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Editorial by Wolfgang Kleinwächter MIND 4

Editorial by Wolfgang Kleinwächter MIND 4

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Discussion Papers > Human Rights & Internet Governance > Editorial by Wolfgang Kleinwächter
Wolfgang Kleinwaechter.jpg
Wolfgang Kleinwächter, professor for International Communi-cation Policy and Regulation at the University of Aarhus, works as personal advisor of the UN IGF’s Chairman Nitin Desai and is a member of the Panel of High Level Advisers of the GAID. He was President of the legal division of the IAMCR and participates, amongst others, in ICANN and WSIS.

In May 2011, the UN Special Rapporteur Frank La Rue presented his report on freedom of expression and the Internet to the Human Rights Council. Since that, the human rights dimension of Internet Governance was discussed in a much greater detail than ever before, inter alia at the 6th Internet Governance Forum in Nairobi (September 2011), the Ministerial Conferences in London (November 2011), The Hague (December 2011), Stockholm (April 2011), EURODIG V (June 2012), Berlin (September 2012) and Budapest (October 2012). In all the discussions there is one overriding consensus: In the 21st century, access to the Internet and the free use of its opportunities is a fundamental human right. This is now also reflected in a growing number of international instruments, adopted by governments in the UN and other inter-governmental bodies.

In September 2011, the 47 member states of the Council of Europe gave human rights priority in its “Declaration on Guiding Principle on Internet Governance” when the ministers agreed in Principle 1, that “Internet governance arrangements must ensure the protection of all fundamental rights and freedoms and affirm their universality, indivisibility, interdependence and interrelation in accordance with international human rights law. They must also ensure full respect for democracy and the rule of law and should promote sustainable development. All public and private actors should recognize and uphold human rights and fundamental freedoms in their operations and activities, as well as in the design of new technologies, services and applications.”

In July 2012, the Human Rights Council adopted a resolution on “the Promotion, Protection and Enjoyment of Human Rights on the Internet”. The resolution affirms (a few months after an expert group of the Internet & Society Collaboratory concluded identically) “that the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice”, and it calls upon all states “to promote and facilitate access to the Internet and international cooperation aimed at the development of media and information and communications facilities in all countries” and encourages “special procedures to take these issues into account”.

Recently, the Berlin Conference on “Human Rights and the Internet” (September 13 – 14, 2012) took this discussion one step further and added more detailed and practical proposals how the existing human rights framework can be more efficiently implemented if it comes to the adoption of new Internet-related national laws and intergovernmental treaties, the development of new Internet standards and protocols as well as to the introduction of new hard- and software Internet technologies, services and applications. The 28 “Messages from Berlin”, which will be distributed during the forthcoming 7th IGF in Baku (November 2012) with recommendations for governments, the private sector, civil society and technical community are good guidelines on how to move from statements to actions. One thing is for sure: today, developments in Internet governance and Internet technologies impact human rights, especially the freedoms of expression, association, information and privacy. These human rights, which have been established through the Universal Declaration on Human Rights (1948), the International Covenant on Political and Civil Rights (1966) and many other treaties, covenants and declarations, involve obligations on all governments and apply to all people using the Internet as well as when involved in other human activities. However, the effects of those Internet technologies and the governance of the Internet can be positive, by enabling people to exercise their rights more easily, but can be also negative, by assisting in the violation of people's rights.

What we need to do is to develop more concrete procedures for a human rights impact assessment on Internet technology and governance in order to make sure that we can maximize the positive effects while minimizing the negative effects. As the Internet's effects on human rights vary over time, we need to periodically do impact reassessments. Such a human rights assessment will be most effective if it is done in a multi-stakeholder environment, where governments, civil society, the private sector and the technical community are working hand in hand to enable citizens to enjoy the individual rights and freedoms and to keep the Internet open, free, secure and borderless. At is should not be forgotten, that rights and duties, freedoms and responsibilities are two sides of one coin.

It is in particular the borderless nature of the Internet which makes the protection and guarantee of human rights in the information age a challenging task. When the mothers and fathers of the Universal Declaration of Human Rights drafted Article 19 in 1948 and added that “this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” they could not imagine that half a century later there would be a technology available which does indeed not know the frontiers of time and space.

We all know that Article 29 of the Human Rights Declaration and in particular the Human Rights Covenant of 1966 puts the individual human rights into the context of national sovereignty. National sovereignty is executed within the borders of a national jurisdiction, controlled by a national government. In a bordered world different understandings of freedom of expression – according to national traditions, culture, history and law – can coexists when we practice mutual respect and tolerance. But mutual respect and tolerance is needed in a much broader way in the borderless cyberspace where clashes of different cultures are nearly unavoidable. It is certainly true that there is no absolute freedom. There are situations where other human values needs also protection which could – on a case by case basis – justify legally based restrictions. But such restrictions have to be laid down via the rule of law and in cases of conflicts there is a need for due process and judgment by a neutral third party. But one thing is for sure: restrictions have to be the exception, the rule is and has to remain the guarantee of the individual right of freedom of expression.

We do not have an alternative to an enhanced peaceful dialogue about human rights and freedom of expression in the information age. We have to have this dialogue across national, cultural, religious and historical borders - and we need to remember “that the same rights that people have offline must also be protected online”.

Gordon Süß
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