Международная защита прав человека в киберпространстве

ПРАВА ЧЕЛОВЕКА Салыкина А. М. Настоящая статья посвящена проблематике реализации прав человека в киберпространстве. В данной статье рассматриваются основные международно-правовые акты в области прав человека и масштаб их применения в глобальной сети Интернет. Автор пытается доказать актуальность защиты прав человека онлайн, в частности права на свободу слова, интеллектуальную собственность и права на неприкосновенность частной жизни. В статье также рассматриваются проблемы относительно дискриминационных действий в киберпространстве против таких уязвимых групп, как женщины и дети. В свете быстрого развития информационных технологий и распространения правонарушений в цифровом пространстве автор уделяет внимание выработке международных регулятивных инструментов. Раскрываются потенциальные вопросы создания международного трибунала по киберпространству, а также подчеркивается необходимость формирования юридически обязательного документа, регулирующего правоотношения в Интернете. Публикуемая научная работа заняла первое место в конкурсе работ по международному праву среди студентов и аспирантов в рамках «Студенческого симпозиума 2015», проведенного Факультетом международного права Дипломатической академии МИД России и кафедрой международного права юридического института Российского университета дружбы народов (РУДН ). В состав судей конкурса входил и главный редактор «Евразийского юридического журнала» д.ю.н. И. З. Фархутдинов. Для участия в Симпозиуме было зарегистрировано более 200 участников из 9 государств и 24 городов. Тематика «Студенческого симпозиума 2015» была посвящена значению и роли международного права в дипломатии, международных отношениях и мировой экономике, а тема эссе – вызовам XXI века и международному праву. Как победитель в конкурсе студенческих работ, автор настоящей статьи была награждена дипломом на пленарном заседании XIII Международного конгресса «Блищенковские чтения», состоявшемся 11 апреля 2015 г.

New technologies have always been challenging for the traditionally existed social rules and have also caused the adoption of new legal rules to deal with these changes. Information technologies are a very good example of such an effect. We live in a world today where extensive flows of information have become natural and indisputable features of modern life. Rapidly increasing number of online services, from social media to e-commerce and virtual collaboration, has come to define our day-to-day lives in ways that could not be imagined just a decade ago.

It is a well-known fact that knowledge and the ability to disseminate information can be a very powerful tool. Thus, it cannot be denied that communication technologies may determine social relations and shape society itself. Radio and TV have made the point even more evident, and many governments have both exploited new media to manipulate public opinion and attempted to prevent private actors from doing the same.

Creation of the Internet had a revolutionary effect. Due to the appearance of information and computing technologies, it became possible to live and act in the alternative reality without actually being physically present. Virtual world is rapidly converting into the matrix of human life and simultaneously it offers an ideal plat­form for committing various kinds of human rights and freedoms violations.

The traditional concept of human rights as a discourse has got multiplicity of meanings and it has been rapidly evolving over the past sixty years to serve different needs and stand for altering val­ues. However, this evolution has never been enrolling as quickly as over the last decade. It is most certainly because of the global phenomenon named Internet why such a concept as human rights gained a whole new dimension and urge for a new, international consensus to be properly protected on the cyber-arena.

In order to speak competently of the existence of human rights online and the necessity of its protection, it is important to define the very concept of cyberspace. Cyberspace is considered to be a borderless virtual public space created by the means of digi­tal technologies in which citizens, regardless of their nationality, ethnicity, citizenship, political and religious orientation, gender or whatever ground communicate and interact. With the help of new technologies, cyberspace offers a digital environment where par­ticipants have the ability to affect and influence each other.

Cyberspace is frequently referred to a virtual space which may not be located spatially. Naturally this space is transparent and neutral but it can be defined, broadened, limited and censored by its users. Therefore communication via the World Web is of­ten anonymous and yet used and shared with a worldwide public, which mostly remains personally unknown for the individual In­ternet user. This worldwide public counts today around 3 billion Internet users, so called netizens. If cyberspace were a country, it would be the largest and most populated country in the world, but still without any government, legislative bodies, law enforcement, protection mechanisms, or rules for participation, not to mention anything that is similar to a special constitution for all netizens.

While cyberspace might describe a phenomenon of informa­tion being routed through various jurisdictions, it still does not constitute some new form of 'outer space' where no State could, as a matter of international law, exercise its jurisdiction. On the contrary, it is more a question of technical feasibility of a State or an international organization to regulate conduct in the digital en­vironment, and also an issue of the willingness of States to agree on more specific rules which specifically may regulate such behav­iour. In other words, although communication in cyberspace is de jure subject to one or more States' jurisdiction, communication via the Net nevertheless, given its specific technical characteristics, does represent new challenges for the international law.

Human rights form the value basis of all normative and fac­tual acts of human agency. The 1948 Universal Declaration of Human Rights (UDHR) makes its starting point from the inher­ent dignity and the equal and inalienable rights of all human be­ings. Just as regarding to the cyberspace, human rights are global, or according to the Vienna Declaration and Programme of Action of 1993, "universal, indivisible, interdependent and interrelated". Unlike code, which can be changed at will, human rights are a value basis for all governance, including Internet Governance and, more importantly, a legally binding reference system that is bind­ing upon the States and other subjects of international law on the basis of ratification of the relevant human rights conventions and of customary law. In addition, the UDHR commits not only States, but every individual and every organ of society to secure the uni­versal recognition and observance of human rights and freedoms.

Human rights thus are a normative reference framework that in­troduces and protects human dignity in the cyberspace. The terms "Internet rights", "human rights" and "digital rights" will be used interchangeably in this contribution. While imbued with a differ­ent emphasis, their meanings intersect. This contribution will rely on notional dimensions that fall well within this intersection.

Vienna Declaration reminds that "[the] international commu­nity must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis". This concept is applicable both online and offline. However, human rights can and do interfere with each other; they are limited by the rights and freedoms of others as by the requirements of morality and public order. Human rights cannot be used to violate other human rights - and the human rights of others. Appreciating these processes re­quires a proper understanding of human rights in cyberspace.

Traditional system of human rights is premised upon certain non-articulated elements that cannot be taken for granted online. In normal space, privacy and anonymity towards State and corporate bodies are regularly granted and can only be lifted by considerable technical means or direct intervention. The situation in the cyber environment is quite the opposite. By sharing private information, billions of netizens have already created their virtual clones in this new digital world, without ever having a chance to delete informa­tion. Personal affairs and "being friends" in social networks such as Facebook, or for example its Russian analogy VKontakte, can be anonymous on the one side, and yet provide a vast amount of personal data and private correspondence that is now dealt with by anyone who seeks access to it in this 'endless' space.

This reversal situation provides the main reason for the neces­sity of specific rules in order to protect the right to privacy and ano­nymity and therefore allowing for the basis of democratic expres­sion and participation. The human rights protection regime has been slow in reacting to this paradigmatic change. The way people and actors behave and make decisions within the national space and territory (country or State) is guided by the principles and norms usually written down in constitutions or laws. In theory, these rules, regulations and laws are set up by the citizens for the citizens. A coherent approach to the Internet Governance, which is premised upon the notion of human rights, as well as setting up common rules and standards by Internet-users for the netizens is still missing in cyberspace. Most of its mechanisms so far have been ill-suited and the need for elaboration of what human rights stand for in the online realm has not enjoyed much attention from the international community.

It has been over 65 years since the adoption of the Universal Declaration of Human Rights and till present days the right to in­dividual property has been recognized as one of the basic rights. Nowadays, constitutions of many States foster both property rights and intellectual property rights as being fundamentally important. There has been some vagueness about whether intellectual proper­ty system due to its compound nature can be considered within the scope of human rights. However, the current situation recognizes the status of human right protection for both material property and so-called property of the mind.

The Internet contributes a lot to individual empowerment in the area of freedom of expression which is the very foundation and cornerstone of the majority of international human rights doctrines and national constitutions. Basically, freedom of speech covers the right to express any opinion without censorship or restrictions. Al­though freedom of expression is usually referred to in a positive context, there are also some negative sides of the issue. There are a lot of examples of harmful speech intensified by the new means: pro-terrorist, racist, defamatory, pedophile and other expression, while in evident decay in 'traditional' media has mainly shifted to the Internet.

The issue of privacy is one of the most important agendas in any debate regarding human rights in the today world and par­ticularly in the virtual reality. The right to privacy is central to who we are as humans and is enshrined in the UDHR and the ICCPR. It protects from unwarranted invasions into people's daily lives, allows to speak freely without fear of retribution, and helps keep personal data, including health records, political affiliations, sexu­al orientation, and familial histories, safe.

All human rights are infrangible, interdependent, and interconnected:     the improvement of one right facilitates advancement of the others; the deprivation of one right negatively impacts others. The linkages between the right to privacy, the right to access to information and freedom of expression are very close. Freedom of expression and privacy are explicit units of this international framework of human rights and are enabling rights that facilitate the meaningful implementation of other human rights.

Internet has brought with its appearance a new platform for discrimination and committing crimes. The sexual exploitation of woman and children is a global human rights crisis that is being escalated by the use of new technologies. The Internet offers an absolutely new kind of opportunities to both individual actors and the whole sex industry to market, find and oppress woman. Websites and chat-rooms can all be used for exploitation objectives as they serve as the perfect surface for this kind of criminal activity. Virtual child pornography is also worth considering in the context of cyberspace. As a public policy, some countries have adopted strict normative acts prohibiting any kind of posting related to sexual abuse of children. Nevertheless, some countries do not consider virtual child pornography to be equivalent to pedophilia and thus there is a conflict of existing laws in the national legislations, that is neither beneficial to legal certainty nor to the development of human rights protection in general.

In 2003 at the United Nations World Summit on the Informa­tion Society the Plan of Action was produced, which stated that: "... all actors in the Information Society should take appropriate ac­tions and preventive measures, as determined by law, against abu­sive uses of Information and Communication Technologies (ICTs), such as illegal and other acts motivated by racism, racial discrimi­nation, xenophobia and related intolerance, hatred, violence, all forms of child abuse, including paedophilia and child pornogra­phy, and trafficking in, and exploitation of, human beings".

In 2012, the UN Human Rights Council stated that the same rights that people have offline must also be protected online and calls upon governments-members to ensure freedom of expression and the access to Internet, or, at least, the access to international cooperations that provide media information such as social net­works, search engines, etc.

In 2013, during a number of occasions and events on the in­ternational and national level, such as the NSA affair between the USA, Germany or Brazil, the issues of cyber espionage and misuse of private data came out. In consequence and response to these different developments and incidents, the UN Special Rappor­teur urged the UN member states to ensure that individuals are able to freely seek and receive information or express themselves

whilst respecting, protecting and promoting their right to privacy. He emphasized that privacy and freedom of expression are inter­linked and mutually dependent and therefore without adequate legislation and legal standards to ensure the privacy, security and anonymity of communications, journalists, human rights defend­ers and whistle-blowers, cannot be assured that their communica­tions will not be subject to states' security. The UN report received many responses, in particular by the Civil Society Organization (CSO) network community. CSOs have long claimed that human rights are not protected well enough in cyberspace. The Electronic Frontier Foundation (EFF), for example, claimed that technologies can become a source of previously unimaginable state surveillance intrusions and metadata can reveal sensitive information that can be easily accessed, stored, mined and exploited.

Although citizens that use Internet within the borders of re­gional organizations such as the EU enjoy some protection, these measures are not valid globally. The USA or China have long urged for joint binding agreements to deal with the borderless data flow in order to either protect or to restrict it. In technical terms that is a fight with windmills that cannot be won by State institutions nor by international inter-governmental regimes alone. The reason why it takes more than just a few governments in international regimes, such as the UN to solve the problems is that it takes effec­tive institutions to enforce common rules. Without the wider cyber community, like technical companies, Internet providers, effective enforcement mechanism will less likely be established. Because the cyberspace is not restricted to states or to any geographical or physical borders, it is thus not bound to any State or inter-state agreement and it is not controlled by the state institutions alone. The international human rights protection regime, for example, is entirely based on states' (often nonbinding) willingness and capac­ity to promote and protect human rights and is therefore a valid but weak institutional set up to govern cyberspace. Moreover, be­cause this international regime depends on the joint agreements and regulations set by governments, including democratic and non-democratic ones, the results are often compromises that lack of strong monitoring and enforcement mechanisms based on inter­national human rights law. More so, other stakeholders are often excluded from this process, i.e. Internet providers, let alone the global network community or the billions of individual users. The International Internet Governance Forum (IGF), one of the main forums to tackle these issues, is also based on national institutions and their agencies and delegates. It is not truly transnational, al­though it aims to solve transnational violations of human rights and privacy. Still, there is no international cyber law to combat cyber-attacks or the dissemination of private data and secret files.

IGF bases its work on Dynamic Coalitions (DC) - working groups of volunteers who liberally establish their working meth­ods and results. So far 12 active DCs have been called to life, in­cluding DCs on Child Online Safety, Privacy, Freedom of Media and Freedom of Expression Online, Gender to name only those dealing closely with human rights issues. The DC that took upon itself elaborating an Internet Bill of Rights was the Dynamic Coalition on Internet Rights and Principles (IRPDC).

Initially the Internet Bill of Rights was to be a framework document to incorporate all the human rights applicable to the In­ternet activities, in their new, modified meaning. With time, the idea evolved into a series of background documents, possibly com­ments, on the way the traditional human rights documents should be interpreted and implemented for their application in cyber­space. The most recent development of the DC consists of a pro­posal of a unique Internet human rights anarchy - a self-regulating regime where the users themselves act as the sole watchdogs and the Internet service providers (ISP) as the sole censors.

Council of Europe's Convention on Cybercrime was opened for signature in November 2001. Till today, there are 45 nations which have ratified the Convention on Cybercrime (Russia has nei­ther ratified nor signed the Convention). The purpose of the docu­ment is: ".to pursue, as a matter of priority, a common criminal policy aimed at the protection of society against cybercrime, inter alia, by adopting appropriate legislation and fostering internation­al co-operation.. "

In December 2013 the United Nations General Assembly deeply concerned that electronic surveillance, interception of digi­tal communications and collection of personal data may adversely affect human rights, adopted a consensus resolution strongly back­ing the right to privacy, calling on all countries take measures to end activities that violate this fundamental "tenet of a democratic society." By a text entitled Right to Privacy in the Digital Age, the Assembly weighed in on the emerging issue, underscoring that the right to privacy is a human right and affirming, for the first time, that the same rights people have offline must also be protected on­line.

Seeking the international activity in the field of human rights protection online one must point to few organizations (mainly NGOs) and initiatives which have noticed this problem and tried to spread awareness thereof. The OpenNetlnitiative presents exten­sive reports on all the national censorship practices, continuously updating its list of "filtering" countries and methods.

Amnesty International took upon an initiative named: "Inter­net repression", which aims at depicting repression on the Inter­net and for actions committed online. The only intergovernmental body that so far has shown any effort in promoting human rights in the cyber realm is the Council of Europe. Its 2003 Declaration on Freedom of Communication on the Internet encourages the mem­ber states to obey the 7 principles aiming at supporting freedom and access to information in the Internet. It advocates for freedom of speech, self-regulation and right to privacy. However it should be emphasized that this document has no legally binding value. Another CoE document that deals with the discussed issue in more details is the 2005 Declaration on Human Rights and the Rule of Law in the Information Society. It presents a more detailed cata­logue of rights to be protected and principles to be implemented in the cyber environment. It calls for the wide accession to the CoE 2001 Cybercrime Convention and in particular to its 2003 Addi­tional Protocol which attempts to specify the limits of freedom of speech online, particularly by defining acts of a racist and xeno­phobic nature committed through computer systems.

Looking for global answers to the problem of effective hu­man rights protection in digital environment the activities of the United Nations Organization should unavoidably be mentioned. UNESCO's International Programme for the Development of Communication promotes the growth of free media in develop­ing countries. However this programme is naturally not the only activity conducted by this global organization that deals with the electronic medium and its legal challenges. Following the debate initiated within the UN fora back in 1998, the UN World Summit of Information Society (WSIS) put the question of feasible Inter­net governance on the international diplomatic agenda during its Geneva meeting in 2003. The Declaration of Principles and the Ac­tion Plan presented during that meeting pointed out many goals to be achieved on the international field of Internet governance and called upon a newly created Working Group on Internet Gover­nance to work on their fulfillment. WSIS in its Statement on Hu­man Rights, Human Dignity and the Information Society empha­sized the basic rights to be protected online and proposed basic standards for their protection. It called upon such fundamental human rights documents as the UDHR and the ICCPR. The work of WSIS was further developed by the Working Group on Internet Governance (WGIG) in its 2005 Report. In the section entitled "Rec­ommendations to address Internet-related issues" the basic human rights are named and indicated as being of particular importance to all those creating the Internet governance framework - national governments as well as international organizations. The mission to further develop the Internet governance principles, including the due framework for human rights protection online was passed onto a new, multi-stakeholder UN meeting platform - the Internet Governance Forum. One should note however that there has been little activity so far in the discussed field on behalf of the High Commissioner for Human Rights.

It seems clear that with no governmental and international authority little can be done for human rights online to be taken seriously. Especially in the era of cyberterrorism an international action to protect human rights and freedoms worldwide seems urgently needed as the context of human rights seemed disregard­ed in all the regulations aimed at preventing cyberterrorism and cybercrime. Due to the fast paced technology and development, the status of legislation concerning cyber law is quite incomplete. Thus the idea for an International Criminal Court or Tribunal for Cyberspace has also been raised by a number of advocates. How­ever the draft proposal is limited to the "most serious violations of international cybercrime law" and may not capture or resolve all the questions raised here. When most national governments are willing to sacrifice their citizens' privacy and freedom for the sake of content-control the only way to fight against this tendency is to get those very same governments interested in international Inter­net governance, one pillar of which is the protection of inherent human dignity that serves as the stepping stone of the UDHR. If that is not the case, the achievements of the last 67 years of human rights protection might appear jeopardized.

The biggest problem of the electronic exchange that yet seems not to be tackled is the question of limits of state powers in the cyberspace. So far no jurisdictional settlements have been made on an international level concerning the Internet. There are numerous agreements and proposals dealing with different aspects of Inter­net activities, however neither of them deals directly with the issue of limits of national power. The main problem brought about by the lack of jurisdictional agreements regarding the Internet is the legal insecurity of all netizens, because there is no international understanding on criminal jurisdiction in cyberspace.

All the issues discussed above seem to constitute the start­ing point of a discussion on the shape of human rights protection in the digital era. The practice of international law shows that no action may be taken within the international society quickly - all decisions and deliberations take time and much diplomatic effort. On the other hand the question of legal security of netizens is much more pressing. The threat resolving form the present, unsure situ­ation is the particularization of the Net, which may be already no­ticed in the example of strongly filtered local networks, such as China or Singapore. In order to avoid such a danger governments (with the encouragement from civil society) should commence ap­propriate diplomatic action immediately. The issue of human rights might be discussed with the aim of creating a human rights based convention applicable in cyberspace. It may (and should) however also be regarded as a part of a bigger challenge - the question of international Internet governance. Without an international debate on Internet governance the danger of a particularized, nationalized net appears. Losing the medium that has already changed so much in the sphere of human communication and exchange might show to be an irreparable damage to the human development.

The Internet has opened a Pandora's Box of human rights vio­lations: the proliferation of traditional as well as the emergence of new forms of abuse and the extension of opportunities and meth­ods to carry out crime are among them. However, despite the ac­tual significance of the research in these areas the topic of existing and violating human rights in the context of digital space is new enough for studying, especially in Russia. In other words, the cur­rent level of human rights protection is not adequate enough as regards to the breaches of law committed in cyberspace.

Information and communication technologies (ICTs) do not change the level of protection that human rights should enjoy. They do, however, impact the way they can be threatened and pro­tected as well as cyberspace also colonizes our non-virtual reality and lest it totally controls daily life. This is why human rights need to be interpreted in a way that allows their respect and implemen­tation in the globalized information society and consequently an appropriate way for the regulation of cyberspace with regard to human rights should be established. Ideally, human rights were designed to protect our freedoms and dignity against possible in­fringements regardless of the offender or the form of violation. The fact that national legislators or international community have not reached a consensus regarding cyberspace governance yet, should not hamper individual's rights and freedoms in the Internet. Hu­man rights protection has a great importance in both real-life set­ting and while acting online. Human rights violations in cyber­space are a part of today's reality even though they occur behind the computer screens. Real life people act behind avatars and, con­sequently, a real life protection is needed when talking about hu­man rights infringements occurring in cyberspace.

To draw the conclusion, the question of who can protect, im­plement and enforce human rights in cyberspace, if governmental mandates end at their state borders still remains open. Neverthe­less, the normative legal and political framework within the State borders could also be transferred to the cyberspace, because it is defined by universal values and norms, such as the international human rights norms and rules. Eventually, the cyber reality lacks a quasigovernment or governance regime that governs the needs and claims of its citizens, namely Internet users, by the means of monitoring and enforcement bodies. Although regional or interna­tional governmental organizations such as UN, ASEAN, EU, OSCE, OAS or AU, have the topic of dealing with the consequences and effects of global data flow, intellectual property, secret information or private data on their agendas and aim to set international stand­ards for the use of Internet and cyberspace, they generally fail to do so⁹. The reason for this is that States' powers and enforcement mechanisms often end at the State borders because their mandate to protect human rights is entirely based on the State's sovereign­ty. IGOs and international courts also have only limited measures and instruments to protect human rights, let alone enforce them. Owing to the fact that cyberspace has no physical or national bor­ders, the means and ways to govern this new borderless space are not defined yet. Nevertheless, in the efforts to set up a cyberspace governance regime, human rights norms and standards shall give guidance of its establishment to the different actors that are in­volved in the process of its regulation. If ever established, the cy­berspace governing body will be one of multiple stakeholders and actors including national, international as well as private actors, such as representatives of companies, social networks, NGOs and individuals.

To sum up, we assume that without a commonly accepted legally binding document based on human rights and the rule of law based on effective measures and mechanisms to enforce these rules, the netizens or citizens around the world will face difficulties in protecting and enjoying their human rights online. Elaborating alternative paths to understand and find solutions to the human rights related problems in the cyberspace and presenting some completely new and innovative ideas is needed in this regard. It is necessary to explore the future of human rights in reference to the virtual reality. In order to do that it is essential to think over what actions could be taken to guarantee that right to property, right to privacy, problems related to freedom of speech and discrimination are not jeopardized even further in the nearest future.

Статья опубликована в Евразийском юридическом журнале № 7 (86) 2015