Human rights and the distribution of information

By Elizabeth Willmott-Harrop

May 2002

According to the International Telecommunications Union (ITU), our world is undergoing “a fundamental transformation as the industrial society that marked the 20^th century rapidly gives way to the information society of the 21^st century… We are indeed in the midst of a revolution, perhaps the greatest that humanity has ever experienced.”

The challenge for the United Nations and other human rights advocates is to ensure that this revolution does not just benefit governments and corporations, leaving civil society in the rubble of digital marginalisation and restricted freedoms. The technological age promises information-for-all in an inexpensive, high-speed, far-reaching and free-flowing form. However, this can only be assured if the governments and businesses, which control the infrastructure and access to this global information network, incorporate human rights norms into its development.

This is the theme of the World Summit on the Information Society (WSIS), scheduled to take place in two phases in Geneva December 2003 and in Tunisia in November 2005. According to UN Secretary General, Kofi Annan, the summit will be “a unique opportunity for all key players (government, the private sector and civil society) to develop a shared vision of ways to bridge the digital divide and create a truly global information society.”

The WSIS was conceived by the ITU, which has 189 member states and 630 members representing companies in the global telecoms sector. A key driver of the Summit will therefore be the multi-million pound revenues from Information and Communication Technologies (ICTs) that will be generated in closing the digital divide.

Likewise, political interests will be dominant, as Dave Amis notes in his article ‘Internet Anxieties’: “the knowledge that the Net is borderless raises fears about how it can be effectively controlled and monitored. In a an age where the citizens of Western countries are becoming increasingly disengaged from the political process, fears of a borderless Net express anxieties about the erosion of the power of the state.”

The challenge for civil society at the summit will therefore be to ensure that in every discussion and declaration, there is constant reference to universal human rights standards. As Cynthia Hewitt noted in her address to the Communication as a Human Right in the Information Society seminar in November 2001: “Influenced by a narrow technological vision of the Information Society, (many of the groups involved) may simply want to use the conference as a platform for promoting new products and services, or for extolling the virtues of the market. It will require hard work to make sure that the Information Society is equated with the attainment of basic economic, social and political rights for people around the world.”

The Digital Divide

According to the Digital Freedom Network, the world’s Internet population has grown exponentially over the past few years, from 18 million in 1994 to 148 million in 1998. However, the digital divide is not just about the provision of infrastructure – of telephone lines, PC’s and affordable internet access – it is also about use as well as access.

Illiteracy provides an obvious barrier to internet use, however The World Telecommunications Development Conference 2002 also identified that although the internet “has the potential to allow developing countries to leap-frog into the information age”, language is an important factor, with those who do not speak English having a significantly lower usage level.

In order for freedom of information and expression to be a universal and realistic possibility, it therefore requires infrastructure, education and a challenging of the West’s monopoly over the IT industry with its predominance of the English language. As Cees Hamelink comments in ‘Human Rights in Cyberspace’: “A positive freedom to communicate implies the claim-right to express opinions and the related entitlement to facilities for the exercise of this right.”

Human Rights Instruments

Respect for human rights plays a vital part in creating an environment in which freedom of information and expression can flourish. For example, arbitrary arrest and detention and torture – prohibited by articles 9 and 7 respectively of the International Covenant on Civil and Political Rights (ICCPR) – are often used to silence political opponents and a person held in slavery (article 8, ICCPR) has no hope of obtaining free access to information.

Likewise, freedom of information is a vital component for the realisation of other rights. For example, without access to information on political parties, and the ability of political parties to express their opinions, a democratic voting system cannot operate. Article 25 of the ICCPR therefore talks about “guaranteeing the free expression of the will of the electors.”

Similarly, access to information is a prerequisite of the right to education outlined in article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). There is also an emphasis on sharing of information at an international level, noted by the article’s reference to education enabling “all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.”

There are also articles in several human rights instruments, which are more specific with regard to the free distribution of information – i.e. freedom of expression and freedom of access of information.

Articles 18, 19, 20, 22, 26 and 27 of the Universal Declaration of Human Rights (UDHR) outline rights fundamental to enjoying the full distribution of information within society. These are, respectively, freedom of thought, freedom of opinion and expression, freedom of peaceful assembly, the realisation of economic, social and cultural rights, the right to education, and participation in cultural life and scientific advancement.

Furthermore, Article 28 of the UDHR states “Everyone is entitled to a social and international order in which the rights and freedoms set forth … can be fully realised.” This applies exactly to the issues of telecommunications infrastructure discussed above.

As the first major human rights instrument of the post-war era, adopted by the General Assembly in 1948, the UDHR, and the articles listed above, have since been elaborated in a variety of thematic human rights treaties including the ICCPR and ICESCR. The ICCPR and ICESCR have been ratified by 154 and 151 States respectively (as of November 2004), giving them widespread support within the international community.

The key article in the ICCPR is Article 19 which states that “Everyone shall have the right to hold opinions without interference” and “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.”

The International Convention on the Rights of the Child also emphasises freedom of information in article 13, which states: “The child 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 the child’s choice.”

International Covenant on Economic, Social and Cultural Rights

With its emphasis on cultural rights and education, the ICESCR provides further reference to rights necessary to the distribution of information.

Article 15 of the ICESCR requires States to take steps necessary “for the conservation, the development and the diffusion of science and culture.” In the context of the information society, this may well require a government to invest in a communications infrastructure including internet access and the media.

The same article states that State Parties are required to respect “the freedom indispensable for scientific research and creative activity.” This has particularly important implications with regard to academic freedom which includes for example freedom of choice of research, dissemination of findings, freedom to participate in professional bodies and freedom of opinion about the institution or system in which they work.

Janusz Symonides in Cultural Rights comments: ”A thesis that the main functions of higher education include not only ‘reproduction’, consolidation of the status quo, but also the search for new solutions, change and reform of existing structures, political, economic and social, is far from being accepted in many countries. Governments in some countries use intimidation, physical abuse and imprisonment to silence academics and students and censor teaching, research and publications.”

The main outlets for academic research findings are conferences, academic or trade journals and the internet, again reinforcing the crucial link between a State not only honouring the right to freedom of expression but also providing the vehicle for that expression through a communications infrastructure.

The freedom required for scientific research and creative activity also has important implications in terms of the freedom of expression of peoples and the advancement of their cultural traditions. This is embodied in article 1 of the ICESCR, the right to self determination.

The enforcement of the rights contained in the ICCPR and ICESCR is problematic. The ICCPR for example, is a legally binding treaty. Comprehensive implementation measures, which themselves contain legal obligations, are contained in the second article which includes the adoption of “legislative or other measures as may be necessary to give effect to the rights recognised in the present Covenant.”

The reporting procedure for state parties to the ICCPR is laid out in article 40 of the covenant. Although a legally binding instrument, the system does has its limitations in terms of effectively enforcing implementation of the covenant. As discussed by Ineke Boerefijn in Human Rights Quarterly, the initial stage of implementation is at the behest of the state, which must first ratify the ICCPR. Then, once a party to the covenant, the system requires a minimum level of voluntary cooperation by the state.

The only steps the Human Rights Committee, which is responsible for monitoring the ICCPR, can take in the case of a state party failing to submit its report is to mention this failure in the Committee’s Annual Report to the General Assembly. The sheer number of state parties that have failed to report on time, with this and all other human rights treaties, shows that states do not regard this to be of major significance.

The ICECSR is even more problematic because, unlike the rights in the ICCPR, which are directly applicable and judicially enforceable, the ICECSR allows progressive implementation by the State Party. For further discussion on the enforcement of human rights instruments, please see Cees Hamelink, Human Rights in Cyberspace.

Censorship

Article 20 of the ICCPR states that “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”

The ICCPR was preceded by the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), which has a comprehensive article (4) on racist propaganda. Paragraph a) requires State Parties to “declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination …”.

The Convention of Elimination of Discrimination Against Women (CEDAW) does not refer explicitly to the dissemination of information detrimental to the equal rights of women, instead making the more general statement in article 2 that State Parties shall “take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise” which presumably can be applied to the restriction of propaganda.

The prohibition of systematic racial discrimination forms part of international customary law, which is developed as a result of consistent state practice combined with opinio juris – the state’s positive sense of legal obligation. The restrictions regarding freedom of speech in relation to racial discrimination therefore has a legal foundation in the civil and political spheres.

Not so widely supported by the human rights community are restrictions which result from paragraph three of article 19 of the ICCPR, which states that “The exercise of the rights provided for in paragraph 2 of this article 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:

1. For respect of the rights or reputations of others;
2. For the protection of national security or of public order (ordre public), or of public health or morals.”

This paragraph is problematic in that it can be used by States to justify severe limitations in freedom of speech and access to information. In December 2000 in the US for example, the House of Representatives voted in favor of a law requiring the mandatory installation of filtering software in schools, libraries, and other public places with Internet services, under penalty of suspension of federal subsidies. However, the American Library Association challenged this law criticising filtering systems that would, for example, prevent access to sites about AIDS because the word “sex” appeared on them.

Restriction of such sites would be in conflict with the obligations under article 12c) of the ICECSR which requires State Parties to take steps for “the prevention, treatment and control of epidemic, endemic, occupational and other diseases”.

As well as information censorship there is also commercial censorship whereby the means of communication are controlled thereby in turn controlling information output. An example of this is lobbying by media giants in the US to own the electromagnetic spectrum (see http://www.corpwatch.org/article.php?id=110), thereby controlling which media are able to broadcast.

With exactly this kind of situation in mind, the Vienna Declaration on Public Broadcasting 1993, outlined a range of measures to ensure media freedom, including in paragraph 10:

Distribution of Information Post September 11^th

The World Information Society is not just about harnessing ICTs for the benefit of all, it is also about maintaining and building upon human rights norms fundamental to that society. Since September 11^th 2001 there have been a range of restrictions placed on the enjoyment of human rights around the globe including freedom of movement, the right to a fair trial, the right not to be arbitrarily detained, and even the right not to be subject to torture – the US government venturing that torture should be allowed when interrogating terrorist suspects, thereby questioning its status as a non-derogable right.

Also under immense pressure is freedom of expression and information – particularly in the US which prides itself on its First Amendment culture. Stephen John Hartnett notes that “In the weeks following the attacks, White House Press Secretary Ari Fleischer warned that “all Americans need to watch what they say, watch what they do,” thus making it clear that free speech is no longer so free in a time of what the government may define as ‘war’.

“Speaking before the Senate Judiciary Committee, Attorney General John Ashcroft argued that those who dare criticize the government “only aid terrorists, for they erode our national unity and diminish our resolve.” And the American Council of Trustees and Alumni … has released a report charging academics who question either the causes of the war or the means of its administration with undermining the nation’s moral resolve.”

For their part, the American media appear to have been obediently towing the party line. A report by media watchdog, Fairness & Accuracy in Reporting (FAIR) “How Many Dead? Major networks aren’t counting”, found that the evening newscasts of the three commercial broadcast networks (ABC, CBS and NBC) had deliberately avoided discussing the effects of bombings of Afghan civilians. The study claimed that network journalists failed to inquire about the numbers of casualties. Neither did they discuss the legal implications of these bombings. Instead, they communicated the civilian casualties as a regrettable but justifiable consequence of America’s military retaliation or as unverifiable Afghan propaganda.

The report concludes: “When media portray reports of civilian casualties as an attack on America, it’s hardly surprising that serious reporting on the issue is scarce. It is crucial that news outlets independently investigate civilian casualties in Afghanistan – not only how many there have been, but how and why they happened.”

Article 20 of the ICCPR requires that war propaganda be prohibited by law. War propaganda is the active dissemination of distorted material but is also the absence of a balanced viewpoint and is therefore directly related to issues of media freedom and freedom of information. Please see my detailed report Propaganda’s War on Human Rights.

However, according to FAIR, shortly after the September 11 attacks, White House staff encouraged the US media to “abridge” recordings and transcripts by Osama bin Laden and members of al Qaeda. Paul Lagasse of the Digital Freedom Network comments: “The media’s access to first-hand information related to the war in Afghanistan is strictly limited to media pools, reflecting the administration’s determination to provide citizens with a centrally controlled, carefully crafted image.”

According to New York based journalist, John MacArthur in an article for MediaChannel.org, “The press has lost the habit of independence in this country. When it turns to war, when it turns to foreign policy crisis … there isn’t … the sense that the patriotic thing to do is to tell the American people the truth and to try to be as impartial as possible and not to be the cats paw of the government. But when I say this on TV the reaction is overwhelming, there is tremendous hostility to the free press in this country.”

Freedom of information is also suffering with the US government accused of taking advantage of the War on Terrorism to limit the release of a wide range of records created by the White House, other federal agencies, and former presidents. (For reports on restrictions to access of government information and information availability on the Internet post September 11^th please see http://www.ombwatch.org/ and http://www.eff.org/ respectively.)

The American Library Association accused a Freedom of Information Act memo from Attorney General John Ashcroft issued on October 12, 2001, of being “exemplary of a tendency in the Bush administration toward withholding information and toward asserting an extensive executive privilege.”

In response to “restrictions imposed on the right to freedom of expression and to freedom of information by a growing number of States in the aftermath of the attacks of September 11”, the May 2002 UNESCO Conference on Media and Terrorism in Manila adopted a Resolution on Terrorism and Media.

The resolution, adopted by media professionals and press freedom groups, resolved that “any strategy to address the threat of terrorism must promote greater respect for freedom of expression and of the media, rather than imposing restrictions on these fundamental rights” and that “the threat of terrorism should not be used as an excuse to impose restrictions on the right to freedom of expression and of the media, or on freedom of information”.

Conclusion

The title of the 2003/2005 summit “The World Information Society” acknowledges that we are now living in an age where globalisation is the driving force behind information exchange. Likewise technology, business, warfare and politics have an equally international dimension and human rights can benefit, but often suffer, as a result.

It is vital therefore that as information issues are addressed at a global level at WSIS, human rights are incorporated into the foundations of this new society. And human rights are considered equally as important as the desire for business to make billions of dollars and of States to maintain or increase their power base.

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Bibliography

1. American Civil Liberties Union
2. David Amis, Internet Anxieties
3. Article 19
4. Ineke Boerefijn, Towards a Strong System of Supervision: The Human Rights Committee’s Role in Reforming the Reporting Procedure under Article 40 of the Covenant on Civil and Political Rights, Human Rights Quarterly 17.4 (1995) 766-793
5. Centre for Democracy and Technology
6. Comunica
7. Corp Watch
8. Defending America report by American Council of Trustees and Alumni
9. Digital Freedom Network
10. Electronic Frontier Foundation
11. Fairness & Accuracy in Reporting
12. Cees Hamelink, Human Rights in Cyberspace
13. Elizabeth Willmott Harrop, Propaganda’s War on Human Rights
14. Stephen John Hartnett, Fighting for Civil Liberties in the Land of the Free The Public i Vol. 2, No. 2
15. International Covenant on Civil and Political Rights
16. International Covenant on Economic, Social and Cultural Rights
17. International Freedom of Expression Exchange
18. Internet Freedom
19. International Press Institute
20. Media Channel
21. OMB Watch
22. Public i
23. Reporters Sans Frontiers
24. Resolution on Terrorism and Media
25. Janusz Symonides, Cultural Rights
26. Vienna Declaration on Public Broadcasting 1993
27. World Association of Newspapers
28. World Summit on the Information Society