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression David Kaye has released a new report, which gives an overview of the problems for freedom of expression and opinion in the Telecommunications and Internet Access Sector. The report also provides general recommendations for states and private actors on topics such as digital access, net neutrality, government access to user data, and freedom of expression.

1. Digital access and net neutrality needed

Having access to the internet is the precondition for enjoying human rights online. Unfortunately, this condition is often not met. Firstly, in collaboration with private actors, states conduct or order internet shutdowns, thereby violating human rights law. In his report, the Rapporteur makes it clear that shutdowns represent a restriction that has to be “provided by law”.

Secondly, once access is granted, it is important to ensure that internet data is treated equally, without undue interference. This is called “net neutrality”. In the European Union, the European Commission attempted to legislate against this principle. However, with few exceptions, the current legal framework creates solid protection for net neutrality and the freedom to seek, receive and impart information, as long as it is provided with good enforcement by the telecoms regulators. The report highlights that states have a positive obligation to deliver net neutrality in order to promote non-discriminatory access to information. Apart from that, the report presents concerns on topics like price discrimination (“zero-rating”), paid prioritisation, and the deployment of 5G.

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2. Censorship and surveillance: No excuse for states and private actors to breach human rights

With regard to access to users’ data, the report focuses on requests for data, undermining encryption, and direct access by states. On these issues, the Rapporteur makes it clear that providers should only be compelled to release user data to the government when ordered by judicial authorities after a proper assessment of proportionality and necessity.

Further, the Rapporteur analyses the obligations to be imposed on private actors with regard to access to users’ data, and introduces a set of rules to be considered by all digital access providers in order to preserve users’ human rights.

3. Freedom of expression must be preserved by states and private sector

While state obligations to protect freedom of expression are clear, this is not the case for private actors. In the report, important points are made on censorship and surveillance and recommendations are given to companies to take measures not to contribute or to take part in human rights abuses. In addition, the report gives details on how encryption and anonymity tools provide the security necessary for the exercise of freedom of expression.

Kaye’s report asks the telecommunications and internet companies to go beyond mere “high-level policy commitments to human rights”. Companies should allocate more resources on due diligence, rights-oriented design and engineering choices, strategies to prevent or mitigate human rights risks, transparency and effective remedies. Ultimately, when faced with state pressure, “companies should seek to prevent or mitigate the adverse human rights impacts of their involvement to the maximum extent allowed by law”, the report recommends.

Kaye warns against excessive and abusive “requests for user data and third party retention of such data” by the states. He believes that states must develop “national action plans on business and human rights” to ensure that the digital access industry respects and positively impacts human rights.

The report does an excellent job highlighting the most pressing problems for freedom of expression online, in line with EDRi’s comments submitted in a response to the UN Special Rapporteur’s consultation. In times of corporate and state surveillance and censorship, it is important that protection of human rights in the digital environment is actively protected.

UN expert demands urgent boost for online rights amid rampant State censorship (12.06.2017)
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21725&LangID=E#sthash.XFQNexuq.dpuf

Report on the “responsibilities of the Information and Communication Technologies (ICT) sector to protect and promote freedom of expression in the digital age” (6.06.2017)
https://freedex.org/the-special-rapporteurs-june-2017-report-to-the-human-rights-council/

Public Consultation on UN Special Rapporteur David Kaye’s Study on the Telecommunications and Internet Access Sector
http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/CallTelecommunications.aspx

EDRi’s response to UN Special Rapporteur David Kaye’s consultation on the Study on freedom of expression in the Telecommunications and Internet Access Sector (01.11.2016)
https://edri.org/files/consultations/20161101_foe-telecoms-ias_edriresponse.pdf

European Court of Human Rights Case AHMET YILDIRIM v. TURKEY, Application no. 3111/10 (18.12. 2012)
http://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-4202780-4985142&filename=003-4202780-4985142.pdf

(Contribution by Romina Lupseneanu, EDRi intern)

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