A/HRC/29/32
surveillance, distributed denial of service attacks, and online and offline intimidation,
criminalization and harassment. Targeted digital interference harasses individuals and civil
society organizations for the opinions they hold in many formats. Encryption and
anonymity enable individuals to avoid or mitigate such harassment.
21.
The right to hold opinions without interference also includes the right to form
opinions. Surveillance systems, both targeted and mass, may undermine the right to form
an opinion, as the fear of unwilling disclosure of online activity, such as search and
browsing, likely deters individuals from accessing information, particularly where such
surveillance leads to repressive outcomes. For all these reasons, restrictions on encryption
and anonymity must be assessed to determine whether they would amount to an
impermissible interference with the right to hold opinions.
C.
Right to freedom of expression
22.
The right to freedom of expression under article 19 (2) of the International Covenant
on Civil and Political Rights expands upon the Universal Declaration’s already broad
guarantee, protecting the “freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or
through any other media of his choice”. A significant accumulation of jurisprudence,
special procedure reporting, and resolutions within the United Nations and regional human
rights systems underscores that the freedom of expression “is essential for the enjoyment of
other human rights and freedoms and constitutes a fundamental pillar for building a
democratic society and strengthening democracy” (Human Rights Council resolution 25/2).
The Human Rights Council, the General Assembly and individual States regularly assert
that individuals enjoy the same rights online that they enjoy offline. 11 The present report
will not repeat all the elements of this consensus. In the context of encryption and
anonymity, three aspects of the text deserve particular emphasis (see paras. 23–26 below).
23.
Freedom to seek, receive, and impart information and ideas: In environments of
prevalent censorship, individuals may be forced to rely on encryption and anonymity in
order to circumvent restrictions and exercise the right to seek, receive and impart
information. Some States have curtailed access with a variety of tools. State censorship, for
instance, poses sometimes insurmountable barriers to the right to access information. Some
States impose content-based, often discriminatory restrictions or criminalize online
expression, intimidating political opposition and dissenters and applying defamation and
lese-majesty laws to silence journalists, defenders and activists. A VPN connection, or use
of Tor or a proxy server, combined with encryption, may be the only way in which an
individual is able to access or share information in such environments.
24.
It bears emphasizing that human rights law also protects the right to seek, receive
and impart scientific information and ideas. The Universal Declaration and the International
Covenant on Economic, Social and Cultural Rights protect rights to education and “to share
in scientific advancement and its benefits”. Encryption and anonymity technologies enable
individuals to share in such information in situations where they are otherwise denied, and
11
See, e.g., General Assembly resolution
http://www.ohchr.org/en/issues/digitalage/pages/digitalageindex.aspx68/167, Human Rights
Council resolution http://daccess-ddsny.un.org/doc/undoc/gen/g14/082/83/pdf/g1408283.pdf?openelement 26/13 and Council of
Europe rhttps://wcd.coe.int/viewdoc.jsp?id=2184807ecommendation CM/Rec (2014) 6 of the
Committee of Ministers to member States on a https://wcd.coe.int/viewdoc.jsp?id=2184807 guide
to human rights for Internet users.
9
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