A/HRC/35/22 II. State obligation to protect and promote freedom of expression online 5. International human rights law establishes the right of everyone to hold opinions without interference and to seek, receive and impart information and ideas of all kinds, regardless of frontiers, and through any media of his or her choice (see Universal Declaration of Human Rights, art. 19; and International Covenant on Civil and Political Rights, art. 19). The Human Rights Council and General Assembly have reiterated that the freedom of expression and other rights apply online (see Council resolutions 26/13 and 32/13; General Assembly resolution 68/167; and A/HRC/32/38). The Human Rights Committee, previous mandate holders and the Special Rapporteur have examined States’ obligations under article 19 of the Covenant. In short, States may not interfere with, or in any way restrict, the holding of opinions (see art. 19 (1) of the Covenant; and A/HRC/29/32, para. 19). Article 19 (3) of the Covenant provides that States may limit freedom of expression only where provided by law and necessary for the respect of the rights or reputations of others, or for the protection of national security or of public order (ordre public), or of public health or morals (see Human Rights Committee general comment No. 34 (2011); A/71/373; and A/HRC/29/32). 6. States also have obligations to take steps to protect individuals from undue interference with human rights when committed by private actors (see art. 2 (2) of the Covenant; and Human Rights Committee general comment No. 31 (2004)). Human rights law protects individuals against violations by the State as well as abuses committed by private persons or entities (see general comment No. 31, para. 8).4 The Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, endorsed by the Human Rights Council in 2011, explains that States are required to take appropriate steps to prevent, investigate, punish and redress private actors’ abuse (see A/HRC/17/31, annex, principle 1). Such steps include the adoption and implementation of legislative, judicial, administrative, educative and other appropriate measures that require or enable business respect for freedom of expression, and, where private sector abuses occur, access to an effective remedy (see general comment No. 31, para. 7; and A/HRC/17/31, annex, principles 3 and 25). 7. The government actions described below often fail to meet the standards of human rights law. Moreover, a lack of transparency pervades government interferences with the digital access industry. Failures of transparency include vague laws providing excessive discretion to authorities, legal restrictions on third party disclosures concerning government access to user data and specific gag orders. The lack of transparency undermines the rule of law as well as public understanding across this sector.5 A. Internet and telecommunications shutdowns 8. Internet and telecommunications shutdowns involve measures to intentionally prevent or disrupt access to or dissemination of information online in violation of human rights law (see A/HRC/32/13, para. 10). 6 Governments typically conduct or order shutdowns, often with the assistance of private actors that operate networks or facilitate network traffic. Large-scale attacks on network infrastructure committed by private parties, such as distributed denial-of-service (DDoS) attacks, may also have shutdown effects. While shutdowns are frequently associated with total network outages, they may also arise when access to mobile communications, websites or social media and messaging 4 5 6 4 See also African Commission on Human and Peoples’ Rights, general comment No. 3 (2015) on the right to life, para. 38; Inter-American Court of Human Rights, Velásquez Rodríguez Case, judgment of 29 July 1988, para. 172; and European Court of Human Rights, Özel and others v. Turkey, judgment of 17 November 2015, para. 170. Freedom Online Coalition, Report of Working Group 3: Privacy and Transparency Online, November 2015. Access Now recorded 15 shutdowns in 2015 and 56 shutdowns in 2016. The first recorded shutdown reportedly occurred in Nepal in February 2005.