Restriction To Freedom of Expression On The Internet Must Be In Line With International Human Rights Law
Voicing an opinion in a free and express manner without fear and interference is central to living in a society which is fair and open. Freedom of opinion and expression is a fundamental right recognized by Article 19 of the United Nations Universal Declaration of Human Rights (UDHR) 1948. Other major international instruments like the International Covenant on Civil and Political Rights (ICCPR) 1966 and the American Convention on Human Rights 1969 have also guaranteed this right in their respective documents. The right to freedom of expression also encompasses in its ambit the right to seek, receive and impart information and ideas. Article 19 of ICCPR provides that:
(a) Everyone shall have the right to hold opinions without interference;
(b) Everyone shall have the right to freedom of expression, this right shall include 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.
By expressively providing that everyone can express himself or herself through any media indicates the foresight of the covenant to accommodate any new modes of communication which could be available through future technological developments. The Internet is perhaps one such development in the world of information technology that has brought revolutionary effect in the field of communication. Its speed, worldwide reach and relative anonymity are some of its dynamic benefits. This is a source through which information can be disseminated and people can be mobilized in real time. In fact, the Internet has become a key means by which individuals can exercise their right to freedom of opinion and expression and exchange information.
But this right is not absolute. Article 19 of ICCPR permits reasonable restrictions to be placed on the right in view of public policy concerns:
(c) The exercise of the rights …carries with it special duties and responsibilities. It may, therefore, be subject to certain restrictions, but these shall only be such as are provided by law and are necessary;
(d) For respect of the rights or reputations of others;
(e) For the protection of national security or of public order, or of public health or morals.
The significance of the right to freedom of speech through the Internet can be discerned from the fact that the Human Rights Council (HRC) of the United Nations adopted a landmark resolution in the year 2012, A/HRC/res/20/8, June 2012 “The Promotion, Protection and Enjoyment of Human Rights on the Internet”. This is the first Resolution of its kind affirming the human rights in the digital realm. The Resolution was passed with consensus by its 47 members including China and Cuba having approved it but with reservations. The said Resolution has laid down a fundamental principle that “the same rights that people have offline must also be protected online.” This Resolution has been followed by subsequent resolutions A/HRC/res/26/13, June 2014 and the A/HRC/32/L.20 passed in June 2016 reiterating the same principle.
Purportedly in accordance with Article 19 of ICCPR, states have not only recognized the right to freedom of expression in their respective constitutions irrespective of the medium of communications but have legitimately restricted certain types of exceptional expressions. Accordingly, states have enacted the cyber laws empowering the governments to punish and censor any online content if it falls within the exceptions laid out in Article 19 of ICCPR. For instance, in Pakistan, the right to freedom of expression is provided in Article 19 of the 1973 Constitution titled ‘Freedom of speech’, but at the same time through certain provisions in the Prevention of Electronic Crimes Act (PECA) 2016 the state has placed certain restrictions on the right to freedom of expression via the Internet. For instance, under the Act, the state has the power to remove or block any information “if it considers necessary in the interest of the glory of Islam or the integrity, security or defence of Pakistan…public order, decency or morality…”
Similarly, under the Act, glorification of an offence or hate speech that results in interreligious, sectarian or ethnic hatred through a computer source is an offence. Public exhibition or display of any information that intimidates or harms the reputation or privacy of a natural person or that goes against the modesty of a natural person and minor are offences as well respectively, so this law also prohibits child pornography. The Act also makes it an offence of cyber terrorism if any information is displayed with intent to create a sense of fear, panic or insecurity in the government, public or society. These are some of the legitimate restrictions on the right to freedom of expression and opinion via the Internet which stand in accord to exceptions laid out in Article 19 of ICCPR.
In the Indian jurisdiction, Article 19 of the Constitution of India 1949 also provides protection of certain rights regarding freedom of speech, etc. but the Information Technology Act 2000 as amended by the Information Technology (Amendment) Act 2008 allows the state to curtail freedom of expression under various provisions. For instance, under Section 69A, the state can block off public access to any information through any computer source if it is necessary to do “in the interest of sovereignty and integrity of India, defence of India, security of the state, and friendly relations with foreign states or public order…” Under Section 66A, no one can send offensive messages through communication services. Section 67 provides punishment for publishing or transmitting obscene material in electronic form. Under Section 67A, publishing or transmitting any material containing sexually explicit act(s) in electronic form is an offence. Section 67B restricts child pornography although the word is not specifically mentioned.
Although it is permissible to put reasonable restrictions on the freedom of expression under Article 19 of ICCPR, in practice states do censor, restrict or block online content without any legal basis or without justifying the reason for such action and in a manner which is unnecessary and disproportionate to achieving the intended aim. States simply censor the content which they deem inappropriate or which they do not like or agree with. Similarly, legitimate expressions through computer sources are criminalized through laws which are either ambiguous or broad, and are justified broadly as being necessary on the basis of protecting national security or an individual’s reputation or countering terrorism. However in reality, surveillance often takes place for political rather than security reasons in a discreet manner.
It is a matter of concern for human rights activists and organizations which promote and protect human rights peacefully that states are not following the standards set out in paragraph 3 of Article 19 of ICCPR. National security is used as an excuse to strike down criticism. The issue of terrorism has given leverage to states to pass strict cyber laws but at the cost of freedom of expression and right to privacy. However, it is legitimate to block certain online content like websites on pornography. A while back the Pakistan Telecommunication Authority (PTA) asked Internet Service Providers (ISPs) across Pakistan to block over 400,000 ‘pornographic websites’ in order to control the dissemination of pornographic content through the Internet which was a right move on part of the government. This step was taken following the order of the Supreme Court dated January 12, 2016, wherein the telecom sector’s regulatory body was asked to take remedial steps to control obscenity and pornography which was affecting the youth of Pakistan and making them corrupt and morally depraved. But it is difficult to analyze what the criteria set by the government is, to decide which content goes against the dignity of the state or against the glory of Islam or what is it that is affecting the reputation of others.
In that regard, an article written by a well-known journalist Fahd Hussain was removed from Express Tribune’s website at the request of a government official as it was deemed ‘provocative and insulting to the Sheikhs of Arab’. Similarly, FIA’s cyber-crime wing arrested a PTI social media activist in Peshawar for allegedly writing against the judiciary on Twitter.
In India in 2012, two girls in Palghar, Maharashtra were arrested for posting comments on Facebook questioning the shutdown of the city for Bal Thackeray’s funeral. Although both of them were released on bail, their arrest sparked an outrage in the country. In 2015, in a given verdict, the Supreme Court of India struck down Section 66A of the Information Technology Act 2000 as it was being misused widely by the police in various states arresting innocent people for expressing their critical opinion about political and social issues on social networking sites. The Supreme Court stated that the section was vaguely worded allowing the police to make arbitrary arrests. Section 66A criminalizes sending offensive messages through computer sources.
Raif Badawi, a Saudi writer and an activist had been imprisoned for ten years in Saudi Arabia for setting up a website called Free Saudi Liberals wherein political and social issues could be openly discussed and debated upon.
Several countries continue to block YouTube, a video sharing website where people upload their views, opinions and share information through videos. States have adopted an effective filtering system that blocks certain online content which cannot be accessed by Internet users. In China, websites containing key terms such as democracy and human rights cannot be accessed. According to Reporters without Borders, in the year 2010, 109 bloggers from across the world were arrested on charges related to their online content.
In all these above-mentioned examples it is difficult to ascertain whether the actions taken by states were necessary and in line with the purported aims set out in the exceptions of Article 19 of ICCPR.
There should be minimal restrictions on the smooth flow of information via the Internet except in certain limited circumstances as prescribed by human rights law. Any restriction should pass a cumulative test laid out in Article 19 of ICCPR. It should be applied without any political or other unwanted influence. It should not be arbitrary, excessive or discriminatory and should not be devoid of transparency.
There is no doubt that an increased use of the Internet has also resulted in a growing number of cyber-crimes such as cyber-stalking, hacking, spoofing, web-jacking and cyber-terrorism, etc. There is a need to pass cyber laws which should be explicit, clear and effective but this should not be done at the cost of infringing the right to privacy and right to freedom of expression. A balance has to be maintained so that Internet users get the benefit of the technology in the best possible way while at the same time cyber-crimes are being effectively controlled.
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References
- The Universal Declaration of Human Rights
www.un.org
- International Covenant on Civil and Political Rights
www.ohchr.org › OHCHR ›
- U.N. Human Rights Council: First resolution on internet free speech
www.loc.gov/law/foreign-news/article/u-n-human-rights-council-first-resolution-on-internet-free-speech/
- UNHRC: Significant resolution reaffirming human rights online adopted
www.article19.org
- The Constitution of Pakistan, 1973
www.pakistani.org/pakistan/consitution
- The Constitution of India, 1949
www.indiankanoon.org
- The Prevention of Electronic Crimes Act 2016
www.na.gov.pk/
- The Information Technology Act, 2000
www.dot.gov.in/sites
- Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expressions, Frank La Rue.
www.A/HRC/17/27-ohchr
- Pakistan to block over 400,000 porn websites.
Farooq Baloch: January 26, 2016: tribune.com.pk
- Why Pakistan’s cybercrime bill is a dangerous farce
Madiha Latif: April 17, 2015: dawn.com
- FIA arrests PTI activists for ‘tweeting against judiciary’
October 28, 2015: www.dawn.com
- Freedom of expression: Facebook censorship and free speech
www.amnesty.org
- Two Mumbai girls arrested for Facebook post against Bal Thackeray get bail
www.indiatoday.indiatoday.in: November 19, 2012
- Supreme Court strikes down Section 66A of IT Act which allowed arrests for objectionable content online
Amit Choudhary and Dhananjay Mahapatra: TNN: March 24, 2015:timesofindia.indiatimes.com
- Raif Badawi:en.wikipedia.org
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