Today the United Nations (U.N.) Human Rights Council (the Council) will initiate its 44th Session in Geneva, Switzerland. The scheduled June session piggy-backs the continuation of the Council’s previous 43rd Session — originally scheduled in March, but postponed due to the COVID-19 pandemic — where, in addition to the planned session, a groundbreaking urgent debate was held, and a resolution passed, on the “current racially inspired human rights violations, systemic racism, police brutality and violence against peaceful protest.”
Access Now has been closely monitoring the impacts of recent events on the enjoyment of human rights in the digital age. While the current global health crisis poses several challenges to the U.N. and member states, we continue to stress the need for swift and effective responses that engage civil society partners. We are eager to contribute to the relevant discussions that will be held during the Council’s upcoming session. Therefore, as the Council starts discussions on the effects of the COVID-19 pandemic, we take this opportunity to provide current examples worldwide that illustrate, and further amplify, the concerns of David Kaye, the U.N. Special Rapporteur on the promotion and protection of freedom of opinion and expression (the Special Rapporteur), as indicated in his final thematic report to the Council (see the “Spotlight” section below).
Kaye’s successor will be appointed during this session, and it’s likely to be Dr. Irene Khan. Dr. Khan would become the first woman to hold the role, and has been considered along with a slate of other women candidates, a step forward for the Council on gender equity.
What we are watching at HRC 44
As the Council session unfolds, we’ll be following these discussions, reports, and resolutions closely, as they will impact digital rights both amid and beyond the COVID-19 pandemic:
- Business and human rights (led by Norway, Russian Federation, Ghana, and Argentina) Working Group and Accountability and Remedy project mandate renewals
- Freedom of opinion and expression: access to information (led by Canada, Namibia, Brazil, Fiji, Netherlands, and Sweden)
- The right to peaceful protest (led by Switzerland and Costa Rica)
- Human rights and climate change (led by Bangladesh, Philippines, and Vietnam)
- 75th anniversary of the United Nations (led by Australia)
- Elimination of discrimination against women (led by Colombia and Mexico)
- Panel discussion on the impacts, opportunities and challenges of new and emerging digital technologies with regard to the promotion and protection of human rights, and an oral update from the Advisory Committee on preparation of its report (HRC resolution 41/11)
- Newly released report from the Office of the High Commissioner for Human Rights, last week, on new technologies, including information and communications technology, and their impact on the promotion and protection of human rights in the context of assemblies, including peaceful protests, to which Access Now contributed a submission in October (HRC resolution 38/11)
- 2020 marks the timely 10th anniversary of the mandate on the rights of freedom of peaceful assembly and association. The U.N. Special Rapporteur, Clement Voule, will mobilize stakeholders around a renewed call to action, to respect, protect and fulfill everyone’s rights to freedom of assembly and association. We commend the U.N. Special Rapporteur Clement Voule on this initiative, and look forward to engaging with his mandate on the intersection of digital technologies and the right to freedom of peaceful assembly and association.
Spotlight: The U.N. Special Rapporteur on the promotion and protection of freedom of opinion and expression thematic report on the impacts of COVID-19 to the Human Rights Council
Access Now thanks Special Rapporteur Kaye for his final report and for his global efforts throughout the duration of his mandate. We share the concerns raised in his report, particularly with regard to three issues:
- Access to the internet
- Public health disinformation
- Public health surveillance
Access Now specifically supports two of the Special Rapporteur’s recommendations. First, that “there is no room for limitation of Internet access at the time of a health emergency that affects everyone from the most local to the global level,” as noted in paragraph 28. Second, the key elements and principles to ensuring that surveillance is conducted consistently with international human rights law proposed in paragraph 57.
Access to the internet
Extending secure and open access to the internet is essential to exercise human rights, facilitate humanitarian response, and protect public health. Access to information has become fundamental to keeping people safe from the COVID-19 pandemic. As the Special Rapporteur highlights, in the context of a pandemic, access to the internet is “a critical element of health-care policy and practice, public information and even the right to life” (paragraph 24), and the denial of such access interferes with the enjoyment of various fundamental rights (paragraph 26). The importance of access to the internet has also been stressed by the Human Rights Council in its resolution 39/6.
Yet, Access Now draws attention to the increase of internet shutdowns, or intentional disruptions of connectivity to online applications, networks, and services, carried out by governments worldwide. Through the documentation of internet shutdowns via the #KeepItOn Coalition, Access Now’s Shutdown Tracker Optimization Project (STOP) and the Shutdown Stories project, have captured the deleterious impact of internet shutdowns around the world. In 2019 at least 213 internet shutdowns were reported in 33 countries, and compared to previous years, internet shutdowns are increasing, both in, number, length, and scale.
Rohingya refugee camps in Bangladesh: the already dire situations of nearly 900,000 refugees in Cox’s Bazar have been made more difficult since mobile internet was cut off more than eight months ago. In mid-May this year, the first positive cases of COVID-19 were identified among camps in Cox’s Bazar. To date, little has been implemented to inform the community — especially those most at risk, such as the elderly — about the dangerous virus, as the internet remains shut down and information and communication technologies out of reach.
India: the internet shutdown continues to impact residents of Jammu and Kashmir since August 2019, the longest internet ban in the region’s history. Even though the internet was intermittently restored in January 2020, the ban has created a desperate new norm for the communities. As the COVID-19 pandemic continues, healthcare experts warn the situation will deteriorate without the reinstatement of internet access.
Pakistan: the internet shutdowns particularly impact the tribal districts and children unable to continue their education online. While the world is moving fast to share COVID-19 updates online and bring work and study to digital, remote platforms, people with no access to the internet and communication platforms not only fall behind, but are also cut off from each other. Then, we subscribe to the Special Rapporteur’s statement that, in the backdrop of a pandemic, people affected by internet shutdowns are subject to greater risks to their lives and health than those who have internet access (paragraph 28).
Myanmar: the internet shutdown, which reaches nine townships of Rakhine and Chin, is one of the most prolonged internet shutdowns since 2019. It continues while the country records more COVID-19 cases.
Access Now continues to monitor these and other internet shutdowns, as well as other practices that illegitimately limit access to the internet and, consequently, to information.
Public health disinformation
As the world fights COVID-19 we have witnessed the rapid growth of COVID-19-related misinformation, disinformation, and hate speech. In response, governments around the world have swiftly implemented different measures that disproportionately limit freedom of expression and opinion. While these tactics are not unique to COVID-19, in the context of an unprecedented health crisis, this dynamic has posed a serious risk to public health as well as public action.
Hungary: the government has limited the application of the General Data Protection Regulation (GDPR) at a time when a significant amount of personal data are being collected. The decision by the Hungarian government to limit the application of data subjects’ rights is disproportionate, unjustified, and potentially harmful to the public’s response to fight the virus. This and further measures constitute abuses of the state of emergency set by the government of Hungary.
Another approach to fighting COVID-19, adopted by some governments involves the criminalization of or penalization for spreading disinformation. Many of these laws ultimately result in repression of criticism of a government and its responses to the crisis, or restriction of the reporting of news that the authorities do not like (paragraph 50). Accordingly, the Special Rapporteur warns that “measures to combat disinformation must never prevent journalists and media actors from carrying out their work or lead to content being unduly blocked on the Internet” (paragraph 48).
Venezuela: the government allegedly detained at least 18 people who used social media networks to denounce the inefficiency of the government response to the COVID-19 situation.
Bolivia: the government detained 67 people under a decree to criminalize the spread of disinformation when it affects public health or puts individuals at risk. Although Bolivia repealed the decree, the government did not provide sufficient information or transparency about how authorities had handled the cases.
Additionally, as the Special Rapporteur soundly stresses, prohibitions on disinformation may serve as a tool for governments to arbitrarily define the truthfulness or falsity of content. If this happens, the prohibitions would represent a departure from the requirements of necessity and proportionality established by Article 19(3) of the International Covenant on Civil and Political Rights, which sets out the criteria for restrictions on the right to freedom of expression (paragraph 49).
In other cases, governments themselves spread disinformation by disseminating unverified or misleading information on the COVID-19 pandemic, potentially motivated by factors such as an administration’s political interests or discriminatory positions. The public may determine the official information is false and it may be corrected, but it can still have long-lasting effects on public perceptions and even on health-care policies. In his report, the Special Rapporteur called attention to the power of these practices in “undermin[ing] trust in government sources of information, which in turn may generate such public distrust that it becomes difficult for public health authorities to promote effective and proven policies” (paragraph 45).
The United States: U.S. President Donald Trump suggested that hydroxychloroquine and use of high powered light and disinfectants inside the body might be effective remedies for the COVID-19 virus. He did so without scientific evidence to substantiate the claims, putting the health and safety of individuals at risk.
Public health surveillance
In response to the pandemic, governments around the world have been using data and technology in their efforts to contain the spread of the virus. Measures that authorities have advanced around the world include collection and use of health data, tracking, and geo-location. In combating COVID-19, public authorities should be able to rely on data, including health data, to determine the best course of action to mitigate the spread of the virus and identify what measures must be taken to safeguard people and their rights during and after the crisis. Yet measures applied should be transparent, necessary, and proportionate. When data protection and privacy laws have clear exceptions that apply to public health crises, for example to allow for greater use of data than usual, those exceptions should be applied strictly, in a time-limited and lawful fashion.
Guatemala: the government launched an official application to inform people about COVID-19 called Alerta Guate. To download the app, users have to allow access to location data and the phone microphone, and provide an email address or phone number. After some criticism, the app was removed from the app store without further explanation.
Mexico and Cali, Colombia: the respective governments adopted COVID-19 apps, similar to Alerta Guate, that collect a vast amount of unnecessary information, making the app an intrusive tool that could easily enable excessive surveillance.
These are not the only cases in Latin America, where we have seen mass surveillance conducted using GPS, antennas, drones, mobile health apps, and contact-tracing apps, despite a lack of public debate in most cases, and lack of a (proper) data protection regulation in some.
In his report to the Council, the Special Rapporteur also raised the issue of the participation of private actors in surveillance practices, including in the context of the COVID-19 pandemic. Precedents show that it is important that these actors pass “robust and transparent” governmental scrutiny (paragraph 56), and that applies especially when they are engaged in strategies to handle the current public health crisis. This does not exempt governments from ensuring that their own practices are compliant with international law and standards, as well as existing data protection frameworks.
Tunisia: Enova Robotics signed an agreement with the Ministry of Interior to start operating PGuard robots. These robots will be equipped with a set of infrared 39 cameras and used to stop people from leaving their houses. There is no information as to where these robots will be deployed, what information they will gather, how long they will keep the data and who would have access to it. This lack of information impairs scrutiny on whether and how these robots comply with the data protection legal framework.
Argentina and Bolivia: the activities of individuals are allegedly being surveilled on the internet, and persons are detained for reasons such as mocking the quality of government services and financial aid provided by the state. Such systemic law enforcement surveillance poses serious risks to individuals’ right to privacy and constitutes a clear infringement of their freedom of expression.
The COVID-19 pandemic will have an aftermath. The measures governments put in place now will determine what the aftermath looks like. Government responses must therefore promote public health; prevent discrimination; ensure access to reliable and timely information; defend unrestricted access to an open, affordable and secure internet; ensure the enjoyment of freedom of expression and of opinion, and the rights to peaceful assembly and association; and protect the right to privacy and personal data.