Criminal law is being used as a chilling effect
'Everywhere, there is a growing criminalisation of freedom of expression. Defamation must be decriminalised but instead, it is being used to control any news or information or even seen increasingly as the defamation of religion'.
GEETA SESHU buttonholed the UN Special Rapporteur on Freedom of Expression Frank La Rue for a quick interview.
Frank La Rue, the Special Rapporteur for the promotion and protection of the right to freedom of opinion and expression for the United Nations High Commissioner for Human Rights, brings to his post the experience and perspective gained from more than a quarter century of work on human rights in Guatemala. He was founder of the Centre for Legal Action for Human Rights (CALDH), the first Guatemalan NGO to bring cases of human rights violations to the InterAmerican system as well as the first genocide case against the military dictatorship in Guatemala.
His report on internet and freedom of expression was submitted to the Human Rights Council in June 2011 and in October 2011to the UN General Assembly and its recommendations emphasize that there should be as little restrictions as possible to the flow of information via the Internet. The full guarantee of the right to freedom of expression must be the norm rather than the exception, the report states.
The report also points out that a number of countries block access to content, routinely use timed blocking to prevent users from accessing or disseminating information at key political moments such as elections or times of social unrest; a number of countries have begun criminalising the legitimate online expression in contravention to their international human rights obligations; have imposed liabilities on intermediaries if they do not filter, remove or block content that is deemed to be illegal or that States have violated individuals’ right to privacy by increasing surveillance under the grounds of national security or combating terrorism.
The report goes beyond discussing the state of freedom in relation to online content alone in that is places access to the internet as a major factor in ensuring freedom of expression. ‘The Internet, as a medium by which the right to freedom of expression can be exercised, can only serve its purpose if States assume their commitment to develop effective policies to attain universal access to the Internet’, the report stated.
Frank La Rue was in Kathmandu, Nepal, to attend the second South Asian Meeting on the Internet and Freedom of Expression (Nov 2-4 2011), organised by the Internet Democracy Project (India), in collaboration with Point of View (India), the Centre for Policy Alternatives (Sri Lanka) and Gobal Partners and Associates (UK).
Q: Your report on Internet and freedom of expression submitted to the Human Rights Council has outlining two major areas – access to the internet as well as the criminalisation of online content. . What do you see as the future course of action now?
Ans: I would like to follow up on the issue of access to the internet. I would like to get an ‘Access watch’ movement going on to monitor both content as well as infrastructure for the internet. As a Rapporteur, I can merely make my recommendations and submit my report. But I would like to involve organisations and networks, get some non-governmental organisations (NGOs) in place to see that governments keep to their commitment to provide better infrastructure.
Q: The Internet, as your report states, is one of the ‘most powerful instruments of the 21st century for increasing transparency in the conduct of the powerful, access to information and for facilitating active citizen participation in building democratic societies’. How have governments reacted to the recommendation on access? How responsive do you think they will be?
Ans: Well, there needs to be a policy in place. Governments just don’t worry about it. There needs to be political will as well as public policies. Both are lacking at the moment.
Q: What about reactions or criticisms that the Internet is an elitist concern when access to basic resources like food, water or electricity is such a major problem?
Ans: If States do not fulfil their commitment to universal and affordable access to the Internet, the Internet will become a technological tool that will be accessible only to the elites and perpetuate the digital divide. As a medium, it is a facilitator of a society’s right to be informed, of plurality and diversity. Freedom of expression is an individual right, a collective right and a social right.
Q: You have mentioned your concern over the increasing criminalisation of online expression. Could you elaborate?
Ans: Well, everywhere, there is a growing criminalisation of freedom of expression. Criminal law is being used as a chilling effect. Defamation must be decriminalised but instead, it is being used to control any news or information or even seen increasingly as the defamation of religion.
Also, we are seeing new crimes. In Mexico, for instance, there is a state law on the promotion of rumours.
Q: What about the use of surveillance and blocking of content which States are increasingly doing as part of their protection of national security?
Ans: Today, national security justifies everything but the problem is that governments do not have a human rights interpretation of this. Governments cannot conduct surveillance or filter an block online communication on the grounds of national security without taking the human rights of the individual into consideration.
Q: Why do you see the internet as the major site for the struggles on freedom of expression?
Ans: I think the Internet provokes more fear in governments as it is powerful, it is interactive. Look at the experience of people in Tunisia or Egypt. Governments everywhere want to control the Internet.