Human Rights Council begins interactive dialogue with the Special Rapporteur on freedom of opinion and expression

Human Rights Council
AFTERNOON

12 June 2017

The Human Rights Council this afternoon began an interactive dialogue with David Kaye, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression.

Mr. Kaye recalled that human rights law protected everyone’s right to seek, receive and impart information and ideas of all kinds, regardless of frontiers and through any media.  Yet State and non-State threats to freedom of expression were on the rise, including demonization of the media as enemies, dissemination of disinformation, and reliance on counter-extremism to restrict and punish legitimate dissent.  He spoke about his visits to Japan, Tajikistan and Turkey.

Japan, Tajikistan and Turkey spoke as concerned countries.

In the discussion, many delegations expressed concern about the growing trend of internet shutdowns and other State-sponsored disruptions of access to information online.  Speakers also noted the importance of involving private digital sector entities in the process of promoting uncensored access to the internet and identifying good practices.  Many speakers outlined the importance of not allowing freedom of speech to become a banner to cover illegal activities such as terrorism, hate speech or defamation.  Speakers also asked the Special Rapporteur whether there were areas of cooperation between internet service providers and human rights mechanisms to avoid abusive pressures by States.

Speaking were the delegations of Russian Federation, Austria, Estonia, Maldives, Venezuela, Spain, Tunisia, Brazil, European Union, Argentina, Benin, United States, Belgium, Germany, Norway, Australia, Switzerland, Poland, Sudan, Pakistan, Cuba, France, Namibia, Egypt, Latvia, Albania, South Africa, Portugal, Iran, Israel, Angola and Tunisia.

The Council will next meet at 9 a.m. on Tuesday, 13 June, to hold its annual full-day discussion on the human rights of women.  The morning panel will focus on accelerating efforts to eliminate violence against women: engaging men and boys in preventing and responding to violence against women and girls, while the afternoon panel will discuss women's rights and the 2030 Agenda for Sustainable Development: health and gender equality.  

At noon, the Council will conclude the interactive dialogue with the Special Rapporteur on freedom of opinion and expression, hear an address by the Minister of Foreign Affairs of Spain, and time permitting, will hear the presentation of thematic reports by the Secretary-General and the High Commissioner for Human Rights, followed by a general debate on the promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development.

Documentation

The Council has before it the Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (A/HRC/35/22).

The Council has before it an addendum to the Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression - mission to Japan (A/HRC/35/22/Add.1).

The Council has before it an addendum to the Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression - mission to Tajikistan (A/HRC/35/22/Add.2).

The Council has before it an addendum to the Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression - mission to Turkey (A/HRC/35/22/Add.3).

The Council has before it an addendum to the Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression - Supplementary Materials Accompanying Annual Report A/HRC/35/22 (A/HRC/35/22/Add.4).

The Council has before it an addendum to the Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression - comments by Japan (A/HRC/35/22/Add.5).

The Council has before it an addendum to the Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression - comments by Turkey (A/HRC/35/22/Add.6).

The Council has before it an addendum to the Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression - comments by Tajikistan (A/HRC/35/22/Add.7).

Presentation of Reports by the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression

DAVID KAYE, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, said human rights law protected everyone’s right to seek, receive and impart information and ideas of all kinds, regardless of frontiers and through any media.  Yet State and non-State threats to freedom of expression were on the rise, including the demonization of the media as enemies, dissemination of disinformation, and reliance on counter-extremism to restrict and punish legitimate dissent. 

Turning to his three country visits, he began with Tajikistan, where he noted that the Government faced security threats.  He expressed concerns about the intimidation of the media, censorship of the internet, and “draconian” restrictions on opposition voices, among other concerns.  He urged the Government to reconsider its approach and reverse restrictions, thus ensuring broad and open space for civil society. 

Regarding his visit to Japan, he said the country enjoyed strong legal foundations for freedom of opinion and expression, yet encouraged the Government to consider three recommendations related to media independence.  They included that the Government should take steps to ensure broad access to information, as the press club or “kisha” system discouraged investigative reporting.  Other recommendations included ensuring access to independent historical bases for textbook coverage, especially of issues such as the World War II “comfort women” abuses.

Turning to his visit to Turkey, he noted that the country had faced serious security threats, including an attempted coup.  However, Mr. Kaye expressed his deep concern at measures taken to repress the freedom of expression.  His key recommendations to Turkey included the immediate release of journalists, writers, judges and academics who were detained pursuant to counter-terrorism legislation and emergency decrees.  The Government should reverse its shutdown of media outlets, and refrain from the excessive blocking and filtering of content on the Internet. 

As for his thematic report on threats to digital access, he noted that his recommendations included urging all governments to refrain from taking steps that interfered with the freedom of expression.  Many of the actors that controlled digital access were privately owned or operated, mediating between the State and the individual. 

Statements by the Concerned Countries

Japan, speaking as a concerned country, noted that it fully respected freedom of speech and the media as a cornerstone of democracy.  It regretted that some parts of the report were written without accurate understanding of the Government’s explanation and its position.  It was noted that the Constitution of Japan fully guaranteed freedom of expression and the right to know.  There was no such fact that the Government officials had put pressure on journalists illegally and wrongfully.  There had been no cases in which the operation suspension order had been applied by the Broadcast Act.  Freedom of expression, including through protest activities, was guaranteed to the maximum extent.  Unnecessary and disproportionate restrictions were not imposed, and the law enforcement agencies performed their duties in accordance with relevant laws and regulations.  Regarding the Specially Designated Secrets Act, information gathering performed by journalists was not punished under that act.

Tajikistan, speaking as a concerned country, said that the conclusions in the report had been prepared without taking into account the specifics of the country’s legislation, measures to combat terrorism and the endeavours to counteract money laundering which was often used to finance terrorism.  The report contained speculation on the part of the Special Rapporteur, without any concrete facts and examples, and it ignored comments submitted by the Government, for example the information provided on national legislation on the right of citizens to freedom of opinion and expression, and the right of citizens to hold demonstrations.  The Special Rapporteur had been provided with the information on the reasons for introducing the amendments to the law on public associations which were in accordance with the recommendations by the Financial Action Task Force on Money Laundering, and the United Nations Convention against Corruption, but those were not included in the report.  The report was biased as it included only the information provided by non-governmental organizations.

Turkey, speaking as a concerned country, said the Special Rapporteur’s visit to the country came only four months after the heinous coup attempt of July 15, 2016.  Freedom of expression and the media constituted an important pillar of human rights policies in Turkey and Turkey had an active, vibrant, multi-vocal and pluralistic media community.  Turkey faced severe and multiple terrorist threats and was combatting a number of terrorist organizations.  The ongoing state of emergency was thus necessary.  The investigations conducted on certain journalists after the coup were not due to their journalistic work but to their support or link to the terrorist organizations.  The coup attempt had posed a vital security threat to the Turkish nation, and the judicial authorities considered it worthwhile to prosecute any support to the bloody coup, regardless of the profession of the supporters as such acts constituted a crime.  An Inquiry Commission on State of Emergency Measures had been established to examine applications concerning dismissals of public employees, closure of associations, institutions and media outlets, and its decisions were binding.

Interactive Discussion

Tunisia, speaking on behalf of the African Group, stated that free access to the internet was key for the full realization of freedom of expression.  The African Group asked the Special Rapporteur to comment on the possibility of reaching a right balance between freedom of expression and the prevention of hate speech and abusive comments on the internet.  Brazil, speaking on behalf of a group of countries, noted that encryption and anonymity were key principles to ensure the full enjoyment of the right to privacy and freedom of expression.  European Union voiced concerns about the frequently occurring, State imposed, access restrictions that failed to meet international human rights standards, such as network shutdowns.  The European Union was committed to promote unhindered and non-discriminatory access to online services for all. Argentina, speaking on behalf of a group of countries, noted that States held the responsibility to promote universal access to the internet, which represented a key tool to promote democracy.  Restrictions to internet access could only be acceptable within the limits set by international standards. Benin said that States bore the imperative mission to ensure that all citizens had access to the internet.  The increase in restrictive measures and control policies over personal data by authorities was particularly worrisome.

Russian Federation regretted that the Special Rapporteur had paid attention to issues tangential to his mandate.  The Russian position was well known; the possible use of the internet for purposes incompatible with security was known, and the Russian Federation had advocated for the prevention of conflict in cyberspace.  Austria said the cases of internet shutdowns were of great concern, and they often ran counter to proportionality.  Austria was worried about reports of threats and intimidation to access sensitive user data.  Estonia asked the Special Rapporteur to elaborate on good practices of collaboration between States and the private industry in finding ways to increase the protection of all human rights and fundamental freedoms online.  Maldives stressed the need for private stakeholders to commit to maintaining the balance between freedom of expression and privacy.  The Maldives’ parliament had passed a law on freedom of expression balancing the notions of freedom with responsibility. 

Venezuela said it was a shameful practice to ask for information from a country and then issue a press release condemning the very same country, saying the Special Rapporteur’s report referred to a source saying internet users were denied access to the internet, which was not true.  The Special Rapporteur was urged to use his own laptop and check the available access.  Spain said the role of private sector entities was relevant when it came to accessing the network.  The Special Rapporteur was asked how there could be compatibility between States’ responsibility to guarantee access to the network and necessary protection, given recent attacks.

United States was concerned about the actions of Turkey to limit freedom of expression during the state of emergency and the detention of individuals, including the Chair of Amnesty International.  The United States shared concern about State-sponsored disruption but was also concerned about the characterisation of the United States law in the report.  Belgium agreed that the situation of freedom of expression in Turkey was of concern and strongly encouraged the authorities to work with different United Nations and Council of Europe mechanisms.  Lifting the state of emergency would be of great value in guaranteeing fundamental freedoms and the rule of law.  Germany agreed that individuals increasingly depended on digital access to exercise fundamental rights but this access was often not facilitated by States but by business enterprises.  The right to privacy was closely connected to freedom of expression and interference with this right could have a deterrent effects

Remarks by the Special Rapporteur

DAVID KAYE, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, responding to questions raised in the discussion, said that the work in the present thematic report was very much in keeping with his Human Rights Council mandate.  In its future work, the Council should clarify the obligations of States that applied online.  Of particular concern was the epidemic of internet shutdown, which was a blunt tool of censorship that interfered with information flows but also with family and business activities.  States were also increasingly putting at risk general principles of the flow of information and sought to restrict this flow without judicial orders.  The principle of net neutrality was seeing a rollback.  Many digital access providers were private enterprises and were exposed to certain risks and pressure exercises by States.  They had to comply with their due diligence obligations, and incorporate human rights by design in their products and services. 

Over the coming year, Mr. Kaye said he would continue to help the Council to identify the norms and practices applicable to the expression of freedom of expression in the digital space, particularly on platforms, and policies and practices for protection from harassment, false information and propaganda.  Hate speech online was an important problem that both private entities and Governments must address, acknowledged the Special Rapporteur.  There must be transparency in rules concerning what might be censored online - today, there was very little transparency in this regard.  Secondly, it was important for States and private actors to start from the principle of prohibiting censorship.  There must be significant compliance with human rights both in what States were doing and what private actors were doing; for example, context restriction must be based at least on article 20 of the International Covenant on Civil and Political Rights.

Interactive Dialogue

Norway outlined that the internet provided unique opportunities for innovation and development.  Regrettably, it was also used for purposes of control and repression of journalists and media workers, human rights defenders and civil society. Australia was committed to protect the right to express any kind of opinions, including controversial views.  Australia asked the Special Rapporteur to elaborate on the existing links between digital access companies and human rights mechanisms.  Switzerland noted that private companies and civil society played a pro eminent role in ensuring full access to the internet.  It was of utmost importance to preserve privacy, protect personal data, and promote best practices for companies in this regard.  Poland said that it had adopted a national action plan aimed at implementing best practices for business companies to promote freedom of expression in the digital era.  Poland asked the Special Rapporteur to elaborate on existing safeguards to prevent the use of freedom of speech as a banner to create fake news.

Sudan said that, in his report, the Special Rapporteur had used inaccurate data regarding Sudan.  A comprehensive national dialogue had been launched recently, bringing together many actors on the issue of freedom of speech online. Pakistan noted that it was crucial to maintain the balance between rights and obligations and to ensure that freedom of expression online and offline must be practiced with responsibility.  There was need to prevent the uploading of abusive content promoting hate speech and defamation of sacred religious personalities. 

Cuba said that although it was agreed that there must be promotion of freedom of expression, the Special Rapporteur’s report gave examples of how the medium should be carefully regulated.  When a small group of companies determined what one read and watched, it was clear the internet needed independent governance. France shared the Special Rapporteur’s concern at some countries cutting off the internet.  France’s law on due diligence required companies to respect human rights obligations.  The Special Rapporteur was asked if there were areas of cooperation between internet service providers and certain human rights mechanisms to avoid the abusive pressure some States could exert. Namibia looked forward to future reports on the issue that could also address other obstacles such as the lack of adequate connectivity and the lack of capacity to address challenges associated with social media, particularly in developing countries. 

Egypt said States had an obligation to respect freedom of expression but incitement to killing and extremism were not covered by freedom of expression, terrorist groups did not have such rights when they used the internet to promote their vile activities.  Highly technical issues that were beyond the mandate of the Special Rapporteur should be avoided. Latvia asked the Special Rapporteur to which extent should digital access providers proactively delete terrorism related content from their servers, and what guarantees could ensure that such actions met international human rights law standards?  Albania said the impact was witnessed every day of people exercising their right to freedom of expression.  There was a need to develop a new human rights approach protecting citizens from both censorship and from violations of their right to privacy.  The Special Rapporteur was asked what specific measures he would recommend to States for increasing citizens’ awareness of the risk of exposure and limits of digital security.

South Africa strongly supported the right to freedom of expression and opposed the restriction of freedom of expression online.  Efforts to protect the integrity of the State meant that sometimes online access would have to be limited, but this must be done with judicial oversight.  Portugal said that the right to hold opinions without interference was an inalienable right, which must not be subject to limitation or penalty.  Portugal asked the Special Rapporteur to clarify his recommendation to the Council on the rules that applied to digital access to advance the right to freedom of opinion and expression online.  Iran said that revelations of mass surveillance conducted by the intelligence and security agencies of the most developed countries had raised concerns about their intercepting of domestic and foreign internet traffic to monitor domestic and international communications. 

Israel said that States should do their utmost to ensure safe and open access of the public to the internet, which was a key element to any democracy.  In facing instances of hate and incitement, States should refrain as much as possible from direct action, and strive to reach understanding with relevant companies and digital operators with a view to putting forth norms to govern the appropriate use of the internet.  Angola stressed that it was up to the business enterprises to prevent and mitigate the adverse impact of the use of information technology on human rights by preventing it from contributing to the abuse of citizens’ fundamental rights and freedoms.  Tunisia underlined the importance of creating an enabling legal environment for the enjoyment of freedom of expression online and the respect for the right of privacy.  How could the challenge of hate speech online be addressed without undermining freedom of expression?

Iraq recalled that freedom of expression and freedom of the press was enshrined in its Constitution as long as it did not threaten public order and morals.  Iraq was at a turning point in intensifying freedom of expression through the adoption of new policies aimed at protecting internet users.  Georgia outlined the importance of providing  internet accessibility in rural areas.  A media Ombudsman office had recently been established to ensure freedom of speech and prevent hate speech.  Cyprus recalled that States and private sector actors had the obligation to ensure access online and maintain connectivity.  They were also responsible for ensuring that freedom of speech did not serve as a banner to cover terrorist activities. 

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For use of the information media; not an official record
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