The internet resolution is an important norm-setting document and advocacy tool for human rights defenders. Adopted by consensus in 2012, it confirms and reiterates state obligations to promote human rights on the internet. At this session, human rights defenders were looking out for two things in particular:
- Changes to the text. Human rights defenders were hoping for more robust language on a range of issues (for example, in support of encryption technologies) but were also aware of potential threats in new additions to the resolution; for example, from states with poor human rights records looking to justify controls on internet activity.
- Fracturing consensus. Much of the strength of the resolution comes from the consensus around it at the UNHRC. At this session, it was rumoured that certain states would instead call for a vote on the revised resolution, which would weaken its significance and power as an advocacy tool.
Before the session
A few weeks before the 38th session, civil society groups sent suggested text edits to the previous resolution to the governments that were leading the drafting of the resolution (in this case Sweden and Brazil). Each suggested edit was accompanied by a rationale, including references to previous resolutions and other UNHRC texts.
Around the same time, a civil society meeting was organised on the fringe of RightsCon 2018 in Toronto to discuss a range of subjects, from respective priorities to intelligence gleaned from governments on the drafting process, and strategies for engagement. At this meeting, an email thread was created to continue sharing information ahead of the event, while civil society groups reached out individually to representatives of the UN missions in Geneva to schedule meetings for the first week of the session.
At the session
Civil society groups first met with delegations at the UNHRC, including those states that were in the drafting group, “sympathetic” states with a good record of supporting rights-respecting language in the resolution, and previous co-sponsors of the resolution. After the first draft was released, groups convened a joint meeting to exchange views, to share information from their conversations with other delegations, and to set up a WhatsApp group to coordinate during the session.
In the first and second week of the Council session, civil society attended the “informal negotiations” which are organised by the group of states leading the drafting of the resolution (“core drafting group”), and where members of the core drafting group present the latest draft of the resolution, and states can voice support or suggest changes for the text. In these negotiations, civil society groups took the floor to make interventions in line with their agreed priorities; for example, in support of the text on private actor responsibilities and on encryption and anonymity. (Note: at the UNHRC, these interventions need the permission of the core drafting group, which is not guaranteed). Coordination in-person and through the WhatsApp group meant that the points made by different civil society representatives were complementary.
After the second draft of the resolution had been shared, civil society set up a meeting with the core drafters of the resolution to exchange views on the progress of the negotiations, and to get information.
Throughout the negotiation process, civil society groups provided feedback on new drafts of the text as they were released, including by suggesting changes to the text and providing a rationale for each change. Although there was no joint input by civil society groups, the WhatsApp group and email thread ensured that interventions made by civil society, whether in writing or on the floor during negotiations, were aligned.
The main aim of civil society engagement in this session was that the text include elements that reflect the evolving importance of the internet for the exercise of human rights online and offline. In this regard, there were some good outcomes, which improved on the three previous versions of the resolution in 2012, 2014 and 2016:
- Stronger recognition of the responsibilities of companies and states towards human rights on the internet. This included a call for states to ensure effective remedies for internet-related human rights violations in accordance with their international obligations, and a recognition that “international human rights law should guide private sector actors and be the basis for their policies”.
- A more comprehensive acknowledgment of the digital divide, including on the basis of gender. The new resolution calls for gender equality in the “design and implementation” of ICTs and in the policy decisions and frameworks regulating them, as well as “enabling environments” for the exercise of human rights online. It also condemns “unequivocally” online attacks against women, in particular those targeting women who engage in public debates.
- Recognition of the importance of anonymity and encryption: For the first time, the resolution acknowledges 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, specifically highlighting the importance of allowing journalists to secure their communications and protect the confidentiality of their sources. This is a significant and welcome intervention, especially given the often negative, securitised framing of the encryption debate.
In addition, the new resolution makes an important reaffirmation of state obligations on freedom of expression by condemning all undue restrictions on freedom of opinion and expression, and includes improved language on internet shutdowns.
However, the resolution also missed opportunities to strengthen the text on freedom of expression during negotiations, by, for example, making reference to specific measures to restrict online expression – like laws relating to criminal defamation and sedition, terrorism, and hate speech. There was also a last minute inclusion of language on “terrorists and their supporters”, an example of how a resolution can be co-opted by governments to attempt to justify restrictions on human rights.