Realizing rights online: From human rights discourses to enforceable stakeholder responsibilities

Event report

This session, moderated by Ms Karmen Turk (Attorney-at-Law, TRINITI) featured discussions on the role of intermediaries in enforcing human rights in the online world. As an introduction, Turk emphasised that current debates on Internet governance often address the issue of human rights, but usually fail to define what the necessary framework would be to effectively enforce them.

Mr Wolfgang Kleinwächter (Professor Emeritus, University of Aarhus) argued that today ‘human rights are in the centre of the Internet governance debate’, but emphasised that discussions have evolved since the beginning of the year 2000. Indeed, there used to be a debate on whether we would need to rewrite human rights in the digital age or instead address emerging challenges within the existing legal instruments. The choice that was finally made and which is reflected by the outcome of the 2015 World Summit on the Information Society (WSIS) in Tunis is that existing rights are sufficient. Instead of reinventing new rights, current debates have thus shifted towards the question of the implementation of human rights in cyberspace. Kleinwächter emphasised the recent extension of the Human Rights Council’s mandate to address these issues, in particular through reports, fact-finding missions, and the appointment of new special rapporteurs on freedom of expression and privacy. They each constitute important instruments for ensuring that governments and companies alike protect and respect human rights online.

Mr Markus Kummer (Board Member, Internet Corporation for Assigned Names and Numbers (ICANN)) dealt with the question of the implementation of human rights online from the perspective of ICANN. Given its contribution to the good functioning of the Internet, ICANN promotes human rights, and in particular freedom of expression. But in the past, human rights were rarely addressed within ICANN’s internal discussions. This situation progressively changed after non-commercial stakeholders and certain ICANN Board members attempted to progressively introduce human rights to the agenda. This process had led ICANN to work on a framework for the implementation of human rights, currently under discussion. This framework for human rights intends to reaffirm ICANN’s existing obligations within its core values.

Ms Charlotte Altenhoener-Dion (Administrator, Council of Europe) addressed the enforcement of human rights online based on recent developments at the level of the Council of Europe (CoE). From a legal perspective, the doctrine of the European Court of Human Rights (ECHR) is characterised by its dynamic interpretation of human rights, and thus follows the evolutions of society by taking into account ongoing technological developments. In addition to the ECHR’s jurisprudence, the CoE is also active at policy level to ensure the enforcement of human rights online.  It formulates non-binding soft-law standards in order to help governments and other stakeholders to apply human rights online. These standards offer guidelines on specific issues, such as media pluralism and the service value of the Internet. In this context, standards set by the CoE usually differentiate obligations for states in terms of human rights with the responsibilities of intermediaries to respect human rights in the online space.

Mr Matthias C. Kettemann (Researcher, University of Frankfurt) then presented more specifically the work of the CoE with regard to human rights enforcement online by presenting its recommendation on Internet intermediaries. Still in its draft version, this recommendation aims to help intermediaries realise human rights online on the basis of existing law. For Kettemann, there is no need to reinvent the law to ensure that intermediaries adequately deal with human rights challenges. Intermediaries need to increase transparency and accountability, and conduct due diligence assessment with regard to human rights. For instance, terms of service must be in line with human rights standards, as is not systematically the case. Respecting the rights of users requires avoiding general untargeted filtering systems of users’ content and adopting the least restrictive means possible to control content. Finally, effective remedies need to be accessible for users and intermediaries should engage in age and gender-sensitive efforts to promote the awareness of users of their rights and freedom online. At the level of states, it is of great importance that states apply the principle of legality, meaning that demands addressed to intermediaries must be prescribed by law.