Working Group on Arbitrary Detention Notes Increasing Arbitrary Detention as a Result of Drug Control Laws and Calls on States to Decriminalise the Use and Possession of Drugs for Personal Use
The Human Rights Council this morning held an interactive dialogue with the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. It also started an interactive dialogue with the Working Group on Arbitrary Detention.
Irene Khan, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, said that her report on disinformation and freedom of opinion and expression concluded that access to reliable information sources, free, independent and diverse media, digital literacy and smart regulation of social media was the obvious antidote to disinformation. Thus, she recommended that (1) States must refrain from sponsoring or spreading disinformation, (2) freedom of expression was not an absolute right, but in restricting it States were obliged to scrupulously respect international human rights standards, and (3) State regulation of social media should avoid content moderation and focus instead on enforcing transparency.
In the ensuing dialogue, speakers highlighted that modern-day disinformation was a threat to democracy around the world, and even the international rules-based order itself. The Internet provided a unique platform for the exercise of human rights more fully, but speakers expressed concern about rising instances of State-sponsored actions curbing freedoms online. Speakers said that some countries fabricated disinformation to create a human rights pretext to meddle in other countries’ internal affairs, expressing concern that some Special Rapporteurs used this disinformation in their work uncritically. Speakers condemned the unacceptable use of State-sponsored trolling and disinformation to silence journalists, disproportionately affecting those with marginalised and intersecting identities.
Speaking were the European Union, Sweden on behalf of a group of countries, Ukraine on behalf of a group of countries, Finland on behalf of a group of countries, China on behalf of a group of countries, Brazil on behalf of a group of countries, Canada, Sierra Leone, Libya, Australia, Germany, France, Indonesia, Luxembourg, Israel, Ecuador, Ghana, Czech Republic, Switzerland, Cuba, Costa Rica, Montenegro, Fiji, Iraq, Armenia, Syria, Chile, China, India, Maldives, Morocco, Lebanon, Burkina Faso, Netherlands, Venezuela, United States, Egypt, Singapore, Greece, Nepal, Slovakia, Botswana, Namibia, Austria, Azerbaijan, Sudan, Ireland, Pakistan, Belgium, Nigeria, Timor-Leste, Georgia, United Kingdom of Great Britain, Afghanistan, Ethiopia, Mauritania, North Macedonia, Russian Federation, Poland, Tanzania, Honduras, UNESCO, Albania, Malawi, South Sudan, Belarus, Colombia, Kazakhstan, Cameroon, Liechtenstein, Philippines, Barbados, Republic of Moldova, Bolivia, Viet Nam, Malaysia, Uganda, Bangladesh, Tunisia, Algeria, and Cambodia.
The following civil society organizations also took the floor: Commonwealth Human Rights Initiative, Palestinian Initiative for the Promotion of Global Dialogue and Democracy, Association for Progressive Communications, Article 19 – International Centre Against Censorship, Freemuse – The World Forum on Music and Censorship, Mouvement contre le racisme et pour l’amitié entre les peuples, International Federation of Journalists, Cairo Institute for Human Rights Studies, Ordem dos Advogados do Brasil Conselho Federal, and World Evangelical Alliance
The Council then began an interactive dialogue with the Working Group on Arbitrary Detention.
Elina Steinerte, Chair-rapporteur of the Working Group on Arbitrary Detention, presenting her report on arbitrary detention relating to drug policies, said the Working Group noted with concern the increasing instances of arbitrary detention as a consequence of drug control laws and policies and found that people who used drugs were particularly at risk of arbitrary detention. The Working Group thus recommended that States decriminalise the use, possession, acquisition or cultivation of drugs for personal use, including the possession of associated paraphernalia, as well as release persons detained only for drug use or possession for personal use, review their convictions, and expunge their records. States should also prioritise non-custodial alternatives to prison for those accused or convicted of minor drug-related offences.
The webcast of the Human Rights Council meetings can be found here. All meeting summaries can be found here. Documents and reports related to the Human Rights Council’s forty-seventh regular session can be found here.
The Human Rights Council will next meet at 3 p.m. this afternoon to continue the interactive dialogue with the Working Group on Arbitrary Detention, followed by an interactive dialogue with the Special Rapporteur on the right to privacy.
Interactive Dialogue with the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression
The Council has before it the report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (A/HRC/47/25) on disinformation and freedom of opinion and expression
Presentation of the Report
IRENE KHAN, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, stated that although there was no universally accepted definition of disinformation, drawing broadly from international practice she had interpreted the concept to mean false or misleading information disseminated intentionally to cause serious social harm, and misinformation to mean the dissemination of false information unknowingly. The report found, firstly, that disinformation, interacting with political, social and economic grievances in the real world, was undermining freedom of expression and democratic institutions, polarising political debates, fuelling public distrust and endangering human rights, public health and sustainable development. Secondly, while disinformation was problematic, so too were the responses of some States that had resorted to disproportionate measures such as Internet shutdowns or to broad, vaguely defined laws that criminalised, chilled or censored online speech, or compelled social media platforms to remove content without a judicial process.
Thirdly, company responses to disinformation had been reactive, inadequate and opaque. Practices of the largest social media companies appeared to be driving users towards “extremist content” and conspiracy theories in ways that fed and amplified disinformation, while robbing individuals of their autonomy to freely develop their own views. Fourthly, attempts to combat disinformation by undermining human rights were short sighted and counter-productive: freedom of expression rather was the primary means for fighting disinformation. The report concluded that access to reliable information sources, free, independent and diverse media, digital literacy and smart regulation of social media was the obvious antidote to disinformation. Thus, she recommended that (1) States must refrain from sponsoring or spreading disinformation, (2) freedom of expression was not an absolute right, but in restricting it States were obliged to scrupulously respect international human rights standards, and (3) State regulation of social media should avoid content moderation and focus instead on enforcing transparency.
Discussion
Speakers highlighted that modern-day disinformation was a threat to democracy around the world, and even the international rules-based order itself. The Internet provided a unique platform for the exercise of human rights more fully, but speakers expressed concern about rising instances of State-sponsored actions curbing freedoms online. Some countries fabricated disinformation to create a human rights pretext to meddle in other countries’ internal affairs, said speakers, expressing concern that some Special Rapporteurs used this disinformation in their work uncritically. Ensuring people’s digital and media literacy was key to combatting disinformation. Speakers condemned the unacceptable use of State-sponsored trolling and disinformation to silence journalists, disproportionately affecting those with marginalised and intersecting identities. Warning that a blanket approach would not work, speakers called for a socio-cultural and historical lens – in some societies the same set of disinformation could be shrugged off, while in others it could lead to real harm. Other speakers did not believe that disinformation was the result of societal breakdown – it was instead an explicit goal of some Governments.
Globally, governments used network restrictions or Internet shutdowns to suppress the free and open exchange of information online, including around elections, speakers remarked. Some speakers said the report contained falsehoods and emphasised that while their approach may not conform to certain ideological preferences, their laws were theirs to make. Given the importance of the #MeToo movement, how could “gender disinformation” be better addressed? Social media companies must uphold human rights in all areas to the same extent, speakers said. The spread of misinformation on vaccines was a source of concern.
Interim Remarks
IRENE KHAN, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, said “disinformation” was difficult to define because it was very hard to determine what was true and what was false, especially as regards satire and evolving knowledge, for instance. What was certain, however, was the existence of a right to freedom of opinion and expression, and this right should be the starting point when it came to addressing disinformation. The right to information, under article 19 of the Universal Declaration of Human Rights and the United Nations International Covenant on Civil and Political Rights, entailed an obligation incumbent upon States to ensure access to information, including by providing access to the Internet. States could not talk about tackling the digital divide while shutting down access to the Internet when it suited them. Companies, too, had to do more. A strong framework for data protection to control the ad-driven model they used was required. States needed to act to bring companies’ practices in line with human rights, notably as regards due diligence. Responding to the question about #MeToo and gender disinformation, the Special Rapporteur said her next report would focus on gender justice.
Discussion
The quality of the work performed by the Special Rapporteur was praised by speakers, who expressed particular concern that disinformation had the potential to sap the trust and confidence of populations in democratic institutions. Speakers urged States to consider geographical disparities with respect to content moderation, especially in Asia and Africa. Corporate and hegemonic fact-checking platforms mostly used English, excluding vernacular languages and ignoring specific socio-political contexts. Some States had adopted repressive laws with vague terminology criminalising the spread of disinformation, which were inherently incompatible with the principles of legality, necessity and proportionality. Speakers urged States to tackle disinformation by promoting a diverse and independent media, protecting journalists and whistle-blowers, ensuring access to information held by public bodies, and investing in media and digital literacy. Blanket bans and vague provisions on the dissemination of alleged misinformation and disinformation were being used to suppress criticism by artists and creative persons worldwide, speakers said.
Concluding Remarks
IRENE KHAN, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, thanked all those who had contributed to the report, including 120 civil society organizations from all around the world. Governments must facilitate the engagement of civil society on the promotion and protection of the right to freedom of opinion and expression, consulting directly with members of civil society. Governments must work with companies as well – no one actor had the answer to the problem of disinformation. The United Nations Guiding Principles on Business and Human Rights provided useful lessons in this regard. Regarding the balancing of rights, when freedom of expression was restricted unlawfully, it was counterproductive in terms of combatting disinformation. Diverse, independent, and pluralistic media must be protected, and the measures put in place by States to protect journalists thus far were insufficient. Data protection and human rights assessments by businesses must be taken seriously. Digital literacy, closing the digital divide, and empowerment of “users”, better understood as “rights holders”, was paramount in this fight as well.
Interactive Dialogue with the Working Group on Arbitrary Detention
The Council has before it the report of the Working Group on Arbitrary Detention (A/HRC/47/40) on arbitrary detention relating to drug policies.
Presentation of the Report
ELINA STEINERTE, Chair-rapporteur of the Working Group on Arbitrary Detention, presenting her report on arbitrary detention relating to drug policies, said the Working Group noted with concern the increasing instances of arbitrary detention as a consequence of drug control laws and policies and found that people who used drugs were particularly at risk of arbitrary detention. A related issue was the criminalisation of possessing paraphernalia associated with drug use enacted in several jurisdictions. Imprisonment for drug-related offences should be a last resort and in principle, should be used only for serious crimes. Disproportionate actions by some States to apply criminalisation provisions of drug-control treaties or to incorporate these in their domestic legislations had frequently resulted in widespread human rights violations, leading to increased arbitrary detention. Another serious concern was the identified wide range of violations of fair trial standards for persons accused of drug-related crimes.
Furthermore, disproportionate sentences for drug-related offences contributed to prison overcrowding and called into question the compliance with international standards requiring respect for the dignity of persons deprived of their liberty. The Working Group thus recommended that States decriminalise the use, possession, acquisition or cultivation of drugs for personal use, including the possession of associated paraphernalia, as well as release persons detained only for drug use or possession for personal use, review their convictions, and expunge their records. States should also prioritise non-custodial alternatives to prison for those accused or convicted of minor drug-related offences. They should review procedures relating to detention, arrest, search, testing, pre-trial detention, trial and sentencing in order to address situations enabling arbitrary detention and other human rights violations. Finally, States must ensure proportionate sentencing for drug-related offences through amending relevant legislation and sentencing guidelines.