New declaration on freedom of expression

In action between The United Nations (UN), the Organization of American States (OAS), the African Commission on Human and Peoples’ Rights (ACHPR), and the Organization for Security and Co-operation in Europe (OSCE), through their special rapporteurs for freedom of expression, was approved on March 2017 the “Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda”. It joins the international effort on protecting and promoting freedom of expression in the information society.

Facts considered

In the context of the declaration’s approval, the importance of freedom of expression and the concern with the spread of false news through social media. The document also considers that disinformation and some types of propaganda, on the limit, can violate human rights, such as privacy, and increase discrimination scenarios. Moreover, actions promoted both by state and private actors can distrust the journalist profession, fundamental for freedom of expression.

Access to unbiased information was highlighted as a fundamental right, as well as the State’s failure to control the content made available to the population. These rights, which are situated in the context of freedom of expression protection, were considered as a positive obligation of States, which includes promoting, protecting and encouraging diverse media. In addition, it was observed that intermediaries, when making information available, should also follow democratic standards. Civil society, in the same way, has also been encouraged to identify sources of information and to suppress undue advertising.

The transformative role of digital media, especially the Internet, is seen as a way of expanding access and dissemination of ideas. However, was also recognized the potential of using the Internet for the spread of false news and biased advertisements. Despite this, its contribution to the exercise of freedom of expression and dissemination of knowledge was considered undeniable. In this context, the organizations have expressed concerns about initiatives to limit access, with blockage or removal, for example, using non-transparent algorithms or systems, and ultimately failing to observe rights to adversary and defense.

General Principles

The Declaration, which was also endorsed by Article 19, a non-governmental human rights organization dedicated to freedom of expression, and the Center for Law and Democracy, which seeks to strengthen democratic participation, has set out principles for the freedom of expression protection, in a way not restricted to certain jurisdictions, but legitimized by the basis of international human rights law.

In this sense, one of the principles is that States should only impose limits on freedom of expression if they observe guarantees recognized by the international order and when they aim to prevent hate speech, violence or discrimination. Another concern involves the non-accountability of intermediaries unless they have intervened in the content or disobeyed judicial orders. These decisions must also be rendered by the competent authority and based on due process of law, independence and impartiality.

The statement also deals with blocking sites, IPs, and protocols. The measure is considered extreme and only justified when supported by the law, proportional and legitimized by the protection of human rights. In addition, it must correspond to the least intrusive measure and observe fundamental rights.

Recommendations

In general, the statement defines as “disinformation” the contents known to be false or so to be considered and “propaganda”, in that context, as the reckless disregard for information that could be verified. One way to combat them would be the adoption of standards by States that promoted more open, diverse and independent media, in plans that are not restricted to the domestic, but also involves commitments taken within the international order.
According to the joint effort of the international organizations, interested in guaranteeing freedom of expression and access to information in the digital age, democratic values such as equity, non-discrimination and diversity must also move initiatives between different actors – from States to journalists – on freedom of expression in contemporaneity.