ARTICLE 19 welcomes the annual report of the UN Special Rapporteur on freedom of opinion and expression, David Kaye, to the General Assembly (UNGA), in which he delivers a stark warning to states that they are failing to live up to their international freedom of expression obligations.
The report of the Special Rapporteur catalogues states’ use of abusive laws and practices to undermine media, critical voices and activists, and endemic impunity for violence against communicators, as well as growing threats to an open and secure Internet. It concludes with strong recommendations to states to reverse these trends.
“The Special Rapporteur’s report is a global health-check for freedom of expression, and its diagnosis is sobering. It shows that freedom of expression is subject to severe and increasingly diverse attacks in all parts of the world,” said Thomas Hughes, Executive Director of ARTICLE 19.
“The report details that the old tools of censorship are still in play as critical voices continue to be silenced through killings, attacks, and imprisonment under draconian laws. In the digital age, the range of measures states are using to monitor and control the free flow of information, both blunt and more sophisticated, exacerbate the challenges we face and create new ones.”
“We must see commitments on freedom of expression at the UN translated into bold and urgent action to ensure this right is protected for media, activists and Internet users on the ground, and there must be accountability for states that fail to do this. The report shows that while states talk the talk on freedom of expression on the international stage, they do not walk the walk at home,” Hughes added.
The report of the UN Special Rapporteur on freedom of opinion and expression (A/71/373) will be presented to the UNGA’s Third Committee on 21 October 2016. It is the second report that the present mandate-holder, David Kaye, has presented to the UNGA, and complements the two annual reports he has so far presented to the UN Human Rights Council (HRC).
This is the first time the UN Special Rapporteur has assessed the global state of freedom of expression using as a metric the hundreds of communications he has sent to governments alleging violations. The snapshot this provides, in the words of the Special Rapporteur, “inspires deep concern”, showing an “all too common worldview that imagines words as weapons”.
The report structures its concerns around the international human rights framework, set out in Article 19 of the International Covenant on Civil and Political Rights (ICCPR), in particular its three-part test under which governments must demonstrate any limitations on freedom of expression meet the strict requirements of legality, legitimate aim, and necessity. Evaluating state responses to allegations of violations, the Special Rapporteur debunks one by one the legally facile justifications governments most often use to defend censorship.
The report restates fundamental principles of international human rights law on freedom of expression, drawing upon General Comment No. 34 of the UN Human Rights Committee (the treaty body that monitors compliance with the ICCPR). This includes reaffirming that legislation must not be so vague or broad as to permit authorities excessive discretion to restrict expression, that limitations must never aim to suppress criticism of the government or muzzle human rights advocacy, and that blasphemy laws are incompatible with Article 19 of the ICCPR. The report does not shy away from naming those states who flout these foundational principles.
The Special Rapporteur contrasts trends in violations of the right to free expression with states’ commitments to protect and promote this right through UN resolutions at the HRC and UNGA. The report evidences a widening gulf between these international commitments and local realities, underscoring the importance of the mandate’s communications with states to close this gap.
Global censorship trends
The trends identified in the Special Rapporteur’s report map onto the five pillars of ARTICLE 19’s “Expression Agenda” strategy for 2016 – 2021, which are: digital, protection, civic space, media, and transparency. Central to this strategy is the use of international human rights mechanisms, including the Special Rapporteur’s mandate, to set progressive standards and advocate for their realisation at the national level through our 9 regional and country offices.
Though the HRC has proclaimed that “the same rights that people have offline must be protected online”, the Special Rapporteur warns that “the coming years will test just how genuine the commitment to that proposition is.” He identifies that the global situation for digital rights is deteriorating on a number of fronts:
- Cybercrime laws: the report highlights the trend for new legislation prohibiting legitimate online expression in vague terms, granting excessive discretion to authorities, including in China and the Russian Federation. These laws do not pursue legitimate aims, and often feature disproportionate sanctions; the limitations on free expression they authorise often lack adequate judicial safeguards. The development and adoption of these laws is often marked by a lack of adequate parliamentary scrutiny and public participation.
- Internet shutdowns: the practice of intentionally disrupting internet access, blocking access to specific websites or shutting down services continues unabated. Intentional disruptions were reported in Turkey and Uganda in advance of elections, and during protests in Tajikistan; website blocking has been reported in Malaysia in response to reporting of corruption scandals, and the blocking of the Internet or text messaging services was reported in Democratic Republic of Congo, Burundi, India, Bangladesh, Brazil and Pakistan. Even where premised on national security or public order grounds, the impact of these measures on the communications of potentially millions of people render them inherently disproportionate.
- Surveillance, encryption and anonymity: the report repeats concerns expressed previously, emphasising that bulk collection of data and targeted surveillance interfere directly with the privacy and security necessary for freedom of expression. Relatedly, the report notes particular concerns at attempts to undermine encryption in the Russian Federation, France, and the United Kingdom, as well as prohibitions on anonymity in Brazil.
- Targeting of bloggers: the report points to the murders of bloggers in Bangladesh to highlight the acute dangers facing those expressing views online that may be against the mainstream. The imprisonment of bloggers and journalists for their online expression is identified as a persistent trend, with prominent cases including the detention of the Zone 9 bloggers in Ethiopia on the grounds of “terrorism”, the prosecution of an academic for anti-government posts in Jordan, and the arrest of a video-blogger in Singapore for “wounding the feelings” of Christians.
Against this backdrop the Special Rapporteur also notes positive practices in the digital sphere. These include the adoption of the Marco Civil de Internet in Brazil through transparent and participatory processes, positive Supreme Court decisions on digital rights in India and Argentina, and efforts by various governments to expand Internet access. At the international level, support for multi-stakeholder Internet governance with commitments to freedom of expression is also welcomed.
To build on best practices and reverse negative trends, the Special Rapporteur emphasises that it is “particularly critical for States to avoid adopting legal rules that implicate digital actors”, including “data localisation standards, intermediary liability and Internet security”. The role of digital actors in the private sector is the subject of an on-going standard-setting project by the Special Rapporteur, in which ARTICLE 19 is participating.
The report highlights an “assault on reporting” as a pernicious contemporary trend, in particular killings, attacks and arbitrary detention of journalists, as well as impunity for those crimes.
Impunity for killings and disappearances of journalists are of particular concern in Mexico and across the Americas, as well as in South Sudan, the Philippines and the Russian Federation. Too often, senior public officials fail to condemn attacks and in some instances are even seen to encourage them, such as in the Philippines and Thailand.
A resolution on the safety of journalists, for which ARTICLE 19 advocated, was adopted at the HRC in September 2016; it broke new ground setting political commitments and new standards on protection. However, the report shows just how far states need to come to make these commitments a reality for journalists, bloggers and other communicators on the ground.
The Special Rapporteur’s report recognises that threats to media freedom are diverse and extend beyond violence against journalists and impunity. It documents in detail legislation which is wholly incompatible with international human rights law, and that is routinely used to arrest and imprison media workers or otherwise inhibit their work and restrict their independence.
The Special Rapporteur has often had to address states’ use of counter-terrorism laws to restrict and penalise reporters covering matters in the public interest, singling out the adoption of laws in Australia, Ethiopia, Nigeria, Germany, Iran, Ukraine, and Indonesia. Other commonly misused or abused laws include criminal insult provisions with heightened protections for public officials (Nepal, Kuwait, Tajikistan, Thailand), sedition provisions and prohibitions on the reporting of “false news” (the Gambia, Malaysia), and criminal defamation (Honduras). Journalists and media workers face not only imprisonment, but also restrictions on foreign travel or revocation of citizenship (Kuwait, Bahrain), confiscation of their equipment (Venezuela), and civil suits for defamation or copyright infringement (Ecuador).
The Special Rapporteur also raises concern over the treatment of journalists covering protests, citing cases of arrest and mistreatment in Egypt, Venezuela, Mexico and the United States of America.
The need to respond to these trends is recognised in the abovementioned HRC resolution on the safety of journalists, which calls for the first time for the release of arbitrarily detained journalists and for states’ to review and reform laws used to arrest and imprison them, as well as to ensure the protection of journalists in protests.
The report makes clear that violence and other forms of censorship target many different actors, not limited to journalists or traditional media actors, but extending more broadly to independent voices in civil society at large, including “critics of government, dissenters from conventional life, provocateurs and minorities of all sorts.”
The Special Rapporteur highlights in particular repression against civil society organisations and individuals promoting the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) people, including through laws specifically targeting their free expression (Kyrgyzstan, Uganda, Russian Federation), barriers to the registration of associations (Zambia), and impunity for violence against LGBTI human rights defenders (Honduras).
The particular restrictions facing women are also highlighted, with campaigners for women’s rights targeted with arbitrary detention in Saudi Arabia, and sexual and physical violence against women human rights defenders and lawyers in India, given as emblematic examples.
Artists who challenge the status quo, rebuke authority, and encourage new ways of thinking are also vulnerable to censorship, imprisonment and attack. The report documents serious human rights violations against artists in Iran, Egypt, Qatar, Saudi Arabia, Swaziland, and Cuba, in addition to the murders of satirists at Charlie Hebdo in France.
The closing of civil society space for all actors is largely attributed to the spread of laws that effectively criminalise criticism.
Laws protecting public officials from insult or defamation, or that expressly give equivalent protection to the state or its institutions, are employed broadly against activists, critics and human rights defenders. The examples listed are extensive, covering Viet Nam, Iran, Azerbaijan, Kuwait, Nepal, Bahrain, Myanmar and Cambodia.
In some instances, these laws take the form of prohibitions on “sedition” (as in Malaysia), or subvert prohibitions on “hate speech” amounting to incitement to specific harms against individuals under Article 20(2) of the ICCPR, to instead protect the state as an abstract entity from supposed “harm”. Similarly, blasphemy and apostasy laws are applied to protect religions per se from ridicule, and have been updated or adopted in the Maldives, Myanmar, Brunei and Singapore and remain on the books in many European countries. The implementation of HRC resolution 16/18 and the Rabat Plan of Action is essential to promoting equality, inclusion and pluralism, without resort to counterproductive restrictions.
In addition to the abovementioned abuses of national security and counter-terrorism measures, the Special Rapporteur reiterates concern at emerging restrictions on expression considered to be “violent extremism”. Such vaguely defined prohibitions, as introduced in Kyrgyzstan and the Russian Federation, often capture expression that falls far short of incitement to violent criminal acts. This was the focus of the Special Rapporteur’s joint declaration with regional freedom of expression mandates in 2016.
The absence of adequate or effective public participation in the development of legislation impacting on freedom of expression, in particular from civil society and media most affected by such measures, is an additional failing the Special Rapporteur calls on states to remedy.
Though all attacks on freedom of expression seek to obstruct the free flow of information, a number of legislative initiatives that the Special Rapporteur highlights directly undermine the right of access to information. This includes secrecy legislation in Japan which negatively implicates the safety of journalists, their sources, and whistleblowers, and the Espionage Act in the USA, which has limited protections for national security whistle blowers.
The right of access to information is crucial to ensure accountability, promote good governance, facilitate effective public participation, and make progress towards achieving the 2030 Agend