Human Rights in the Digital Age

Mathias Klang, Andrew Murray, Mathias Klang, Andrew Murray

• Publisher: Routledge-Cavendish
• Year: 2016
• ISBN:
  9781135310189
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

The digital age began in 1939 with the construction of the first digital computer. In the sixty-five years that have followed, the influence of digitisation on our everyday lives has grown steadily and today digital technology has a greater influence on our lives than at any time since its development. This book examines the role played by digital technology in both the exercise and suppression of human rights. The global digital environment has allowed us to reinterpret the concept of universal human rights. Discourse on human rights need no longer be limited by national or cultural boundaries and individuals have the ability to create new forms in which to exercise their rights or even to bypass national limitations to rights. The defence of such rights is meanwhile under constant assault by the newfound ability of states to both suppress and control individual rights through the application of these same digital technologies.

This book gathers together an international group of experts working within this rapidly developing area of law and technology and focuses their attantion on the specific interaction between human rights and digital technology. This is the first work to explore the challenges brought about by digital technology to fundamental freedoms such as privacy, freedom of expression, access, assembly and dignity. It is essential reading for anyone who fears digital technology will lead to the 'Big Brother' state.

Chapter 1
Introduction - Human Rights and Equity in Cyberspace

Robin Mansell

Introduction

Summit meetings and world conferences have been convened on issues ranging from sustainable development to social development, and women and children. In December 2003, the World Summit on the Information Society (WSIS) was convened under the auspices of the United Nations. This meeting aimed to stimulate action to ensure that the information societies emerging today are more, rather than less, equitable than the societies that have preceded them. Summit meetings generally lead to declarations of principles and intended actions. These are the result of lengthy negotiations that seek to find common ground between the disparate interests of government, business and, in the case of the WSIS, civil society representatives from around the world. One important area that engendered considerable debate in the case of this Summit and the necessity for compromise was a core issue that is addressed in this volume: human rights and their legal protection.

Human rights in the digital age are openly being contested today. The text of the WSIS Declaration of Principles espouses a common vision of the information society, particularly with respect to human rights. For example:

We reaffirm the universality, indivisibility, interdependence and interrelation of all human rights and fundamental freedoms, including the right to development, as enshrined in the Vienna Declaration. We also reaffirm that democracy, sustainable development, and respect for human rights and fundamental freedoms as well as good governance at all levels are interdependent and mutually reinforcing. We further resolve to strengthen respect for the rule of law in international as in national affairs. …

We reaffirm, as an essential foundation of the Information Society, and as outlined in Article 19 of the Universal Declaration of Human Rights, that everyone has the right to freedom of opinion and expression; that this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Communication is a fundamental social process, a basic human need and the foundation of all social organisation. It is central to the information society. Everyone, everywhere should have the opportunity to participate and no one should be excluded from the benefits the Information Society offers.

Nothing in this Declaration shall be construed as impairing, contradicting, restricting or derogating from the provisions of the Charter of the United Nations and the Universal Declaration of Human Rights, any other international instrument or national laws adopted in furtherance of these instruments.¹

The Declaration goes on to emphasise the need to foster an inclusive information society and to ensure the ability not just to access information and to communicate, but also to contribute. Observations are made about the need for capacity building and for an enabling institutional and legal environment. On issues of building confidence and security in the use of information and communication technologies (ICTs), the Declaration has this to say:

Strengthening the trust framework, including information and network security, authentication, privacy and consumer protection, is a prerequisite for the development of the Information Society. …

It is necessary to prevent the use of information resources and technologies for criminal and terrorist purposes, while respecting human rights. …

All actors in the information society should take appropriate actions and preventative measures, as determined by law, against abusive uses of ICTs, such as illegal and other acts motivated by racism, racial discrimination, xenophobia, and related intolerance, hatred, violence, all forms of child abuse, including paedophilia and child pornography, and trafficking in, and exploitation of, human beings.²

Issues of trust, protection from criminal behaviour, and the applicability of international and national legal frameworks are clearly signposted in the WSIS Declaration, which is accompanied by a Plan of Action.³ The actions envisaged are numerous and are aimed at reducing ‘digital divides of many different kinds’. However, the documents are silent with respect to how existing and new interpretations of the law should apply nationally or internationally and on whether variations between countries mean that the Internet makes law enforcement virtually impossible.

Following the WSIS, there has been much discussion about whether the Summit simply provided a costly opportunity to foster a hollow rhetoric about the need for ‘digital solidarity’ or whether it succeeded in mobilising a major step-shift in the priority that will now be given to finding the resources to implement the high ambitions of the authors of the Declaration and Plan of Action. A clear call is made for research to unveil the causes and consequences of developments in all of the facets of the digital age.

An essential prerequisite if the respect for human rights embedded in the WSIS Declaration is to be upheld is investigation of the way that legal institutions, practices and interpretations are influencing today’s information societies. An important aspect of this field of inquiry is research on the way cyberspace is being experienced by people in the very disparate contexts of their everyday lives. The contributors to the present volume tackle these issues from a variety of vantage points. Central to this volume is an inquiry into human action and human rights in those instances where they are mediated by the technologies of the digital age. The chapters encompass a wide range of issues including the production and consumption of digital content, the means of control over unwanted intrusions to the individual’s privacy, and emerging means of governing in cyberspace.

Globally and locally, today’s information societies are underpinned by digital technologies. These technologies enable applications that may be empowering for some people, allowing them to develop new ways of seeing the world around them. Ubiquitous networks are at the heart of the digital age. They are becoming familiar to people in all parts of the world, albeit unevenly so. The Internet allows for use of chatrooms, email and voice communication by people representing numerous interests, values and aspirations. Together with the World Wide Web’s enormous repository of information, the Internet is limited in its application only by the limits of human imagination. Within the digital spaces – or cyberspaces – of this century, there are many opportunities for new forms of business and governance as well as for new forms of criminal or unwanted behaviour. Many of these also create the potential for changes in behaviour and perceptions of the non-virtual world.

One of the key findings of recent research on the way digital technologies and the Internet are mediating our lives is that offline conventions and practices do not diminish in importance in the face of new cyberspace developments. In some cases, cyberspace simply offers a complementary space to conduct familiar activities, while in others, the new virtual spaces amplify existing activities or create opportunities for completely new activities and behaviours.⁴ While many efforts are underway to foster e-strategies for the development of new forms of electronic commerce and electronic government as well as a host of other applications, the darker side of cyberspace is often shrouded in mystery or revealed only by the media as ‘moral panics’ over signs that the Internet is untrustworthy or that the riskiness of cyberspace is substantial.⁵ This collection of papers offers a research-based assessment of the implications of the law and its evolving institutions for the protection of human rights and greater equity in cyberspace developments.

Consent and possession in cyberspace

The volume opens with Bela Chatterjee’s (Chapter 2) examination of the cyber-sex phenomenon. This involves the use of digital technologies including the World Wide Web to provide and exchange information about prostitutes or pornographic materials. She notes that, while cyberspace may enable women to engage in the sex trade on more favourable terms to themselves, there are also new opportunities for cyber-stalking, ‘virtual’ pimps and an intensification of harm and exploitation. She reviews UK, European and international legislation and protocols intended to deal with these issues. While human rights are being recognised and legal and socio-economic solutions to protect women from sexual exploitation are being devised, she suggests that there is little recognition that civil and political rights are ‘gendered’. The cyber-sex trade no longer necessarily involves movement and travel, creating new challenges for legislators, and it continues to be unclear as to the circumstances under which consent may be deemed to have been given or not given in cyberspace.

The infringement of children’s rights is central to Marie Eneman’s chapter (Chapter 3), which tackles the difficult issues of child pornography. She warns that digital technologies not only make it easier and less costly to produce pornographic content, but software can also be used to produce ‘morphed’ images, which fall uncertainly within the ambit of existing law. Anonymity and closed Internet-based membership communities also protect paedophiles, make content production a potentially lucrative activity, and enable contacts to be made with children on and offline. Although there is a Council of Europe Convention on Cybercrime that deals with child pornography, Eneman highlights gaps in existing legislation such as that the meaning of ‘possession’ of child pornography is open to question because of the immaterial nature of this form of digital content.

Governance, liability and balance

Vick’s (Chapter 4) discussion of the implications of cyberspace for the control of hate speech begins with the observation that ‘no society in the world has concluded that free speech is an absolute barrier to state regulation of harmful expression’. The governance of cyberspace is often said to be beyond the capabilities of the nation-state, yet this chapter shows how differences in national law have implications that make it very difficult to achieve a universally applicable definition of how to protect human rights in the face of the propagation of hate speech over the Internet. Vick stresses that, in the US, the prevailing view is that the best way to counter hate speech is rebuttal by others, rather than by sanctions imposed by the state. It is also the case that hate speech laws may be enforced against marginalised members of society, succeeding only in amplifying resentments. Neither hate speech laws nor a laissez-faire approach address the underlying problems of poverty, social isolation and ignorance that give rise to group hatred. In this chapter, the difficulties of governing the Internet are posed as matters for social policy as well as for legislators.

Closely related to this issue is the appropriate balance between the protection of reputation from defamatory speech and the right to freedom of expression. In her analysis of this issue, Diane Rowland (Chapter 5) defines defamation as a statement that is ‘injurious to the reputation or dignity of the person allegedly defamed [which] must be published or communicated to another who must understand its connection with the person allegedly defamed’. She shows that, in practice, there is a ‘hierarchy of speech’ protection. Internet-mediated speech raises issues including the standard to be applied, where publication is deemed to occur and the jurisdiction within which action can be taken. Should liability fall only on the originator of an allegedly defamatory statement or on an Internet service provider (ISP)? This chapter draws attention to the potentially ‘chilling’ effects of imposing liability on the latter, such as that ISPs may remove information even before there is judicial verification that it is defamatory. Despite the potential of the Internet to amplify defamatory speech, Rowland insists that ‘the application of existing legal rules and pre-existing tension between rights of reputation and those of free speech’ should pertain, notwithstanding the fact that the stability of the law and its enforcement are challenged by the global reach of the Internet and many different local legal and cultural norms.

The problem of ISP liability is taken up again in Chapter 6 by Gavin Sutter, this time specifically with respect to the European Union and UK legislative context of liability for failure to remove potentially harmful content, or failure to offer the required consumer protection. Existing legislation envisages ‘a form of notice and take-down procedure’, but it remains unclear what constitutes ‘knowledge’ and what timeframe is applicable for judgments about an ISP’s liability or immunity. Sutter asks whether ISPs will take it upon themselves to function as the moral guardians of cyberspace. Again there are issues of balancing rights and obligations. If over-zealous ISPs refuse to host certain types of Internet sites, they may jeopardise free speech rights. Alternatively, ambiguity about ISP liability could mean that ISPs permit the provision of content without regard to its potentially harmful effects.

Digital divides in cyberspace

There is ongoing debate about the unevenness of access to the means of communicating using digital technologies and about whether, and the extent to which, measures should be taken to reduce the effects of various types of digital divides.⁶ After all, there are many other major claims on the scarce resources of time and finance to support health care, education, economic development, or democratic governance. In Chapter 7, Daniel Paré provides an empirically-grounded account of why a binary distinction between those with and those without access to the Internet is unhelpful in thinking about what steps should be taken by legislators to address the numerous and differentiated uses of the Internet. Summarising recent research which has examined Internet use to support commercial activity, he finds that, for small and medium-sized enterprises in developing countries particularly, efforts to introduce uniformity in the law governing electronic transactions often embody a ‘techno-centric’ logic, which runs counter to people’s experiences and preferences for how and with whom they choose to trade. As all the chapters in this volume demonstrate, user- and use-centred approaches to analysing behaviour associated with the spread of the Internet have a much greater potential to shed light on the complex and multifaceted issues that legislators and legal experts face in the digital age.

The technologies of governing

The foregoing chapters are concerned mainly with choices and actions on the part of human beings who interact with digital technologies. However, the spread of the Internet is encouraging the development of technologies that can be used by individuals, or programmed as software agents, to filter, block and rate content that is available to end-users. While the market for these technologies has not grown nearly as rapidly as initially expected and there is little harmonisation or interoperability of approaches, these technologies raise crucial issues about the nature of the ‘public sphere’ and about censorship.⁷ Brian Esler (Chapter 8) asks ‘whether free speech has any value if it cannot be heard’. He reviews experience with filtering technologies and content rating initiatives in the US and Europe. Aimed at limiting access to illegal, harmful and racist content on the Internet, he shows that new technologies can be institutionally mandated for use, for example, in libraries to prevent children’s access. As Esler graphically puts it: ‘will the Internet remain a true “marketplace of ideas”, a blowsy bazaar of the bizarre to the banal, or will filtering technology transform the experience of many users into something akin to a Communist department store, where choice is limited by central governance?’ These technologies also make it feasible for end-users’ prejudices to become embedded in the technology, making their use and effects anything but transparent over time.

Ronald Deibert and Nart Villeneuve (Chapter 9) take up the theme of state intervention as a form of Internet governance. In this case, the discussion of filtering, self-censorship and the practices of states focuses on efforts to limit access to content for political reasons.⁸ Quite apart from the fact that filtering can lead to errors and mistaken or unintended blockages, the notion that the Internet is inherently open because of the nature of its architecture is not one that can be sustained in the light of current technological developments and various methods of fostering self-censorship. These authors consider the experience of China where citizens are encouraged to make ‘public pledges’ not to publish information of certain kinds. Elsewhere, Internet café owners are often required to block certain kinds of content. In the US (and as also indicated by Esler in Chapter 8), legislation requires libraries and schools to block content to protect children. Deibert and Villeneuve raise the spectre of the ‘strangulation’ of the open Internet and point to various methods by which Internet filtering software is being used in ways that elude public scrutiny of the types of content and websites that are excluded. This suggests that the new technologies of governance do not always support the empowerment of civil society movements.⁹

The variety of means by which virtual community actors who use the Internet can be controlle...