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My Agenda as New UN Special Rapporteur for Freedom of Expression

This past June, the UN Human Rights Council appointed me special rapporteur on the protection and promotion of the right to freedom of opinion and expression, effective August 1st. Last Thursday, I introduced my goals for the mandate in the Third Committee of the UN General Assembly and presented the final report of my predecessor (A/69/335), the eminent Guatemalan lawyer, activist and former dissident, Frank La Rue. Ryan Goodman very graciously invited me to share with Just Security readers the kinds of issues I expect to address over the course of the mandate’s term (a renewable three-years). As you will see below, I will be focusing my attention especially on the protection of journalists and access to information, vulnerable groups, and online freedom issues (such as internet regulation, corporate responsibility, and surveillance).

First, some very brief background (my longer Third Committee statement is available here on the OHCHR website). The freedom of expression mandate rests on the foundation of Article 19 of the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). The UN Commission on Human Rights created the mandate in 1993, and over time, my predecessors have moved from a world of largely traditional spaces for expression to one dominated by the internet. The traditional concerns of the mandate – vulnerable groups, journalists, civil society actors – have not changed, but threats have been amplified by the opportunities and costs of online communication.

The Human Rights Council mandated, in Resolution 7/36 (2008), that the special rapporteur seek, receive, and respond to credible information,

wherever it may occur, relating to violations of the right to freedom of opinion and expression, discrimination against, threats or use of violence, harassment, persecution or intimidation directed at persons seeking to exercise or to promote the exercise of the right to freedom of opinion and expression, including, as a matter of high priority, against journalists or other professionals in the field of information.

This generally describes the day-to-day inbox of the mandate. I address allegations of violations of freedom of expression directly to governments, in the hope (often unrealized) of engaging them in a dialogue and triggering a change in behavior. I also will be conducting country visits to address national situations in depth.

The Council also mandated biannual thematic reports, in which the special rapporteur presents studies on particular topics through the particular lens of international human rights law (think, for instance, Professor Alston’s study on targeted killing or La Rue’s on surveillance).  I will address attacks on the expression of members of vulnerable groups, a traditional focus of the mandate (and I expect to address specific groups, such as those persecuted because of their sexual orientation or gender identity or because of their participation in civil society, as well as particular problems such as blasphemy and lèse majesté laws).

But let me highlight two items on my agenda likely to be of interest to Just Security readers.

First, the right to seek, impart, and receive information. Journalists have been a core focus of the mandate since its inception. In its most recent session, the Human Rights Council adopted an important resolution on the protection and safety of journalists. It appropriately focuses attention on the implementation of best practices at the national and local level, drawing on past work of the mandate and the critical work done by UNESCO, other agencies, and NGOs. I expect to build upon these efforts.

Of course, Article 19’s right to seek, impart, and receive information goes beyond any particular profession. I expect to address questions such as: What are the current threats to transparency of government action around the world? How do states implement freedom of information, and what tools do they use to undermine it? How can national policies advance protection not only of journalists but also their sources, including whistleblowers? What norms should be applied to ensure transparency with regard to media subject to some form of government ownership or control?

Second, ensuring freedom of expression on the internet. The internet is no longer the new set of technologies discussed by the first rapporteur, India’s Abid Hussein, twenty years ago. Today, to be disconnected from the net is to be silenced. And every issue of freedom of expression is amplified online. The General Assembly just last December“affirm[ed] that the same rights that people have offline must also be protected online.” Critical online freedom issues deserve attention from the perspective of human rights law. These include:

Regulating the internet. Several key questions deserve attention. For instance, a number of governments are considering tiered access to the internet, allowing beneficial access to those, for instance, who pay higher premiums or curry favor with authorities (in the United States, of course, we think of this as net neutrality, but it’s a broad international issue). What are the implications of such proposals for the right to freedom of expression online? What technologies (including but beyond filtering and simple access denial) are governments using to control or regulate expression on the internet or to discriminate against content online? How do government efforts to insist upon data localization, or the territorial location of internet servers, implicate freedom of expression? How are efforts to impose liability on intermediaries for the content of their users undermining freedom of expression online?

I believe international, state-driven “regulation” would almost certainly create hurdles to innovation and free expression online, a threat that deserves greater attention than it now receives. It is critical that any discussion of future regulation of the net observe and protect strictly the right to freedom of expression. As I told the General Assembly last week, I will be following closely efforts to alter the status quo when it comes to internet regulation to make certain that freedom of expression concerns are regarded as central – not merely marginal – interests of individuals and civil society.

Responsibility of non-state actors: Non-state actors often play a dominant role on the internet today, even in those countries where the government exercises substantial control and regulation. My predecessors and many others have addressed corporate responsibility issues, and I intend to build on their work. For instance, what set of best practices should govern those internet actors with a major footprint in social media, commerce, news, and other subjects? What responsibilities are owed users and customers where privacy interests and expression intersect? How do legal innovations such as the European Court of Justice’s “right to be forgotten” implicate freedom of expression? How can actors implement these policies while avoiding violations of freedom of expression? What are the appropriate reactions of commercial actors when governments demand compliance with rules that are inconsistent with the freedom of expression or other rights that implicate expression?

Surveillance, Privacy and Expression: Frank La Rue’s 2013 report on surveillance, the General Assembly’s 2013 resolution on privacy in the digital age, and this year’s Report of the High Commissioner on Privacy in the Digital Age highlight the chilling effect of communications surveillance on the exercise of the freedom of expression. These all lay a foundation for further work on the intersection of surveillance, privacy, and expression. The Assembly’s 2013 resolution called upon states to review their own laws and practices to ensure that surveillance did not interfere with fundamental rights. What steps have states taken in this regard to protect freedom of expression? What further areas deserve research in order to explore the intersection of surveillance and expression? What principles should govern surveillance such that legitimate law enforcement and national security measures do not undermine the exercise of freedom of expression? What States undertake bulk electronic surveillance, and for what purposes? Do the constraints of international human rights law apply extraterritorially so as to govern foreign surveillance as well as domestic? How are technologies and laws changing to strengthen surveillance and undermine technology?

I should add that surveillance is not the purview only of freedom of expression, as the recent report of the counterterrorism rapporteur, Ben Emmerson, demonstrates. There is also building momentum for a new UN special procedure focused exclusively on privacy, one that, if established, would likely include digital surveillance and possibly more traditional tools.

Many Just Security readers not only think about these issues but write about them, and I’ve benefited hugely from that scholarship. I expect to draw upon your work, but I will also keep an open line for any suggestions you might wish to share (secure contact info is here).

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About the Author

is the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, and a clinical professor of law at UC Irvine School of Law. From 1995 to 2005, he served in the Office of the Legal Adviser at the State Department. Follow him on Twitter at (@davidakaye).