In the second part of a two-part series, it is argued that the debate—on whether the extension of cyberspace creates the need for a new generation of human rights—is primarily an academic one
The world has seen a communications revolution: Satellite communication, mobile telephony, the Internet, smartphones, tablets, artificial intelligence (AI), amongst others. All these inventions did have implications for the right to freedom of expression. They created new opportunities, such as removal of time and space barriers for information exchange, but also new risks like fake news and surveillance. However, they did not change the nature of the human desire to communicate freely.
Human dignity is immutable, even as mankind leaves the industrial age and enters the information age. There is no need to re-invent the wheel. The problem is not that new rights are missing.
The debate around satellite communication was soon overshadowed by the much broader NWICO debate. Core to the discussion was re-balancing global information flow in consideration of developing countries and to protect cultural sovereignty. In 1976, the 19th UNESCO General Conference in Nairobi adopted a Mass Media Declaration and established an Independent Commission for the Study of Communication. The resultant MacBride Report revived an old conflict, that of freedom vs. censorship. In the early 1990s, no government anticipated that a technical protocol i.e. TCP/IP, which enabled the connection of computers to transmit digitised content regardless of frontiers, would change the world of communication. Kevin Werbach argued in 1997 that it was the absence of regulation that stimulated the Internet revolution. The decentralised network of networks, which created a borderless space, was different from the bordered realms of the pre-Internet age. While traditional communications media—press, broadcasting, telegraphy—were organised in hierarchies and were easy to control from the top, the Internet is a network without a central point of control. The central root of the Internet is “dumb”, the intelligence is at the edges. It is an enabling technology, which allows users and providers to communicate and innovate without permission . There was no checkpoint if e-mails crossed borders. The dream of Article 19 of the Universal Declaration of Human Rights became a reality.
The distribution of TV-programs via satellites raised contentions, and some governments feared interference in their internal affairs.
It was no surprise then that the WSIS in 2002 re-opened the debate about information rights and the role of governmental and non-governmental stakeholders. Some proposals included the idea to establish new rights for the digital age, such as the right to communicate. UNESCO took this concept on board and produced a report that created more controversies than clarity. One question that arose was whether it is Article 19 which is the source for an unbalanced flow of communication. The answer was simple: It is not the legal concept of Article 19, but the policy of governments and the practice of media enterprises which creates problems. Question two was, how would a right to communicate affect the existing regulatory framework? The answer here was also simple. It would just reopen the centuries-old debate about the regulation or deregulation of content. It would produce—in the best case—another Article 19. In the worst case, it could weaken the existing regulatory balance between individual rights and the role of governments. After three years of discussion, WSIS ended its human rights discussion with the Tunis Agenda in 2005, arriving back at square-one.
The decentralised network of networks, which created a borderless space, was different from the bordered realms of the pre-Internet age.
Finland, for instance, introduced the right of access to the Internet in its constitution. But this new constitutional right did not change existing rights. It can be seen as an additional tool to implement the first generation right of freedom of expression. In 2014, the Net Mundial World Conference discussed Internet and human rights. The Sao Paul Net Mundial Multistakeholder Statement says human rights are universal as reflected in the UDHR and that should underpin Internet governance principles. Rights that people have offline must also be protected online. When ICANN (Internet Corporation for Assigned Names and Numbers) discussed human rights in the 2010s, it ended with the idea of a Framework of Interpretation (FOI) on how the existing human rights can be respected and protected in managing the global domain name system. A similar approach was taken at the UN when it discussed the role of the private sector. The UN Guiding Principles on Business and Human Rights are based on the existing human rights framework. It is now the consensus of the 193 UN member states, who have supported a Resolution of the UN Human Rights Council that stated in 2012 that individuals have the same human rights offline and online. Court decisions by the European Court of Justice and the European Court on Human Rights have upheld this principle. Just recently, the US government published a Blueprint for an Artificial Intelligence (AI) Bill of Rights. In this document, five principles have defined how individual human rights should be protected against the misuse of AI, starting from predictive policing to social scoring. But, also, this AI Bill of Rights is based on the existing first generation of human rights.
The UN Guiding Principles on Business and Human Rights are based on the existing human rights framework.
The debate, whether the extension of cyberspace creates the need for a new generation of human rights, is primarily an academic one. The right to freedom of expression remains the right to freedom of expression, offline and online. To manage the new challenges in the digital world, there is no need to go back to the drawing board. There is no need to create new categories of human rights. But there is a need to deepen the understanding of how to implement, respect and protect natural individual human rights in cyberspace. There is a need for more specific and detailed smart regulation, based on the existing rights, dealing with the side effects and misuse of communication technology. There is also a need for better mechanisms to monitor developments, evaluate good and bad practices, and punish violations. To read part 1 of the series, click here.
The right to freedom of expression remains the right to freedom of expression, offline and online. To manage the new challenges in the digital world, there is no need to go back to the drawing board.
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Wolfgang Kleinwaechter is Professor Emeritus at the University of Aarhus. He was a member of the ICANN Board of Directors (2013 2015) a Special Ambassador ...Read More +