A/HRC/32/38
Rapporteur’s website.4 The Special Rapporteur also benefited greatly from consultations.
He held a meeting on 25 and 26 January 2016 with 25 members of civil society at the
University of California, Irvine School of Law, and a separate meeting with 20 individuals
from the private sector and civil society on 29 February 2016 at the Office of the United
Nations High Commissioner for Human Rights in Geneva. Meeting summaries are also be
found on the Special Rapporteur’s website.
II. Freedom of expression, States and the private sector in the
digital age
5.
This mapping report rests on a basic question: to what extent should the information
and communications technology sector be responsible for the promotion and protection of
freedom of opinion and expression? Addressing this question requires beginning with a
summary of the international human rights law according to which States are obligated to
promote and protect freedom of expression and principles addressing private-sector human
rights responsibilities.
A.
International legal framework
6.
Article 19 of both the International Covenant on Civil and Political Rights and the
Universal Declaration of Human Rights protects everyone’s right to hold opinions without
interference and to seek, receive and impart information and ideas of all kinds, regardless of
frontiers and through any media. It has become customary to emphasize that individuals
enjoy the same rights online as they do offline. The previous mandate holder highlighted
the increasing number and forms of restrictions on the right to information online (see
A/HRC/17/27) and demonstrated the impact on freedom of expression of expanded digital
surveillance (see A/HRC/23/40). In 2015, the Special Rapporteur emphasized the important
role played by encryption and anonymity in protecting and advancing the freedom of
expression (see A/HRC/29/32). In joint declarations, the Special Rapporteur and regional
counterparts have emphasized issues relating to intermediary liability, access, content
restrictions and other key topics on freedom of expression online.
7.
Article 19 (3) of the International Covenant on Civil and Political Rights allows for
restrictions on the freedom of expression (but not on the freedom of opinion under article
19 (1)). According to article 19 (3), any restriction, to be legitimate, must be provided by
law and necessary for the respect of the rights or reputations of others or the protection of
national security or of public order, or of public health or morals. Any restriction must be
precise enough and publicly accessible in order to limit the authorities’ discretion and
provide individuals with adequate guidance (see the Human Rights Committee’s general
comment No. 34 (2011) on article 19: freedoms of opinion and expression). To be
necessary, a restriction must be more than merely useful, reasonable or desirable.5 It is also
well established that necessity requires an assessment of proportionality (see
A/HRC/29/32). Proportionality requires demonstrating that restrictive measures are the
least intrusive instrument among those which might achieve their protective function and
proportionate to the interest to be protected (see general comment No. 34). When
4
5
4
Law; Internet Society; Korean Progressive Network Jinbonet; Privacy International; Ranking Digital
Rights; and New America.
Available from www.ohchr.org/EN/Issues/FreedomOpinion/Pages/Annual.aspx.
European Court of Human Rights, Application No. 6538/74, The Sunday Times v. The United
Kingdom (26 April 1979), para. 59.
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