14-17 September 2010, Fifth Internet Governance Forum
Role of the internet in defending and realising rights
The findings of APC exploratory research into the area of sexuality rights, censorship and the internet in 2009 indicate clearly that the internet is a critical space in the struggle for fundamental rights and freedoms. This is especially true in contexts where civil liberties are restricted or being threatened. Taken from the perspective of people who are discriminated against because of their gender and/or sexual identity, the restriction and threats to their basic rights is a daily struggle and reality. For these people, the internet is an especially vital space to enable access to relevant information, to provide support and to mobilise for advocacy. In South Africa, for example, the APC EROTICS research discovered how valuable the internet is as a space for transgendered men and women to find important health information, build networks, organise meetings in safe places and to begin challenging power relations that dominate the offline world.
The research in Lebanon found a strong link between the development of an open internet and the strengthening of the sexual rights movement. In Brazil, the findings were similar, where even though gender and LGBT (lesbian, gay, bisexual and transsexual/transgendered) rights policy agendas are quite well established, activists in both fields use the internet extensively to learn about rights and to organise for further advocacy. In India, young women in Mumbai are negotiating and challenging the boundaries of restrictive gendered norms that limit their sense of safety and mobility in physical spaces through sexual expression and self-representation in online spaces. In all the research contexts, the ability to access, use and define the internet is critical for discriminated and marginalised groups and individuals to engage with and transform the social, cultural and political contexts they inhabit. For the internet to become such a space, full recognition and respect for users’ communication rights – including access to information, the right to form communities, freedom of expression, conscience, thought and belief and the right to privacy – must be ensured.
The internet is also a key source of information and knowledge, particularly of content that is hard to find in other public domains. This can often be critical to ensuring the wellbeing of people, as in the case of information related to sexual reproductive health and safe abortions, or on sex-reassignment surgeries. Access to critical information includes the capacity to access knowledge from a variety of sources – which can inform decision-making – as well as the ability to share experiences and build the knowledge commons around particular issues. In the particular situations of violence against women or child sexual abuse — where research has shown that abusers are predominantly people who are known to the victim (such as partners, spouses or parents) and who are able to exert great control over their mobility – access to critical information securely and without being tracked is critical to find immediate and direct solutions to end the abuse or escape from risk.
Calls for greater internet regulation, skewed public debates
All over the world, government and other actors are calling for stricter regulation of the internet. In Brazil, a series of legislative reforms have been proposed, while a new law has recently been approved in India. In the United States, regulation occurs through the prevailing use of filtering technologies that are normalised and deployed at various layers of internet access; in public institutions, workplaces, homes, ISP etc. In other places, infrastructural barriers have a regulatory impact, such as in the case of Lebanon where the painfully slow internet connections have been seen as effectively hampering access.
In this same landscape the exporting and importing of regulatory models and modalities is frequent. For instance, the European Union convention on cybercrime has inspired legislative reforms in many places, such as Brazil. A number of law enforcement agencies around the world are using the CETS system developed by Microsoft under request by the Canadian government. Legal reform and international cooperation in enforcement are also undertaken through “harmonisation” efforts stemming from multilateral agreements. For example, G8 countries meet regularly to discuss harmonising methods to address cybercrime, including new investigative powers and ways of cooperation.The arguments mobilised to call for stricter regulation of the internet include classic state or public security justifications (against terrorists, dissidents or criminals), the need to protect tradition and culture, or more specifically to protect vulnerable groups, in particular children. However, legal reforms on the relatively new domains of new media, digital technologies, internet and mobile phones have been proposed, processed and approved without being properly debated by groups that may be affected.
For example, the Information Technology Act 2008 in India was passed with as little as 10 minutes of debate in the legislative assembly, in response to the high profile Mumbai attacks on 26 November 2008 and the spread of a scandalous pornographic video around the same time. This experience is mirrored in Indonesia and other countries where laws have been hastily passed or amended to deal with pornography online. The EROTICS research in Brazil and the OpenNet Initiative research in Malaysia also show that sometimes the impetus for policy or legislative change is less due to the stated interest to protect vulnerable groups, than by particular political or economic interests, such as complaints by banks (triggered from financial losses), to regain control over the public media space or the moral conservative agendas of individual parliamentarians.
Even when proposed legislation is subjected to public debate, this does not automatically ensure that all constituencies are positively engaged. In Brazil, a civil law that strongly contrasts with the criminal approach previously adopted for legal reform is currently being openly discussed. While conservative sectors are fully engaged in this debate, women’s and LGBT rights constituencies have not been part of the conversation. The lack of participation by civil society actors who work on the issue of sexual rights, women’s rights or the rights of the child in policy formulation and decision making processes can result in decisions that not only fail to protect, but can result in greater harm to those they claim to protect.
Right to information, assembly and the freedom of expression
The International Covenant on Civil and Political Rights (ICCPR) states that everyone shall have the right to freedom of expression, including the freedom to seek, receive and impart information and ideas of all kinds, through any media of choice. However, in many countries around the world, this right to freedom of expression is not respected. The ICCPR includes precise and limited references to circumstances where freedom of expression can be restricted, but in many countries the ambit of these restrictions is unfairly widened, including defamation cases being used to curb speech and as a demonstration of state power. Often unjustified restrictions placed on the freedom of expression of the press, specific groups and individuals are imposed on the basis of moral and traditional concepts regarding hierarchical gender orders and sexuality.
Online spaces such as social networking websites (twitter, facebook, orkut), blogs, web boards or discussion boards are today part of the public sphere. Online social networks are increasingly becoming a space of documentation, dissent, protest and organising. For example, in India, Facebook was used in a popular campaign known as the Pink Chaddi Campaign in February 2009 to raise concerns and mobilise action against the assault of women in public places, on the grounds of their attire or their presence in pubs. However, neither the State nor corporations are taking the use of these spaces as being important in the exercise of the citizen’s right to assembly, protest or exercise of freedom of expression. These online public spaces are nebulous and are not adequately protected by laws, and neither is the privacy of the individuals using these spaces. In the case of the Pink Chaddi campaign, when the administrator of the campaign complained to Facebook about the campaign’s group being hacked, Facebook disabled her account and access to the group. The complicity of multinational corporations such as Facebook, Google or ISPs like Airtel etc. with the State, especially in developing countries, has led to an increasing number of arrests of individuals on the basis of posts and comments left in social networking spaces. The arrest of gay men in India using the website guys4men.com to arrange a meeting in January 2006 is one such example.
Access to information is the other side of the same coin. When access to content is restricted people who could benefit from it may be impaired, or even at risk. Quite often restrictions mainly affect those who are already disenfranchised. For instance, the EROTICS research in the USA shows that enforced filtering by the government further restricts the ability to access information on the part of those who are already underprivileged, such as poorer youths who rely on public libraries for internet access.
Right to privacy
Privacy is a complex concept with many dimensions. In the most direct sense, privacy can be defined as the individual’s right to be left alone, to have a personal space free of state intervention, intrusion or attempts to control. In a networked society, privacy is importantly also about the ability to exercise control and decision making over personal data and information. Personal data constitutes a person’s identity, and in a digital age, it also constitutes a part of a person’s embodiment. In other words, expression, representation and action that are transmitted and exchanged online also constitutes part of the “Self”. For example, if a partner takes a picture of a person in an act of sexual intimacy, then puts it in another space without express permission, it shifts both the context and the productive encounter. This is a violation of not just the person’s right to privacy, but of her/his bodily integrity and dignity. As such, the responsibility and power to make decisions about what to do with one’s own personhood cannot be relegated to any other body, such as the State (through regulation) or any private entities (through contracts or technical solutions). The ability to exercise control over that personal data, as well as the right to adequate protection and redress in the event of violation, are important aspects of the right to privacy.
In most countries, existing legislation concerning the right to privacy is inadequate to address the issues and complexities related to new and developing technologies. In some developing countries, this issue is further accentuated by the fact that protection of privacy is a relatively new area of citizenship rights while at the same time government is rapidly expanding the use of e-governance tools, which may impair privacy and freedom, such as biometric national identity cards that could severely hamper the privacy of individuals.
In many instances, the actual practice of maintaining privacy of individuals is the left to corporations. The corporations that provide services such as social networking are largely located in countries in the global north while the users are located everywhere in the world. Privacy standards of the corporation are the only safeguard since the ability to deal with individuals on case-by-case basis is limited, especially if those members are not located in the global north. These standards are often being changed without any consultation or respect for rights, since the liability of the corporations to its users is even less than that of the state to its citizens.
Data aggregation (and cloud computing) is a clear example of how technology is evolving in ways that may imply the infringement of privacy rights not exclusively by governments, but also by non-sate actors. Today, as is well known, people’s preferences and profiles can be compiled from their online activity and sold to companies or others interested, which is clearly a violation of privacy laws. While, increasingly what is private is being disclosed willingly, people have legitimate expectations of the privacy of such sensitive information even in the public sphere. Moreover, research shows that when data of many users is compiled in aggregate, it may reveal more information than just the individual records. Data aggregation can only be addressed if the law recognizes the contextual integrity of information and does not allow the sharing and aggregation of information without consent.
Gender and sexuality at the centre of current regulation debates
Concerns about gender and sexuality are often at the heart of public debates around the need to limit the rights to freedom of expression, information and privacy on the internet. In many different contexts, the preservation of gender norms and order is used as a pretext to mobilise state and non-state actors to call for restrictions on access to the internet, and the control and elimination of specific content that is viewed as against traditional values, particularly related to the family and women’s roles. Sexuality is one domain of life that becomes central whenever proposals aimed at regulating the internet from a criminal justice perspective are tabled for debate. The IGF, although relatively open in its organisation and acceptance of multiple voices, has had a fairly poor track record in addressing issues around sexuality and the internet in the forum itself. In this forum for policy debate, sexuality has been framed more as a negative than a positive rights issue – mainly from the perspective of the need to increase regulation due to pornography, child protection and harmful content. Issues of sexual health, sexual education and sexual equality, for example, are very rarely tabled as policy dimensions of internet governance.
Grave violations of human rights in relation to sexuality occur in both offline and online spaces – rape, sexual abuse of minors or trafficking of persons for sexual purposes – and must be addressed through formal recognition, prevention and redress. However, in the current landscape concerning sexual crimes, online child pornography in particular has gained enormous visibility worldwide and in many contexts has become the main argument to enhance legal reform. Also at the IGF, the debate on child protection has dominated the debate on content regulation and the social dimension of internet security. While it is vital to recognize, prevent and redress these grave violations, legal and other regulatory measures in this particular domain must also be cautious and safeguarded, because they can can be being easily manipulated by states and non-state actors as a pretext to infringe the fundamental rights of users.
To address concerns around child pornography online, new laws have been proposed with regard to the scope of obscenity legislation, criminal law approaches to internet regulation, sometimes incorporating a wide range of surveillance measures, such as undue and unjustified data retention. Under certain conditions, this can easily lead to infringements of both freedom of expression and the right to privacy. The growing emphasis on and state attention to sexual crimes on the internet also leads to a dominant interpretation of human rights in relation to sexuality that is confined to situations of abuse and violence, and tends to efface the possibilities to also understand and implement sexual rights as freedom, agency and enjoyment. Moreover, sexual violations and crimes have a great appeal in the social imaginary in contrast to the low value attached to the positive dimensions of sexual rights. For example, in Brazil, although initiatives to identify and curtail online child pornography are done simultaneously with measures to eradicate hate crimes, the voices denouncing child sexual abuse are geometrically larger than those denouncing homophobia, which curtails individual freedom of sexual expression.
A response that focuses only on the most problematic form of content that circulates online can have the impact of restricting other forms of sharing of sexual information and images that can enable political action and individual well-being. For example, as reported by GLAAD as early as 1999, many filtering systems have the terms “homosexual”, “transvestites” and “lesbians “among their keywords. More recently, the OpenNet Initiative tested the Microsoft Bing search engine, and revealed that it filters out a wide range of sexually related content including words like “anal” and LGBT-related terms in Arabic regions. Microsoft Bing was subject to protest for disabling search results on the term “sex” in India. As shown by the EROTICS research in the United States, legislative governing internet content regulation gives uneven results when filtering technologies are relied upon – the type of content that can be accessed depends on which software is used, and the judgement of the persons implementing the system. It also gives the state and international authorities leeway to formulate the broadest legislation that allows enormous control over activities of individuals. Moreover, in many contexts, the highly visible efforts to investigate and punish the internet-based sexual abuse of minors and the regulation of internet content and practices is not necessarily accompanied by similar attention to the prevention and eradication of offline abuses.
Laws that protect children disregard the essential role and freedom of parents vis-à-vis their children or the child’s own limited but fragile autonomy (Convention on Rights of the Child) and incapacitate rather than develop the child’s ability to encounter the world. Child pornography and tracking children by adults in online spaces are grave issues that are often not addressed by the new laws that focus on expanding data retention by ISPs and encroaching on the privacy of individuals using cybercrime legislations.
This is a particularly complex domain of policy and legal debate that requires all actors engaged to recognise that competing rights must always be properly balanced, in the commitment towards respecting the integrity and indivisibility of human rights for all. This includes balancing between the rights of the child to be protected from harmful practices and content, and the right to freedom of expression of individuals and groups, and balancing the right to privacy and life with the dignity of person whose sexuality differs from hegemonic norms. Legal and policy measures aimed at preventing and countervailing web based sexual abuses must be consistently and systematically combined with the education of children, adolescents and their guardians from the premises of human rights at large and sexual rights in particular, and on how to negotiate online (and offline) spaces and interactions safely.
They must hold in regard the essential role and freedoms of parents in the development of the child, and critically recognise and respect the child’s own developing ability to acquire knowledge, capacity and understanding – including exercising autonomy and decision making about their rights and how they can be best realised. As defined under the Convention on the Rights of the Child: “States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention” (Article 5).
Association for Progressive Communications
(1) DAC (Development Assistance Committee) Guidelines for Gender Equality and Women’s Empowerment in Development Co-Operation, Development Co-operation Guidelines Series, OECD, 1998.
DAC (Development Assistance Committee) Guidelines for Gender Equality and Women’s Empowerment in Development Co-Operation