05 Dec 2023

The final text of UNESCO’s Guidelines: a more balanced approach to platform governance

The final text of UNESCO’s Guidelines for the governance of digital platforms was released this month. The document marks the conclusion of a process started in September 2022 by UNESCO to produce what were originally billed as ‘Guidelines for regulating digital platforms’ (emphasis ours).

The process provoked a mixed response from stakeholders. While UNESCO sought to justify the initiative as a necessary response to demands from many member states for guidance on platform regulation, many companies and civil society organisations around the world expressed concern—highlighting its potential to be used as a ‘rubber stamp’ for regulatory frameworks that further restrict freedom of expression in the name of ensuring safety in the digital environment.

In February 2023, UNESCO hosted the Internet for Trust Conference, setting out a titanic effort to provide consultative iterative opportunities for stakeholder engagement around the initiative, in an attempt to make the process truly inclusive and participatory. However, the initial drafting stage was widely criticised for the narrow range of perspectives represented on it, and for its failure to properly account for the variety of contexts where the Guidelines would face institutional, social and political challenges in keeping their implementation aligned with human rights. Criticism was also raised around the composition and transparency of the catalyst group originally set up to advise the process.

Another open question during the process was how the proposed Guidelines would account for UNESCO’s mandate as the leading UN agency for the promotion and protection of freedom of expression and to information, as well as its connection to the international human rights framework and standards (e.g. through the work of the Office of the High Commissioner of Human Rights and its special mandates, the UN Guiding Principles on Business and Human Rights, and more recent efforts like the Voluntary Code of Conduct for Information Integrity on digital platforms).

On review of the final text of UNESCO’s Guidelines, it’s clear they have come a long way—even if some aspects will need further assessment in the Guidelines’ implementation phase. Even the Guidelines’ title alteration—from “regulation” to a broader focus on “governance”—represents an improvement, acknowledging the complexity that comes with approaching the functioning of digital platforms in a nuanced way. The final text makes explicit reference to the need to consider context in choosing the best combination of regulatory arrangements—which could include self-regulatory structures and mechanisms, co-regulatory structures and mechanisms and statutory frameworks. Abandoning the exclusive “regulatory” approach that was present in the original phase of the initiative is not a small semantic change, but rather a helpful recognition of the risks of a one-size-fits-all approach.

Another relevant improvement in the trajectory of the Guidelines is the clear emphasis on stakeholder engagement as a key element within effective digital platform governance. Although this element was not entirely absent in the beginning of the drafting process, it has evolved from a more programmatic commitment to a fully fleshed out element embedded across the different sections of the final text of the Guidelines. The Guidelines now encourage wider stakeholder collaboration, from the design of the governance system to its rolling out, through a range of avenues: from the democratic assessment of regulatory initiatives, to implementation of companies’ due diligence process and product and service design which ensures human rights are respected.

Earlier drafts of the Guidelines sought to define which kinds of digital platforms could be included in the scope of regulation. In the final text, this definition has become a set of elements to be identified and weighed up in different contexts, which provides increased flexibility as well as a clear frame of reference. No less relevant, the final text sets out that any definition of scope adopted for platform regulation should be mindful of protecting the right to privacy and “not result in the weakening of protections for encryption or other privacy-protecting technologies”, as GPD consistently advocated for in its submissions.

States’ duties—absent in the first draft—have now been further spelled out, refined across successive rounds of consultation and recognised as part of an enabling environment. The final draft rightly centres the right to freedom of expression and access to information, as well as the responsibility of states to create a “regulatory environment” that facilitates the protection of human rights by digital platforms, stressing that restrictions on freedom of expression are permissible only under the conditions established by Articles 19(3) and 20 of the ICCPR. Equally relevant, it requires states to refrain from general disruptions to access to platforms and from imposing a general monitoring obligation for digital platforms.

Finally, albeit in a very succinct form, the final text of the Guidelines finds a way to better account for the fact that platform governance processes can be impacted by a number of regulatory actions in other fields (such as elections, data protection, and antitrust regulations), which can have systemic consequences for their obligations and incentives. The overarching principles for governance systems proposed in this final text are intended to also serve as guidance for these complementary regulatory arrangements.

The Guidelines conclude by welcoming further discussion on how to operationalise them and “use them as an advocacy tool”, with the goal of protecting freedom of expression, access to information and diverse cultural content, and all other human rights in the digital environment. GPD will be working with partners in the following months to counter rights-restricting platform regulation through advocacy across a number of jurisdictions and at the global level, and we hope this will provide us with further opportunities to test the flexibility and support for human rights protections that are at the core of the Guidelines.