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“REGARDLESS OF FRONTIERS:” THE INTERNATIONAL RIGHT TO FREEDOM OF EXPRESSION IN THE DIGITAL AGE

The purpose of this report is to explore how the internationally recognized right to freedom ofexpression should apply to the Internet. This report is intended to spark further research, discussion, and action.The Internet offers individuals around the world the potential to seek, receive, and impartinformation and ideas in unprecedented ways. Like no medium before it, the Internet can empower citizens to communicate instantaneously with others in their own communities and worldwide, at low cost relative to traditional forms of media. The Internetʼs unique attributes create new opportunities to collaborate, exchange ideas, and promote scientific, cultural, and economic progress. Producers of traditional forms of media also can use the Internet to greatly expand their audiences at nominal cost. Like no other technology, the Internet can transcend national borders and eliminate barriers to the free flow of information. These unique features of the Internet, if properly supported, can foster innovation, economic growth, democraticparticipation, and human development.However, perhaps because of the power of the Internet to enable information flows, governments are increasingly imposing legal and technical controls on the medium. Some governments seek to restrict access and censor or punish various kinds of expression, just as they did offline. Governments are also struggling with new challenges in the digital age and laws passed for legitimate aims can also undermine exercise of the right to freedom of expression online. Some governments have enacted laws prohibiting a wide range of content on the Internet and have, in varying degrees, taken action against not only those who create such content, but also the service providers that host or provide access to it. A number of governments control access to information online by insisting on the deployment of filtering techniques, either implemented directly by the government or with the assistance of Internet access providers. And in still other countries, governments have encouraged forms of “selfregulation” that are in fact intended to enlist service providers in controlling their customers.Other government policies indirectly threaten the freedom of the Internet, including the extraterritorial extension of civil and criminal defamation law and the curtailment of anonymous or pseudonymous Internet use.In opposition to these efforts stands a robust and growing body of international law protecting the right to freedom of expression. All the major human rights instruments articulate the right to seek, receive and impart information in terms clearly applicable to the Internet. However, these human rights instruments also recognize legitimate restrictions to the right, and there are limits to existing enforcement mechanisms. In addition, not all countries are parties to a binding human rights agreement. With respect to traditional media, international human rights law has undoubtedly advanced the cause of free expression, although the right remains under constant challenge. While the right to freedom of expression is still being tested and advanced with respect to traditional media, it is time to begin developing an international human rights jurisprudence of free expression online. In fact, the process has already begun. As national, regional and international judicial bodies continue to articulate free expression standards for the Internet, they should keep in mind unique qualities of the medium. The uniquely abundant, user-controlled, and global nature of the Internet may justify more robust protection of online communications than is accorded to traditional media platforms. The concept of a right to “impart” information may take on new meaning in the “Web 2.0” era, whereonline entities provide free-of-charge platforms for the creation and dissemination of “usergenerated content.” Similarly, the right to “receive” information becomes more powerful when individuals have the entire world at their fingertips once they get online. The traditional deference given under international law to local norms might need to be reconsidered when 3Internet censorship in one country may constitute a direct infringement on the right of persons in other countries to “impart” or “receive” information “without regard to frontiers.” These unique aspects of online communication raise critical questions for the huuman rights community, for human rights institutions, for the Internet industry, and for national, regional and international policymakers: • How should the various human rights instruments be applied to the Internet?• Does the unique technical architecture of the Internet – and the resulting empowerment of individual citizens – justify stronger protections than those afforded to other media?• How will the limitations to the right to freedom of expression be interpreted in the online context?• What is the proper balance between potentially competing rights on a global medium, such as free expression and privacy?• How should human rights courts and institutions respond to Internet-specific issues such as online filtering and intermediary liability?This report is a call to action. Governments all over the world are struggling with Internet policy challenges, made more complex by networked technologies that defy traditional territorial boundaries. Millions of new users are connecting to the Internet every year. A thorough dialogue exploring these critical questions is vital for ensuring the broadest extension of human rights protections in the digital age. A fuller effort is needed to educate judges of the international tribunals, staffs of the human rights commissions, and policymakers around the world on the unique elements of the Internet, the special significance of user control, and the importance of protecting the Internetʼs technological intermediaries from responsibility for content generated the users of their services. Closer relationships need to be developed between traditional media advocates and Internet policy experts. Civil society organizations, technology companies, and governments that support human rights should work together to advance the cause of Internet freedom globally. ***The full version of report can be downloaded here – https://www.cdt.org/files/pdfs/CDT-Regardless_of_Frontiers_v0.5.pdf

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