Statement by David Kaye, Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression

General Assembly - Third Committee, Item 69 (b & c)

24 October 2017
New York

Madame Chairperson,
Excellencies,
Ladies and Gentlemen,

I am pleased to report today on the work of my mandate, which the Human Rights Council — and the Commission on Human Rights before it — established in order to promote and protect the right to freedom of opinion and expression.

For nearly a quarter century, my predecessors and I have sought to detail the ways in which human rights law, in the words of the Universal Declaration and the International Covenant on Civil and Political Rights, protects everyone’s right to seek, receive and impart information and ideas of all kinds, regardless of frontiers and through any media. In the early stages of the mandate, the reports highlighted a spectrum of governmental policies, practices and laws that undermined freedom of expression. But they also reflected the widespread sense that democratization processes in the 1990s, coupled with a revolution in digital technologies, would be providing unprecedented access to information and tools for communication. Over time, my predecessors — Abid Hussain of India, Ambeyi Ligabo of Kenya, and Frank LaRue of Guatemala — together with the Council and the Human Rights Committee of the ICCPR, developed a powerful legal framework for protecting and promoting the freedom of opinion and expression.

As I reported to this Committee last year, that framework is under serious threat. In the year since my last report, the crisis for freedom of expression has deepened worldwide. Journalists have been murdered, their killers rarely if ever brought to justice. Individuals have been arrested merely for posting online criticism of government policy or officials. Our online security, essential to our ability to take advantage of the digital revolution, has been undermined by governments and government-sponsored and private trolls. The public’s trust in information has been, and continues to be, attacked by political demagogues and their surrogates. Threats to civil society activists continue unabated, subject to digital attack, surveillance, baseless investigations and accusations, xenophobia and much else. And corporate actors in digital space are both attacked by authorities and themselves growing in power that, to many States and observers, seems unaccountable and opaque.

In this presentation, I will begin with what’s easy to fix: ensuring that this institution, the United Nations, and other international organizations follow the norms of freedom of information that are already binding upon States. Second, I will turn to highlight one of the major initiatives my mandate, along with colleagues in regional mechanisms, took this year, focusing on the global scourge of disinformation and propaganda. Finally, I will spend a few moments updating the Committee on my thematic work concerning the private sector in the digital age.

The current report (A/72/350): Access to information in international organizations

How can individuals make sense of the work of their governments, or participate in public life, or hold public officials accountable through free and fair elections, or comment intelligently about public affairs, without knowing what public authorities are doing in their name? This is a rhetorical question, of course, since everyone in this room knows that access to information is an essential component of good and open governance and rule of law.

The report I am presenting today explores this question in the context of international organizations. When it comes to governments, access to information, if not an altogether positive story, at least has elements of strong promise. A majority of governments now have freedom of information policies and processes, guaranteeing access as a right, sometimes under constitutional law. This is as it should be. While the right may often be difficult to exercise, and governments often impose undue burdens or restrictions on certain types of information, one could at least see a commonality of legal frameworks that promote the right in principle. That is a step forward.

International organizations, including the UN, fall far behind governments in creating legal frameworks and processes to promote and enable access to information. Most organizations have taken impressive steps to make information available online, with websites that share the latest resolutions, initiatives, press releases, explainers, and general information. However, it is not enough to rely only on what the organizations themselves disclose, particularly since so much of the work of organizations is hidden. There need to be ways for individuals to request information that would not otherwise be disclosed.
Some organizations have crafted access to information policies that seek to meet the demands of transparency. I will not name them all here, because I would certainly leave some out. The UN Development Program was the first with a formal, and relatively robust, policy, followed by the international financial institutions, the UN Environmental Program, and several others. Shockingly, however, the UN does not have a system-wide access to information policy. This is true even after years of high-profile scandals that underscored the lack of accountability in the UN system.

The report before you identifies several components of an effective access to information policy. They include the following:

* Open multi-stakeholder adoption process: International organizations should ensure that members of the public and civil society organizations have the ability to participate meaningfully in the development, review and updating of access policies.

* Proactive, clear, searchable and secure disclosures: Any disclosure system should be simple to use, publish what has been disclosed, and do so in a secure way.

* Comprehensive policies with binding rules: Any access policy should broadly define information that may be disclosed. They should not be discretionary. I especially would like to see mechanisms to enable disclosure of analysis, legal and otherwise, that justifies organizational decisions, and information pertaining to elections to official and expert bodies.

* Clear rules about what information may be withheld: All organizations have incentives to keep things secret, but public institutions must narrow those things to legitimate exceptions.

* Effective complaint and appeals mechanisms: The ability to appeal is essential to holding organizations to their policies.

* Strong implementation, review and monitoring systems: It is not enough to simply have a policy; they should be constantly subject to oversight.

* Finally, independent whistleblower protections: I am pleased that the Secretary General has taken steps to improve the protections available to whistleblowers in the UN system. The UN can go further. In particular, it is imperative that the protections include disciplinary sanctions against those who retaliate against whistleblowers. I also believe that whistleblower protections should be monitored and promoted not by the Ethics Office but a new office devoted to accountability and employee protection.

The report concludes with the following specific recommendations:

• It is my hope that the political bodies of the United Nations, especially the General Assembly and Human Rights Council, and other intergovernmental organizations will:  (a) Promote the adoption of access to information policies through resolutions and other governance mechanisms;  (b)  Ensure the development of monitoring and oversight functions;  (c) Provide comprehensive information concerning organizational governance mechanisms, including election and selection or appointment processes, and broader and simpler accreditation of organizations to participate in and monitor organizational activities;  (d) Promote knowledge of access to information policies, including through the provision of clear information on websites and active dissemination and promotion of those policies to staff and stakeholders.
• Member States also have a strong role here, and I would recommend that they:  (a)  Encourage intergovernmental organizations to adopt access-to-information policies that meet the standards identified in the present report;   (b)  Participate actively in the development of policies that advance everyone’s right to freedom of information;  (c)  Focus on ensuring the broadest possible access to information, only seeking to protect from disclosure State-generated information that could be withheld under international human rights law.

 I’ll conclude on this point by emphasizing this: freedom of information is strongly in the interests of the UN and other international organizations. The age of secrecy, backroom deals, and reputational protection ended long ago. The organization’s very image and effectiveness depends upon openness, and it cannot rely on public support — let alone governmental support — over the long-run if the organization fails to open itself to genuine scrutiny and accountability.

Propaganda, disinformation, and so-called “fake news”

From information access to, now, disinformation. Perhaps no issue in the space of freedom of expression attracted more attention globally over the past year than so-called “fake news”. Unfortunately, that framing has lost its force, adopted by some leaders as a tool to attack journalism, criticism and democratic opposition. The term has no meaning in an environment in which language is so abused and distorted.

That said, disinformation and propaganda are undermining the public’s trust in information, the media, public institutions - as they are designed to do. Some such disinformation has non-governmental origins, the product of a clickbait environment that values the extremes of political dialogue. But behind much of today’s disinformation stand governmental, or quasi-governmental, actors. They operate on a digital field that often enables their disinformation and propaganda to spread quickly, easily, masking their origins.

In March, I joined three of my colleagues — the OSCE Representative on Freedom of the Media, and the Inter-American Commission’s and African Commission’s Special Rapporteurs on Freedom of Expression — to address the scourge of disinformation and propaganda. We issued our annual Joint Declaration on freedom of expression to make several points, including the following:

First, disinformation is indeed a freedom of expression problem. On the one hand, freedom of expression does not distinguish between the right to share true and untrue information, and so considerable care must be taken to prevent over-regulation and censorship. But as we noted, “disinformation and propaganda are often designed and implemented so as to mislead a population, as well as to interfere with the public’s right to know and the right of individuals to seek and receive, as well as to impart, information and ideas of all kind”. We expressed alarm at “instances in which public authorities denigrate, intimidate and threaten the media” seeking to “blur the lines between disinformation and media products containing independently verifiable facts”.

Second, we emphasized that disinformation cannot be separated from the problem of censorship and criminalization of forms of expression. In particular, the suppression of criticism, dissent, and reporting of all sorts of issues undermines efforts to counter disinformation, and indeed such actions make disinformation more likely to spread. Indeed, many governments have long criminalized “spreading false information”, imposing penalties mainly on critics and dissenters, and I urge that such laws be abolished.

Third, we identified a number of principles relevant to countering disinformation. Lead among them, we emphasize that State actors should not make, sponsor, encourage or further disseminate statements which they know or reasonably should know to be false or which demonstrate a reckless disregard for verifiable information. States should ensure that they disseminate reliable and trustworthy information, including about matters of public interest, such as the economy, public health, security and the environment. Too often these principles are jettisoned in favor of political advantage, domestic and international. I am in fact dismayed that we should even have to emphasize these points.

In short, disinformation and propaganda are indeed global problems, exacerbated in the digital age. It is distressing to see governments conduct such deceitful campaigns, but I also urge that, in countering them, the standards of free expression be paramount in the minds of those who might regulate.

From digital access to content regulation: the private sector in the digital age

Finally, I want to say a few words about my current work on the private sector in the digital age. In June 2016, I prepared a mapping report for the Human Rights Council, identifying the range of private actors involved in the Information and Communications Technology sector and the impact they have on freedom of expression (A/HRC/32/38). In June 2017, I reported to the Council on the industry responsible for digital access, in particular telecommunications companies, Internet Service Providers and other relevant actors (A/HRC/35/22). I urged Governments to avoid interference with such access, particularly as there has been an epidemic of internet shutdowns around the world. But I also addressed key steps that companies may take to alleviate the threats to human rights made by public authorities.

Presently I have turned to the sector of the ICT industry that provides content, in particular social media and search engines. Private companies facilitate an unprecedented global sharing of information and ideas. Social and search platforms in particular have become primary sources of news and information (and disinformation) for hundreds of millions of people. With that role they have also become gatekeepers of expression that may excite passions and knowledge – or incite hatred, discrimination, violence, harassment, and abuse. I am now studying the impact of platform content regulation on freedom of expression, and examining appropriate private company standards and processes and the role that States should play in promoting and protecting freedom of opinion and expression online.

We have issued a public call for submissions for this work, and I hope that your governments will participate in this effort to clarify the responsibilities of social and search companies under human rights law.

Madame Chairperson, ladies and gentlemen,

I close by reiterating my thanks for the support provided by many of your delegations to my mandate. I look forward to continuing to work with you in the coming years.

Thank you very much.