Clustered interactive dialogue with special rapporteur on the right to freedom of opinion and special rapporteur on the rights to freedom of peaceful assembly

Event report

As part of its Agenda item 3, ‘Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development’, the Human Rights Council (HRC) addressed the work and reports of Mr David Kaye (Special Rapporteur on the right to freedom of opinion) and Mr Clément Nyaletsossi Voule (Special Rapporteur on the right to freedom of peaceful assembly) through an interactive dialogue.

Kaye gave an introductory overview of the worldwide situation on the right to freedom of opinion. He went on to discuss the Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and the Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression related to his visit to Ecuador, in which he identified some priority areas for reform.

Important developments in the area of freedom of expression and opinion, facilitated by extensive investigative work, have represented important achievements which should be supported. Nevertheless, the general picture is still grim. In certain cases it is characterised by state-sponsored murders of journalists who disagree with official propaganda, cases of oppressive silence – such as wide-spread impunity for attacks on journalists, offline and online harassment of reporters and human rights defenders, disinformation campaigns designed to undermine trust in independent journalism, legislation imposing restrictions on online expression, and policies and practices that allow for the media to be controlled, undermining its independence. The often disorienting technological changes have created important challenges, and at times, fostered hate-based terrorist attacks; nevertheless, while discussing and legislating appropriate responses and policies, states need to meet the requirements of legality, necessity, proportionality, and legitimacy.

The thematic report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression focuses on the rise of the private surveillance industry and on the targeting of specific activities meant to undermine freedom of expression and opinion. Surveillance has increased over the years through new technological means, such as but not limited to, software enabling surveillance and malware, in a way that at times goes against international law. Surveillance of networks and face recognition tools have further allowed unlawful and arbitrary surveillance against privacy and human rights. Such surveillance, often targeted at journalists, opposition figures, and human rights defenders, has undermined the rights to freedom of expression, leading to torture and extrajudicial killings. While there can be valid uses of surveillance technologies in addressing criminal activities, there is no indication that such technologies are being developed and/or deployed in compliance with fundamental human rights laws. Companies are not meeting their responsibilities on the guidelines on business and human rights. Additionally, states are failing to create restrictions on exporting these technologies that use targeted surveillance to known authoritarian regimes. In the spread of technologies, states and the industry are collaborating in creating a free harmful surveillance that hampers democratic life. In order to tackle highly intrusive acts, without creating a permanent ban, Kaye proposes an immediate moratorium on the use, sales, and transfer of the private surveillance industry until regulatory frameworks are in place to guarantee that human rights are respected in surveillance activities. In this regard, some of the recommendations presented in the report should be highlighted:

• Purchasing states should ensure that domestic laws allow the use of such technologies only in accordance with human rights standards of legality, necessity, and legitimacy of objectives. Additionally, states should provide victims of surveillance-related abuses with an effective remedy;

• Exporting States should ensure multistakeholder consultations when they are processing applications for export licences;

• States participating in the Wassenaar Arrangement should develop a framework which allows the licensing of any technology, on condition that they go through a national human rights review and that the companies are in compliance with the Guiding Principles on Business and Human Rights; and

• Private surveillance companies should be responsible for respecting freedom of expression, privacy, and related human rights and integrate due diligence processes at all stages of development and deployment of surveillance technologies by establishing human rights by design, regular consultations with civil society, and transparency reporting on business activities that have an impact on human rights.

The biggest threats to freedom of expression are posed by states in their regulatory activities. While regulation is important, it needs to be carried out in a smart manner which fosters transparency and human rights. While the current report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression focuses on the private surveillance industry, the future report will address topics of hate speech and misinformation.

The presentation by Kaye was then followed by an interactive dialogue with states and civil society representatives who advanced questions and comments on the report. While some remarks stressed how new technological means have fostered the democratic space in some cases, a recurrent argument underlined the challenges posed by these technologies in the respect and safeguard of human rights, and supported the search for a framework that allows the implementation of human rights protection in the development, deployment, and use of such technologies. Delegations requested further information and greater efforts in making the private sector more responsible and more effective in implementing the principle of due diligence, as well as in creating regulatory frameworks which can implement a human rights-based approach by design which does not allow arbitrary and unlawful surveillance at the expense of privacy and fundamental human rights. Additionally, some delegations advanced the argument that freedom of opinion and expression needs to be balanced with security concerns which may threaten social cohesion and safety. Nevertheless, Voule in his remarks underlined that surveillance technologies can be positively used to tackle criminal activities if the regulatory frameworks are in compliance with human rights law. Furthermore, such security claims need to respect the above mentioned requirements of legality, necessity, proportionality, and legitimacy. Finally, in response to the request of how states can better collaborate with the industry on the matter, he used the Montreux Document as a good example of a best practice in the area of private military security companies.

While some delegations questioned the intersection and overlap of the mandates of the two Special Rapporteurs, Kaye responded that there is a lot of collaboration between the two mandates which do not aim to duplicate themselves, but to build on each other’s work.

Voule introduced the Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, and the thematic report related to his visit of to Tunisia and Armenia which make recommendations on how to ensure and foster the right to peaceful association and assembly in the specific cases of the two countries. The role of new technologies and social media platforms has represented a key variable for the positive outcome of revolution toward democratic processes, and such technologies have strengthened the ability of civil society to raise issues and find a voice. Nevertheless, current threats are represented by unnecessary restrictions and state control on the access to such technological means meant to reduce the civic democratic space. A current challenge is represented by definitions of cybercrime that are too broad and general and which might allow restrictive interpretations of the term in favour of unlawful and arbitrary surveillance. Additionally, the report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association explores the responsibilities of private technology companies which are the provider of the technological means to expand civic spaces; nevertheless, these platforms and tools often become a means for the targeted surveillance of human rights activists. It is necessary to invite countries to develop guidelines which tech companies should comply with when developing new technologies and technological means. The self-regulation of private companies is not enough: there is a need for guidelines which private actors need to respect.