Blog #3: Pinpointing where rule of law meets human rights online by Jessica Dhere
In the third instalment of the FOC Working Group 2 (WG 2) blog series, Working Group member Jessica Dheere – Co-Founder/Co-Director of Social Media Exchange in Beirut, Lebanon – discusses diverse approaches to conceptualizing the intersection between rule of law and human rights in online spaces and over digital networks.
Throughout this blog series, WG members will analyse current scenarios where the application of the rule of law online fails to promote human rights online, and highlight areas where further research should be undertaken to further strengthen rule of law principles and practices. To read previous blog posts in the series, follow this link.
By Jessica Dheere, co-founder and co-director, Social Media Exchange in Beirut, Lebanon
Understanding how rule of law intersects with human rights in the digital environment is rarely straightforward. Rapid innovations in technology and media mean that laws quickly go out of date. Keeping them up to date, whether by writing new laws, or adapting existing ones, is challenging. Lawmakers not only have to anticipate new uses of technology—they also have to figure out what the likely implications of these uses will be. This means that laws governing technology and the internet almost always lag behind practice.
Meanwhile, the cross-border—some might say borderless—nature of online communications raises questions of legal jurisdiction and national sovereignty. For example, the national laws of a company’s home country may conflict with the laws of the countries in which they operate; whose laws may, in turn, conflict with international law. At the same time, as global communications platforms increasingly constitute the public sphere, their policies and practices may assume the role traditionally accorded to law. For example, content reviewers and trust and safety teams increasingly evaluate posts not just for legality but for adherence to terms of service and community standards.
Answering the diverse range of legal questions raised by digital networks and technologies will require long-term engagement by a diverse group of stakeholders, as well as the coordinated collection, organization, and sharing of information. Only then will we be able to conceptualize the rule of law online and conduct meaningful comparative analysis by country, region, and issue.
In this blog post, we take a look at several initiatives attempting to tackle this challenge—some of which are led by members of this very Working Group. The list is not exhaustive, and does not try to be. Rather, the aim is to highlight examples of emerging initiatives, make connections between them, and identify current gaps in knowledge about how the rule of law affects human rights online. If you know of other initiatives that should be included, please let us know at firstname.lastname@example.org.
Guiding principles on promoting human rights in rule of law online
One approach to conceptualizing rule of law online is to establish guidelines or principles for laws and policies related to the digital environment, laying out what they need to do to comply with international human rights law.
The multistakeholder Internet Rights and Principles Coalition has made a notable intervention here with their 10 Internet Rights, which draw on the Universal Declaration of Human Rights (UDHR) and other international covenants on civil and political (ICCPR) and economic, social and cultural (ICESCR) rights. Similarly, in 2013, in the wake of the Snowden revelations, a global coalition of civil society, privacy and technology experts drafted Necessary and Proportionate, a set of international principles on the application of human rights to surveillance. And the UN Guiding Principles on Business and Human Rights—also known as “the Ruggie Principles—aim to guide states and companies “to prevent, address and remedy human rights abuses committed in business operations.”
These guidelines and principles are supported by critical analysis and recommendations published by governments, civil society organizations, and UN special rapporteurs—for example, on freedom of expression and on anonymity and encryption—whose work has been invaluable to our understanding of how existing rights and laws can be reinterpreted, adapted, and sometimes abused in the online space. Many of these sources are included on the Working Group’s reading list.
The Council of Europe’s “Guide on Human Rights for Internet Users” takes a different approach. Rather than guiding law and policymakers on best practices, it seeks to educate and empower internet users about the rights and protections they should expect under law when engaging in online activities—and what recourse they can take when those rights are violated. Published in 2014, the guide was prompted in part by an “increasing number of cases which relate to the Internet before the European Court of Human Rights.” It has been noted, however, that in the absence of monitoring and enforcement mechanisms at the national and international levels, the guide remains aspirational—and the rights it declares non-binding under law.
Mapping legal frameworks & application of law
Another approach to gaining greater understanding of rule of law online involves mapping legal frameworks, aggregating and organizing case law, and analyzing the application of local law against human rights law. RedLatAm, published in 2013 by Derechos Digitales—a Latin American digital rights advocacy organization—represents one of the first attempts to map a legal framework for human rights online. Legislation concerning intellectual property, personal data protection, net neutrality, and cybercrime is plotted onto a map of Latin America that users can browse to get a sense of national legal frameworks.
RedLatAm inspired the Arab Digital Rights Datasets (ADRD), developed by my own organization Social Media Exchange. This initiative includes an open database and visualization of legislation affecting human rights online from 20 Arab countries. The laws, collected over 18 months, include constitutions, penal codes, media laws, anti-cybercrime and anti-terror laws. As well as making these public documents more accessible, the project intends to help researchers and advocates better identify trends in how laws are applied in the online space, and target areas for policy reform. Another project mapping legislation in the MENA region is the Internet Legislation Atlas (ILA). Developed by Hivos and Article 19, the ILA builds on an earlier version of the ADRD dataset to analyze “the level of compliance of selected digital rights vis-à-vis international human rights standards in seven countries of the Middle East and North Africa: Egypt, Iran, Iraq, Jordan, Lebanon, Syria and Tunisia.”
There are other similar projects in the works, or currently being updated. These include a mapping of laws affecting human rights online in the 50+ countries of Africa, and an update of Global Voices’ Threatened Voices project, which tracks instances of individuals and groups threatened—legally or extralegally—for their online activities.
While not solely focused on human rights online, Columbia University’s Global Freedom of Expression Legal Database reports on decisions in court cases concerning freedom of expression and freedom of information all over the world, in multiple publishing environments, including “Electronic/Internet-based Communication.” Cases can also be filtered by region, theme, judicial body, type of law, and year, allowing researchers ready access to interpretations of the rule of law regarding free expression and access to information—including online—without the need for expensive legal research.
Civil society isn’t alone in wanting to map legal frameworks for human rights online. The private sector, governmental organizations, and academics are also getting in on the act.
For example, the Guiding Principles of the Telecom Industry Dialogue—a group of telecom operators and vendors concerned with free expression and privacy rights—encourage participating companies “to compile and make available guidance and information on the main laws, regulations and standards that are applicable to licensed operators, for informational purposes.” To date, these efforts have resulted in coverage of the relevant legal frameworks of 44 countries. Each report includes relevant articles from constitutions and summaries of other laws pertaining to specific free speech and privacy issues, such as real-time data collection or network shutdown provisions.
To gain insight into the legal frameworks for blocking, filtering, and takedowns of internet content across its 47 members, the Council of Europe commissioned a study last year that “describes and assesses the legal framework but also the relevant case-law and practice in the field.”
And researchers are beginning to synthesize legal and case data to produce reports and new maps that further enhance our collective understanding of the relationship between rule of law and human rights online, especially as it pertains to specific issues. Examples of these efforts include Wafa ben Hassine’s “The Crime of Speech,” which systematically analyzes laws and cases to determine how four Arab countries are using the law to undermine free expression; a recent blogpost on how laws enable internet shutdowns by Working Group member Deniz Duru Aydin; and the Digital Freedom Alliance’s alpha-version global surveillance map, which cross references surveillance attacks against civil society with surveillance exports and imports and encryption laws. The creators of this map are also exploring how to create data structures that would make this information machine-readable, and therefore scalable and uniform across multiple initiatives.
The views expressed in this blog represent the views of individual authors, building on the work of the Working Group. They do not represent the views of the Freedom Online Coalition or its members.