Digital technologies as a means of repression and social control
actors, in particular large online platforms. In the joint declaration by freedom of expression monitors from the UN, OSCE, OAS and ACHPR, ‘a private control over online information flow’ is considered one of the main challenges to the freedom of expression for the upcoming decade 256. At the same time, online platforms are in a ‘unique position to prevent or mitigate risks that may be inflicted by users’ illegal activity’ 257. At the moment, the vast majority of international standards which aim to address this problem focus on content moderation 258. In particular, there are recommendations for States on how intermediaries’ liability regimes should be shaped at the national level. According to those standards, while in principle intermediaries should cooperate with states to effectively secure the restriction of illegal content, they should also benefit from limited liability regimes. States should refrain from imposing obligations to use general content monitoring to pro-actively identify illegal user-generated content in national laws 259. Moreover, there are recommendations regarding the need to adhere online platforms’ internal policies to international freedom of expression standards, and provide ‘due process’ safeguards for users, as well as independent, external oversight of the take down decisions, including those made on the basis of the companies’ own terms and conditions 260. There is also a growing body of recommendations concerning the use of automation in content moderation. These refer, in particular, to the need for increasing transparency of algorithms used for this purpose, and to possible limitations for their application due to the ‘deleterious impact’, which a sole reliance on these tools may have on human rights 261. Moreover, as already flagged in the section on AI, human rights institutions have been increasingly addressing the use of algorithms for broader content governance which enables companies to ‘curate search results and newsfeeds as well as advertising placement, organising what users see and when they see it’ 262.
3.5
Human rights and private actors
A transformative feature of the digital communications environment which transpires not only from the previous section, but the entire study, is the impact of private companies on human rights in digital space 263. As already mentioned, this applies especially to internet intermediaries, including, in particular, large, dominant online platforms operating globally, such as social media or search platforms. Additionally, the international human rights legal framework puts a spotlight on the private surveillance tools industry. The role of both kinds of these non-state actors has been emphasised in most of the issue-specific instruments discussed earlier in this chapter (however, as highlighted above, some of these instruments still fail to appropriately address the significance of private sector 264). Much of the literature on human rights considers that the framework applies primarily to state actions. The states’ duties extend beyond the obligation to respect, however, and also include ‘positive’ measures to UN Special Rapporteur on Freedom of Opinion and Expression, OSCE Representative on Freedom of the Media, OAS Special Rapporteur on Freedom of Expression and the ACHPR Special Rapporteur on Freedom of Expression and Access to Information, ‘Joint Declaration on Challenges to Freedom of Expression in the Next Decade’, 2019. 257 B. Bukovska, ‘Spotlight on Artificial Intelligence and Freedom of Expression #SAIFE’, OSCE, 2020. 258 COE Committee of Ministers, op. cit., 2018; UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Report no. A/HRC/38/35, op. cit., 2018. 259 UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, op. cit., 2018; COE Committee of Ministers (2018), op. cit., 2018. 260 Ibidem. 261 UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, ‘Disease pandemics and the freedom of opinion and expression’, Report no. A/HRC/44/49, 2020; Report no. A/73/348, op. cit. 2018; COE Committee of Ministers, op. cit., 2018. 262 UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Report no. A/73/348, 2018, Ibidem; see also: COE Committee of Ministers, ibidem., 2018. 263 UN Special Rapporteur on Freedom of Opinion and Expression, OSCE Representative on Freedom of the Media, OAS Special Rapporteur on Freedom of Expression and the ACHPR Special Rapporteur on Freedom of Expression and Access to Information, ‘Joint Declaration on Challenges to Freedom of Expression in the Next Decade’, op. cit., 2019. 264 See UN Human Rights Council, A/HRC/44/L.11, op. cit., 2020, discussed in the section ‘Surveillance in a digital age’. 256
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