David Kaye, “Challenges to Freedom of Expression in a Digital Age”

On October 23, 2015, David Kaye, the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, lectured on “Challenges to Freedom of Expression in a Digital Age.” Professor Kaye discussed the right to freedom of expression in our highly digitized, public age and the looming uncertainty about setting standards to protect freedom of expression on the internet.

Kaye discussed the human rights basis for freedom of opinion, elaborated in Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which defines the right as including the following dimensions:

1. Everyone shall have the right to hold opinions without interference.
2. 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.
3. 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:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order or of public health or morals.

While the Covenant describes permissible limitations in Section 3 of Article 19, Kaye pointed out that the reasons for restricting freedom of speech are sometimes misused. Threats to freedom of expression employed by states under the guise of “national security” or “public order” may in reality reflect xenophobia, extremism, homophobia, silencing of dissenting voices, censorship, access to information, and targeting of journalists, and constitute serious human rights abuses.

While states continuously fight for the ability to control Internet content within their sovereign boundaries, there have been many developments, particularly in European case law, that have wrestled with arising challenges posed by these attempts to restrict freedom of expression. For example, in the case of Google/Spain and a Spanish citizen, the European Court of Justice recognized “the right to be forgotten” (meaning the requirement that search engines stop indexing content which is damaging to an individual’s reputation or livelihood). The Court concluded the removal of inaccurate, irrelevant, inadequate, or excessive information for processing purposes was supported by human rights law. However, this finding sparked more difficult questions: What can users now demand to have excluded? How does this ruling change our expectations of search engines as kinds of “repositories of history”?

The European Court of Human Rights in Delphi v. Estonia held that a news organization could be held liable if it hosts comments that may amount to “hate speech” or “incitement” of violence. Of course, the question here (and a common question when trying to define “hate speech” or determine levels of harm) is what constitutes a harmful expression that warrants being taken off the Internet? How do you draw the line between “expressing opinion” and “inciting hate”?

These cases and Kaye’s analysis led the discussion to today’s challenges. Many uncertainties exist within our “digital age,” questions about privacy and our human rights to freedom of expression and opinion, which often lack clear answers. Kaye also pointed out that governments are losing their “edge”: they are used to controlling information and can’t always do that now. In the digital age, people increasingly exercise their rights through the Internet, which is an incredibly difficult forum to regulate and monitor. Human rights activists around the world are using the Internet as a tool in social mobilization and to keep state power in check.

In his concluding remarks, Kaye jokingly said that talks like his tend to end on a “down note.” But he encouraged us to take action to increase the normative weight of the right to freedom of expression and make it part of national dialogues. States must be held accountable to—and by—their citizens, and if we demand freedom of expression as a right worth fighting for and talking about, then our governments should start listening. We need to use the most valuable tool in our toolbox to express the need for change: our voices. That’s how every revolution starts.