[IRP] Additional Reference Material for drafting

[Lisa Horner]

Thanks Robert.

 

Following the IRP meeting in Geneva in September, we're all clear that
the charter is rooted in existing rights standards and that we'll only
use rights language where rights have been established by international
HR jurisprudence.  In other cases, we'll be using the language of
principles.  We're thrashing out a first draft of the charter now to
present at the IGF, and as part of the ongoing editing process have
agreed that we'll be asking human rights experts, including the Council
of Europe, to contribute and check the language.  The document will also
link through to relevant standards documents etc.

 

Your help in reaching out to the relevant communities would be very
useful.

 

All the best,

Lisa

 

From: irp-bounces at lists.internetrightsandprinciples.org
[mailto:irp-bounces at lists.internetrightsandprinciples.org] On Behalf Of
Internet Freedom
Sent: 13 October 2009 13:43
To: Irp at lists.internetrightsandprinciples.org
Subject: [IRP] Additional Reference Material for drafting

 

Rebecca MacKinnon, Max were kind enough to point out to me that this
group is working towards a declaration for the upcoming IGF. Having
participated in such efforts in the past, i'd like to share a comment
and reference material that I hope can be used to develop the text.


As for my comments - It would be my preference to build on that document
and work together with those in the human rights community. Too often
internet groups work in isolation and don't connect with mechanisms and
existing human rights structures that have been agreed on and exist. My
fear is that we might introduce a text that brings a weaker text and
weaker set of protections then currently exist. A variety of Human
Rights, Privacy and legal scholars got together on the eve of the first
WSIS summit in Geneva back in 2003 to develop a declaration. The
resulting text they came up with is below and attached. 

Regards,

Robert Guerra <guerra at freedomhouse.org>
Director, Internet Freedom, Freedom House
Tel +1 202 569 1800
---


Statement on Human Rights, Human Dignity and the Information Society
http://www.sqdi.org/volumes/pdf/18.1_-_statementofrights.pdf.  

The list of participants is available at
http://www.pdhre.org/wsis/statement.doc. A report of the follow-up
seminar is here:
http://www.sqdi.org/volumes/pdf/18.1_-_internationalseminar.pdf. 



STATEMENT ON HUMAN RIGHTS, HUMAN DIGNITY AND THE INFORMATION SOCIETY

This statement was elaborated and adopted by consensus by a group of
independent experts from all regions of the world representing a
diversity of backgrounds, expertise, nationalities and perspectives,
meeting at the Palais des Nations in Geneva on 3-4 November 2003,
convened by the People's Movement for Human Rights Education (PDHRE),
with the support of the Swiss Agency for Development and Cooperation
(SDC), the European Commission, the Office of the High Commissioner for
Human Rights, and the Government of Mali, Chair of the Human Security
Network.  

1. In the middle of the 20th century, the world community agreed to
human rights as the common normative framework at the same time as
incredible advances began to be made in digital and genetic information.
By the beginning of the 21st century an invaluable regime of human
rights norms and mechanisms had been established and, through human
rights education and learning broadly understood, a "human rights
culture" had begun to take root in many parts of the world. At the same
time, important advances in information and communication technologies
had created the "Information Society" and large segments of the
population, primarily in developed countries, altered the way they
communicate and live. These two trends of a human rights culture and the
Information Society are intimately related and hold the potential for
enhancing each other. 

 
Human Rights Obligations of States in the WSIS Context 

2. The development of the Information Society and, in particular, the
vision of it articulated by the World Summit on the Information Society
(WSIS), must be built on the reaffirmation of the 1993 Vienna
Declaration and Programme of Action adopted by the World Conference on
Human Rights which stated that human rights are universal, indivisible,
interrelated and interdependent, and that their protection is the
primary responsibility of governments. The human rights obligations
States have committed themselves to in the United Nations Charter, the
Universal Declaration of Human Rights, the International Covenants on
Human Rights and all other U.N. and regional human rights instruments
require them to ensure that the Information and Communication Society
does not result in any discrimination or deprivation of human rights
resulting from the acts or omissions of their agents or of non-State
actors under their jurisdiction. They also have human rights commitments
arising out of other international conferences and summits. The WSIS
provides a critical opportunity to reaffirm human rights in the context
of information and communication policy. There is a growing awareness
among WSIS leadership of the importance of human rights in this context
and welcome steps have been taken to include the voice and concerns of
civil society in the WSIS process. Greater commitment to human rights
and enhanced participation and transparency will be necessary for the
Summit to achieve its full potential. 


The host country for the WSIS in 2005 must fully respect the human
rights that are essential to the Information and Communication Society -
in particular, freedom of expression, association and information for
its own civil society and visiting NGOs - and respond positively to the
concerns of the international community over its human rights
performance. Failure to do so would justify reconsidering holding the
summit in that country. 

Consistent with these responsibilities, governments participating in the
WSIS should not only foster the Information and Communication Society as
well as poverty reduction as means of promoting the Millennium
Development Goals, but they should also ensure that it contributes to
the promotion of and respect for all human rights - civil, cultural,
economic, political, and social. Such a human rights framework for the
Information and Communication Society can promote the liberation of all
human beings from fear and want, contribute to human security, advance
human and sustainable development, and support gender equality. 

The human rights of particular importance to the Information and
Communication Society are: freedom of expression and information;
freedom from discrimination; gender equality; the right to privacy; the
right to a fair administration of justice; the right to the protection
of moral and material rights over intellectual creations; the right to
participate in cultural life; minority rights; the right to education;
and the right to an adequate standard of living, including the right to
health, the right to adequate food, and the right to adequate housing.
All of these rights belong to the corpus of internationally recognized
human rights and should be furthered through the Information and
Communication Society. 


Challenges to Human Rights from the Information and Communication
Society 

6. Several trends that characterize information and communication in
most of the world today constitute challenges to and, in many cases,
serious dangers for a human rights-based Information Society. Central to
these challenges is the exclusion of most people in developing countries
from the advantages of advances in digital and genetic information, the
commoditization of information and knowledge, and the growing
concentration of ownership and control of the means of producing and
disseminating information and knowledge. Equally important are
limitations, surveillance and censorship by the State or private
parties, especially in the post-September 11th, 2001 environment. 

7. The massive disparities in access to information and to the means of
communication, known as "the digital divide," are a result of the
unequal distribution of wealth among and within countries. The digital
divide is, at the same time, a cause and a consequence of the unequal
distribution of wealth in the world and within countries. Poverty, with
which it is closely connected, severely diminishes the capabilities of
people to enjoy their human rights. Information and communication
technologies (ICTs) enable and empower individuals and groups,
particularly those who are exposed, marginalized and vulnerable. Unless
ICTs are made available on a vast scale to those who are at the losing
end of the digital divide, the Information and Communication Society
will remain a force of relative impoverishment for large swaths of the
world's population and, consequently, a source of instability and
deprivation. 

8. The digital divide results in unequal access to information and to
the means of communication and information, thus producing massive
exclusion. All avenues must be explored to ensure to all equal and
affordable access to information, means of communication, and the
necessary technology and infrastructure. Public authorities, the private
sector, and civil society in developed countries have a special
responsibility to share the benefits of the Information and
Communication Society with peoples in developing countries. 

9. The Information and Communication Society offers unprecedented
opportunities to advance shared knowledge in areas critical for human
development. In particular, ICTs are invaluable to the realization of
the rights to health, education and adequate food through a wide range
of technologies. Special attention must be paid to using the Information
and Communication Society to advance gender equality, consistent with
the principle affirmed in the Vienna Declaration and Programme of Action
that women's rights are human rights. The human rights of traditional
cultures in the emerging Information Society require special measures of
conservation and protection of their traditional knowledge and culture.
Special measures are also required to improve the situation of those who
are vulnerable, exposed or excluded, in particular, children, the
elderly, people with disabilities, minorities, refugees, and asylum
seekers. 


Human Rights Education and Learning 

The Information and Communication Society benefits from new technologies
which can serve critical functions for human rights education and
learning, and more generally contribute to social change through the
realization of human rights. 

ICTs must be put to the service of education and lifelong learning for
all. In particular, as privileged instruments of human rights education
and learning, they should help to enable and empower humans across the
world and across generations and cultures to know, claim and own their
human rights and to respect and promote those of others in a spirit of
solidarity. ICTs will make a major contribution to societal development
on the basis of a commonly shared culture of human rights. 

Freedom of Expression and Information 

Full respect for freedom of expression and information by State and
non-State actors is an essential precondition for the building of a free
and inclusive Information and Communication Society. ICTs must not be
used to curtail this fundamental freedom. There must be no censorship
and no arbitrary controls or constraints imposed on participants in the
information process, that is, on the content of information, its
transmission, or its dissemination. Pluralism of sources of information
and media must be safeguarded and promoted. Any restrictions on the
freedom of expression and information must pursue a legitimate aim under
international law, must be prescribed by law, be strictly proportionate
to such an aim, and be necessary in a democratic society for the respect
the rights or reputation of others, or for the protection of national
security and public order, or of public health or morals. National
security legislation to combat terrorism must respect freedom of
expression and information standards and be subject to judicial review,
as well as international scrutiny. 

Article 19 of the Universal Declaration of Human Rights and of the
International Covenant on Civil and Political Rights is of fundamental
importance to a human rights-based Information and Communication
Society, not only by requiring that everyone have the right to freedom
of opinion and expression and the right to seek, receive and impart
information and ideas through any media source, regardless of frontiers,
but also because it implies the free flow of information, free
circulation of ideas, freedom of the press, and availability of the
tools to access information and share knowledge. 

The trend to provide public access to the information produced or
maintained by governments and protected under "freedom of information"
legislation should be extended to all countries that do not have such
legislation, ensuring that government-controlled information is timely,
complete, and accessible in a format and language the public can
understand. 

Freedom of expression should be protected through the Internet in the
same way it is protected offline and Internet service providers should
be guided by this freedom rather than by codes of conduct that are not
based on human rights. 


The Human Right to Privacy 

Modern technology can and should be used to protect privacy; at the same
time, it provides unprecedented possibilities for massive violations of
the human right to privacy. The use of increasingly invasive means of
surveillance and interception of communications, of intrusive profiling
and identification, and of biometric identification technology, the
development of communication technologies with built-in surveillance
capacities, the collection and misuse of genetic data, genetic testing,
the growing invasion of privacy at the workplace and the weakening of
data protection regimes give rise to serious concerns from the point of
view of respect for human dignity and human rights. New means must be
developed to protect the human right to privacy, such as the right to
know about one's personal data held by public and private institutions
and to have them deleted where not strictly necessary for a legitimate
purpose in a democratic society. The development, transfer, and use of
technology permitting illegitimate invasion of privacy must be
controlled and curbed. 

It is fundamental to an understanding of the Information Society to
recognize that information is power. Control of personal information and
the deprivation of the right of privacy are ways of exercising power
over individuals. The protection of personal information and privacy is
central to the autonomy of the individual and for the respect of human
rights. The considerable experience with the elaboration of laws and
national and international case law to protect privacy should be studied
and applied in countries where the right to privacy is not adequately
protected and best practices should be emulated. 

The development of a communications infrastructure and ubiquitous
computing threatens privacy in new and intrusive ways. It is
nevertheless possible to develop and adopt privacy enhancing behaviours,
technologies, and infrastructures consistent with privacy law. These
choices must be favoured through national law, deontology codes for
developers, and market incentives. Steps to preserve privacy - at the
international, regional, national, community, institutional, and
individual levels must start with the establishment of national data
protection laws to protect individual rights with respect to the
collection, use, and disclosure of personal information, with
independent oversight and access to effective redress. Education across
all sectors of society with respect to privacy rights and the risks
inherent in the technology is vital so that individuals can take the
necessary steps to enforce legal rights. 

Certain measures taken in combating terrorism and cyber crime have
eroded civil liberties and abrogated privacy rights. Cooperation in the
field of criminal investigation techniques must be accompanied by
adequate enforcement of civil liberties and independent oversight of
data collection. 


Cultural and Linguistic Rights and Diversity 

The international community has increasingly come to regard plurality of
identities, including cultural diversity, as an asset and a fundamental
value to be defended and promoted. Fostering diversity is crucial to
respecting cultural rights, promoting tolerance and fighting
discrimination at all levels of society. The preservation and promotion
of cultural and linguistic diversity and interaction must be hallmarks
of a thriving Information Society. ICTs can and must be used to promote
diversity and respect for cultural rights and identity, including
indigenous knowledge, rather than for their restriction or suppression.
This diversity is reflected positively by community radio, indigenous
means of communication, and local media. 

People in the Information Society are more than consumers; they are also
providers of information and of creativity. Steps must therefore be
taken to give them access to infrastructure under acceptable economic
conditions through proactive measures by governments, under cultural and
linguistic exceptions to international trade agreements. 


The Public Domain and Intellectual Property Rights 

22. A rich public domain is an essential element for the growth of the
Information Society and provides the reservoir from which new knowledge
is derived. Everyone, therefore, should enjoy the right, reaffirmed in
Article 27 of the Universal Declaration of Human Rights, to freely
participate in the cultural life of the community, to enjoy the arts,
and to share in scientific advancement and its benefits while at the
same time having an equal right to the protection of the moral and
material interests resulting from any scientific, literary, or artistic
production. International agreements and treaties and national policies
concerning the creation, sharing, and trade of intellectual goods and
cultural creations must be aligned according to these competing needs.
Facilitating meaningful participation by all, in particular by civil
society organizations in developing the intellectual property framework,
is a fundamental part of an inclusive information society. 

23. Initiatives for high-quality open-source and public domain software,
technologically neutral platforms, and the development and use of open,
interoperable, non-discriminatory and demand-driven standards that take
into account needs of users, consumers, and the underprivileged should
be promoted. Furthermore, a fixed percentage of spectrum, satellite and
other infrastructural bandwidth capacity 
should be reserved for educational, humanitarian, community and other
noncommercial use. 

24. Concentration of ownership in the hands of a few major corporations
limits the opportunities for information and communications technologies
to adequately reflect the pluralism of perspectives and diversity of
cultures. Legislative and other measures should avoid excessive media
concentration and ensure that the media and ICTs respond to the
principle of public service and guarantee equal opportunity of access to
media ownership for all social sectors. Public service broadcasting is
an essential means of counter-balancing the commercial motivation of the
media and ensuring the enjoyment of the right of everyone to participate
in cultural life and the right of political participation. 

25. The regime of knowledge ownership and management includes patents,
copyright, trademarks and other legal and technical monopolies on
knowledge granted by society, and public domain, fair use and other
instruments to enable access.  The primary goal of this regime is to
strike a balance that will both maximize access and use of this
knowledge and, at the same time, encourage creativity as widely as
possible within society. International agreements, treaties, and
national policies concerning the creation, sharing and trade of
intellectual goods and cultural creations must comply with this
principle. 

26. Intellectual property regimes and national and international
agreements on patents, copyright and trademarks should not prevail over
the right to education and knowledge. This right must indeed be
exercised through the concept of fair use, that is, use for
non-commercial purposes, especially education and research. Moreover,
intellectual work and ideas, including programming methods and
algorithms, should not be patentable. The production and use of free and
open-source software and content must thus be encouraged and covered by
adequate public policy. 

27. Human knowledge is the heritage and property of all humankind and
the reservoir from which new knowledge is created. The Information and
Communication Society will not contribute to human development and human
rights unless and until access to information is considered a public
good to be protected by the State and promoted by the market.
Information in the public domain should be easily accessible to support
the Information Society. Intellectual property rights should not be
protected as ends in themselves, but rather as means to an end that
promote a rich public domain, shared knowledge, scientific and technical
advances, cultural and linguistic diversity and the free flow of
information. Public institutions such as libraries and archives,
museums, cultural collections and other community-based access points
should be strengthened so as to promote the preservation of documentary
records and free and equitable access to information. 

Scientists, universities, academic research and other institutions have
a central role in the development of the information society and the
sharing of research results, scientific knowledge, and technical
information. 

Democratic Governance 

Good governance in the Information and Communication Society must be
based on the values of participation, transparency, accountability, and
the rule of law. These principles apply to the democratic management of
international bodies dealing with ICTs. Given the borderless
characteristics of ICTs, decision-making bodies should ensure the
respect of principles of democracy and openness, as well as of legality
and sovereignty. In particular, the management of the core resources of
the Internet, which are the Internet protocols, standards, and
identifiers - such as domain names and IP addresses - must serve the
public interest at the global, national, and local levels. Furthermore,
any decision made on protocols, standards, and identifiers should be
compatible with international human rights standards, and especially the
rights to freedom of expression, privacy, and the principle of
non-discrimination. Such decisions should also allow a better-balanced
flow of information. 

The proper use of ICTs can strengthen democracy by improving the means
and access for civil society to participate fully in public affairs.
ICTs can improve access to justice and make public services more
responsive, transparent and accountable. The rule of law is essential
for the Information Society to become a space of confidence, trust and
security where human rights are fully respected. 

Both State and non-State actors have a duty to respect and promote human
dignity and human rights in the building of the Information Society. Any
regulation and self-regulation regarding communication and information
must be based on a strict respect for human rights and must contribute
to their promotion. Private and public services, community media, as
well as journalists - whose independence and access to information must
be protected - have major responsibilities in the Information and
Communication Society as a means to preserve and advance democracy. 

Monitoring Mechanisms 

31. In preparation for the WSIS in Tunis in 2005, an Independent
Commission on the Information Society and Human Rights, composed of
highly qualified experts with a broad geographical representation,
should be established to monitor practices and policies and submit
recommendations to the Summit. Its mandate could include a review of
national and international ICT regulations and practices to verify their
conformity with international human rights standards, the governance of
current decision-making bodies in the ICT field, and the potential
applications of ICTs for the realization of the right to development and
the essential human rights for sustainable human development, including
the right to health, the right to adequate food and the right to
education. 

32. Furthermore, the importance of the issues of human rights of the
WSIS justifies the establishment, within the procedures of the
Commission on Human Rights or its Sub-Commission, of a position of
Special Rapporteur on Human Rights and the Information Society, with a
mandate to monitor developments in this area, including threats to
privacy, freedom of expression, freedom from surveillance, and
applications of ICTs for the realization of economic, social and
cultural rights and to human rights education, and recommend measures
conducive to advancing human rights in the Information Society. 

 

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