The Rights to Freedom of Peaceful Assembly and Association and the Internet: Submission to the United Nations Special

Rapporteur on the Rights to Freedom of Peaceful Assembly and Association by Association for Progressive Communication (APC)
(Minor edits in this online version) Introduction APC welcomed the establishment of a Special Rapporteur on the rights to freedom of peaceful assembly and association in 20101 and the subsequent appointment of Maina iai as Special Rapporteur! "e are pleased that# pursuant to his mandate# the Special Rapporteur now see$s to gather information from all sta$eholders regarding the situation of the rights to freedom of peaceful assembly and association around the world# by way of the questionnaire distributed in %ecember 2011! APC is an international networ$ and non&profit organisation that belie'es the internet is a global public good! "e ad'ocate for e'eryone to ha'e access to a free and open internet to impro'e our li'es and create a more (ust world! )he rights to freedom of peaceful assembly and association are# together with the right to freedom of e*pression# at the core of a democratic and open society! )he rights are clearly stated in most human rights instruments# including the +, %eclaration on -uman rights .art 21# 22/ and the 0CCPR# as well as in many regional rights instruments and national constitutions! 1et in 2002 3reedom -ouse2 reported that the state of rights to freedom of peaceful assembly and association was declining# that repressi'e go'ernments were increasing restrictions on these rights# and that# in doing so such go'ernments were 'iolating international human rights standards! )hese go'ernment restrictions where seen as a response to mo'ements elsewhere in the world# which had been triggered through the establishment of .political/ associations! 4ust a few years later# the world has seen the 2011 Arab and Middle 5ast uprisings# strongly le'eraged by online digital tools for gathering and information sharing!6 Parallel

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+, %ocument A7-RC7R5S718721# http977daccess&dds&ny!un!org7doc7+,%:C7;5,7;1071<<7=27P%37;101<<=2!pdf>:pen5lement

3reedom of Association +nder )hreat9 )he ,ew Authoritarians? :ffensi'e Against Ci'il Society# 3reedom -ouse# 2002# http977freedomhouse!org7template!cfm>page@62AB$ey@1A8Bparent@16Breport@CA
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Global Information Society Watch 2011: Internet Rights and &ssociation 'nline .APC and -i'os# 2011/!

emocratisation foc!s on "reedom of #$%ression and "reedom of

to the strength which people ha'e gained through these mo'ements and these enabling tools# there has been a number of totalitarian crac$downs on both the mo'ements and the tools used! 0t is therefore of critical importance that the rights to freedom of peaceful assembly and association are understood in the light of how they are e*ercised on the internet and through the use of information communication technologies .0C)s/! "hile the internet and 0C)s offer new opportunities to e*ercise rights# they also ha'e potential as new tools of repression! . )his submission has three parts9 .a/ the conceptualisation of freedom of peaceful assembly and freedom of association on the internet# .b/ country specific cases and .c/ recommendations! A ! T"# $%&$#PT %F T"# RI'"T T% FR##(%) %F P#A$#F*+ A,,#)-+. A&( A,,%$IATI%& %&+I&# /. )he internet as a communication technology is not new and telecommunications as a means to e*ercise the rights to freedom of peaceful assembly and association has been a'ailable for a long time! )he last few years# howe'er# we ha'e seen an unprecedented de'elopment of new ways to communicate and interact online! "ith almost 2!8 billion internet users1# of which 200 million interact on 3aceboo$2# the +, Special Rapporteur on 3reedom of 5*pression recently stated that Dthe Internet is one of the most %o(erf!l instr!ments of the 21st cent!ry for increasing trans%arency in the cond!ct of the %o(erf!l) access to information) and for facilitating active citi*en %artici%ation in b!ilding democratic societiesE6! 0. :riginating from de'eloped world technology# the internet and its many communication tools are now increasingly becoming a'ailable in the de'eloping part of the world# including in countries with repressi'e regimes where democratic rights are urgently needed! 0nternet users per 100 inhabitants in de'eloping countries ha'e more than doubled since 200CA and are now increasing more rapidly than in de'eloped countries! 1. )he rights to freedom of peaceful assembly and association# as stated in the 0CCPR# as well as in other human rights instruments# gi'es protection to a wide 'ariety of ways to associate and assemble# and this protection is not limited to the traditional notion of public spaces .such as public highways# roads or other tangible spaces/! )he rights to freedom of peaceful assembly and association should be interpreted to include any space where people can meet# including online spaces! 2. Articles 21 and 22 of the 0CCPR pro'ide that any limitations on these rights must be pro'ided for by law# and allows only those limitations deemed absolutely necessary for national security# public order# or the protection of other rights! Fut in APCGs e*perience# limitations on the rights to freedom of peaceful assembly and association on the internet ta$e 'arious forms# and often do not comply with international human rights standards! 13. Such limitations or restrictions include technical measures in the form of filtering or bloc$ing certain websites or online tools# or e'en bloc$ing internet users themsel'es!
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0)+ Statistics .2012/# http977www!itu!int70)+&%7ict7statistics7 (estimate for 2011) 3aceboo$ statistics .2012/# https977www!faceboo$!com7press7info!php>statistics 6 +nited ,ations document A/HRC/17/27, (2011) para 2 A 0)+ Statistics .2012/# http977www!itu!int70)+&%7ict7statistics7 (12% of population in 2007 to 26.3% in 2011)

)hese technical measures are sometimes coded in law# most often in the name of protecting intellectual property or child pornography pre'ention! 0n that sense those restrictions are lawful# but only if such restrictions are absolutely necessary for national security# public order# or the protection of other rights can they be deemed complying with international human rights standards! 11. 3iltering and bloc$ing mechanisms will always affect a far larger group of people than the sought&after offenders! 0t is# in fact# impossible to target specific content7users without scanning e'erything7e'eryone! 3iltering and bloc$ing should therefore only be used in the most se'ere cases# and ne'er as an arbitrary pre'enti'e measure against intellectual property infringement or child pornography! 12. Fy enabling the user instant and global communication while $eeping relati'e anonymity# the internet plays an important role in facilitating traditional ways of association and peaceful assembly# through enabling effecti'e and quic$ planning of assemblies and associations! -owe'er# the internet also enables the e*ercise of assemblies and associations in ways ne'er seen before! )he massi'e global protest against the S:PA and P0PA legislations showed that important mo'ements no longer necessarily need representation in the physical world! The right to freedom of peaceful assembly 13. :nly peaceful assemblies are protected# according to article 22 of the 0CCPR! )his limitation does# howe'er# not mean that an assembly# whether online or offline# may be limited or pre'ented only because it is incon'enient or offensi'e to someone! :SC5 includes Dcond!ct that may annoy or give offence) and even cond!ct that tem%orarily hinders) im%edes or obstr!cts the activities of third %artiesE1 in its interpretation of the term peaceful! 14. )he right to freedom of peaceful assembly in an internet conte*t has two dimensions! 3irst# it means that a state is obliged to respect the right to organise and plan an assembly through online interaction! Second# the right must be interpreted as also protecting peaceful assemblies that occur online# through different web based tools such as 3aceboo$# )witter# discussion forums or online campaign acti'ities! 1 . )oday# any political protest is planned and organised through communication o'er the internet! )he internet enables gathering of large groups of people on short notice which is often critical in order to respond to a certain e'ent# such as an election# or to organise a counter&demonstration! 0t is therefore critical that bloc$ing of sites is ne'er conducted arbitrarily as e'en a short down&time can ma$e such organising impossible! )hese H(ust& in&time bloc$ingH techniques are a growing concern in the Middle 5ast and elsewhere! 1/. 3urthermore# it is widely interpreted that states# under international human rights standards# may require prior notice for a planned assembly while also pro'iding for spontaneous assemblies to occur2! As the internet enables far quic$er organising of assemblies it is important that restrictions that may ha'e been considered proportionate

:SC5 ;uidelines on freedom of peaceful assembly .200C/# http977www!osce!org7odihr72A826# p!16 :SC5 ;uidelines on freedom of peaceful assembly .200C/# http977www!osce!org7odihr72A826# p! A2

when organising assemblies too$ longer time are updated and shortened to allow for quic$ly organised assemblies! 10. 0n a world where citiIens are increasingly connected to the internet# assemblies are not only planned and organised online# assemblies can occur entirely online! Causes and protests do not always include people meeting physically anymore# they can effecti'ely occur entirely online# often with as much impact as traditional forms of assembly! 0t is our understanding that the right to freedom of peaceful assembly already protects such gatherings! )here may# howe'er# be a need to de'elop an understanding of the scope and implications of this right in the conte*t of online assemblies! The right to freedom of association 11. "hereas online assemblies might be more comple* to construe# it is more ob'ious that the internet plays a critical role in e*ercising the right to freedom of association! ,e'ertheless# it is important to understand the full implications of e*ercising the right to freedom of association on the internet or in relation to the internet! 12. )he right to freedom of association is often associated with the right to form political parties and the right to organise collecti'ely at the wor$place! "hile these two e*amples might be the most commonly threatened associations# it is important to recogniIe that associations are formed e'erywhere in society# and that many societal functions rely on the free formation of associations! ,ot only has the internet helped these associations reach out further and become more effecti'e# many such associations only e*ist online! 23. As mentioned abo'e# the relati'e anonymity that the internet offers enables people or minority groups to associate on sensiti'e matters such as se*ual orientation or religion! At the same time# the internet offers the state .or any other technically sa''y actor/ to implement sur'eillance measures# which may e*pose an online association publicly && with se'ere negati'e effects! 21. 0t is therefore important that states not only refrain from bloc$ing and filtering measures# as in the case of freedom of assembly# but also refrain from any sur'eillance measures that are not conducted in accordance with international human rights standards! Relation to other rights 22. As mentioned abo'e# the rights to freedom of peaceful assembly and association are closely related to a number of other human rights# ci'il and political as well as economic# social and cultural! "hile freedom of e*pression often is seen as an enabler of the rights to freedom of peaceful assembly and association# it may also be the opposite# as the formation of an association may be needed to effecti'ely de'elop and reach out with a message! 3urthermore# and in particular in an internet conte*t# the right to pri'acy is important for the realisation of the rights to freedom of peaceful assembly and association! As acti'ities online lea'e trac$s# the discussion on a possible right to anonymity as well as a possible right to be forgotten are rele'ant to e*ercising the rights to freedom of peaceful assembly and association online! New forms of violations and states positive obligations

23. Most analyses of statesG obligation to respect and protect the rights to freedom of peaceful assembly and association tend to focus on the need to refrain from any hindering acti'ities! 0t is# howe'er# widely accepted that it is the positi'e obligation of authorities to their citiIens! 0n matters of organised protest for instance# it is the duty of the police to not only not interfere# but also to ensure the safety of the protesters! 24. 0n an internet conte*t the statesG possibilities to positi'ely ensure citiIens? freedom to assemble or associate increases dramatically! As noted abo'e the pri'acy and anonymity of citiIens associating online is critical# and the rights to freedom of peaceful assembly and association must be understood as encompassing acti'e measures from the state so as to ensure citiIens? pri'acy and anonymity online! 2 . )he increase of online attac$s against independent media and human rights groups has pro'en to be an effecti'e way of silencing certain 'oices and groups at certain times1! 0t is therefore appropriate to consider the statesG positi'e obligations to include reasonable measures of protection for peaceful assemblies and associations from attac$s! 2/. 3urthermore# considering the importance of the internet for the realisation of the rights to freedom of peaceful assembly and association# it is reasonable to require states to employ policies on uni'ersal access to the internet! New remedies 20. ,ew forms of ways to associate and assemble ha'e lead to new forms of 'iolations of the rights to freedom of peaceful assembly and association! )his de'elopment has created a need to address new forms of remedies and accountability against human rights 'iolators! )o effecti'ely address such new remedies and accountability there is an urgent need for capacity building amongst human rights defenders about technical possibilities and threats as well as the application of human rights in an online en'ironment!2 Specific issues in relation to specific groups 21. )he impact of the internet on the situation of women cannot be o'erstated! )he internet can be a powerful tool for ending gender&based 'iolence by allowing access to resources and support! 0t helps to publicise abuses# which can bring pressure to bear on the authorities to ta$e action! -owe'er# the anonymity of the web# and its ability to shrin$ distances# also means that perpetrators can use it to harass# stal$ and find 'ictims! )echnology also heightens problems of pri'acy# e'idence and recompense e'ident in traditional gender&based 'iolence!6 22. 0n a recent mapping study# )a$e bac$ the )ech and ;ender0)!org showed that 0C) and online spaces ha'e become a significant component and e*tension of the reality of
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5than Juc$erman# -al Roberts# Ryan Mc;rady# 4illian 1or$# 4ohn Palfrey# istrib!ted enial of Service &ttac+s &gainst Inde%endent Media and ,!man Rights Sites# )he Fer$man Center for 0nternet B Society at -ar'ard +ni'ersity .2010/# http977cyber!law!har'ard!edu7node7<821
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Please find more information on remedies and accountability in the APC 0;3 wor$shop report9 http977www!apc!org7en7system7files70;3K20"or$shopK20188Lreport!pdf# and in the APC issue paper -uman Rights :nline & ,ew issues and threats# http977www!apc!org7en7system7files70R-RPolicyFrief L5,!pdf
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Read more about online 'iolence such as cyberstal$ing at http977www!ta$ebac$thetech!net7be&safe72&cyberstal$ing&and&how& pre'ent&it

'iolence against women# and thus far# insufficient attention has been paid to it by state# non&state and ci'il society actors1! )hese online forms of 'iolence against women must be understood also as a 'iolation of the rights to freedom of peaceful assembly and association as women are targeted as a group and are not free to e*ercise their rights through the internet if not protected from 'iolence and harassment! 33. )he 1==2 +, %eclaration on -uman Rights %efenders ac$nowledges the importance of the ability of indi'iduals to promote and protect human rights2! Since then# the internet has become an essential tool in the wor$ of human rights defenders# enabling them to put pressure on go'ernments to li'e up to international human rights standards! -owe'er# in the e*ercise of this important role through the internet# human rights defenders tend to become e'en more e*posed as a group# and deser'e particular protection in an online en'ironment! 0n reference to para! 22 and 2= abo'e# the protection of human rights defenders in an internet en'ironment needs to address the particular challenges women human rights defenders face6! - ! $%*&TR. ,P#$IFI$ $A,#, 31. F+M;AR0A9 Fulgaria is a good e*ample of how the right to freedom of peaceful assembly needs to be acti'ely protected online! As discussed in the Fulgaria ;0S"atch report# online forums and social networ$s are becoming dominated by e*tremist groups through hate speech! :ther social groups are pushed away as they are not protected enough from such derogatory attac$s!A As in any policing of assemblies# there is a delicate balance between protecting an assembly and allowing free speech! Policing online does# howe'er# need a specific approach and understanding of both the right to freedom of peaceful assembly and the right to freedom of e*pression! 32. F5MAR+S9 )he human rights situation in Felarus has been hea'ily reported on# unfortunately with some hyperbole8! ,otwithstanding such e*aggerations# the situation in Felarus is alarming in relation to many human rights# including the rights to freedom of peaceful assembly and association! Megislation restricting public assemblies not only 'iolate the right to freedom of peaceful assembly in its traditional way# it also targets any planning acti'ity# which means that merely discussing political protest online may be criminalised<!
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;ender0)!org# http977www!genderit!org7articles7mapping&intersection&technology&and&gender&based&'iolence

A7R5S78671AA# %eclaration on the Right and Responsibility of 0ndi'iduals# ;roups and :rgans of Society to Promote and Protect +ni'ersally RecogniIed -uman Rights and 3undamental 3reedoms# http977www!unhchr!ch7huridocda7huridoca!nsf7 .Symbol/7A!R5S!86!1AA!5n
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0n addition to the gender perspecti'e e*plained in para! 22 and 2=# the particular needs of protection for women human rights defenders are outlined in the commentary to the %eclaration on -uman Rights %efenders# http977www!ohchr!org7%ocuments70ssues7%efenders7Commentaryto%eclarationondefenders4uly2011!pdf# p!C
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Nera Stae's$a# 0s freedom of e*pression and association on the net wor$ing on the street># ;0S"atch 2011# http977giswatch!org7en7country&report7freedom&e*pression7bulgaria
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A more nuanced article on FelarusG claimed online iron curtain# http977www!dw&

world!de7dw7article70##18<A212<#00!html
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-uman Rights "atch "orld report 2012# http977www!hrw!org7sites7default7files7reports7wr2012!pdf# p! A2C!

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33. MAMA1S0A9 2011 was a 'ery turbulent year for Malaysian human rights acti'ists! )he 'iolent reactions to the peaceful Fersih 2!0 protests displayed a cold disrespect for the rights to freedom of peaceful assembly and association1! Fersih 2!0 demonstrations were largely coordinated o'er sms and twitter and these tools not only played a critical role in planning and setting up the e'ent# they were also important in $eeping the organisation peaceful! "hen the police use unpro'o$ed 'iolence against protesters such tools play a critical role in reorganising and a'oiding further clashes with the police! 34. )he turmoil around Fersih 2!0 has resulted in proposed further restrictions on the right to freedom of assembly# and a worrying instance of H(ust&in&timeH bloc$ings such as the %%:S attac$ on a top news paper during the regional elections in Sarawa$2! 3 . S:+)- :R5A9 )he Dcandlelight protestsE in South orea is another good e*ample of how peaceful protests can be $ept running o'er the internet despite 'iolent police clampdown of the physical demonstrations! 0n 2002# when the peaceful protests against importation of +S meat were met with 'iolence from the police# protesters 'ideo streamed police brutality and $ept the protests and discussions going in online media && at the time being the only way to e*ercise their right to peaceful assembly! As if 'iolent policing was not enough# the continued online protest was responded to by the orean state with criminal prosecution of protesters for Dfalse communicationE! Recently# a real name system has been established in the country# requiring e'eryone to display their real name when posting on the internet# something that has had a se'ere chilling effect on political opposition!6 3/. +SA9 Niolations of the right to freedom of peaceful assembly and association don?t only occur in de'eloping countries! )he action of forcing payment companies to not forward payments to the organisation "i$ilea$s was a clear limitation to the right to freedom of association! Since the actions of putting pressure on these companies to bloc$ payments were not pro'ided for by law it should not be deemed an acceptable limitation under international human rights standards!A $ ! R#$%))#&(ATI%&, 30. 0n reference to the abo'e# APC recommends 4 states incor%orate the online %ers%ective of any legislation or other meas!re in relation to the rights to freedom of %eacef!l assembly and association 4 states live !% to their obligation to %rotect online associations as (ell as online %eacef!l assemblies from attac+s4 the S%ecial Ra%%orte!r of the right to freedom of %eacef!l assembly and association) as (ell as other relevant .nited /ations bodies) f!rther develo% the
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-uman Rights "atch "orld report 2012# http977www!hrw!org7sites7default7files7reports7wr2012!pdf# p! 6A2

Softpedia# http977news!softpedia!com7news7Malaysia&s&)op&,ews&"ebsite&-it&by&%%oS&Attac$&1=A<20!shtml! See also the official announcement from the newspaper on 3aceboo$# https977www!faceboo$!com7note!php>noteLid@101801A80C<12<A2<!
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South orea?s 2002 candlelight demonstrations and digital rights# ;lobal 0nformation Society "atch# 2011# http977giswatch!org7en7country&report7social&mobilisation7republic&$orea A Cablegate9 Nisa and MasterCard face legal problems o'er "i$iMea$s bloc$ade# http977www!thetechherald!com7articles7Cablegate& Nisa&and&MasterCard&face&legal&problems&o'er&"i$iMea$s&bloc$ade

conce%t of the rights to freedom of %eacef!l assembly and association online) incl!ding a definition of an online assembly and s!ch a definition0s conse1!ences for states0 obligations to %rotect s!ch assembliesthe S%ecial Ra%%orte!r of the right to freedom of %eacef!l assembly actively see+ o%%ort!nities for collaboration (ith other s%ecial mandate holders on iss!es in relation to the internet- In %artic!lar) the mandate holders on the right to freedom of e$%ression) on violence against (omen) on the sit!ation of h!man rights defenders) on the right to health and on the right to ed!cation) sho!ld all ta+e into acco!nt the im%ortance of addressing the online as%ects of their (or+ collaborativelystates) as (ell as ./ bodies) ac+no(ledge states0 obligation to ens!re !niversal access to the internet as a means to realise !niversal h!man rights s!ch as the right to freedom of %eacef!l assembly and associationstates ac+no(ledge that restrictions ((hether d!e to state) family or c!lt!ral reasons) to (omen0s !se of the internet and comm!nication technologies adversely affect (omen and girls2 rights to f!lly %artici%ate in c!lt!ral life and the f!ll e$ercise of their citi*enshi% (ithin the evolving information society-