Substantive provisions of certain cybercrime laws, particularly those that are Internet content-related (see Cybercrime Module 2 on General Types of Cybercrime for more information about this category of cybercrime and the cybercrimes included in this category), such as disrespect for authority, insults, defamation of the head of state, and obscenity or pornographic material, may unduly restrict the exercise of certain human rights (UNODC, 2013, p. xxi and 114-115). Procedural provisions of cybercrime laws enabling the use of tools and tactics during cybercrime investigations that facilitate the interception of communications and electronic surveillance may also unjustifiably restrict the exercise of human rights, such as privacy (UNODC, 2013, p. 121) (see Cybercrime Module 10 on Privacy and Data Protection). A balance is needed between cybercrime control and respect for human rights.
International human rights law enables the restrictions of certain human rights, which can be lawfully restricted under specific circumstances (some rights may not be restricted). These restrictions are authorized when they are in pursuit of a legitimate aim, in accordance with existing law, and necessary and proportionate to the threat that justified their implementation. The concrete range of legitimate aims depends on the applicable human right, and may include the interests of public safety, national security, economic security, health security, protection of morals, and protections of the rights of others. In addition to the need for the restriction to serve one of the above-mentioned legitimate aims, the restriction must be based on national law. This law must be accessible to citizens in order to enable them to regulate their behaviour and reasonably foresee the powers of authorities in the enforcement of this law and the consequences of noncompliance. It must be precise and avoid providing State authorities with unbounded discretion to apply the limitation (see Human Rights Committee, General Comment No. 34 (2011)). Vague and overbroad justifications, such as unspecific references to "national security", "extremism" or "terrorism", do not qualify as adequately clear laws. "Necessary" means that the restriction must be something more than "useful," "reasonable" or "desirable" (ECtHR, Case of The Sunday Times v. United Kingdom, judgement of 26 April 1979, para. 59). Moreover, there must be an appropriate relationship between the legitimate aim pursued by a state and the actions of the state to achieve that legitimate aim. In other words, the actions must be proportionate to the interest to be protected. This implies that the restriction is the least intrusive instrument amongst those which might achieve the desired result. States have some latitude in the manner in which they fulfil their obligations under international human rights law ( margin of appreciation).
Margin of appreciation
The margin of appreciation is a difficult and complex doctrine to understand. For a detailed analysis of this doctrine and its meaning, see Council of Europe.
What is more, even certain rights can interfere with the freedom of speech or expression, such as the right to be free from cruel, inhuman or degrading treatment, right to privacy (discussed in detail in Cybercrime Module 10 on Privacy and Data Protection), freedom from discrimination, and the right of children to special protection.
Freedom of expression (or speech)
Prohibition against torture and cruel, inhuman, and degrading treatment and punishment
Right to privacy
Right to non-discrimination
This non-discriminatory application of rights and the enjoyment of these rights by all is explicitly included in the United Nations International Convention on the Elimination of All Forms of Racial Discrimination of 1966 and the United Nations Declaration on the Elimination of All Forms of Racial Discrimination of 1963.
Right of children to special protection
The European Court on Human Rights has extended this positive obligation to protect vulnerable persons (namely, children) online by stating that countries are required to implement measures that safeguard them from harm through legislation (e.g., see Mouvement raelien Suisse v. Switzerland , 2012; M.C. v. Bulgaria , 2003; Perrin v. United Kingdom , 2003 ; K.U. v. Finland , 2008).
The United Nations Human Rights Council has repeatedly affirmedthatthe "same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one's choice" (e.g., A/HRC/RES/20/8; A/HRC/RES/38/7; see also GA resolution A/RES/68/167 for the same affirmation for the right to privacy). The freedom of expression is viewed as a right that enables and facilitates the enjoyment of other essential economic, social, cultural, civil and political rights, including the right to freedom of peaceful assembly and association, the right to education, and right to participate in cultural life. The United Nations General Assembly also recognized "that the exercise of the right to privacy is [also] important for the realization of the right to freedom of expression and to hold opinions without interference, and is one of the foundations of a democratic society" (GA resolution A/RES/68/167).
Freedom of association and assembly
Right to education
* The right to education is also recognized in the United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention against Discrimination in Education of 1960. This right is reaffirmed in international treaties that cover the rights of specific groups (women, children, individuals with disabilities, refugees, migrants, and indigenous people), such as the United Nations General Assembly Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) of 1979; United Nations Convention on the Rights of the Child; United Nations Refugee Convention of 1951 ; United Nations Convention on the Protection of the Rights of all Migrant Workers and Members of their Families of 1990; United Nations Declaration on the Rights of Indigenous People of 1970.
Right to participate in cultural life
Note: The right to privacy is explored in detail in Cybercrime Module 10 on Privacy and Data Protection.
Moreover, in 2016, the United Nations Human Rights Council passed a resolution condemning the practice of preventing and/or disrupting individuals access to the Internet ( A/HRC/RES/32/13). While universal access to the Internet is not recognized as a human right in international human rights law, there are State obligations to promote Internet connectivity that can be derived from a number of human rights, such as freedom of expression ( A/HRC/17/27). Internet access is also essential for the realization of many other rights as well, including the rights to freedom of association, freedom of assembly, to education and health, to full participation in social, cultural and political life, to social and economic development (A/HRC/17/27). These obligations include "adopt[ing] effective and concrete policies and strategies - developed in consultation with individuals from all segments of society, including the private sector as well as relevant Government ministries - to make the Internet widely available, accessible and affordable to all" (A/HRC/17/27, para. 66). Here, "a comprehensive human rights-based approach in providing and in expanding access to the Internet [should be followed], and…States …[should make every] effort… to bridge the many forms of digital divide" ( A/HRC/32/L.20, para. 5). More specifically, the United Nations Human Rights Committee states that "States parties should take account of the extent to which developments in information and communication technologies, such as internet and mobile based electronic information dissemination systems, have substantially changed communication practices around the world. There is now a global network for exchanging ideas and opinions that does not necessarily rely on the traditional mass media intermediaries. States parties should takeall necessary steps to foster the independence of these new media and to ensure access of individuals thereto"( General Comment No. 34, para. 15). This obligation is enshrined in certain countries' national laws, such as Greece, which amended its Constitution as follows: "[a]ll persons have the right to participate in the Information Society. Facilitation of access to electronically transmitted information, as well as of the production, exchange and diffusion thereof, constitutes an obligation of the State."
Inequality is exacerbated through the restriction of quality and consistent Internet access.
In addition, access to online content can be (and has been) restricted to protect the rights of others. In the opinion of "[t]he United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression," certain "forms of expression" should be "prohibited by international law," among them are the "advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence," and "direct and public incitement to commit genocide" (UNODC, 2013, p. 111). This prohibition is also enshrined in Article 20(2) of the International Covenant on Civil and Political Rights of 1966 prohibits "[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence," and Article III(c) of the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 prohibits direct and public incitement to commit genocide. The "Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence" ( A/HRC/22/17/Add. 4) clearly distinguishes between various forms of speech: "expression that constitutes a criminal offence; expression that is not criminally punishable, but may justify a civil suit or administrative sanctions; expression that does not give rise to criminal, civil or administrative sanctions, but still raises concern in terms of tolerance, civility and respect for the rights of others" (para. 20).
States can (and have) restricted xenophobic and racist discourse to preserve public order and protect the rights of those targeted by the discourse. In Tanzania, the Cybercrimes Act of 2015, prohibits the production, offer to make available, the making available, and distribution of racist and xenophobic material (Article 17) and racist and xenophobic motivated insults (Article 18) (for a critical review of the Tanzanian Cybercrime Act of 2015, including the provisions prohibiting racist and xenophobic material, see Article 19's British human rights organization report). The European Court of Human Rights (ECHR) held that speech that proclaims that all Muslims are terrorists and Holocaust denial ( Norwood v. the United Kingdom , 2003; Garaudy v. France , 2003) was not protected by Article 10 of the European Convention on Human Rights. In the United Kingdom, the Racial and Religious Hatred Act of 2006 criminalizes speech that incites racial and/or religious hatred.
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Article 17 of the European Convention on Human Rights (ECHR) prohibits the abuse of rights. According to Article 17 of the ECHR, "Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention."
Hate propaganda is designed to vilify a target group of others and polarize members of society into those who support and have similar ideologies to the hate propaganda (that is, the "us" group) and those who are in the target group of others, tolerant of this group, and those who support the target group in some way. This propaganda seeks to differentiate and at times dehumanize the target group by equating them with insects, animals, diseases, and demons. This type of propaganda, along with incitement to violence and genocide, was observed in, for example, the Rwanda genocide.
In the Rwanda genocide, the Tutsis were labelled as cockroaches( inyenzi), and the Radio Television Libre Des Mille Collines (RTLM) called for the extermination of the "Tutsi cockroach" (Gourevitch, 1998; Bhavnani, 2006). Radio journalists (and print media) in Rwanda were prosecuted and convicted for spreading hate speech and propaganda, and inciting violence and genocide . For example, Jean-Bosco Barayagwiza and Ferdinand Nahimana, founders of the Radio-television Libre des Molles Collines (RTLM), and Hassan Ngeze, the founder and editor of an in print local newspaper (Kanguara), were each found guilty of direct and public incitement to commit genocide, among other crimes ( The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze , 2003; Baisley, 2014, 39). During the sentencing of Ferdinand Nahimana by the International Criminal Tribunal for Rwanda, the judge stated, "You were fully aware of the power of words, and you used the radio - the medium of communication with the widest public reach - to disseminate hatred and violence….Without a firearm, macheteor any physical weapon, you caused the deaths of thousands of innocent civilians" (United Nations International Residual Mechanism for Criminal Tribunals, 2003; The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, 2003).
In addition to radio, online platforms can be (and have been) used to spread hate speech and propaganda, and incite violence and genocide. Consider the role of one social media platform in suspected acts of genocide in Myanmar. The media reported that over "650,000 Rohingya Muslims…fled Myanmar's Rakhine state into Bangladesh since insurgent attacks sparked a security crackdown…[in August 2017]. Many have provided harrowing testimonies of executions and rapes by Myanmar security forces" (Miles, 2018). According to the chairman of the United Nations Independent International Fact-Finding Mission on Myanmar (Marzuki Darusman), Facebook "play[ed] a determining role" in Myanmar, "substantively contribut[ing] to the level of acrimony and dissention and conflict [against Rohingya Muslims]" (Baynes, 2018) in "Myanmar by spreading hate propaganda" (Miles, 2018). Particularly, the Fact-Finding Mission stated that
[t]he Mission has no doubt that the prevalence of hate speech in Myanmar significantly contributed to increased tension and a climate in which individuals and groups may become more receptive to incitement and calls for violence. This also applies to hate speech on Facebook. The extent to which the spread of messages and rumours on Facebook has increased discrimination and violence in Myanmar must be independently and thoroughly researched, so that appropriate lessons can be drawn and similar scenarios prevented. Similarly, the impact of the recent measures taken by Facebook to prevent and remedy the abuse of its platform needs to be assessed ( A/HRC/39/CRP.2, para. 1354).
A further example involves the use of another social media platform, YouTube, in spreading hate speech and inciting violence. Particularly, Fouad Belkacem, who was the leader and spokesperson of the (former) organization "Sharia4Belgium," published YouTube videos designed to spread hatred and ultimately incite violence, by referring to non-Muslims, among other things, as animals, and calling "on viewers…to overpower non-Muslims, 'teach them a lesson' and… fight them" ( Belkacem v. Belgium , 2017; Voorhoof, 2017).
Intellectual property (IP) rights can also justify limitations of freedom of expression and access to information. For example, if certain requirements are met, the blocking of websites unlawfully making available content under IP protection can be justified. The European Court of Human Rights has held and acknowledged that the rights of authors of intellectual property need to be protected ( Neij and Sunde Kolmisoppi v. Sweden , 2012). Nevertheless, since blocking measures are highly delicate measures that can affect the rights of many people (in particular their right to impart information, to seek and receive information - "overblocking"), more attention should be given to the balancing of rights and the requirements for legitimate blocking measures (see, for example, CJEU UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft mbH , 2014; Cengiz and Others v. Turkey , 2015; Human Rights Committee, General Comment No. 34 on Article 19 of the International Covenant on Civil and Political Rights).
Internet access has also been blocked in response to political unrest. Specifically, governments have shut down citizens' access to the Internet and social media platforms (in whole or in part) during protests and other national events (e.g., Cameroon, Egypt and Uganda) (Odhiambo, 2017). Internet access has been cut off for some individuals and/or content, and in some cases Internet access has been cut off from an entire population for a period of time. In India, in 2017, access to 22 social media (e.g., Twitter, Facebook, Snapchat and YouTube) and messaging apps (e.g., WhatsApp, Skype, and WeChat) in the Kashmir valley was blocked in response to civil unrest. Many more instances of civil unrest led to Internet, mobile and fixed telecommunications blocking in this area, and in other regions in India (Freedom House, 2017).
Governments' prior censorship (i.e., the restriction of content before made available for public or private consumption) and blocking practices of online content come in direct conflict with individuals' right to access information. In Ahmet Yildirim v. Turkey (2010), a privately-owned website that was created via Google sites published, among other things, the creator's and owner's publications. His site was viewed as insulting the memory or legacy of Mustafa Kemal Atatürk, which is proscribed under Turkish Law 5816, in particular, which covers crimes against Atatürk, and Section 301 of the Turkish Penal Code, in general, which prohibits insults against Turkey and its institutions. In response to content on his website, instead of blocking access to his site, the Turkish Government blocked all sites. The actions of Turkey were viewed as incompatible with Article 10 of the European Convention on Human Rights. While temporary or partial interruptions or blocking can be justified under specific circumstances, the interruption of Internet services and blocking of access to the Internet to entire groups and populations cannot be legally justified. The Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated that: "The blocking of Internet platforms and the shutting down of telecommunications infrastructure are persistent threats, even if they are premised on national security or public order, they tend to block the communications of often millions of individuals'' ( A/71/373 para. 22). The report also cited a 2015 joint declaration between the "United Nations and regional experts in the field of freedom of expression, which condemned Internet shutdowns (or "kill switches") as unlawful" (A/71/373 para. 22).
United Nations Human Rights Council Resolution 32/13 "condemns unequivocally measures to intentionally prevent or disrupt access to or dissemination of information online in violation of international human rights law, and calls upon all States to refrain from and cease such measures" ( A/HRC/RES/32/13). As the United Nations Human Rights Committee (General Comment No. 34, Section 43, CCPR/C/GC/34) rightly points out, "Any restrictions on the operation of websites, blogs or any other Internet-based, electronic or other such information-dissemination system, including systems to support such communication, such as Internet service providers or search engines, are only permissible to the extent that they are compatible with paragraph 3 [of Article 19 of the International Covenant on Civil and Political Rights]. Permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3 [of Article 19 of the International Covenant on Civil and Political Rights of 1966]. Any blocking measures should be narrowly targeted and tailored to affect only those webpages that contain unlawful content. The Interruption of Internet services and blocking access to the Internet to entire groups and populations cannot be legally justified."
Example of free speech restriction
Country Kissues the media with a notice that prevents the media from promoting "western lifestyles" and making fun of Country K's values. A government agency of Country K shuts down several online news channels for spreading what the government views as incorrect and/or illegal information and/or failing to remove comments on their sites that promote what the government views as prohibited speech. Country K requires private companies to proactively monitor their sites and remove this incorrect and/or illegal content.