HRC38: Valuable outcomes and advances around internet rights, despite challenges

By Deborah Brown, with collaboration from Sidra Rizvi

Published on 25 July 2018
Page last updated on 28 April 2023

The 38th session of the UN Human Rights Council (HRC) wrapped up earlier this month, with the adoption of 20 resolutions including quite a few touching on key internet-related human rights issues.

This session of the UN HRC reflects growth in the Council’s understanding of the scope of internet-related human rights and the outcomes were valuable overall and will contribute to the advancement of norms concerning internet rights. Nevertheless, challenges to progressive initiatives came from many states in the form of hostile amendments and compromise language. This is often the case, but with the short-sighted and misguided withdrawal of the United States from the Council at the beginning of the session, there was one less voice standing up for human rights online. The US has played a leadership role on internet rights at the HRC since the issue was first on its agenda in 2011. It is impossible to predict what the longer-term impact of the US’s withdrawal will be, but with increasing threats to human rights online and offline, the absence of a supporter of internet rights (at least in international forums) was regrettable, to say the least. Nonetheless, the HRC continues to be a policy space, albeit a challenging one, where governments engage in substantive discussion on internet-related human rights and where positive outcomes can be achieved.

APC was active at the session, engaging on a number of resolutions, participating in interactive dialogues with Special Rapporteurs, and organising and speaking at side events, alongside some our members and partners. This overview includes key outcomes and resources from APC’s engagement in the 38th HRC session.

Resolutions adopted

The promotion, protection and enjoyment of human rights on the Internet (38/7)

This session saw the updating of the HRC’s landmark resolution on the promotion, protection and enjoyment of human rights on the internet. This resolution was first adopted in 2012, and established what is now taken as a given, that the same rights people have offline, must also be protected online. The resolution is updated every two years to address new threats to human rights online and advance norms in this area. The 2018 resolution includes new elements concerning the responsibilities of companies; data protection and human rights; secure, confidential and anonymous communications; attacks on freedom of expression; the spread of disinformation and propaganda on the internet; advancing women's rights online; and human rights-based approaches to bridging digital divides.

The resolution faced persistent challenges from a number of states, including Egypt, Pakistan and the Russian Federation, among others, who resisted some of the more progressive elements proposed. They worked to redirect the focus of the text away from promoting and protecting human rights online to issues of sovereignty, cybersecurity and countering terrorism and crime, all concerns which are frequently used as pretexts for criminalising political dissent and other forms of legitimate expression and assembly. Ultimately, to achieve consensus, it was agreed to include broad and vague language on the use of information and communications technologies (ICTs) by "terrorists and their supporters". Led by Sweden, Brazil, Nigeria and Tunisia, the resolution was adopted by consensus with over 60 co-sponsors. For further analysis of the resolution, see APC’s statement here.

Accelerating efforts to eliminate violence against women and girls: preventing and responding to violence against women and girls in digital contexts (38/5)

In a historic move, the HRC adopted the first-ever UN resolution on preventing and responding to violence against women and girls in digital contexts [1]. The timing is particularly significant as online environments are increasingly mirroring and amplifying the violence and discrimination that women and girls face offline. Not only are women and girls less likely to benefit from the opportunities that the internet offers for the enjoyment of their human rights, which therefore deepens gender inequality; in addition, online gender-based violence (GBV) extends to offline environments, inflicting psychological, financial, and physical harm. That the focus of the annual Canada-led resolution on accelerating efforts to eliminate violence against women and girls was online GBV, and that it was adopted by consensus with over 50 co-sponsors from every region, establishes that online GBV is a human rights violation in need of urgent attention.

The resolution indicates not just a growing recognition of the risk of violence faced by all women and girls, but also an understanding that there are those who face violence on account of gender and also multiple and intersecting forms of discrimination, and recognises that a multi-pronged approach working with all relevant parties is required. Importantly, the resolution recommends that human rights frameworks guide responses to online GBV, so that they do not further restrict women’s human rights, for example, by limiting their use of encryption, or by censoring their own expression. More analysis from APC on this resolution is forthcoming.

The promotion and protection of human rights in the context of peaceful protests (38/11)

In another first, the HRC linked the importance of protecting human rights on the internet to the exercise of the right to peaceful assembly and protest, online and offline. The fifth resolution at the HRC on the promotion and protection of human rights in the context of peaceful protests, this year’s resolution includes significant normative developments with respect to the right to peaceful assembly and protest and the internet. For example, the resolution recognises that “although an assembly has generally been understood as a physical gathering of people, human rights protections, including for the rights to freedom of peaceful assembly, of expression and of association, may apply to analogous interactions taking place online.” In a gain for the “right to record” [2], the resolution recalls "the rights to freedom of peaceful assembly and of association, which encompass organizing, participating, observing, monitoring and recording assemblies," and recognises “the importance of documenting human rights violations and abuses committed in the context of peaceful protests, and the role that can be played by national human rights institutions, civil society, including non-governmental organizations, journalists and other media workers, Internet users and human rights defenders, in this regard.” Importantly, the resolution “urges states to pay particular attention to the safety and protection of women and women human rights defenders from acts of intimidation and harassment, as well as gender-based violence, including sexual assault, in the context of peaceful protests.”

The resolution, which was led by Costa Rica and Switzerland, and adopted by consensus with over 48 co-sponsors, also:

Notes the importance of secure and private use of communication technology for the organisation and conduct of assemblies.
Expresses concerned about undue restrictions to access to information and internet use, including the emerging trend of disinformation and the prevention of internet users from accessing or disseminating information at key political moments, and their impact on the ability to organise and conduct assemblies.
Calls upon all states to refrain from and cease measures seeking to block internet users from accessing or disseminating information online, when in violation of international human rights law.
Expresses concern over the criminalisation, in all parts of the world, of individuals and groups solely for having organised, taken part in or observed, monitored or recorded peaceful protests,

The impact of new technologies and ICTs on the promotion and protection of human rights in the context of assemblies, including peaceful protests, will stay on the HRC’s agenda. The resolution requests the UN High Commissioner for Human Rights to prepare a thematic report on this topic. Interested stakeholders will have the opportunity to provide inputs into this report, which will be presented at the HRC's 44th session (June 2020). For further analysis of the resolution’s contribution to enhancing principles around human rights and protest, see ARTICLE 19’s statement.

Elimination of all forms of discrimination against women and girls (38/1)

This year’s resolution on the elimination of all forms of discrimination against women and girls, led by Mexico and Colombia, focused on eliminating obstacles to women’s economic empowerment. APC joined a group of organisations working on women’s rights and sexual and reproductive health and rights in welcoming the resolution, which “is ground-breaking in its framing of women’s economic rights as being restricted and violated by structural gender discrimination arising from patriarchal economic, social and political systems and by articulating State obligations to change these systems.”

The resolution recognised the role that the internet and ICTs can play in eliminating obstacles to women’s economic empowerment, as well as ways in which they can perpetuate discrimination against women and girls. For example, the resolution reaffirms that sustainable development will only be achievable with women’s economic empowerment and independence and the equal economic rights of women and men – and where applicable, girls and boys – to ICTs, among other resources. It calls on states to enact legislation and undertake reforms as appropriate to realise the equal rights of women and men, and where applicable, girls and boys, to economic and productive resources, including appropriate new technology. It also calls upon states to implement policies and actions to facilitate women's and girls’ access to ICTs and science, technology, engineering and mathematics (STEM) education in order to promote their empowerment and to allow them to develop the skills, information and knowledge necessary to support their labour market entry.

In line with the resolution on online GBV, this resolution strongly condemns discrimination and GBV against women and girls in all its forms, including in digital contexts, and calls upon states to promote legislation, regulation, policies and programmes that facilitate all women’s economic empowerment, ensure equal pay for equal work or work of equal value, and prohibit all forms of discrimination, including in the workplace and in education, as well as violence and harassment against them, including sexual harassment and harassment in digital contexts and online spaces. For more analysis of this resolution, see our joint statement.

Civil society space: engagement with international and regional organizations (38/12)

This year’s HRC resolution on civil society space recognises the essential contribution that civil society makes to international and regional organisations and provides guidance to states and organisations on improving their engagement with civil society. Led by Chile, Ireland, Japan, Sierra Leone and Tunisia, the resolution was adopted by a vote (called by China), with 35 states voting in favour, 11 states abstaining, and no states voting against it. The resolution builds upon the conclusions and recommendations of an OHCHR report on “Procedures and practices in respect of civil society engagement with international and regional organizations”. The resolution includes important guidelines on barriers to civil society space, including reprisals against human rights defenders, limitations on access to information online and offline, and restrictions to funding sources, among others. The resolution strongly encourages all relevant United Nations bodies to review, and update as appropriate, their frameworks for engagement with civil society to ensure that those frameworks reflect and respond to the challenges faced, in order to support improved civil society engagement with international and regional organisations, and welcomes efforts already made in this regard.

[1] The APC Women’s Rights Programme (APC WRP) has worked to render visible the impact of online gender-based violence on women’s rights for more than a decade. For more details, see the submission sent to the UN Special Rapporteur to provide input for this resolution.

[2] A right that APC’s partner organisation, WITNESS, has been championing. In particular, see the work of Dia Kayyali.

APC statements at HRC 38

APC oral statement "Online violence against women and girls"

Joint oral statement with the Women Human Rights Defenders International Coalition "The impact of violence against women human rights defenders and women’s organisations in digital spaces"

Joint oral statement with the Sexual Rights Initiative "Advancing women’s rights in the economic sphere through access and participation in ICTs"

Joint oral statement with CIPESA, Derechos Digitales and WOUGNET "Restrictions to freedom of expression online"

Joint oral statement with Centre for Independent Journalism Malaysia, EMPOWER, Justice for Sisters and Pelangi Campaign "Human rights online in Malaysia"

APC statement “APC response to the Special Rapporteur's report on content regulation in the digital age”

Joint end-of-session statement "Major gains on women's and girls' rights at the Human Rights Council"

Joint end-of-session statement "Welcoming the adoption of the resolutions on civil society space, peaceful protest, violence against women and girls and discrimination against women and girls”

APC post-session statement "UN Human Rights Council reaffirms the importance of protecting human rights online in the face of growing challenges"