Submission: On Article 5A.4 “Information of a Sensitive Nature” of Future ITRs UNESCO very much welcomes ITU’s recent initiative to make the Draft of the future ITRs publicly accessible and invite all stakeholders to express their views through your webpage. This step accords well with the multi-stakeholder model pioneered at the World Summit on the Information Society, and is an approach wholly shared by UNESCO. Having reviewed the Draft of the future ITRs, our Organization has a contribution to make for your consideration. UNESCO, as enshrined in our Constitution, promotes the “free flow of ideas by word and image”, and is accordingly committed to enabling a free, open and accessible Internet space as part of promoting comprehensive freedom of _expression_ online and offline. We take our lead especially from Article 19 of the Universal Declaration on Human Rights, as well as the Windhoek Declaration on a Free, Pluralistic and Independent Media endorsed by our General Assembly in 1995. Following from these, UNESCO works as the dedicated agency within the wider UN family to promote freedom of _expression_ and its correlates of access to information and press freedom. Our contribution to the ITRs relates particularly to Article 5A.4 which states: “5A.4 Member States shall ensure unrestricted public access to international telecommunication services and the unrestricted use of international telecommunications, except in cases where international telecommunication services are used for the purpose of interfering in the internal affairs or undermining the sovereignty, national security, territorial integrity and public safety of other States, or to divulge information of a sensitive nature.” We are concerned that this article, in its phrase to “information of a sensitive nature”, designates a criterion for limitation in the access to services that is hitherto unrecognized in international standards (see below). The phrase entitles Member States to exercise related constraints on the right to freedom of _expression_ online, which in turn would also limit public access to the range of information allowed on the Internet. The limitation could also impact on the boundaries for the media to operate independently. In particular, the phrase does not conform to the accepted international standards as set out by the Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which is widely accepted as the binding elaboration of Article 19 of the Universal Declaration of Human Rights. The standards for limiting freedom of _expression_ are outlined in Paragraph 3 of the ICCPR: Article 19 of ICCPR 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of _expression_; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. As is evident, the wording in the ICCPR does not provide for a limitation based on the criterion of “sensitivity”. The consequence of this additional ground for limitation could be to open the way for an expansion of cases of curtailment of freedom of _expression_, against the general situation that the right should be respected and limitations be kept to a minimum. Furthermore, we would note that from the point of view of UNESCO’s mandate, the term “sensitive” has a non-specific and potentially subjective character, and does not meet the tests of providing consistency or predictability to the public. The broadness of the proposed wording could therefore end up authorizing wide-ranging steps which de jure amount to violations, rather than legitimate limitations, of the right to freedom of _expression_. We would also like to draw your attention to a recent elaboration on Article 19 of ICCPR made by the UN Human Rights Committee (July 2011), in its General Comment No. 34 on Article 19 of the ICCPR. This Comment updates the Article 19 in relation to internet and mobile based electronic information dissemination systems. (We have highlighted in bold below those elements of the UNHRC Comment which have special relevance to UNESCO’s concern with the term “sensitive” in ITR Article 5A.4.) 12. Paragraph 2 protects all forms of _expression_ and the means of their dissemination. Such forms include spoken, written and sign language and such non-verbal _expression_ as images and objects of art. Means of _expression_ include books, newspapers, pamphlets, posters, banners, dress and legal submissions. They include all forms of audio-visual as well as electronic and internet-based modes of _expression_. 15. 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 take all necessary steps to foster the independence of these new media and to ensure access of individuals thereto. This Comment also detailed the principle of international standards on two limitative areas: The application of article 19 (3) 21. Paragraph 3 expressly states that the exercise of the right to freedom of _expression_ carries with it special duties and responsibilities. For this reason two limitative areas of restrictions on the right are permitted, which may relate either to respect of the rights or reputations of others or to the protection of national security or of public order (ordre public) or of public health or morals. However, when a State party imposes restrictions on the exercise of freedom of _expression_, these may not put in jeopardy the right itself. The Committee recalls that the relation between right and restriction and between norm and exception must not be reversed. The Committee also recalls the provisions of article 5, paragraph 1, of the Covenant according to which “nothing in the present Covenant 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 recognized herein or at their limitation to a greater extent than is provided for in the present Covenant”. 22. Paragraph 3 lays down specific conditions and it is only subject to these conditions that restrictions may be imposed: the restrictions must be “provided by law”; they may only be imposed for one of the grounds set out in subparagraphs (a) and (b) of paragraph 3; and they must conform to the strict tests of necessity and proportionality. Restrictions are not allowed on grounds not specified in paragraph 3, even if such grounds would justify restrictions to other rights protected in the Covenant. Restrictions must be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated. We believe that the ICCPR’s internationally-agreed standards on limitations should apply as checks and balances to all stakeholders who have powers to curb what is online, whether UN agencies, states, internet intermediaries or media that carry user-generated content. We believe these standards should also apply to ITU’s future ITRs and the ongoing process of World Conference on International Telecommunications (WCIT). Consequently, we propose that the reference to “sensitive information” be reconsidered. As the ITRs are dealing with a converged ICT world nowadays, care should be taken not to adversely impact on the exercise of human rights in the digital age including freedom of _expression_, access to information and press freedom. Any possibility that the ITRs could threaten freedom of _expression_ can be expected to incur extensive public criticism that could impact upon the UN more broadly, beyond ITU. As a long-term partner of ITU concerning the processes of World Summit on Information Society (WSIS), UNESCO appreciates your commitment to creating a more inclusive information society and ensuring equitable access to ICT around the world. We therefore look forward to remaining aligned in our respective fields as complementary sister agencies with the United Nations family. Division of Freedom of _expression_ and Media Development Communication and Information Sector UNESCO 1, rue Miollis 75732 Paris Cedex 15 France Tel.: + 33 1 45 68 43 99 Fax : +33 1 45 68 55 85 Email: g.mensah@xxx UNESCO DISCLAIMER Take a stand for teachers! Join us in celebrating 5 October, World Teachersâ Day. Agissons pour les enseignant(e)s ! Le 5 octobre, célébrons ensemble la Journée mondiale des enseignants |