Human rights in cyberspace

Human rights in cyberspace is a relatively new and uncharted area of law. There is very little voice as to the way human rights should be treated in cyberspace. It is estimated that over 40% of the worlds population are Internet users.^[1] Like no other medium the Internet allows individuals the ability to broadly publish information. Thus, the Internet has become an extensive platform for individuals to exercise the right to freedom of expression and information.

The United Nations Human Rights Council (HRC) 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.^[2]

An important clause is: Article 19(3) of the ICCPR, which provides that: The exercise of the right provided in paragraph 2 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 (ordre public), or of public health and morals.

The UN Human Rights Council has stated that "the same rights that people have offline must also be protected online" (mentioning in particular freedom of expression).^[3] 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.^[4]

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.^[5]: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 our data in various ways without our consent.^[5]:3 The right to freedom encompasses the right of expression and is stated in several International Treaties.^[5]: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.^[5]:3 Freedom means the right to political expression especially when it raises matters of public importance.^[5]:3 Most democratic countries advance the instalment of the Internet for economical and communication reasons 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.^[5]:4 The challenge for governments is balancing private interests with rules against privacy and freedom rights for all.^[5]:3

Governance in cyberspace

Anja Mihr says that cyberspace harbours 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.^[5]: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.^[5]:2 Because cyberspace has no borders the ways and means to govern it are not yet defined. This leads to problems where those who are willing to commit crimes find it easier to cross borders through the web, because it is unclear where jurisdiction lies.^[6] If a governing regime was ever stablished it would most likely consist of multiple stakeholders and actors including national, and international as well as private actors, such as representatives of companies, social networks, NGO's and individuals.^[5]:2

Liability of Internet service providers

A question arises when there is a breach of an individuals right. Should the liability fall only on the originator of the breached right or on the Internet service provider (ISP)? This is an especially relevant issue when it comes to balancing free speech versus defamation.^[7] The increasing speed and limitless audience of the Internet pose a greater danger to individuals and their reputations.^[4] The ISPs may not have the means to monitor content which is published on their websites or are unaware that a defamatory statement exists on their site.^[8] This was demonstrated in the case Cubby, Inc. v. CompuServe Inc.^[9] where it was found that the ISP acting as a mere distributor could not be liable for the content posted on its bulletin. However, in Stratton Oakmont, Inc. v. Prodigy Services Co.^[9] 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 on ISPs.^[8] A further question is whether ISPs will take it upon themselves to function as the “moral guardians”^[7] of cyberspace. If over-fanatical ISPs could start refusing to host certain Internet sites. This may in turn compromise free speech rights. In comparison, the ambiguity about ISPs liability could mean ISPs permit content without regard to its potentially harmful effects.^[7]

Cybersecurity

The World Wide Web (WWW) is not the safest place to put private data. However, if it becomes a neutral provider of data communication then it has a potential to do so. Cyberspace is a tool where individuals can exercise their freedom rights but cyberspace cannot guarantee our freedom.^[5]: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.^[5]: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.^[5]:13 Still according to the Freedom in the Net Index 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.^[10] The EU has invested in many filtering projects such as NETprotect I and II projects,^[11] ICRAsafe projects ^[12] and the PRINCIP programme.^[12] But it has been stated that the self-censorship that Internet users impose on themselves is probably the most serious threat to Internet freedom. The massive surveillance, and fear of private communications made public lead to self-censorship. This results is individuals no longer using search engines or social networks to express ideas or opinions, as, certain keywords may trigger national security agencies, resulting in the Internet becoming a political and manipulating tool.^[5]:13

Discriminatory behaviours

Cyber bullying

Discriminatory behaviours that occur ‘off-line’ also occur ‘online’ One of these behaviours is ‘cyber bullying’. Cyberbullying affects at least one in ten students in Australia.^[13] Cyberbullying can impact on a range of human rights including: the right to the highest attainable standard of physical and mental health;^[14] rights to work and fair working conditions;^[15] the right to freedom of expression and to hold opinions without interference;^[16] a child or young person’s right to leisure and play.^[17]

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.^[4] 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’.^[18]

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.”^[19] Hate speech is intended to disturb violence or prejudicial actions against a group of people based on their ethnicity, race, nationality or sexual orientation.^[8] 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.^[20] It has become a stated subject of importance that these situations are monitored to prepare for future generations of cyber-terrorists.^[8]

Future of human rights in the Digital Age

The future as to the management of human rights in cyberspace depends on the evolution of the law and its interpretation.^[7] Jon Bing warns that once rules and regulations are automated, they become extremely arduous to subject to judicial review.^[7] Bing states that we face a situation in which “technology [is] implementing the law”.^[7] Roger Brownsword looked at issues associated with developments in biotechnology and human rights alongside those raised by digital technologies and suggested three main ethical positions on the issues. A utilitarian pragmatic stance, a defence of human rights and a “dignitarian alliance”^[7] Of the three positions Brownsword claims the first two are becoming popular in the UK. He claims that technologies are being developed that treat human subjects as if they lack the capacity to choose.^[7] Recent official discussions have taken place as to the future of cyberspace. In April 2008 the Virtual Law Conference^[21] was held in New York. The conference included participants such as Microsoft, Sony and the Walt Disney Company. The agenda included discussion on Intellectual property enforcement, legal issues in virtual currency, legal issues in virtual property, ethical concerns for attorneys and executives in virtual worlds and how to litigate a virtual lawsuit.^[8] The US Congressional Hearing on Virtual Worlds also took place and its purpose was to educate and sort out the prospects of virtual worlds.^[22] The agenda included analysing concerns related to consumer protection, intellectual property protection and child protection, amongst other things. The hearing was one of the first legislative inquiries into virtual worlds. It remains to be seen whether either of these gatherings have any lasting results.^[8]

See also

• Digital rights

References