During the aftermath of World War II, months before the adoption of the Universal Declaration of Human Rights and the formation of the United Nations, states in the Americas gathered to create the very first international human rights instrument of the modern era. In the midst of military regimes across Latin America, the American Declaration of the Rights and Duties of Man was established in 1948, setting out the obligations for States to promote and protect human rights in the American hemisphere. A few years later, in 1969, States ratified the American Convention on Human Rights, also known as the Pact of San Jose.
Now, 66 years later, the Inter-American Commission on Human Rights (IACHR)—responsible for overseeing States’ compliance with the Pact of San Jose—has published guiding principles that protect the right to freedom of thought and expression online. Two weeks ago, the IACHR Special Rapporteur on Freedom of Expression and Opinion, Catalina Botero, published a landmark report on Freedom of Expression and the Internet1.
The 81-page report establishes unequivocally that States which have ratified the American Convention on Human Rights have the obligation to protect freedom of thought and expression online. The right to freedom of expression in all its manifestations plays a central role in the American Convention. In particular, the report requires States to ensure and respect the “communications, ideas, and information distributed through the Internet.” The report also affirms the need for States to design public policies and regulations that preserve the original architecture of the Internet, “not only directly but also through the private parties that influence and develop it.”
Here are the guiding principles for free expression and thought outlined by the report:
Access: States should promote universal access, not only to infrastructure but also to technology necessary for its use, so as to make information on the Internet available to everyone.
Pluralism: Maximizing the diversity of voices participating in the public debate is a goal in itself of the democratic process. In this sense, the report states that robust guarantees of the exercise of freedom of expression through the Internet are vital for opening up the public sphere.
Non-discrimination: States must provide free access and user choice for sending and receiving any lawful content, application, or service through the Internet. Such content should not be subject to conditions, restrictions, and directives such as blocking, filtering, or interference. This is a necessary condition for exercising freedom of expression on the Internet.
Privacy: Individual privacy should be carried out pursuant to reasonable and proportional standards that do not end up arbitrarily restricting the right to freedom of expression.
In establishing the privacy principle, the report also referenced the United Nations General Assembly resolution, “The Right to Privacy in the Digital Age,” which provides that all states have the duty to respect and protect the right to privacy according to international human rights law within the context of digital communication. This means, according to the report, that authorities should refrain from interfering arbitrarily with individuals, their personal data, and their communications, and should also guarantee that other actors refrain from such abusive conduct. It calls for the preservation of anonymous platforms for the exchange of content. This point, the report stated, is closely linked to the State’s obligation to create a safe environment for the exercise of freedom of expression, acknowledging that a violation of communication privacy has a chilling effect on democratic speech and hampers the right to communicate.
The IACHR’s report sets a strong standard for governments to comply with, but the constant question over such statements is: Will such international norms be implemented by nation states in the Americas? We’ll continue monitoring how governments react to the report, but there’s some hope at least in the recent history of the region. In our next post, we’ll look at how some countries from the Americas have already modified their own domestic legislation in order to incorporate international human rights obligations on the Internet.
- 1. See, Inter-American Commission on Human Rights, 2013 Annual Report of the Office of the Special Rapporteur for Freedom of Expression, pg. 477-530.