Читать книгу The Handbook of Communication Rights, Law, and Ethics - Группа авторов - Страница 47

The entire process of recognition and protection of communication rights explained so far has centered on the international order’s classic model of declarations, conventions, and treaties, but the evolution of international law in contexts of permanent change, especially in the field of communication, requires a certain legal flexibility that rigid international law does not usually envisage (Feler 2015, p. 287). This is how the concept of “soft law” appeared. It can be considered to be legal in nature and, though lacking binding force, capable of affecting the way in which classic legal obligations are interpreted or implemented, which therefore means that it has a certain legal relevance (Barberis 1994; Meyer 2009).

The UN and its various agencies have set about “soft law” work through reports, documents, and declarations whose purpose is to establish recommendations, suggestions, directions, advice, and proposals, including ones for lege ferenda. These initiatives seek to influence national and regional legislation based more on auctoritas than on potestas, and based on conviction rather than on imposition.

Examples here are too numerous to include in a study such as this one,²⁴ but the Windhoek Declaration,²⁵ crafted between April 29 and May 3, 1991, and marking World Press Freedom Day may serve as a reference point for the recognition and promotion of communication rights in developing countries. Likewise, the Santiago Declaration on Media Development and Democracy in Latin America and the Caribbean (United Nations 1994), based on UDHR Article 19, affirms that freedom of expression is the cornerstone of democracy and that democracy is a prerequisite for peace and development.

In 1993, the UN Commission on Human Rights created the position of UN special rapporteur for freedom of opinion and expression, whose annual reports have established the stance of this international organization in relation to these freedoms.²⁶

The special rapporteur’s 2015 report²⁷ addressed the use of encryption and anonymity in digital communications, taking the view that there is a need to promote such security systems to avoid any interference or harassment that limits or conditions our freedom of opinion. In the report published on May 11, 2016,²⁸ there is a very interesting reflection on the role played by the private sector in the digital era. The report acknowledges that freedom of opinion and expression, as we currently exercise these, owe a good part of their vitality to the private sector, which has enormous power in the digital space, acting as a gateway to information and as an intermediary for expression. In digital environments, certain important questions about applicable law and the scope of private authority and public regulation cannot be ignored.

This report emphasizes an aspect that I believe is fundamental in the understanding of the UDHR’s and ICCPR’s respective Article 19s: the transmission of messages of any kind (which I will discuss later) “by any type of medium of expression” requires reinterpretation. As I have said elsewhere, the excessive power of large Internet companies is changing²⁹ relationships with users, who in their powers to search for, receive, and disseminate messages are subject to the conditions established by the operators in their “conditions of use.” As Garton Ash (2016, p. 48) has pointed out:

Google may not be a country, but it is a superpower. So are Facebook, Twitter and a few other giant information businesses. They do not have the formal lawmaking authority of sovereign states. Their leaders are not accountable to their users as democratic governments are to voters …. Yet their capacity to enable or limit freedom of information and expression is greater than that of most states. The biggest of the private powers are something like virtual countries.

When it comes to the relationship between freedom of expression and other communication rights, such as access to information, on the one hand and these companies operating in the digital market on the other, this situation gives rise to scenarios that are at the very least tricky. Companies do not always have sufficient procedures for letting users oppose decisions to withdraw content or deactivate an account when they believe that the measure taken by the firm is a mistake or the result of abusive flagging efforts. Where this occurs, a private company is depriving a citizen of exercising his or her right to self-expression, to expression of an opinion, or to the sharing of information with fellow citizens. The idea that nobody should be subject to interference in their holding of opinions, which we find in the respective Article 19s of the UDHR and the ICCPR, is now as closely linked to decisions made in an office in California as it is to those made by a constitutional court.

Related to transparency of international organizations, the 2017 report issued by the UN rapporteur for freedom of expression³⁰ acknowledges that the UN does not have an information-access policy that is applicable to all departments and specialized agencies, and neither has it established ad hoc criteria for responding to information-access requests, a state of affairs that the rapporteur views as unacceptable. This report assesses the information-access situation within the work of international organizations. It urges all such institutions, and especially the UN, to adopt well-founded freedom of information policies, and it makes specific recommendations for organizations, member states, and civil society.

The special rapporteur’s 2018 report³¹ sought to answer important questions related to communication rights by proposing a framework for moderating online user-generated content that places human rights at the heart of the matter. The special rapporteur on freedom of expression’s recently published report³² warns about surveillance of certain people, proposing a legal and policy framework for regulation, accountability, and transparency in the private surveillance sector.

As a last example of this soft law, I would mention that in November 1999, the three leading figures with a remit especially focused on freedom of expression³³ – the UN special rapporteur for freedom of opinion and expression, the Organization for Security and Co-operation in Europe representative on freedom of the media, and the Organization of American States (OAS) special rapporteur for freedom of expression – met for the first time under the initiative of Article 19, a human rights nongovernmental organization, and adopted a joint declaration recalling the importance of freedom of expression in the functioning of democracy, the need for media pluralism and independence, the role that this freedom plays in denouncing dishonest or criminal practices by public authorities or economic powers, and the need to tackle any attempt to limit this freedom.³⁴

The challenges facing effective recognition of communication rights within the UN are continuing to grow. For example, the subject who holds these rights is being redefined, as the formulation included in 1948 (“everyone”) is perhaps taking on a new meaning. The classic “Desantesian” separation of universal subject, professional subject, and organizational subject (that can be seen in this work commented on by Ignacio Bel Mallén in Chapter 7) must be understood in a more fluid way and based on the transformation of current communication models, wherein the same individual can perform the functions of any of the three subjects. In this sense, the all-encompassing protection derived from Article 19 makes more sense in the digital ecosystem in which we operate, whose concepts of emitter, receiver, channel, and so on, are constantly changing.

Finally, we cannot ignore the importance of these rights owing to their essential function in the proper functioning of the entire system of human rights (Shah and Boyle 2013, p. 266) and democracy (Barent 2005). Communication rights act as multipliers or metalaw due to their function in enabling the enjoyment of so many other rights (O’Flaherty 2012) that ensure individual development and personal self-realization (Schauer 1982, pp. 4–5) and, as Dworkin (1997) indicates, are derived from the right to human dignity, respect, and equality for all.

In order for all of this to become meaningful, a rereading of the aforementioned Article 19’s that does away with the so-called digital divide is necessary, since the right to access the Internet is becoming the primary requirement when it comes to the exercise of freedom of expression and communication rights; it is the basic prerequisite for enjoying all the possibilities that the Internet has to offer.