Session 9: Freedom of Expression and Privacy, 4 March 2015; 9.30-10.50am.

Report (Rapporteur: m.i.franklin@gold.ac.uk)

Thank you, this report hopefully captures the main themes and points for further discussion. An almost live transcript of the session can be found on the live blog link at the Internet Rights and Principles Coalition website.
This panel considered the legal, technical, and political practicalities that emerge when the right to privacy and freedom of information are considered as interrelated; it discussed the differences in stakes, levels of action and of analysis at this intersection of fundamental freedoms online alongside their consequences in practical terms for ordinary internet users, content producers on the web, activists, and media professionals.
Several themes ran through this panel, as points of agreement and disagreement:

  1. Whether the internet, namely the web is comparable to the Wild West; If so what sorts of law making should be put in place. And if not whether existing laws are up to the task forconsidering how privacy is a fundamental right and principle for people to be able exercise and so enjoy their rights online, freedom of expression in particular. Panellists differ on whether this analogy implied that the online environment was in fact worse than the Wild West ever was as a lawless environment.
  2. The respective roles and obligations of states as protectors of human rights under international law and also of service providers’ obligations to respect these laws on practice and principle: namely commercial intermediaries and their obligations to respect human rights in the business and services they offer. In both respects panellists noted that there is a theoretical and practice=al disconnect between points of law, principle, and actual practice as implementations and remedies. In particular the case of an ongoing lack of suitable, and accessible means to remedy such as dispute resolution, or affordable judicial solutions at the local and national level.
  3. The partnership, or rather the push and pull between state actors and private business around issues of liability, who pays for access to due remedy, transparency, and accountability was another core theme; A study on the role of intermediaries in implementing, or at least enabling freedom of expression and privacy for people when online highlighted the inconsistencies on the part of both state actors and major
corporations in how they approach these challenges. Transparency reports by intermediaries are a step forward however there are still gaps in how intermediaries report on their own practices around data mining and tracking. Likewise for governments who use security as an excuse for takedown requests. It was agreed that if states fail in their duties under international human rights law then this acts as a disincentive for businesses to take positive steps towards customers, particularly when liability rests entirely with intermediaries. A call to bring the Ruggie Principles for Businesses and Human rights more fully into the conversation was put to the room as an existing mechanism for the implementation of these rights and obligations at the user interface by technical and business sectors.
4) Definitional nuances were also a major theme; considered as crucial for moving this discussion past the reiteration of high-level principles into the nitty-gritty of legal provisions and policymaking. Two concepts were central here; what is privacy and what does the recent European court ruling on the said Right to Be Forgotten refer to exactly:

  1. On privacy, the panel considered breaking it down into three components: secrecy, anonymity, and autonomy and how these three components have different implications for journalists, activists, and governments with security imperatives. All panellists basically agreed that privacy and freedom of expression are intimately linked. Where some disagreement occurred was around whether protection of sources as a legal and professional privilege for journalists, like doctors or lawyers, is the same as personal privacy. There are different laws for these two domains. The role of encryption and the need to ensure that citizens have access to these tools was underscored during this discussion as fundamental to the right to privacy and therefore to other fundamental freedoms such as Freedom of Expression. That these tools are under threat, that not everyone has the know-how, or that there is evidence of a chilling effect and reluctance to communicate issues online by activists and bloggers as well as professional journalists was considered a grave danger to the realization of these two rights in the online environment and when online actions result in violent consequences for actors like journalists or activists; death or imprisonment, or harassment for instance.
  2. On the right to be forgotten; panellists and comments from the floor noted that here too the term “forgotten” has been used loosely. Concerns about such a ruling being used by powerful individuals or governments to change the historical record, or to enforce forms of censorship of public memory through
deleting content from the web pivoted on the difference between forgetting, the historical record, and a ruling that actually focuses on search engine affordances that can link, but also delink. Here, several panellists noted that the legal discussion, and with that its sociocultural and political ramifications has only just begun and must continue.
c. Other definitional issues such as distinction between the journalist profession and those who produce news content online such as bloggers were raised; namely in terms of different legal obligations and role of privacy laws to protect all users, activists or dissenters, from over-zealous deployment of software tools for mass surveillance but also non-transparent forms of data-mining, retention, and exposure through non-consensual forms of linking in.
Summing Up
1) This panel considered the dimension of implementation as the next step in order to bring agreed upon principles into working law and policy frameworks at this intersection. The general consensus was that governments have a lot of work to do to be more accountable and transparent about their legal obligation to protect their citizens’ right to privacy and freedom of expression as part of the full spectrum of human rights law and norm. But so do intermediaries in their commercial practices and designers in their role in the future technical capabilities of the internet to enable rather than obstruct fundamental rights and freedoms.
2) When considering the domestic context of national laws and policy frameworks, the session concurred that what lawmakers, judiciaries, and business decide in the local/ national level has often unintended, unforeseen consequences at the global level. This new situation arises from the interconnectivity of the internet as it operates as a network of networks that straddles the globe. In so doing what we do online, and how these technologies can be used against us takes rights and obligations beyond the strictly applied understanding of law as a national jurisdiction. One final point coming out of the discussion:
3) Both the panel and audience took note of the need to get past simplistic dichotomies between either privacy or freedom of expression. Conceptual nuance and continuing the conversation to unpack diverging assumptions and diverse definitions in legal, cultural, and political terms is something that UNESCO can champion as an advocate of the mutual relationship between the right to privacy and the right to freedom of expression.
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