What Are Digital Rights?
Module 2: Digital Rights
It is now firmly established that the same rights that people have offline should also be protected online, in particular the right to freedom of expression. As stipulated in article 19(2) of the International Covenant on Civil and Political Rights (ICCPR), the right to freedom of expression applies regardless of frontiers and through any media of one’s choice.
However, how established principles of freedom of expression should be applied to online content and communications is in many ways still being determined. For example, do bloggers and citizen journalists count as journalists and should they be afforded the same protections with regards to freedom of expression? How should states regulate the re-tweeting or resharing of hate speech as compared to the author of it? What about regulations for defamatory statements from anonymous accounts? These challenges are actively being grappled with by policymakers and courts around the world.
Examples of digital rights issues
To give an idea of the range and complexity of the issues included in the umbrella term ‘digital rights,’ here are some examples:
- Access to the internet. The right to access the internet is not explicitly recognised in human rights treaties, the main ones of which were elaborated prior to the internet’s becoming widespread in usage. However, there has been a growing recognition in recent years that states are required to take progressive steps to promote universal access to the internet.(1)
- Interferences with access to the internet. In addition to positive obligations to progressively realise improve access to the internet, states are required to refrain from unjustified restrictions on accessing the internet through internet shutdowns, the disruption of online networks and social media sites, and the blocking and filtering of content.(2) All of these are considered forms of prior restraint on freedom of expression for restricting internet users from expressing themselves through these services and websites before the expression actually occurs. International law allows very limited space for such extreme restrictions on freedom of expression.
- The freedom to choose among information sources. The 2017 Report of the UN Special Rapporteur on freedom of expression notes that in the digital age the freedom to choose among information sources is meaningful only when internet content and applications of all kinds are transmitted without undue discrimination or interference by non-state actors, including providers.(3) This concept is known as network neutrality, the principle that all internet data should be treated equally without undue interference.(4) In Asia, there has been significant debate about access to zero-rated content, which is applications or websites the usage of which a mobile operator does not count towards a user’s monthly data allotment, rendering it ‘free’. This is a practice commonly used by social media companies. Although some of these companies have touted zero-rating schemes as a means of providing access to the internet for people who might not otherwise have been able to afford it, in practice they can lead to unfair competition and can distort users’ perceptions by only allowing access to particular sites. India is among the jurisdictions to have taken effective action against zero-rating, effectively banning the practice.(5)
- The right to privacy. Exercising privacy online is increasingly difficult in a world in which we leave a digital footprint with every action we take online. While data protection laws are on the rise across the world, including Asia, they are of widely varying degrees of comprehensiveness and effectiveness, and often offer insufficient protection against state surveillance activities.(6) Government-driven mass surveillance is on the rise as a result of the development of technology that enables the interception of communications in a variety of new ways, such as biometric data collection and facial recognition technology.(7)