《明道个人资料与明道明道个人资料直播间——一场精彩的虚字表达》

在当今社会，“明道个人资料”和“明道明道个人资料”的直播区是连接中国乃至世界各地粉丝一个大家堂的重要场所。这两个杰作不仅提� Written Evidence Submitted by: Dr. Stephen J. Kinsella

Date: 10th November 2019

To the Standing Advisory Commission on Human Rights (SAC-HR) for its Inquiry into “Human dignity and human rights in an age of digital technology”

Submission No. 76 - The importance of freedom of expression online and offline

I am a Professor at the School of Law, National University of Ireland Maynooth (NUIM), who has written extensively on issues related to censorship and human rights law. I was asked by NUIM students to contribute my views as part of their participation in SAC-HR’s public hearings process.

The following submission is made directly from myself, rather than being attributed to any organisation or employer for the purposes of independence. It addresses specifically two key questions set out above: (a) should human rights law apply online? and (b) what does this mean in practice?. I conclude with a few recommendations as to how we might proceed towards an answer which protects human dignity whilst also supporting free expression, both offline and online.

(1) Should human rights law apply online? Yes, absolutely – but it will take more than legislation; freedom of expression must be underpinned by culture and education too.

The starting point for the SAC-HR to consider is that human dignity - not just in its philosophical sense as a value or concept, but also when understood as a legal principle in international law – is protected from undermining interference through freedom of expression both online and offline (United Nations Human Rights Committee General Comment 34). This right to free expression must therefore apply equally whether you are speaking at a political rally in your town or sending an email over the internet.

But what do we mean when we say “online”? The question before us is not just about how human dignity might be affected by something that happens on social media, but also - and perhaps more importantly – how free expression itself will continue to evolve as a concept in an online environment. Free expression applies equally in the analogue world (in which we have laws against hate speech) and in its new digital form (in which “speaking” takes place over digital networks rather than face-to-face).

As with all human rights, however, free expression is not a right to be exercised without limits. Human dignity may well be undermined when someone speaks on social media. When this happens we need to ask: “does the harm caused outweigh freedom of expression?” We must also consider whether it is possible to put in place adequate safeguards against abuse (for example, through human rights education).

However, free expression should not be overly restricted on account of potential or perceived risks. This would have the effect of undermining one aspect of what constitutes an open society - namely a willingness to listen and engage with different ideas and viewpoints online in order to build consensus or compromise where possible.

The key, then is not only for us to determine how best we can protect human dignity; it also lies within our ability as individuals (and through education) to use the medium of free expression – both offline and online - responsibly whilst engaging in dialogue with others about those risks which exist.

(2) What does this mean in practice? Human rights law must apply equally across digital platforms. This may require legislative intervention, but it should not be done on a platform-by-platform basis.

The European Commission (EC) has long recognised the importance of applying human rights law online as well as offline; EC guidance states: “The application of [the EU charter] to digital media is essential…[since] infringement may occur at any point along the chain from creation or acquisition of content through its publication on social media platforms, and beyond”. This was a welcome recognition that human rights are not confined by the physical medium which delivers them. The EC has also gone so far as to state that “any company, whether publicly held or private” should be subject to this principle.

But applying human rights law on an equal basis across all platforms does not mean that a one-size fits all approach is required (or even desirable). For example: we might consider the need for some kind of safe harbour provision in which companies can rely on good faith efforts at content moderation; or perhaps there will be differing requirements depending on whether a platform operates as a public service such as Facebook, Google, Twitter etc.

But the fact remains that human rights law must apply across digital platforms. We are not dealing with an issue of technological development so much as one of cultural change wherein we move towards more and more online-based interactions in our personal and professional lives; this is something which all governments will need to adapt their legislation and policy framework for if they wish to remain competitive on the international stage.

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(3) Recommendations: To ensure human dignity whilst protecting free expression we must take a holistic approach which includes legislative reform, education and cultural development.

The primary role for government is to create an enabling legal framework that reflects the reality of our changing online world while safeguarding human dignity (the EU has taken steps in this direction with its General Data Protection Regulation). But we can go even further than legislation; culture and education are also important. For example, initiatives such as the European Union’ran @SafeBullying campaign or Ireland's National Anti-bullying Strategy (2015-20) which seeks to address both online and offline bullying can have a positive impact on our culture of free expression whilst protecting human dignity.

To be effective, this approach must also involve industry - digital platforms such as Google or Facebook will need to play their part in facilitating dialogue between governments, civil society groups and individual users; for example by developing more robust content moderation policies that are transparent about how they make decisions on free expression.

A holistic approach which recognises the importance of online platforms is key if we want to protect human dignity whilst allowing people both offline and online a voice in shaping our digital future.