Introduction to Digital Rights – South and Southeast Asia

• Digital rights — which include the right to freedom of expression, privacy and access to information — are the same fundamental human rights as those enjoyed offline but adapted to a new age of technology.

• In understanding digital rights, it is important to understand the role of internet intermediaries, a range of actors who enable access to and use of the internet and whose actions play a critical role in protecting or undermining freedom of speech and associated digital rights online.

• Freedom of expression online is uniquely powerful because of its borderless nature, but it has created new legal challenges and consequences, such as the growth in dis- and misinformation.

• It is crucial that human rights defenders engage with the new challenges posed online and act to protect and promote digital rights in the rapidly evolving online world.

Introduction

Digital rights are human rights in the digital realm.  The term ‘digital rights’ speaks to questions around how the same rights that have always been fundamental to all humans — such as freedom of expression, privacy and access to information — are exercised and protected in the era of the internet, social media and technology.

There is a tension between human rights and freedoms, and the rise in restrictions on access to and use of online spaces, which is continuing with increased political polarisation and the growing powers of non-state actors.  Protecting and developing online spaces where human rights can be respected and promoted requires effective responses to oppressive regulations, and innovative solutions.

Additionally, understanding digital rights is crucial to being able to protect fundamental human rights online, as very little of our lives today is immune from the forces of technology and the internet that have reshaped how humans communicate, participate and behave.  Digital rights are the rights that apply in these spaces, including the particular nuances which come with the application of human rights online. This module seeks to provide an overview of digital rights and trends affecting freedom of expression online in South and Southeast Asia. 


What Are 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 19² 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.

What is an Internet Intermediary?

An internet intermediary is an entity which provides services that enable people to use the internet, falling into two categories: (i) conduits, which are technical providers of internet access or transmission services; and (ii) service providers, such as hosts, providers of content services, such as online platforms (e.g. social media websites), caching providers and storage services.⁸

Examples of internet intermediaries are:

• Network operators, such as Airtel, Globe and Axiata.
• Network infrastructure providers, such as Cisco, Huawei, Ericsson and ZTE.
• Internet access providers, such as MyKRIS, WorldTel and PTCL.
• Communications service providers, such as Telenor, Metfone and SLT-Telecom.
• Social networks, such as Facebook, Twitter and LinkedIn.

One of the most challenging questions relating to internet intermediaries is whether they constitute publishers in the traditional sense of the word.  Is an Internet Service Provider (ISP) or even social media platform liable for the content it hosts on behalf of others?  Courts have generally found that an ISP does not ‘publish’ any more than the supplier of newsprint or the manufacturer of broadcasting equipment.  As pointed out by the UN Special Rapporteur on Freedom of Expression in 2011:

Holding intermediaries liable for the content disseminated or created by their users severely undermines the enjoyment of the right to freedom of opinion and expression, because it leads to self-protective and over-broad private censorship, often without transparency and the due process of the law.

Some countries in South and Southeast Asia, such as the Philippines,⁹ have laws providing for the limitation of intermediary liability, to help protect themselves from liability even in cases where such legislation does not exist, intermediaries often develop terms and conditions that specify their responsibilities and those of their customers.  Other countries in South and Southeast Asia have laws that explicitly make intermediaries liable for their actions regarding content posted using their services.¹⁰

Additionally, internet intermediaries are increasingly being used by states to police the internet through direct requests to take down content or interfere with internet access, decisions which are often made outside of formal legal and regulatory frameworks and lack transparency and public scrutiny.  Even where such actions are authorised under domestic law, often the legislation used is worded in an overly broad manner, giving authorities significant discretion to order content removed on vaguely defined or impermissible grounds.  For example, under section 37 of The Prevention of Electronic Crimes Act 2016,¹¹ the Pakistan Telecommunication Authority is granted “the power to remove or block or issue directions for removal or blocking of access to an information through any information system if it considers it necessary in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, public order, decency or morality, or in relation to contempt of court or commission of or incitement to an offence under this Act.”