Internet rights at the Human Rights Council 36th session

The 36th session of the Human Rights Council is taking place from 11 to 29 September 2017 in Geneva. This session will consider a number of thematic reports from Special Rapporteurs Independent Experts, and the Office of the High Commissioner on Human Rights, some of which will touch on internet-related rights issues, including a report focused on assistive and robotics technology, artificial intelligence and automation with respect to the enjoyment of human rights by older persons.

Concerns relating to specific governments’ records on internet rights will be raised in presentations of reports by country-specific Special Procedures, such as Sudan, and the adoption of Universal Periodic Review (UPR) outcomes, including the reviews India, the Philippines, and South Africa, in which APC and our members participated. We will also take this opportunity to raise the crack down on human rights defenders and the criminalisation of secure digital communications in Turkey. There are some panel discussions at HRC36 that may be of interest to the internet rights community, including one on the impact of multiple and intersecting forms of discrimination and violence in the context of racism, racial discrimination, xenophobia and related intolerance on the full enjoyment of all human rights by women and girls (on 25 September), and on the UPR and the 2030 Agenda for Sustainable Development: achieve gender equality and empower all women and girls (on 15 September).

HRC36 will conclude with the adoption of a number of resolutions, some of which may touch on internet-related human rights issues, such as a resolution led by Hungary on cooperation with the UN its representatives and mechanisms in the field of human rights, and mainstreaming a gender perspective in the implementation of the 2030 Agenda, led by Brazil.

The full agenda for HRC36 can be found here. The Twitter hashtag for the session is #HRC36, and plenary sessions will be live streamed and archived at this link.

Reports from this session relating to the internet and human rights

• Report of the Independent Expert on the enjoyment of all human rights by older persons (A/HRC/36/48)

To be discussed on Monday 11 September 12.00-15.00.

Independent Expert on the enjoyment of all human rights by older persons examined in her report the opportunities and challenges of assistive and robotics technology, artificial intelligence and automation in respect of the full enjoyment of human rights by older persons. Assistive and robotics technology, which allow to provide support for older people to retain their autonomy and independence and to remain fully integrated in society, are and will be used in three main areas, namely to help monitor their behaviour and health; to assist them or the caregiver in their daily tasks; and to provide for social interactions. Each of those areas touches inevitably on the enjoyment by older persons of their human rights, including their dignity and autonomy, informational self-determination and non-discrimination and equality.

The report addresses human rights impact of the widespread use of assistive technology, in respect of the values which underpin the human rights system and to which such technologies pose new challenges. Some key points from the report include:

• Autonomy: Although the autonomy of older people can be enhanced by automation, reliance on technology also poses threat of segregation, neglect and infantilization. Autonomy must therefore be conceived as to include the right to free and informed consent with standards appropriate to the circumstances of each person and the right to refuse certain forms of support, the acceptance of which might also fluctuate over time and therefore include the possibility to opt out at any time. Even if older persons consent to the use of monitoring devices, they must remain in control of what information will be gathered, how it will be used and with whom it will be shared. Finally, automation poses an additional challenge to autonomy as it shrinks the already fine line between suggesting action and directing the person into a specific activity: although it should not be possible to delegate a decision with legal effects to an automated process, artificial intelligence may support decision-making but also determine it to a great extent. Therefore, a rights-based approach requires clear parameters and safeguards to ensure that older people’s preferences are respected, including the possibility to deviate from what is expected.

• Dignity: Assistive technology ought to be scrutinized with respects to dignity in care settings, as it entails potential dehumanization of care practices, collective disengagement from the support of older people, stigmatization and maintenance of a dependency culture. The extent to which it is deemed appropriate to rely on automated care depends on a variety of factors, including the characteristics of the technology, the availability of alternatives, personal preferences and social and cultural determinants and should be aimed at enabling human capabilities and human dignity, and should be integrated from the conception to the application of assistive robotics.

• Privacy: The use of assistive technology will have an impact on the right to privacy, according to which data gathering and other forms of invasion of personal and domestic privacy must only take place after obtaining the informed consent of the individuals concerned, on the protection of personal data (also with respect to cyberattacks) and on informational self-determination, which consists in the authority of the individual to decide for himself or herself, on the basis of the idea of self determination, when and within what limits facts about his or her personal life shall be disclosed. Other concerns relate to processing and storage of data which, according to article 17 of the ICCPR should not take place for any purpose other than the one originally consented to, and should be conform to the principle of data minimization and should be securely stored Users should retain control over the use of their data and be able to change their mind about data retention and processing.

• Equality and non-discrimination: Concerns over equality and non-discrimination principles are twofold. on the one side equal access to assistive technologies must be ensured; on the other, technology must reflect the diverse preferences and lifestyles of older persons. There is some evidence that artificial intelligence could reproduce and amplify human bias and as a result automated machines could discriminate against some people; therefore machine-made decisions must be audited to avoid discriminatory treatment. In this context, privacy should not be used as a pretext by developers and companies not to disclose information, on the grounds that it is sensitive, if it is required to establish responsibility, including negligence or to challenge driven or automatic decision-making.

During the reporting period, the Independent Expert visited Singapore and Namibia, where she continued on this theme and examined the opportunities and challenges of assistive and robotics technology, artificial intelligence and automation.

• Report of the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights on his mission to the Russian Federation (A/HRC/36/44/Add.1)

To be discussed on Tuesday, 12 September 15.00-18.00.

The Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights conducted a mission to the Russian Federation, during which he scrutinised unilateral coercive measures imposed by the United States on 29 December 2016 on Russian entities and individuals in connection with alleged efforts to interfere with the 2016 United States presidential election. The Special Rapporteur noted that the executive order addressing “cyber-related activities, expanded the types of significant, malicious cyber-related activities that are liable to be sanctioned.

• Report of the Independent Expert on the situation of human rights in the Sudan: comments by the State (A/HRC/36/63/Add.1)

To be discussed on Wednesday 27 September 10.00-13.00 and 13.00-15.00

The Independent Expert on the situation of human rights in the Sudan expressed concern about ongoing censorship of newspapers and increased restrictions on journalists from expressing freely their opinion, including intimidation, post-publication censorship, seizures of printed newspapers, etc. It encouraged the government to amend the Press and Publication Act in order to provide more protection to journalists and newspapers publishers. In response, the government of Sudan noted”

“There are thousands of internet sites and blogs which launch huge opposition campaigns against the Government, and there is no any measure taken by the Government to block or interfere with such sites. Social media are freely working throughout the country without any hindrance, a matter which rarely exits in the region. Sudan promulgated the Right to Information Act in January 2016 in compatibility with the Model Law for African States on Access to Information issued by the African Commission on Human and Peoples’ Rights. The Press and Publication Act was one of the legislations reviewed by the Law Reform Committees, and is currently under the legislative process.”

A number of Special Procedures remarked on the impact of communications technology on their mandates in their thematic reports. For example, the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, produced a global study on transitional justice as an addendum to his annual report. The study recognised the utility of technological advances for the documentation of prosecutions, truth commissions and historical and cultural works, in particular technological innovations that have helped create tools for the documentation and analysis of large sets of data. He also noted that archiving, including preservation but also classification and access, has benefited immensely from new technologies. Likewise, the Special Rapporteur on the human rights to safe drinking water and sanitation noted the value of using geographic information system (GIS) for producing and monitoring rich data including on land use, water sources, particularly in informal settlements.

Universal Periodic Review

The following outcomes of UPR reviews are being adopted at HRC36, which include recommendations relating to the internet and human rights.

Bahrain received the following recommendations, which it will respond to during the adoption of its UPR outcome on 21 September (10.00-13.00):

• Adopt a law to protect human rights defenders that includes special protection for vulnerable groups of defenders, including women defenders and those who express themselves through the Internet and social media (Mexico);

• Modify the legislation to repeal criminal responsibility for activities that fall within the legitimate exercise of the freedom of expression, particularly on the Internet and Twitter (France);

• Remove undue restrictions on the online publication of news media, and the licencing restrictions on media organizations and individuals seeking to practice journalism (Canada);

Bahrain adopted the following voluntary pledge and commitment:

• To work towards drafting a new law on the press and the electronic media.

Ecuador accepted the following recommendations, which it considers them already implemented or in the process of implementation. The adoption of Ecuador’s UPR will take place on 21 September (10.00-13.00):

• Bring all legislation concerning communication surveillance into line with international human rights standards and especially require a test of necessity and proportionality for all communications surveillance (Liechtenstein);

• Guarantee a safe and enabling environment to all human rights defenders, investigate all allegations of attacks, harassment and intimidation against them, and ensure that the legislation on freedom of expression, including online, is fully in compliance with article 19 of the International Covenant on Civil and Political Rights (Estonia);

• Strengthen prevention of and protection against intimidation, threats and violence against civil society, including human rights defenders and trade unions critical of the Government, and fully guarantee freedom of expression, both offline and online (Czechia);

• Further enhance the freedom of expression, especially of journalists and social media users (Greece);

• Develop all possible efforts to preserve freedom of expression in the media and social networks, in accordance with the recommendations of the universal and regional human rights systems (Peru);

Tunisia accepted the following recommendation. The adoption of Tunisia’s UPR outcome will take place on 21 September (10.00-13.00):

• Bring all legislation concerning communication surveillance in line with international human rights standards, and especially ensure that all communications surveillance requires a test of necessity and proportionality (Liechtenstein);

Finland received the following recommendation, which it will respond to during the adoption of its UPR outcome on 21 September (13.00-15.00):

• Continue to introduce effective measures to combat all forms of discrimination, hate speech and hate crime, both online and offline, and ensure that such crimes are effectively investigated (Estonia);

During Finland’s review, the government noted that it recently decided to allocate more resources to police activities for the prevention of hate speech on the Internet and the investigation of related offences and that it is implementing the Code of Conduct on countering illegal hate speech online, which had been published by Facebook, Twitter, YouTube, Microsoft and the European Commission.

United Kingdom received following recommendations, which it will respond to during the adoption of its UPR outcome on 21 September (15.00-18.00):

• Bring all legislation concerning communication surveillance in line with international human rights standards and especially recommends that all communications surveillance requires a test of necessity and proportionality (Liechtenstein);

• Ensure that the regulation on surveillance does not violate the right to privacy, intimacy and freedom of expression of its citizens (Paraguay);

• Consider the revision of the Investigatory Powers Act 2016 with a view to protecting the right to privacy, including by prohibiting mass surveillance activities and the collection of communications data without warrants (Brazil);

• Strengthen the protection of citizens and the right to privacy in the Investigatory Powers Bill of 2016 (Haiti);

India received the following recommendations, which it will respond to during the adoption of its UPR outcome on 21 September (15.00-18.00):

• Ensure that any measure limiting freedom of expression, assembly and association on the Internet is based on clearly defined criteria in accordance with international law including international human rights law (Sweden);

• Bring all legislation concerning communication surveillance in line with international human rights standards and especially recommend that all communication surveillance requires a test of necessity and proportionality (Liechtenstein).

During India’s review, the government noted that an important plank of the country’s development agenda, as well as of its push towards good governance and the creation of a knowledge society, is the Digital India programme, which aimed at transforming India into a digitally empowered society. The government also characterised women’s digital literacy and financial inclusion as being at the top of the its agenda.

The Philippines received the following recommendation, which it will respond to during the adoption of its UPR outcome on the 22 September (10.00-13.00):

• Strengthen the fight against human trafficking in all forms, including by strengthening inter-agency coordination to combat cybersex in the community and by securing cooperation from the private sector to prevent and respond to child online abuse (Netherlands);

Algeria received the following recommendation, which it will respond to during the adoption of its UPR outcome on the 22 September (10.00-13.00):

• Take urgent measures to amend criminal legislation which criminalizes freedom of expression and opinion online and in different social media (Argentina);

• Expand the scope of protection of children against crimes committed online (United Arab Emirates);

• Complete the procedures related to the establishment of the independent regulatory authority for the broadcast media (Tunisia);

Poland received the following recommendations, which it will respond to during the adoption of its UPR outcome on 22 September (10.00-13.00):

• Promote the right of access to information by protecting the freedom of press and the use of mass communication (Holy See);

• Develop effective law enforcement tools to monitor and prevent online hate crimes (Israel);

• Review counter-terrorism legislation and ensure that any interference with the right to privacy therein complies with the principles of legality, necessity and proportionality (Greece);

• Guarantee the full right to freedom of expression, through amendments to laws adopted from 2015 that limit the independence of the media, undermine trust on its impartiality and, in anti-terrorism cases, could violate privacy (Mexico);

• Ensure that regulations pertaining to the right to privacy are in line with the principles of legality, necessity and proportionality. Establish an independent and effective oversight mechanism (Germany);

• Review its procedures, practices and legislation to ensure that any interference with the right to privacy is consistent with international human rights standards, especially with the principles of legality, necessity and proportionality (Brazil);

The Netherlands received 12 recommendations relating to internet issues, which it will respond to during the adoption of its UPR outcome on 22 September (13.00-15.00). The majority of these recommendations concerned racist, xenophobic, intolerance, and hate speech online, from Cuba, Egypt, Guatemala, India, Serbia, Sierra Leone, Syria, and the United States. Germany, Mexico, and the Russian Federation made recommendations concerning the right to privacy, surveillance, and the collection of data.

South Africa received following recommendation, which it will respond to during the adoption of its UPR outcome on 22 September (13.00-15.00):

• Ensure that all communications surveillance requires a test of necessity and proportionality (Liechtenstein);

• Continue to revise the Protection of State Information Bill so that it fully respects international human rights law, in particular the right to freedom of opinion and expression (Switzerland);

During South Africa’s review, the government noted that with regard to the right to privacy in the digital age, including communication surveillance, oversight, data protection and proposed legislation, oversight mechanisms to ensure that a person’s right to privacy was not unlawfully infringed already existed. In particular, it mentioned that the Information Regulator had been created by the new Protection of Personal Information Act.

The government also noted that new legislation to enhance cybersecurity needed to be developed, and that there were a number of misconceptions regarding the new Cybercrime and Cybersecurity Bill. For example, Additional structures to be established by the Bill would not give powers to the State Security Agency to control the Internet, nor any powers to censor or suppress what could be accessed, published or viewed on the Internet, nor to monitor communications without judicial sanction.

Side events relating to internet rights:

• 11 September, 12:30-15:00: Human Rights Council Elections: discussions of candidate States’ visions for membership, at Palais des Nations, Room XI. This event is organised by the International Service for Human Rights (ISHR) and Amnesty International.

• 13 September, 11:00-12:30: Bahrain: Systematic State Abuse in the Name of Countering Terrorism, at Palais des Nations, Room XI. The event is organised by Americans for Democracy & Human Rights in Bahrain (ADHRB), Amnesty International and co-sponsored by ISHR.

• 14 September from 13:30 to 15:30: Realising Women and Girls’ Sexual and Reproductive Rights amid backlash, at Palais des Nations, Room XXVII. This is an event organised by the Centre of Reproductive Rights and ISHR.

A draft calendar of side events is available here.

For a comprehensive overview of HRC36 see:

• Universal Rights Group’s “Inside Track”

• International Service for Human Rights’ “#HRC36 | Key issues on agenda of September session”.