Comparing Freedom of Speech: American Convention vs. International Standards, Study notes of Human Rights

Download Comparing Freedom of Speech: American Convention vs. International Standards and more Study notes Human Rights in PDF only on Docsity! Content Moderation and private censorship: standards drawn from the jurisprudence of the Inter-American Human Rights system Submission to the United Nations Special Rapporteur on the Protection and Promotion of Freedom of Opinion and Expression, David Kaye, by the Center for Studies on Freedom of Expression and Access to Information (CELE) 1 December, 2017 Introduction The Center for Studies on Freedom of Expression and Access to Information (CELE) is a research Center hosted at Universidad de Palermo law school in Buenos Aires, Argentina. The Center devotes its work to promoting and enhancing the protection of freedom of speech and expression through cutting-edge research capable of shaping and changing public debate on key policy issues, and capacity building. The Center’s work is regional in scope and has a special interest in Inter-American law and standards that it seeks to promote and enhance region-wide. This submission seeks to bring some of the standards that could be drawn from the Inter- American Human Rights System to the questions posed by the Rapporteur in his call for submissions on Private content regulation in the digital age. In the words of the Rapporteur, “Private companies facilitate an unprecedented global sharing of information and ideas. Social and search platforms in particular have become primary sources of news and information (and disinformation) for hundreds of millions of people. With that role they have also become gatekeepers of expression that may excite passions and knowledge – or incite hatred, discrimination, violence, harassment, and abuse.” It specifically asks “What steps should platforms, government actors, and others take to ensure that these processes establish adequate safeguards for freedom of expression?” This is the question we seek to address and try to establish whether the Inter-American system for the protection of human rights offers any guidance, either for companies and/or for States, to address content regulation in the digital age, and if so, what those standards look like. This submission concludes that the Inter-American System does provide some standards that could serve as a baseline for private actors, and offers 1 This submission was written by Agustina Del Campo (adelca9@palermo.edu) Director of CELE. concrete recommendations for States (at least in the Americas) and private companies to further enhance the protection of freedom of expression in the digital age. Expression, dissemination and censorship The protection of Freedom of expression is widely recognized thought the different international human rights instruments across regions as well as the Universal Declaration and the international Covenant on Civil and Political Rights. There seems to be a common understanding among all free speech advocates and experts that expression and dissemination go hand in hand and one cannot exist without the other. As stated by the Inter-American Court 30 years ago, “[f]reedom of expression goes further than the theoretical recognition of the right to speak or to write. It also includes and cannot be separated from the right to use whatever medium is deemed appropriate to impart ideas and to have them reach as wide an audience as possible. (…) [r]estrictions that are imposed on dissemination represent, in equal measure, a direct limitation on the right to express oneself freely.” 2 This very same notion that dissemination and expression are indivisible and contemplate any medium underlies several joint declarations by the Special Rapporteurs on Freedom of Expression at the Organization of American States, United Nations, Organization for Security and Co-operation in Europe, and the African Commission on Human and Peoples’ Rights, 3 particularly when they stated that the right to freedom of expression applies fully to the internet, and online limitations are only acceptable if they comply with international standards. While there is wide agreement as to the indissoluble nature of expression and dissemination, there is also wide agreement that free speech is not an absolute right and that certain contents constitute abuses. Still, there is no universal agreement as to what “abuses” mean, or even as to the means to address such abuses. What may be deemed abusive in one country, may not be so in another. And what could be understood as a legal means to deal with such abuse in one region, may not be in another. Private companies mediating content and expression across borders have an enormous (and ever increasing) power to affect public discourse, impact free speech and access to information. They are also undergoing increasing State and civil society pressure to exercise their powers to mediate content, while establishing terms of services (ToS) that prohibit certain types of content deemed abusive. Some of those abusive contents may be illegal. Some may be short of illegal but problematic. Some others may be illegal in some countries but not in others. An example of each may help illustrate: a) child pornography is illegal everywhere; b) aggressive or disrespectful language short of harassment, although unwanted, not illegal; c) blasphemy may be an offense punishable by law in some countries, and not be considered abusive at all in another. On the means to address “abusive” content, legally tolerated means also vary from one region to another. Prior censorship, for example, understood as a preventative measure to impede the 2OAS, Inter-American Court of Human Rights, Advisory Opinion OC-5/85, November 13, 1985, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Articles 13 and 29 American Convention on Human Rights), par. 31. 3 See, for example, UN, OSCE, OAS, and ACHPR, “Joint Declaration on Freedom of Expression and the Internet,” June 1, 2011. Available at: http://bit.ly/1wnId8U, and “Joint Declaration on Freedom of Expression and Responses to Conflict Situations,” May 4, 2015. Available at: http://bit.ly/2yYwRhE Duty to Respect and Ensure in the ACHR, the ICCPR and the European Convention When evaluating freedom of expression cases, the usual focus is on the obligations of States to respect free speech, understanding this as a negative obligation, to refrain or to not interfere illegitimately with freedom of expression, whether directly or indirectly. However, there are also positive obligations upon the States to guarantee the full exercise of this right for the people under their jurisdiction that are generally established both in the European Convention and the ICCPR as well as in the ACHR. General Comment 34 of the Human Rights Committee sets from the outset in paragraph 7 that “The obligation [to respect and ensure] also requires States parties to ensure that persons are protected from any acts by private persons or entities that would impair the enjoyment of the freedoms of opinion and expression to the extent that these Covenant rights are amenable to application between private persons or entities.” 13 The European Convention has similar language although not as specific in article 1. 14 The European Court has said that “Genuine, effective exercise of this freedom does not depend merely on the State's duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals […]”. 15 Although the specifics of the positive obligations may be undefined, and the ECtHR endorses the principle of a wide margin of appreciation, authors sustain that under the positive obligation doctrine developed by the Court, States should, to “comply fully” with Article 10, ECHR, “ensure that they do not place intermediaries under such fear of liability claims that they come to impose on themselves filtering that is appropriate for making them immune to any subsequent accusation but is of a kind that threatens the freedom of expression of Internet users”.” 16 of fundamental rights limitations for online enforcement through self- regulation conducted by the Institute for Information Law (IViR) Faculty of Law University of Amsterdam this has not Article 1 of the ACHR, States have a duty to guarantee or “ensure” the full exercise of rights, understood as a duty to adapt their entire structure so that the people under their jurisdiction may fully enjoy and peacefully exercise their human rights. 17 Certain specific positive obligations the private censorship is being promoted by the State itself; and Delfi, where the private censorship draws from intermediary liability schemes. 13 HRC, General comment No. 34: Article 19: Freedoms of opinion and expression, CCPR/C/GC/34,12 September 2011, available at http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf. This obligation drives from HRC General Comment No. 31 – “The Nature of the General Legal Obligation Imposed on States Parties to the Covenant”. 14 ECHR, Article 1. 15 Özgür Gündem v. Turkey, no. 23144/93, ECHR 2000-III, para. 43. via Study of fundamental rights limitations for online enforcement through self- regulation conducted by the Institute for Information Law (IViR) Faculty of Law University of Amsterdam, pag. 35. 16 Study of fundamental rights limitations for online enforcement through self- regulation conducted by the Institute for Information Law (IViR) Faculty of Law University of Amsterdam, pag. 38 citing E. Montero and Q. Van Enis, “Enabling freedom of expression in light of filtering measures imposed on Internet intermediaries: Squaring the circle”, Computer Law & Security Review 27 (2011) 21-35, at 34. 17 IACtHR, Case Velasquez Rodriguez vs. Honduras, Series C, N. 4. 1989. par. available at http://www.corteidh.or.cr/docs/casos/articulos/seriec_04_ing.pdf.166. “The second obligation of the States Parties is to "ensure" the free and full exercise of the rights recognized by the Convention to every person subject to its jurisdiction. This obligation implies the duty of States Parties to organize the governmental apparatus and, in have been jurisprudentially developed within the right to freedom of expression. Standards towards guaranteeing pluralism and diversity in media can be set as examples of these positive obligations. The Inter-American Court’s Advisory Opinion 5/85 states that: “48. Article 13(3) does not only deal with indirect governmental restrictions, it also expressly prohibits "private controls" producing the same result. This provision must be read together with the language of Article 1 of the Convention wherein the States Parties "undertake to respect the rights and freedoms recognized (in the Convention)... and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms...." Hence, a violation of the Convention in this area can be the product not only of State imposed restrictions that impede "the communication and circulation of ideas and opinions," but also from private controls. States have an obligation to ensure that the violation does not result from the "private controls" referred to in clause 3 of Article 13. 18 The obligation to ensure implies a duty to act when States have knowledge of a human rights violation and a duty to take appropriate measures to prevent such violations from happening. In this sense, laws that condone human rights violations conducted by private actors are incompatible with the American Convention. Unfortunately, there is still no jurisprudence on this issue in cases of internet and freedom of expression within the Inter-American system. However, the principles and standards that do exist suggest that current practices among internet companies could compromise the international responsibility of the State. As Bertoni pointed out, leaving private entities to censor may amount to a violation of the Inter-American system’s standards. We would contend that allowing intermediaries to establish, interpret and enforce ToS in an arbitrary, obscure or ambiguous way could also amount to a violation of States’ duties to guarantee the right to freedom of expression, including preventing through reasonable means any violation of this right. The Inter-American Court framed the issue clearly regarding media: “If freedom of expression requires, in principle, that the communication media are potentially open to all without discrimination or, more precisely, that there be no individuals or groups that are excluded from access to such media, it must be recognized also that such media should, in practice, be true instruments of that freedom and not vehicles for its restriction (…)” 19 and therefore “the conditions for its use must conform to the requirements of this freedom”. It is clear from the wording of the Court that the objective is to protect the main means for the exercise of free speech, which back in 1985 was mass media. Still, following the logic of the Court, in 2018, mass media is certainly one vehicle, but the internet has risen to be equally and general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights.” 18 OAS, Inter-American Court of Human Rights, Advisory Opinion OC-5/85, November 13, 1985, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Articles 13 and 29 American Convention on Human Rights), par. 48. 19 OAS, Inter-American Court of Human Rights, Advisory Opinion OC-5/85, November 13, 1985, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Articles 13 and 29 American Convention on Human Rights), par. 33 even more powerful a means or vehicle for regular people as well as journalists to exercise this important right. Following the Court’s standard, conditions for the internet’s use must also conform to the requirements of this freedom. Conclusions and Recommendations 1) Standards are similar yet not equal across different regions and vis a vis universal ones Although freedom of expression is recognized universally as a human right, linked directly to democratic governance and values, the definition and scope of the right vary if so slightly from one international instrument to another. Such differences generate different obligations for States across regions within the different frameworks. As other instruments do, the American Convention states a duty among States to respect and guarantee the rights and duties contained in the ACHR. And it also states that when faced with different standards or obligations based on different instruments, States should enforce those most protective of the right in question. In the case of States within the Americas, the ACHR established the most protective standard on the right to freedom of expression and States should abide by those. Therefore, 1) Companies must respect human rights in all the different jurisdictions where they operate and States must take all reasonable measures to guarantee compliance; 2) In determining global ToS, and verifying their compliance with human rights standards, companies should test against the most protective standards rather than the least protective ones and adjust regionally where the case rises. And 3) Companies should get better acquainted with universal and regional human rights standards and how they interact and dialogue amongst each other. 2) Duties to respect free speech imply obligations not to run illegitimate interference, whether directly or indirectly States must not infringe upon free speech rights of people under their jurisdiction, neither directly, through government censorship, nor indirectly, through other regulations, including tax, nationality, monetary incentives like state publicity, nor through impositions of undue regimes for internet intermediary liability. States must refrain from imposing direct or indirect restrictions on freedom of expression online and offline and must refrain from pressuring, suggesting, indirectly imposing restrictions and particularly censorship obligations upon internet intermediaries. 3) Under Inter-American Standards, States could be liable for a company’s abusive Terms of Service if they infringe illegitimately on freedom of expression Under the standards set forth in the ACHR as explained above, States have a duty not only to protect free speech from government abuse or controls, but also from private abuse and controls where they don’t conform to the American Convention for allowable restrictions.