Last week, the 47 states which comprise the UN Human Rights Council (UNHRC) passed a third update to its landmark resolution on “the promotion, protection and enjoyment of human rights on the internet” which, in 2012, became the first UN output in history to formally recognise that “the same rights people have offline must be protected online.”
While non-binding, the resolution exerts influence on the actions of policymakers at the national level, and influences norm-building in a range of international policy spaces; informing a range of influential documents and guidelines, including from the Organization for Security and Co-operation in Europe and the Council of the European Union. Unusually for a UN resolution, it is also relatively well known among the wider public, and is often mentioned or reported on in mainstream news sources.
For these reasons, human rights defenders have always paid close attention when it has come up for review; and, this year, there was a distinct sense of anticipation. Since the last update in 2016, the digital policy and human rights landscape has changed significantly. Attempts to restrict access to encryption (or install “backdoors”) have become troublingly common, “internet shutdowns” are prevalent, and social media platforms are facing unprecedented regulatory scrutiny from governments.
GPD, alongside other civil society groups, engaged directly at the UNHRC during the discussions around updates to the resolution. Now that the text is confirmed, and the resolution passed, how does it shape up – and what does it tell us about the current state of play in the digital environment?
The 2018 version of the resolution has a number of positive new features. It acknowledges for the first time that encryption and other technical anonymity measures “can be important to ensure the enjoyment of human rights,” and calls on governments not to interfere with the usage of these measures. This is a significant and welcome intervention, especially given the often negative, securitised framing of the encryption debate.
The new wording of the resolution also supports the ability of journalists to be able to perform their work independently and without undue or unlawful interference, including by allowing them to secure their communications; asks states to take concrete steps to address the gender digital divide; and recognises that international human rights law should be the basis of tech companies’ policies and terms of service. This latter point is particularly important in the light of ongoing debates around the role of social media platforms in regulating online content.
The less good
One decidedly unwelcome addition to the resolution is vaguely worded “concerns” over the use of the internet by “terrorists and their sympathisers” – a worryingly broad category which could be easily used by governments to justify restrictions on human rights in the future.
Otherwise, the problem with the new resolution is less what it says than what it fails to say. Many had hoped that the text would include a specific condemnation of the growing tendency among some governments to criminalise online expression, including political dissent, through broad, disproportionate legislation (typically defamation, incitement and counter-terrorism laws). While the resolution “condemns unequivocally undue restrictions of freedom of opinion and expression online that violate international law,” it is silent on these specific abuses. Similarly, the new language around encryption, while broadly welcome, could also have been stronger. Instead of recognising that encryption tools “can be” important for the enjoyment of human rights, it might have simply said that they “are”.
In general, there’s a lot to welcome in the updated resolution. The fact that it passed by consensus (not a certainty, given the current geopolitical cleavages within the UN) is an achievement in itself. It means that the UN can – as a fellow civil society advocate put it – continue to speak “with one voice with respect to protection and promotion of human rights and the internet.” The inclusion of new language on encryption is also important, notwithstanding missed opportunities to make it stronger.
An important takeaway is that the UNHRC is becoming an increasingly important forum for the development of norms around human rights and the internet. Other resolutions passed at this session, on civic space and violence against women, contained specific reference to digital contexts; while the mandates of Special Rapporteurs increasingly intersect with, and respond to, challenges specific to the digital environment, with the Special Rapporteur on the rights to freedom of peaceful assembly and of association particularly notable here. It’s important that human rights defenders, particularly from underrepresented regions like the global South, continue to engage. We’ve created a tool to support this as part of our Navigating Human Rights in the Digital Environment series, which can be found here.