Joint Declaration: Challenges to Freedom of Expression in the next decade

The first part of the declaration consists of a protocol of several achievements, apprehensions, and aspirations that the representatives wished to point out. For instance, they believe that the past 20 declarations published so far have contributed to the establishment of authoritative standards which address a wide range of issues and challenges. They also address the importance of freedom of expression to democracy, sustainable development, protecting all other rights, and efforts to counter terrorism, propaganda, and incitement to violence.

All parties have also expressed concern about the increasing violence against many reporters, activists, and journalists exercising their right to freedom of expression and being prosecuted in several parts of the world for doing so. While significant contributions from new digital technologies have made expanding global communication easier, leading to the possibility of people everywhere accessing information and ideas and expressing themselves, the representatives also acknowledge there is still room to improve. Not everyone has access to the internet, disinformation/ propaganda spreads fast, and arbitrary and unlawful surveillance is further enabled. Therefore, the representatives expressed concern about the deepening threats to media diversity and independence they have observed, including an increased concentration of media ownership and political control and censorship over public media services. The representatives stressed that all States must respect the obligations previously set in Article 19 of the International Covenant on Civil and Political Rights, primarily by ensuring that any restriction they make is necessary and appropriate and enabling independent judicial oversight over applying any taken conditions. They also remarked that these same obligations should be mandatory for private companies with the same standards regarding respecting human rights.

"The importance and relevance of these joint declarations have been highlighted by their use in international court decisions relating to freedom of expression." - David Kaye, Former Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression.[4]

“The fact that Joint Declarations have been issued continuously for 20 years is a tremendous achievement. This Declaration is special inasmuch as it provides a framework to guide monitoring of future threats to freedom of expression.” - Toby Mendel, executive director of the Center for Law and Democracy (CLD).[5]

It is worth noting, that the CLD assisted the drafting of the declaration. Therefore this opinion might be slightly influenced.

Article 10 of the Human Rights Act 1998 states that freedom of expression is a human right;[6] This right shall include freedom to hold opinions, to receive and impart information and ideas without interference of public authority.[7] The freedoms of speech and expression are stated to not absolute, however, as not all expression is protected or equally protected. Article 10 states that to protect the health of the state and the health of others, the government can go against the right of freedom of expression if it is justified in the eyes of society.[7] Often states tend to overdetermine the content of freedom of expression or to underdetermine the content of the same liberty in the United States.[8] This reflects if concrete sociopolitical needs are still relevant to address contemporary concerns in the understanding of the limits of rights in the digital age humanity is in now. The States have to find a solution to finding criteria that balance between expressive freedoms and other values when they are in conflict.[9]

The Commission notes that some governments have taken measures to unduly restrict freedom of expression,[3] and on 1 June 2011, the following declaration on freedom of expression was drawn up:[1]

General Principles: The right to freedom of expression applies to the Internet and all other media. Restrictions are only accepted if they comply with recognized international standards. Awareness-raising and education activities for individuals' responsible use of the Internet will also be promoted.

Liability of Intermediaries: Intermediaries providing technical Internet services or the search or transmission of information should not be liable for the content generated by others unless there is an order to do so.

Filtering and Blocking: Obligatory blocking of an entire website or IP address is a very strong measure and only justified if international standards prove it, for example, for the protection of children.

Criminal and Civil Liability: Jurisdiction in disputes relating to Internet content should be limited to the countries with which the cases are actually and factually related, usually because the author was resident there and the content Upload there and/or the content is specific to that country. Individuals may only refer cases to certain courts.

Network Neutrality: In the handling of Internet data and traffic there should be no discrimination based on device, content, author, service or application.

Access to the Internet: Universal access to the Internet should be promoted, as it promotes the realisation of the right to freedom of expression and other rights such as the right to education and health care. There is no justification whatsoever for banning Internet access for whole sections of the population. Universal Internet access for states is therefore mandatory. In this respect, States should establish regulatory mechanisms, which may include, for example, price regulations or licensing agreements. States should also promote awareness of Internet use and its benefits, especially among the poor, children and older people and remote rural populations. Inclusion is also important. Support should therefore be given to introducing specific measures to ensure equal access to the Internet for disabled and disadvantaged persons.