This report explores key trends and challenges to the right of all individuals to seek, receive and impart information and ideas of all kinds through the Internet. The Special Rapporteur underscores the unique and transformative nature of the Internet not only to enable individuals to exercise their right to freedom of opinion and expression, but also a range of other human rights, and to promote the progress of society as a whole.
...In this regard, the Special Rapporteur would like to underscore that access to the Internet has two dimensions: access to online content, without any restrictions except in a few limited cases permitted under international human rights law; and the availability of the necessary infrastructure and information communication technologies, such as cables, modems, computers and software, to access the Internet in the first place.
Restriction of content on the Internet
28. As outlined under Chapter III, any restriction to the right to freedom of expression must meet the strict criteria under international human rights law. A restriction on the right of individuals to express themselves through the Internet can take various forms, from technical measures to prevent access to certain content, such as blocking and filtering, to inadequate guarantees of the right to privacy and protection of personal data, which inhibit the dissemination of opinions and information.
The Special Rapporteur is of the view that the arbitrary use of criminal law to sanction legitimate expression constitutes one of the gravest forms of restriction to the right, as it not only creates a “chilling effect”, but also leads to other human rights violations, such as arbitrary detention and torture and other
forms of cruel, inhuman or degrading treatment or punishment.
A. Arbitrary blocking or filtering of content
29. Blocking refers to measures taken to prevent certain content from reaching an enduser. This includes preventing users from accessing specific websites, Internet Protocol (IP) addresses, domain name extensions, the taking down of websites from the web server where they are hosted, or using filtering technologies to exclude pages containing keywords or other specific content from appearing. For example, several countries continue to block access to YouTube, a video-sharing website on which users can upload, share and view
China, which has in place one of the most sophisticated and extensive systems for controlling information on the Internet, has adopted extensive filtering systems that block access to websites containing key terms such as “democracy” and “human rights”. (Reporters without Borders, “Enemies of the Internet,” March 2010. Available from:http://en.rsf.org/IMG/pdf/Internet_enemies.pdf
, pp. 8-12).
The Special Rapporteur is deeply concerned that mechanisms used to regulate and censor information on the Internet are increasingly sophisticated, with multi-layered controls that are often hidden from the public.
30. The Special Rapporteur is also concerned by the emerging trend of timed (or “justin-time”) blocking to prevent users from accessing or disseminating information at key political moments, such as elections, times of social unrest, or anniversaries of politically or historically significant events. During such times, websites of opposition parties, independent media, and social networking platforms such as Twitter and Facebook are blocked, as witnessed in the context of recent protests across the Middle East and North African region. In Egypt, users were disconnected entirely from Internet access.
31. States’ use of blocking or filtering technologies is frequently in violation of their obligation to guarantee the right to freedom of expression, as the criteria mentioned under chapter III are not met.
Firstly, the specific conditions that justify blocking are not established in law, or are provided by law but in an overly broad and vague manner, which risks content being blocked arbitrarily and excessively.
Secondly, blocking is not justified to pursue aims which are listed under article 19, paragraph 3, of the International Covenant on Civil and Political Rights, and blocking lists are generally kept secret, which makes it difficult to assess whether access to content is being restricted for a legitimate purpose.
Thirdly, even where justification is provided, blocking measures constitute an unnecessary or disproportionate means to achieve the purported aim, as they are often not sufficiently targeted and render a wide range of content inaccessible beyond that which has been deemed illegal.
Lastly, content is frequently blocked without the intervention of or possibility for review by a judicial or independent body.
32. The Special Rapporteur notes that child pornography is one clear exception where blocking measures can be justified, provided that the national law is sufficiently precise and there are effective safeguards against abuse or misuse, including oversight and review by an independent and impartial tribunal or regulatory body. However, he is also concerned that States frequently rely heavily on blocking measures, rather than focusing their efforts on prosecuting those responsible for the production and dissemination of child pornography.
Additionally, as child pornography is often a by-product of trafficking and prostitution of children, the Special Rapporteur urges States to take holistic measures to combat the root problems that give rise to child pornography.
B. Criminalization of legitimate expression
33. The types of action taken by States to limit the dissemination of content online not only include measures to prevent information from reaching the end-user, but also direct targeting of those who seek, receive and impart politically sensitive information via the Internet. Physically silencing criticism or dissent through arbitrary arrests and detention, enforced disappearance, harassment and intimidation is an old phenomenon, and also applies to Internet users.
This issue has been explored in the Special Rapporteur’s report to
the General Assembly under the section on “protection of citizen journalists” (A/65/284).
Such actions are often aimed not only to silence legitimate expression, but also to intimidate a population to push its members towards self-censorship.
34. The Special Rapporteur remains concerned that legitimate online expression is being criminalized in contravention of States’ international human rights obligations, whether it is through the application of existing criminal laws to online expression, or through the creation of new laws specifically designed to criminalize expression on the Internet. Such laws are often justified on the basis of protecting an individual’s reputation, national security or countering terrorism, but in practice are used to censor content that the Government and other powerful entities do not like or agree with.
Seventy-two individuals were imprisoned in China alone, followed by Viet Nam and Iran, with 17 and 13 persons respectively (Reporters without Borders, “Enemies of the Internet,” March 2010. Available from: http://en.rsf.org/IMG/pdf/Internet_enemies.pdf
36. Imprisoning individuals for seeking, receiving and imparting information and ideas can rarely be justified as a proportionate measure to achieve one of the legitimate aims under article 19, paragraph 3, of the International Covenant on Civil and Political Rights. The Special Rapporteur would like to reiterate that defamation should be decriminalized, and that protection of national security or countering terrorism cannot be used to justify restricting the right to expression unless the Government can demonstrate that:
(a) the expression is intended to incite imminent violence;
(b) it is likely to incite such violence;
and (c) there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence (Johannesburg Principles on National Security, Freedom of Expression and Access to Information, Principle 6, as endorsed in E/CN.4/1996/39).
37. Additionally, the Special Rapporteur reiterates that the right to freedom of
Expression includes expression of views and opinions that offend, shock or disturb. Moreover, as the Human Rights Council has also stated in its resolution 12/16, restrictions should never be applied, inter alia, to discussion of Government policies and political debate; reporting on human rights, Government activities and corruption in Government; engaging in election campaigns, peaceful demonstrations or political activities, including for peace or democracy; and expression of opinion and dissent, religion or belief, including by persons belonging to minorities or vulnerable groups.