The Internet has quickly become the most dynamic and important medium for modern discourse and freedom of expression in most countries around the world. States face the challenge of reforming their laws to keep pace with the digital revolution, while civil society faces the challenge of ensuring the appropriate adaption of principles which evolved in an offline world for new online contexts. CLD is working with a range of different partners to try to address this shortcoming, particularly in developing policy thinking around freedom of expression and the Internet.
Understanding Digital Rights
CLD has made several major contributions to the emerging discourse around human rights and the Internet:
In June 2010, a report on the Maldives, The Maldivian Digital Communications Environment: Freedom of Expression and the Media, Telecommunications and IT Sectors, was published by CLD and a number of other organisations. CLD played a leading role in preparing the report, which applied the UNESCO Media Development Indicators assessment tool to the digital communications environment.
The UN Special Rapporteur on Freedom of Opinion and Expression hosted a meeting of experts on Human Rights and the Internet in June 2010, in which Toby Mendel, Executive Director of CLD participated. The meeting came up with some brainstorming ideas about how to ensure protection of various human rights on the Internet, including the rights to freedom of expression and privacy, as well as the issue of access to the Internet as a human right. Following up on this work, the UN Special Rapporteur hosted a series of follow up meetings, several of which included participation by CLD. These meeting contributed to the 2011 Annual Report of the Special Rapporteur, which focused on freedom of expression and the Internet, as well as the June 2011 Joint Declaration by the four specialized mandates of the UN, OAS, OSCE and African Commission tasking with promoting and protecting freedom of expression.
CLD has also produced a Commentary on the Charter of Human Rights and Principles for the Internet, providing a detailed analysis of the implications of a range of fundamental human rights for the Internet. The Charter itself was prepared by the Internet Rights and Principles Coalition, which in turn arose out of the Internet Governance Forum (IGF), a tri-partite gathering bringing together civil society, governments and the commercial sector to discuss regulatory issues relating to the Internet. The Commentary reviews the implications of a wide range of human rights for the Internet, including rights of systematic relevance, such as non-discrimination, freedom of expression and privacy, and more thematic rights, such as the rights to education, culture and work.
In April 2012 CLD concluded a major research project on human rights and the Internet, releasing a report entitled, A Truly World-wide Web: Assessing the Internet from the Perpective of Human Rights. It analyses the critical role that the Internet plays in the actualisation of fundamental human rights, particularly the right to freedom of expression, and concludes that there is a human right of access to the Internet. The Report also examines the implications of the right to freedom of expression in terms of regulation of the Internet. The Report also examines the need to rethink regulatory regimes, such as laws on defamation and copyright, in order to ensure that they adequately respect the unique nature of online speech. The report is also available in Spanish.
CLD also published a paper on the Internet and media and defamation which discussed issues such as jurisdiction over defamatory content on the Internet, liability for user-generated content, the ‘reasonable publication’ rule as applied to Internet media, self-regulation and the issue of continuous publication on the Internet. The paper, Online Media and Defamation, was published in the ‘Digital Handbook’, which is part of the Open Society Media Program’s project on Mapping Digital Media.
In August 2014 CLD and Global Partners Digital published Travel Guide to the Digital World – Surveillance and International Standards, by CLD Legal Officer Michael Karanicolas. The Guide explores how online surveillance takes place and how it stacks up against international human rights standards, particularly in terms of privacy and freedom of expression. Drawing on international standards and better practice legislation from around the world, the Guide also presents a set of standards for regulating and conducting surveillance in a way which is consistent with human rights. It concludes with a discussion of emerging debates, and how the questions around online surveillance have altered the global discourse around human rights on the Internet.
Law Reform and Advocacy
Misunderstandings about the nature of online communication, along with a desire, in some cases, to stifle dissent online has led several countries to pass or propose problematic legislation. CLD has carried out Analyses of several of these laws, often in coordination with local advocacy campaigns. These include the Philippines’ “Cybercrime Prevention Act”, Jordan’s “Press and Publications Law”, South Korea’s “Copyright Act”, the European Union’s “Data Retention Directive” and Russia’s “Amendments to the Federal Statute ‘On the Protection of Minors against Information Detrimental to their Health and Development’ and to other legal Acts of the Russian Federation”. These analyses take on a variety of important topics in online regulation, including defamation, structural regulation of the Internet, content restrictions, copyright infringement, privacy and surveillance, access to the Internet and intermediary liability.
CLD also produced a major publication on copyright law, which is among the most contentious issues within freedom of expression today. The Report is entitled Reconceptualising Copyright: Adapting the Rules to Respect Freedom of Expression in the Digital Age, and it analyses the main problems with modern copyright law from a freedom of expression perspective and offers substantive recommendations for reform of the global framework. The recommendations were tested and refined at two workshops. The first, held in Halifax, Canada on 25 March 2013, featured artists, lawyers and other stakeholders. The second took place in Buenos Aires, Argentina on 24 June 2013. It was hosted by CLD along with the Centro de Estudios en Libertad de Expresión y Acceso a la Información (CELE) and Fundación Via Libre (FVL), and was attended by participants from across Latin America, and featured in-depth discussions in both English and Spanish.
CLD has also been a prominent voice in the battle against the Trans-Pacific Partnership (TPP), a sweeping trade agreement whose provisions are deeply problematic from a freedom of expression perspective. Although the deal is being negotiated in secret, and has yet to be formally released, a draft version put out by Wikileaks in November 2013 showed that many of the intellectual property proposals seriously threatened online speech. In the aftermath of the leaks, CLD released first a short statement outlining the major problems, and then a full Analysis of the TPP from a Freedom of Expression Perspective.