28 November 2013


The Australian Human Rights Commission released (in September this year) a discussion paper [PDF] on Human Rights In Cyberspace.

The paper states that
It is clear that the Internet provides unparalleled opportunities for the promotion and advancement of human rights, most centrally the right to seek, receive and impart information. The Special Rapporteur on that right has described the Internet as ‘one of the most powerful instruments of the 21st century for increasing transparency in the conduct of the powerful, access to information, and for facilitating active citizen participation in building democratic societies. He has accordingly stated that ‘facilitating access to the Internet for all individuals, with as little restriction to online content as possible, should be a priority for all States.’ 
However, the Internet also provides a new (and powerful) medium through which persons can (and do) publish hateful or discriminatory comments, and intimidate and harass others, in a manner which undermines the human rights of those who are targeted. 
Accordingly, societies’ use of the Internet raises challenging questions about the appropriate balancing of rights in cyberspace. Difficult questions of how to simultaneously protect potentially competing rights are not unique to the online environment. But the particular features of the Internet (its global (and therefore cross-jurisdictional) and instant reach; its creation of an effectively permanent record of communications, and the ability to communicate anonymously) present new obstacles for governments seeking to protect against harmful behaviour. 
These types of issues must be addressed in order for Australia to fulfil the theoretically simple (but practically very challenging) requirement that ‘the same rights that people have offline must also be protected online’. 
Questions for discussion 
There are two broad challenges regarding human rights and use of the Internet which emerge from the discussion in this paper, namely:
1. How do we as a society achieve an appropriate balance between competing rights in an online environment? 
2. What steps should be taken to address discrimination in terms of the ability of certain groups to access (and safely utilise) the Internet?
10.1 Addressing discrimination in terms of access to (and use of) the Internet 
The growing importance of the Internet to all aspects of life (including delivery of services by business and government) means that the ‘digital divide’ between those with effective access to the Internet and those without limits the latter group’s ability to enjoy a range of human rights. In order to effectively address this gap in enjoyment of rights (particularly the right to freedom of expression and information), consideration should be given to the following:
(a) What groups in Australia are affected by the ‘digital divide’? 
(b) To what extent does this impact on their enjoyment of rights? 
(c) What measures should be taken to address the difficulties that the following groups may experience in accessing the Internet: (i) people with disability (ii) older Australians (iii) Indigenous Australians (iv) Australians living in remote or rural areas? 
(d) To what extent would the ‘digital divide’ be addressed by ensuring access for all Australians to Internet facilities? How relevant are issues such as digital literacy and cyber-crime to the effective enjoyment of rights through the Internet for these groups?  
10.2 Balancing rights online
A key challenge in terms of ensuring that individuals’ rights are protected online is achieving an appropriate balance between protecting the right to freedom of opinion and expression in cyberspace, and protecting people from online bullying, discrimination and harassment which breaches their rights under the ICCPR. The types of issues which need to be explored include:
(a) How prevalent is online hate speech (i.e. racial vilification, hate speech against women, LGBTI people) - is it only a small minority who posts this extreme content, or is there a wider problem?
(b) Are online hate speech, discrimination and verbal abuse different to hate speech, discrimination and verbal abuse that occur in the offline world - does the potential reach and permanency of internet content change the impacts of these types of behaviours? 
(c) Are (reactive) legislative measures, rendering behaviour unlawful or criminal, an appropriate (and/or effective) way of achieving a balance between the competing rights in an online environment? 
(d) For the purposes of the application of anti-discrimination laws, what should be considered a ‘public’ vs. a ‘private’ space in the online world? 
(e) To what extent are (preventative) educative measures an effective way of addressing online hate speech and discrimination? 
(f) What type of laws, polices and/or practices do we need to create safe online environments for children, to ensure that they enjoy their rights in cyberspace (including the right to freedom of expression and to information)?
In discussing the "Right to privacy, family, home, correspondence, honour and reputation" the paper states that
Article 17 of the ICCPR states that:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 
2. Everyone has the right to the protection of the law against such interference or attacks.
The HRC has indicated its view that ‘this right is required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons.’
However, the Committee has also observed that ‘[a]s all persons live in society, the protection of privacy is necessarily relative.’ 
Balancing the rights to privacy and/or protection of reputation with the rights to freedom of information and expression presents challenges. It is clear however that measures to protect these rights which limit freedom of expression and information must comply with the requirements set out in article 19(3) of the ICCPR.