Right to Information and Transparency

“The International and national laws recognize that extraordinary circumstances require extraordinary measures. This means that certain fundamental rights, including the right to freedom of expression and opinion and the right to seek and impart information, may be restricted to address the current health crisis as long as governments apply basic democratic principles and a series of safeguards, and the interference is lawful, limited in time, and not arbitrary. Governments, companies, NGOs, and individuals alike have a responsibility to do their part to mitigate the consequences of the COVID-19 health crisis and to show solidarity and respect for each other. In this paper, we provide recommendations for protecting freedom of expression and opinion and the right to impart and receive information to enable governments​ to fight the COVID-19 health crisis in a rights-respecting manner. There will be an aftermath to the COVID-19 outbreak and the measures governments put in place right now will determine what it will look like. The recommendations outlined below will help ensure that the rule of law, and the rights to freedom of expression and opinion, as well as the right to receive and to impart information, are protected throughout this crisis and in the future. Under no circumstances should any government allow people’s fundamental rights to fall victim to this pandemic.” 

Balkin argues that the conception of free speech which characterized the 20th century is inadequate to protect free speech and expression in the 21st century due to the transition from a dualistic model of speech regulation with two players to a pluralist model of speech regulation with multiple players. In this essay, he frames free speech as operationalizing as a triangle, with States and the European Union at one end, internet-infrastructure companies at another, and different kinds of speakers at the third end. He analyses the three problems which this triangle creates: 1) new-school speech regulation which produces collateral censorship and digital prior restraint, 2) the absence of due process and transparency in the manner in which privatized bureaucracies govern end-users, resulting in abuse and arbitrariness, and 3) the vulnerability of end-users to digital surveillance and manipulation. He discusses the ways in which States should or should not regulate the digital ecosystem in order to align with the values of freedom of speech and proposes reforms which can be implemented by Governments in consonance with the Constitutional guarantees of free speech and the press as long as they are properly-designed. These reforms are: 1) structural regulation with the aims of promoting competition and preventing discrimination by basic internet services and payment systems, 2) guaranteeing curatorial due process, and 3) the treatment of social media companies as information fiduciaries towards their end-users, who are responsible for upholding duties of trustworthiness and good faith.

“The Transatlantic High Level Working Group on Content Moderation Online and Freedom of Expression was formed to identify and encourage adoption of scalable solutions to reduce hate speech, violent extremism, and viral deception online, while protecting freedom of expression and a vibrant global internet. This report recommends a flexible regulatory framework that seeks to contribute to trust, transparency, and accountability. It is based upon: (1) transparency rules for platform activities, operations, and products; (2) an accountability regime holding platforms to their promises and transparency obligations; (3) a three-tier disclosure structure to enable the regulator, vetted researchers, and the public to judge performance; (4) independent redress mechanisms such as social media councils and e-courts to mitigate the impact of moderation on freedom of expression; and (5) an ABC framework for dealing with disinformation that addresses actors and behavior before content.”

“This report examines the international standards and principles applicable to the protection of freedom of opinion and expression during elections in the digital age. In the 2014 report to the Human Rights Council, the previous mandate holder examined the State’s obligations to respect and ensure freedom of expression in electoral contexts. This report reviews the nature and scope of these obligations in light of advances in technology and their impact on elections. Advances in information and communications technology have been critical to facilitating access to information and the free flow of ideas during elections. However, State and non-State actors have also exploited these advances to interfere with democratic participation and access to information during election periods, and to undermine the integrity of electoral processes. This report focuses on four such interferences: network shutdowns, efforts to combat the perceived spread of “fake news” and online disinformation, Direct Denial of Service (“DDoS”) attacks and interference with voters’ records and data.”

Here you will find the Syllabus for the MOOC 'Freedom of Expression in the Age of Globalization' created by Columbia Global Freedom of Expression. This course will examine the norms, institutions and forces that altogether have founded a global system of protection for freedom of expression and information. The Foundational Course will include four main segments. It will first survey the thinking of 19th century and contemporary political theorists, Judges in the early years of the twentieth century, and economists to discover why freedom of expression and information matters, and the values and principles that are established through free speech. The second will review the emergence of an international system of protection for freedom of expression, including the international and regional institutions and standards, and the role of international courts. The third and fourth class will focus on the scope of freedom of expression and on its legitimate limits. We will provide answer two key questions: What kind of speech is protected under international standards? What kind of speech may be restricted by Governments and how can it be legally restricted?

“This series of Briefing Notes is designed to give readers an understanding of the key international legal standards that apply in the context of freedom of expression. They are aimed at an audience which does not necessarily have a deep understanding of freedom of expression issues, but they also aim to be of interest and relevance to more sophisticated freedom of expression observers and practitioners. Thus, while the Briefing Notes are designed to be broadly accessible, they also provide readers with fairly in-depth knowledge about freedom of expression issues. Each individual Briefing Note addresses a different thematic freedom of expression issue. The first, perhaps predictably, is titled Freedom of Expression as a Human Right, while the second looks at the permissible scope of restrictions on freedom of expression under international law. Several of the Briefing Notes focus on different areas of media regulation, including print, broadcast and public service media, journalists, media diversity and independent regulation. This reflects the central role media regulation plays both in terms of guaranteeing freedom of expression and in the legal frameworks found in democracies relating to freedom of expression. There are also Briefing Notes on both criminal and civil restrictions on freedom of expression, as well as on the right to information (or freedom of information) and digital rights. In addition to providing substantive guidance in the relevant thematic area, the Briefing Notes contain a number of pithy quotes from leading sources. The idea is to provide readers with quick access to ‘quotable quotes’ for possible reuse in their work. Each Note also contains a section at the end on further resources, for readers who want to probe the subject more deeply.”

Published by Masaar, a community of lawyers and technologists advancing digital rights in Egypt, this paper explores the interdependence of freedom of information and freedom of the press and media. Noting that more than fifty constitutions around the world recognize the access to information right, the paper explains how significant freedom of information laws are and what positive impact they have on press freedom: freedom of information enables journalism - investigative journalism in particular. Other areas directly impacted by freedom of information that the paper explores are protection against censorship, public trust, accountability of those in power, media pluralism, and democracy in general. “[T]he right to information can enable media to challenge dominant narratives and offer a platform for marginalized voices,” the paper argues. “[...] media freedom is essential for a healthy and vibrant democracy, protecting human rights, promoting public discourse, and informing the public.”

This book on Freedom of Information by Toby Mendel helps to answer some of the questions faced by “those tasked with drafting and/or promoting legislation guaranteeing the right to know in accordance with the principle of maximum disclosure”. The book describes “the international standards which have been established in this area and some of the key features of effective freedom of information legislation. Importantly, it illustrates the way in which ten countries and two international organisations have dealt with these difficult issues.”