This report analyzes how the internet challenges the fundamental rights of privacy and free expression. In particular, it emphasizes tensions that arise from the interdependence and mutual support of privacy and free expression online (Pages 11, 77). The tensions between these rights on the internet are described in detail, and particularly the cross-border issues raised by the internet (Page 22).
When addressing the Right to be Forgotten, the report affirms that "for many, it is still debatable in the long run if this decision to remove what the court deemed as irrelevant and outdated information strikes the right balance between the two fundamental interests" (Page 28). An extensive analysis of the Right to be Forgotten indicates that many questions around the Google Spain case are still open, such as i) "who should balance the rights" of freedom of expression and data protection, i.e. whether it is proper to place the onus on an intermediary to decide whether to de-list data especially when the Google Spain decision does not provide clear guidance on this question, ii) what is the impact on smaller intermediaries and other online service providers (Pages 101-105). The report indicates that individuals’ rights of access to information and freedom of information must be reconsidered in this digital age, "as when private institutions are gradually taking more public responsibilities and thus hold increasingly more personal information that is critical to individuals, the scope of this right is overly limited if it does not cover the information or data in possession of the private sector, public sector, and government bodies" (Page 28).
The report is based on the premise that human rights are equally applicable both online and offline (Pages 29-30). It describes, however, that there are key differences in how these rights are understood and upheld online by individual users, States and intermediaries. In particular, key risks to human rights include the erosion of user privacy (Page 13), increased opportunity for State surveillance through intermediaries (Page 17-18), and the lack of transparency by both State and non-State actors (Page 24).
The report emphasizes that the internet can be a tool that both facilitates and restricts free expression (Page 51). Internet intermediaries play a dual role in this: they enhance free expression, but this may also facilitate their own - or governments’ - monitoring of individuals’ online activities (Page 52). In light of the “critical status” of internet intermediaries in the operation of the internet, the report raises, as an example, a future need for tailored rules - that respect international human rights law - for governing the conduct of intermediaries. The report recognizes that arbitrary blocking poses a threat to freedom of expression, and also notes that such arbitrary blocking, filtering and censorship may be beyond necessity and proportionality where these activities are carried out in the name of national security. The report recommends sufficient legal safeguards to deal with the risks and challenges of this “merger” of data use for law enforcement, national security and intelligence service purposes (Page 115).
In its recommendations, the Report cites transparency as a key way of addressing the power of intermediaries in respect of free expression (especially for the so-called “internet giants” who, the report notes, are accountable to their shareholders rather than the public at large (Page 31). The report recommends that private sector and internet intermediaries consider introducing greater transparency measures wherever possible and appropriate, including that “terms of service and implementation of content moderation policies should be [...] transparent and narrowly-defined, and opportunities for redress should be offered” (Page 125).
The report recommends that internet intermediaries should be shielded from liability for third party content (118). The report further recommends (Page 122):
- States should establish clear laws, following international standards, that keep restrictions on online free expression to a minimum.
- States should enact sufficiently specific laws to define - proportionately - both the intermediaries’ legal rights and their limited liability/responsibilities regarding privacy protection and free expression.
- More breathing space be given to intermediaries to enable the thriving of free speech in general.
- States should avoid Internet fragmentation, by refraining from controlling and separating national Internet spaces from the rest of the Internet (Page 123).
- Intermediary self-regulation is recommended, within the framework of international human rights, where national legislation is not appropriate (Page 124).
The summary of this document is part of the report produced on the Stanford Law School Intermediary Liability and Human Rights Policy Practicum and is based on the work of Ella Hallwass. The full report “The ‘Right to Be Forgotten’ and Blocking Orders under the American Convention: Emerging Issues in Intermediary Liability and Human Rights”, can be accessed here.