The special rapporteur’s 2018 report31 sought to answer important questions related to communication rights by proposing a framework for moderating online user-generated content that places human rights at the heart of the matter. The special rapporteur on freedom of expression’s recently published report32 warns about surveillance of certain people, proposing a legal and policy framework for regulation, accountability, and transparency in the private surveillance sector.
As a last example of this soft law, I would mention that in November 1999, the three leading figures with a remit especially focused on freedom of expression33 – the UN special rapporteur for freedom of opinion and expression, the Organization for Security and Co-operation in Europe representative on freedom of the media, and the Organization of American States (OAS) special rapporteur for freedom of expression – met for the first time under the initiative of Article 19, a human rights nongovernmental organization, and adopted a joint declaration recalling the importance of freedom of expression in the functioning of democracy, the need for media pluralism and independence, the role that this freedom plays in denouncing dishonest or criminal practices by public authorities or economic powers, and the need to tackle any attempt to limit this freedom.34
The challenges facing effective recognition of communication rights within the UN are continuing to grow. For example, the subject who holds these rights is being redefined, as the formulation included in 1948 (“everyone”) is perhaps taking on a new meaning. The classic “Desantesian” separation of universal subject, professional subject, and organizational subject (that can be seen in this work commented on by Ignacio Bel Mallén in Chapter 7) must be understood in a more fluid way and based on the transformation of current communication models, wherein the same individual can perform the functions of any of the three subjects. In this sense, the all-encompassing protection derived from Article 19 makes more sense in the digital ecosystem in which we operate, whose concepts of emitter, receiver, channel, and so on, are constantly changing.
Finally, we cannot ignore the importance of these rights owing to their essential function in the proper functioning of the entire system of human rights (Shah and Boyle 2013, p. 266) and democracy (Barent 2005). Communication rights act as multipliers or metalaw due to their function in enabling the enjoyment of so many other rights (O’Flaherty 2012) that ensure individual development and personal self-realization (Schauer 1982, pp. 4–5) and, as Dworkin (1997) indicates, are derived from the right to human dignity, respect, and equality for all.
In order for all of this to become meaningful, a rereading of the aforementioned Article 19’s that does away with the so-called digital divide is necessary, since the right to access the Internet is becoming the primary requirement when it comes to the exercise of freedom of expression and communication rights; it is the basic prerequisite for enjoying all the possibilities that the Internet has to offer.
Conclusion
The process through which communication rights have been recognized within the UN has evolved according to the changes experienced in contemporary societies and in international law. Its first stage began with Article 19 of the UDHR as a paradigm; despite its many shortcomings, that Article served as a trigger for raising awareness of the importance of these freedoms. Its pioneering recognition of the two-fold nature (information and opinion) of communication activity has endured until today. The use of international law’s classic instruments in the UN continued with the promulgation of the ICCPR, which through its optional protocols, incorporated the possibility of the UN Human Rights Committee’s creation of a certain amount of “case law” on the rights recognized in that document, with special emphasis laid on the communication rights set forth in the covenant’s Article 19. But a changing international context and societies in which technology is omnipresent requires new ways of approaching communication’s regulatory challenges. In this regard, the UN has opted for the use of “soft law” initiatives arising from its moral authority in order to influence national legislation, replacing the conventional models used to date, as the various examples described in this chapter show.
References
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Notes
1 1 As one of the drafters of the UDHR, René Cassin, stated, the Declaration represents