Human rights in cyberspace

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Human rights in cyberspace is a relatively new and uncharted area of law. The United Nations Human Rights Council (UNHRC) has stated that the freedoms of expression and information under Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR) include the freedom to receive and communicate information, ideas and opinions through the Internet. [1]

Contents

An important clause is Article 19(3) of the ICCPR, which provides that:

The exercise of the right provided in paragraph two of this article carries with it special duties and responsibilities. It may therefore be subjected to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order, or of public health and morals. [1]

The HRC has stated that "the same rights that people have offline must also be protected online" (mentioning, in particular, freedom of expression). [2] It is widely regarded that this freedom of information must be balanced with other rights. The question is raised whether people's expectations of human rights are different in cyberspace. [3]

Public privacy

Public privacy encompasses freedom of information and expression on the Internet on the one side, and security and privacy in cyberspace on the other side. [4] : 3  In the context of cyberspace, privacy means using the Internet as a service tool for private purposes without the fear of third parties accessing and using user data in various ways without their consent. [4] : 3 

The right to freedom encompasses the right of expression and is stated in several international treaties. [4] : 3  The right includes freedom to receive and impart information and ideas and to hold opinions without any state interference. It also includes the right to express oneself in any medium including exchanging ideas and thoughts through Internet platforms or social networks. [4] : 3  Freedom means the right to political expression especially when it raises matters of public importance. [4] : 3 

Most democratic countries advance the installation of the Internet for economic and communication purposes; therefore, political expression is given some protection on the Internet. Some governments actively move to protect citizen's data on the Internet. However, these intergovernmental agreements can lead to misuse and abuse of private data, which in turn can affect many other fundamental freedoms and basic human rights. [4] : 4  The challenge for governments is balancing private interests with rules against privacy and freedom rights for all. [4] : 3 

Governance in cyberspace

German political scientist Anja Mihr says that cyberspace harbors more individuals than any other country in the world, yet it is without any government, legislative bodies, law enforcement or any other sort of constitution. Without these mechanisms difficulties arise in protecting and enjoying citizen's rights. [4] : 1  International Governmental Organisations (IGO's), such as the United Nations (UN), the Organization of American States, the African Union or the European Union aim to set international standards for the use of cyberspace and the Internet to be enforced by national governments, but commonly fail to do so. The problem is that state powers and their mechanisms of enforcement do not extend past the state's borders. [4] : 2 

Because cyberspace has no borders, the ways and means to govern it are as-yet undefined. This leads to problems wherein those who are willing to commit crimes find it easier to cross borders through the web, as it is unclear where jurisdiction lies. [5] If a governing regime was ever established, it would most likely consist of multiple stakeholders and actors including national, international, and private actors such as representatives of companies, social networks, nongovernmental organizations as well as individuals. [4] : 2 

Liability of Internet service providers

A question arises when there is a breach of an individual's basic human rights. Should the liability fall only on the originator of the breached right, or should the burden also fall on the Internet service provider (ISP)? This is an especially relevant issue when it comes to balancing free speech against defamation. [6] The increasing speed and limitless audience of the Internet pose a greater danger to individuals and their reputations. [3]

ISPs may not have the means to monitor content published on their websites, and may be unaware that a defamatory statement exists on their site. [7] This was demonstrated in the case Cubby, Inc. v. CompuServe Inc. [8] where it was found that the ISP was acting as a mere distributor and could not be liable for the content posted on its bulletin. However, in Stratton Oakmont, Inc. v. Prodigy Services Co. [8] the New York Supreme Court held that Prodigy acted as a publisher with an editorial function, and so was found liable.

These cases highlight the ambiguity surrounding the liability placed upon ISPs. [7] A further question is whether ISPs will take it upon themselves to function as “moral guardians” [6] of cyberspace. If over-fanatical ISPs start refusing to host certain Internet sites, this may, in turn, compromise rights for the freedom of speech and freedom of expression. In comparison, ambiguity about ISPs liability could mean ISPs permit content without regard to its potentially harmful effects. [6]

Cybersecurity

Given the prevalence of hacking, viruses and zero day exploits, the World Wide Web (WWW) is a non-secure storage space for the storage of sensitive private information. [9] [10] [11] [12] [13] [14] Cyberspace is a tool where individuals can exercise their freedom rights, but cyberspace cannot guarantee our freedom. [4] : 11  Today there are around 2.5 billion internet users. We are living in a world where everyone has a long data trail, so internet security is a high priority. [4] : 12 

Today more people than ever have a common understanding of privacy or freedom of expression therefore share common ideas as to how to protect and secure their private data. [4] : 13  Still according to the Freedom in the Net Index [14] issued in 2013, most countries in the world censor Internet freedom, some more than others. Countries will do this in various ways. For example, using Internet police. There are many methods of filtering and censoring the exercise of freedom rights. [15]

The EU has invested in many filtering projects such as NETprotect I and II, [16] [17] ICRAsafe [18] [19] and the PRINCIP programme. [19] It has been stated that self-censorship Internet users impose upon themselves is probably the most serious threat to Internet freedom. Mass surveillance and fear of private communications being made public lead to self-censorship. This results in individuals no longer using search engines or social networks to express their personal beliefs, ideas or opinions, as certain keywords may trigger concerns with national security agencies, resulting in the Internet becoming a political tool of manipulation. [4] : 13 

Discriminatory behaviors

Cyber bullying

Discriminatory behaviors that occur ‘offline’ also occur ‘online’ One of these behaviors is ‘cyber bullying’. Cyberbullying affects at least one in ten students in Australia. [20]

Cyberbullying can impact on a range of human rights including:

i) The right to the highest attainable standard of physical and mental health. [21] [22] [23]

ii) Rights to work and fair working conditions. [24] [25]

iii) The right to freedom of expression and to hold opinions without interference. [26] [27]

iv) A child or young person's right to leisure and play. [28] [29]

Cyber-racism

Cyber racism can be in the form of individuals posting racist comments or participating in group pages specifically set up for a racist purpose. [3] A well publicised example of this was an Aboriginal memes Facebook page that consisted of various images of indigenous people with racist captions. It was reported that Facebook classified the page as ‘controversial humour’. [30]

Hate speech

Article 20 of the ICCPR states “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” [31] Hate speech is intended to disturb violence or prejudicial actions against a group of people based on their ethnicity, race, nationality or sexual orientation. [7] Cyberspace has also been used in this way as a medium for destruction.

The danger to human rights becomes apparent when terrorists form together to scheme and agitate people to commit violence towards a common good. “Al-Qaeda” moved to cyberspace, “the ultimate ungoverned territory” where schools were set up for promotion of ideological and military training and active propaganda arms. [32] It has become a stated subject of importance that these situations are monitored to prepare for future generations of cyber-terrorists. [7]

Future of human rights in the Digital Age

The future of human rights in cyberspace depends on the evolution of the law and its interpretation by national and international governing bodies. [6] Jon Bing warns that once rules and regulations are automated, they become extremely arduous to subject to judicial review. [6] Bing states that we face a situation in which “technology [is] implementing the law”. [6]

Roger Brownsword looked at some of the issues associated with developments in biotechnology and human rights alongside those raised by digital technologies and suggested three ethical positions on the issues: a utilitarian pragmatic stance, a defense of human rights, and a “dignitarian alliance”. [6] Of the three positions, Brownsword claims the first two are popular in the UK, stating that technologies are being developed that treat human subjects as if they lack autonomy and the capacity to choose for themselves. [6]

Recent official discussions have taken place as to the future of cyberspace. In April 2008, the Virtual Law Conference [33] was held in New York. The conference included participants such as Microsoft, Sony, and the Walt Disney Company. The agenda included discussion of intellectual property enforcement, legal issues arising from virtual currency, legal issues arising from virtual property, ethical concerns for attorneys and executives in virtual worlds, and how to litigate a virtual lawsuit. [7]

The US Congressional Hearing on Virtual Worlds took place with the purpose of education and exploring the prospects of virtual worlds. [34] The agenda included an analysis of concerns related to consumer protection, intellectual property protection, and child protection, among others. This hearing was one of the first legislative inquiries into virtual worlds. It remains to be seen whether either of these gatherings hold any lasting impact on the field, which continues to rapidly evolve in lockstep with advancing technology. [7]

On May 22, 2020, the UN Security Council in its discussion on Cybersecurity highlighted the need to recognize cyberattacks as one of the human rights issue. The course of action detailed that moves such as Internet shutdowns by government and hacking into devices of dissidents, can lead to serious violation of human rights. The idea was acknowledged by at least a dozen countries including Estonia, Belgium, the Netherlands, Ecuador, Japan, Switzerland, and others. [35]

See also

Related Research Articles

Hate speech is a legal term with varied meaning. It has no single, consistent definition. It is defined by the Cambridge Dictionary as "public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation". The Encyclopedia of the American Constitution states that hate speech is "usually thought to include communications of animosity or disparagement of an individual or a group on account of a group characteristic such as race, color, national origin, sex, disability, religion, or sexual orientation". There is no single definition of what constitutes "hate" or "disparagement". Legal definitions of hate speech vary from country to country.

<span class="mw-page-title-main">Privacy</span> Seclusion from unwanted attention

Privacy is the ability of an individual or group to seclude themselves or information about themselves, and thereby express themselves selectively.

<span class="mw-page-title-main">Universal Declaration of Human Rights</span> Declaration adopted in 1948 by the United Nations General Assembly

The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the rights and freedoms of all human beings. Drafted by a UN committee chaired by Eleanor Roosevelt, it was accepted by the General Assembly as Resolution 217 during its third session on 10 December 1948 at the Palais de Chaillot in Paris, France. Of the 58 members of the United Nations at the time, 48 voted in favour, none against, eight abstained, and two did not vote.

<span class="mw-page-title-main">International Covenant on Civil and Political Rights</span> Treaty adopted by United Nations General Assembly in 1965

The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. It was adopted by United Nations General Assembly Resolution 2200A (XXI) on 16 December 1966 and entered into force on 23 March 1976 after its thirty-fifth ratification or accession. As of June 2022, the Covenant has 173 parties and six more signatories without ratification, most notably the People's Republic of China and Cuba; North Korea is the only state that has tried to withdraw.

<span class="mw-page-title-main">Freedom of information</span> Freedom of a person or people to publish and consume information

Freedom of information is freedom of a person or people to publish and consume information. Access to information is the ability for an individual to seek, receive and impart information effectively. This sometimes includes "scientific, indigenous, and traditional knowledge; freedom of information, building of open knowledge resources, including open Internet and open standards, and open access and availability of data; preservation of digital heritage; respect for cultural and linguistic diversity, such as fostering access to local content in accessible languages; quality education for all, including lifelong and e-learning; diffusion of new media and information literacy and skills, and social inclusion online, including addressing inequalities based on skills, education, gender, age, race, ethnicity, and accessibility by those with disabilities; and the development of connectivity and affordable ICTs, including mobile, the Internet, and broadband infrastructures".

<span class="mw-page-title-main">International Covenant on Economic, Social and Cultural Rights</span> Covenant adopted in 1966 by United Nations General Assembly resolution

The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a multilateral treaty adopted by the United Nations General Assembly (GA) on 16 December 1966 through GA. Resolution 2200A (XXI), and came into force on 3 January 1976. It commits its parties to work toward the granting of economic, social, and cultural rights (ESCR) to all individuals including those living in Non-Self-Governing and Trust Territories. The rights include labour rights, the right to health, the right to education, and the right to an adequate standard of living. As of July 2020, the Covenant has 171 parties. A further four countries, including the United States, have signed but not ratified the Covenant.

Economic, social and cultural rights (ESCR) are socio-economic human rights, such as the right to education, right to housing, right to an adequate standard of living, right to health, victims' rights and the right to science and culture. Economic, social and cultural rights are recognised and protected in international and regional human rights instruments. Member states have a legal obligation to respect, protect and fulfil economic, social and cultural rights and are expected to take "progressive action" towards their fulfilment.

<span class="mw-page-title-main">Digital rights</span> Type of human and legal rights

Digital rights are those human rights and legal rights that allow individuals to access, use, create, and publish digital media or to access and use computers, other electronic devices, and telecommunications networks. The concept is particularly related to the protection and realization of existing rights, such as the right to privacy and freedom of expression, in the context of digital technologies, especially the Internet. The laws of several countries recognize a right to Internet access.

Source protection, sometimes also referred to as source confidentiality or in the U.S. as the reporter's privilege, is a right accorded to journalists under the laws of many countries, as well as under international law. It prohibits authorities, including the courts, from compelling a journalist to reveal the identity of an anonymous source for a story. The right is based on a recognition that without a strong guarantee of anonymity, many would be deterred from coming forward and sharing information of public interests with journalists.

The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, otherwise known as the European Convention on Bioethics or the European Bioethics Convention, is an international instrument aiming to prohibit the misuse of innovations in biomedicine and to protect human dignity. The Convention was opened for signature on 4 April 1997 in Oviedo, Spain and is thus otherwise known as the Oviedo Convention. The International treaty is a manifestation of the effort on the part of the Council of Europe to keep pace with developments in the field of biomedicine; it is notably the first multilateral binding instrument entirely devoted to biolaw. The Convention entered into force on 1 December 1999.

Information technology law concerns the law of information technology, including computing and the internet. It is related to legal informatics, and governs the digital dissemination of both (digitized) information and software, information security and electronic commerce aspects and it has been described as "paper laws" for a "paperless environment". It raises specific issues of intellectual property in computing and online, contract law, privacy, freedom of expression, and jurisdiction.

The Global Network Initiative (GNI) is a non-governmental organization with the dual goals of preventing Internet censorship by authoritarian governments and protecting the Internet privacy rights of individuals. It is sponsored by a coalition of multinational corporations, global non-profit organizations, and academic institutions. David Kaye (academic) is the Independent Chair of the Board. Mark Stephens (solicitor) was the previous Independent Chair.

<span class="mw-page-title-main">Human rights in New Zealand</span> Overview of the observance of human rights in New Zealand

Human rights in New Zealand are addressed in the various documents which make up the constitution of the country. Specifically, the two main laws which protect human rights are the New Zealand Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990. In addition, New Zealand has also ratified numerous international United Nations treaties. The 2009 Human Rights Report by the United States Department of State noted that the government generally respected the rights of individuals, but voiced concerns regarding the social status of the indigenous population.

The right to Internet access, also known as the right to broadband or freedom to connect, is the view that all people must be able to access the Internet in order to exercise and enjoy their rights to freedom of expression and opinion and other fundamental human rights, that states have a responsibility to ensure that Internet access is broadly available, and that states may not unreasonably restrict an individual's access to the Internet.

The right to sexuality incorporates the right to express one's sexuality and to be free from discrimination on the grounds of sexual orientation. Specifically, it relates to the human rights of people of diverse sexual orientations, including lesbian, gay, bisexual and transgender (LGBT) people, and the protection of those rights, although it is equally applicable to heterosexuality. The right to sexuality and freedom from discrimination on the grounds of sexual orientation is based on the universality of human rights and the inalienable nature of rights belonging to every person by virtue of being human.

<span class="mw-page-title-main">Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015</span> Act of the Parliament of Australia

The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015(Cth) is an Act of the Parliament of Australia that amends the Telecommunications (Interception and Access) Act 1979 (original Act) and the Telecommunications Act 1997 to introduce a statutory obligation for Australian telecommunication service providers (TSPs) to retain, for a period of two years, particular types of telecommunications data (metadata) and introduces certain reforms to the regimes applying to the access of stored communications and telecommunications data under the original Act.

The international human rights framework and domestic policy are the means by which the human rights of older people in New Zealand are protected. The key human rights issues facing older people in New Zealand encompass full participation within society, access to resources and a positive attitude to ageing.

<span class="mw-page-title-main">Human rights and encryption</span> Use of encryption technology to ensure human rights are maintained

Human rights applied to encryption are a concept of freedom of expression, where encryption is a technical resource in the implementation of basic human rights.

Internet universality is a concept and framework adopted by UNESCO in 2015 to summarize their position on the Internet. The concept recognizes that "the Internet is much more than infrastructure and applications, it is a network of economic and social interactions and relationships, which has the potential to enable human rights, empower individuals and communities, and facilitate sustainable development. The concept is based on four principles stressing the Internet should be human rights-based, open, accessible, and based on the multi-stakeholder participation. These have been abbreviated as the R-O-A-M principles. Understanding the Internet in this way helps to draw together different facets of Internet development, concerned with technology and public policy, rights and development."

Online hate speech is a type of speech that takes place online with the purpose of attacking a person or a group based on their race, religion, ethnic origin, sexual orientation, disability, and/or gender. Online hate speech is not easily defined, but can be recognized by the degrading or dehumanizing function it serves.

References

  1. 1 2 United Nations Human Rights Committee. "International Covenant on Civil and Political Rights". General Comment no.34, note 4, para 12.
  2. ↑ "The promotion, protection and enjoyment of human rights on the Internet" (PDF). Human Rights Council Resolution. Retrieved April 10, 2015.
  3. 1 2 3 "Background Paper: Human Rights in Cyberspace" (PDF). Australian Human Right Commission. Retrieved April 10, 2015.
  4. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Mihr, Anja (2013). "Public Privacy Human Rights in Cyberspace" (PDF). Archived from the original (PDF) on 2018-02-06. Retrieved 2018-02-05.{{cite journal}}: Cite journal requires |journal= (help)
  5. ↑ Fanchiotti, Vittoriio; Pierini, Jean Paul (2012). "Impact of Cyberspace on Human Rights and Democracy": 51.{{cite journal}}: Cite journal requires |journal= (help)
  6. 1 2 3 4 5 6 7 8 Mansell, Robin (2015-04-01). "Human Rights and Equality in Cyberspace" (PDF). Retrieved April 10, 2015.
  7. 1 2 3 4 5 6 Kijanen, Pekka. "New Generation for Human rights in Cyberspace" (PDF). Retrieved 2015-04-01.
  8. 1 2 Klang, Murray, M. A. (2005). "Human Rights in the Digital Age": Chapter 5, p65.{{cite journal}}: Cite journal requires |journal= (help)
  9. ↑ "Australians' financial information at risk in data breach of US company". ABC News. 2017-09-08. Retrieved 2018-02-26.
  10. ↑ "Cybercrime at Super Bowl LII - How not to get Hacked". Hashed Out by The SSL Store™. 2018-01-31. Retrieved 2018-02-26.
  11. ↑ "8 ways to stay safe online - Face2Face Africa". Face2Face Africa. 2018-02-06. Retrieved 2018-02-26.
  12. ↑ Naughton, John (2013-09-16). "Internet security: 10 ways to keep your personal data safe from online snoopers". the Guardian. Retrieved 2018-02-26.
  13. ↑ Thompson, Jessica (2018-02-23). "Ransomware Attacks Rose Rapidly in 2017: Here's How You Can Protect Your Data". gigaom.com. Retrieved 2018-02-26.
  14. 1 2 "Global Broadband and Mobile Performance Data Compiled by Ookla | Net Index". 2015-05-29. Archived from the original on 2015-05-29. Retrieved 2018-02-26.
  15. ↑ Kelly, Sanja; Truong, Mai; Earp, Madeline; Reed, Laura; Shahbaz, Adrian; Groco-Stoner, Ashley. "A Global Assessment of Internet and Digital Media" (PDF). Freedom on the net 2013. Freedom House 2013.[ permanent dead link ]
  16. ↑ "NetProtect". NetProtect. Retrieved 2018-02-26.
  17. ↑ "More Information available at" . Retrieved 2015-04-01.
  18. ↑ "Thank you for inquiring about ICRA®" . Retrieved 2018-02-26.
  19. 1 2 "More Information available at" . Retrieved 2015-04-01.
  20. ↑ "See the Alannah and Madeline Foundation's Bullying hurts brochure at". Archived from the original on 6 April 2015. Retrieved 1 April 2015.
  21. ↑ "UDHR Article 25". United Nations . Retrieved 5 November 2023.
  22. ↑ "ICESCR Article 12". United Nations. Retrieved 5 November 2023.
  23. ↑ "CRC Article 24". UNICEF . Retrieved 5 November 2023.
  24. ↑ "UDHR Article 23". United Nations. Retrieved 5 November 2023.
  25. ↑ "ICESCR Articles 6 and 7". United Nations. Retrieved 5 November 2023.
  26. ↑ "UDHR Article 19". United Nations. Retrieved 5 November 2023.
  27. ↑ "ICESCR Article 19". United Nations. Retrieved 5 November 2023.
  28. ↑ "CRC Article 31". UNICEF. Retrieved 5 November 2023.
  29. ↑ Moses, Asher; Lowe, Adrian (8 August 2012). "Contents removed from racist Facebook page". The Sydney Morning Herald . Retrieved 5 November 2023.
  30. ↑ Moses, A; Lowe, A (8 August 2012). "Contents removed from racist Facebook page". Sydney Morning Herald. Retrieved 2015-04-01.
  31. ↑ "International Covenant on Civil and Political Rights". Office of the United Nations High Commissioner for Human Rights. Retrieved 15 November 2015.
  32. ↑ "A world wide web of terror". The Economist. Retrieved 2015-04-01.
  33. ↑ "More Information available at" . Retrieved 2015-04-01.
  34. ↑ "Online Virtual World: Applications in a User Generated Medium". The Subcommittee on Telecommunications and the Internet. Retrieved 2015-04-01.
  35. ↑ "It's Time to Treat Cybersecurity as a Human Rights Issue". Human Rights Watch. 26 May 2020. Retrieved 26 May 2020.
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