Emerging Areas of Human Rights in the 21st Century

The Role of the Universal Declaration of Human Rights

Marco Odello, Sofia Cavandoli

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136831324
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

This book includes a set of studies and reflections that have emerged since the adoption of the Universal Declaration of Human Rights in 1948. Encompassing a number of human rights, such as the right to environmental protection, the right to humanitarian aid, and the right to democratic governance, this collection focuses on issues and areas that were not originally mentioned or foreseen in the Declaration but that have since developed into salient topics.

These developing rights are considered in the light of contemporary national and international law, as well as against the wider picture and the contexts in which human rights may have effect. Moreover, the topics covered take in a wide range of research fields, including law, politics and criminology.

Emerging Areas of Human Rights in the 21st Century is aimed primarily at undergraduate and postgraduate students, and scholars interested in international law, human rights and politics.

1
‘Virtual world, real rights?’: Human rights and the internet

Diane Rowland

1.1 Introduction

In a world of Facebook, Twitter and YouTube, where millions of people read and write blogs, participate in internet games, sell goods on eBay and find out about the world via Wikipedia, for many people it has become difficult to imagine a world without the internet. Yet, despite its current ubiquity, the internet, and specifically the web, is a comparatively recent development. When the Universal Declaration of Human Rights (UDHR) was signed there could have been no anticipation of the changes which the advent of global computer networks would bring in terms of global interconnectivity and its implications for life some 60 years later. As this chapter is being written, the fortieth anniversary of the internet itself has just been marked¹ and, before embarking on a more substantive discussion, it is useful to reflect on the way in which this medium has changed and has the ability to change communication and human relationships. As with many technological developments, the internet had a slow start; although email, something which is now seen as a basic communication tool, was possible in the early 1970s, it did not really take off until the early 1990s simply because there was not a sufficiently large critical mass of email users. What really changed the face of the medium in terms of its utility as a mass communication device was the advent of what was then called the ‘world wide web’ now referred to merely as ‘the web’. This term is often now used as synonymous with the internet even though in fact it is a specific application, but without it, arguably the internet might not enjoy its current ubiquity as it has enabled easier access, easier navigation and easier location of information. In the current technological environment, it is difficult to appreciate that, only 15 years ago, there were, in total, only some 600–700 websites on the internet, but within only a very few years familiar presences such as Amazon, Google and Wikipedia were established, the number of users increased rapidly and is currently approaching 2 billion. This is the type of phenomenal growth for which the overused word ‘exponential’ is an accurate and apposite description.

The effect of these changes has been of sufficient significance to be described as heralding ‘a new and more democratic information age’.² It is a challenge in a short chapter such as this to convey the impact these developments in information and communications technology with their ‘huge and growing importance … for facilitating in practice the free flow of information that lies at the heart of the right to freedom of expression’,³ have had in relation to the recognition, exercise and development of human rights into the twenty-first century. However, two key words are probably ‘enhancement’ and ‘awareness’–in very simple terms there could be said to be more of all types and usages of information; more information to allow individuals to find out about their own rights, more information about abuse of other’s rights, more opportunities to participate, to speak and to listen, but also more opportunities for violations.

Although the example of Jamie McCoy referred to further below shows that Information and Communications Technology (ICT) may have the capacity to be empowering for those previously excluded from society, it is a moot point how representative a picture this paints. The phrase the ‘digital divide’ reflects the fact that there are sections of global society which are excluded from the ‘never-ending conversation’ on the internet and despite the relentlessly upbeat messages emanating from summit meetings on the information society,⁴ the small print suggests that the digital divide is still of significant proportions. Nonetheless, it is almost certainly the case that the majority of readers of this collection now conduct many of their relationships, at least partially, online and do this via a range of communication methods which may include email, instant messaging and social networking sites. The relationships fostered in this way may be continuations of relationships in real life but an increasing number are with people who have been encountered in cyberspace – and are rarely if ever met in real life. In addition, the internet provides the functionality via websites, wikis and blogs to publish material to the world at large; material which covers an incredible spectrum of material from inane chat to erudite literary comment. More and more people use MMOGs,⁵ such as Second Life,⁶ as a leisure activity. Very few internet users have not also used the internet market place and shopped online. The virtual space denoted by the generic term, the internet, has thus become a massive phenomenon which encompasses a whole range of activities. The significant question in this context is why should a mere communications medium have any impact on the shape, interpretation and application of the law in general or human rights in particular? On the other hand, there is a school of thought which suggests that the internet creates a parallel universe with its own culture and ethos and, if this is an accurate or at least appropriate description, what implications does this have for the application of legal regimes and more specifically human rights?

Ever since the word ‘cyberspace’ was coined and applied to activities, communications and relationships made possible by the internet there have been discussions about its nature and its manifestation. A number of lawyers, courts and legal commentators have been willing to espouse the notion of a separate space, community or virtual world variously termed cyberspace or metaverse. Interestingly both the terms cyberspace and metaverse were originally coined in works of fiction. ‘Cyberspace’ appeared in the novel Neuromancer⁷ in which it was defined as a ‘consensual hallucination experienced daily by billions of legitimate operators in every nation … A graphic representation of data abstracted from the banks of every computer …’. The term ‘metaverse’–literally ‘beyond the universe’ was first used in the novel Snow Crash.⁸ Cyberspace has been described judicially as ‘a word that recognises that the interrelationships created by the Internet exist outside conventional geographic boundaries’⁹ and as a ‘unique medium … located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet’.¹⁰ Although to date little legal reasoning has depended on the ‘existence’ of cyberspace or even on the concept of a virtual world, there have been many comments which suggest connotations of space and location; cyberspace is ‘its own thriving city’ for instance.¹¹ Although some commentators may wish to downplay the implications of this by referring to the ‘cyberspace fallacy’¹² or pointing out that ‘the internet is merely a simple computer protocol …’,¹³ the reality is that to most users it is much more than that, if indeed they consciously consider it in those terms at all. As Hunter remarks the ‘place may be inchoate and virtual but no less real in our minds’.¹⁴ Whereas it would be quite possible to reject the whole concept of cyberspace as a fantasy or mass delusion, the fact remains that many people talk about cyberspace as if it were real and it is difficult to escape the conclusion that things having both social and political significance and consequences can happen ‘out there’. It could legitimately be viewed as merely a pragmatic response to acknowledge that the construction of these so-called ‘virtual worlds’ within the already virtual environment of cyberspace has the capacity to generate a whole new generation of human rights issues.

The purpose of the following discussion is not to perform an exhaustive analysis of human rights issues on the internet but to focus on the way in which the right to freedom of expression is being shaped by the ongoing developments in ICT (and the potential impact of these developments on other fundamental human rights such as privacy).

1.2 Freedom of expression

Some of the early cases which could be said to relate to human rights issues on the internet resulted in the first judicial consideration of the nature of cyberspace. This was not so much because of any perceived need to understand the technical aspects of the way in which cyberspace manifests itself but rather to appreciate the things that happen there – whether these be the facilitation of personal interactions, the formation of contracts, the perpetration of crime, the playing of games – since the courts have had to adjudicate on disputes concerning such matters. Although decided more than 10 years ago now and so in some ways almost of legal historical significance in relation to internet jurisprudence, the case of ACLU v Reno¹⁵ remains an important case in terms of the discussion of the nature of cyberspace. The case was concerned with a challenge to attempts in the US to introduce legislation, known as the Communications Decency Act (CDA), intended to protect minors, which would have had, inter alia, the effect of restricting access by adults to material on the internet.

In his judgment, Judge Dalzell made some important points about the removal of barriers to entry to the marketplace of ideas which was facilitated by the internet:

Four related characteristics of Internet communication have a transcendent importance … First, the Internet presents very low barriers to entry. Second, these barriers to entry are identical for both speakers and listeners. Third, as a result of these low barriers, astoundingly diverse content is available on the Internet. Fourth, the Internet provides significant access to all who wish to spe...

Table of contents

• Routledge Research in Human Rights Law
• Contents
• Contributors
• Introduction
• 1 ‘Virtual world, real rights?’: Human rights and the internet
• 2 The dilemma of intervention: Human rights and the UN Security Council
• 3 The contribution of the Universal Declaration of Human Rights to the promotion and protection of democracy in international law
• 4 Human rights dimensions of contemporary environmental protection
• 5 Offenders, deviants or patients? Human rights and the incarcerated offender
• 6 Indigenous rights in the constitutional state
• 7 An international convention on the rights of older people?
• 8 Humanitarian aid, human rights and corruption
• Index