Social Media and Human Rights

Abstract:     
The recent events in the Middle East and North Africa have demonstrated the potential of online social media as a tool of political activism, as well as the counter-measures this has provoked from repressive regimes. This potential, and State responses so far, raise significant human rights issues. In this Issue Paper for the Council of Europe’s Commissioner for Human Rights, we undertake a legal analysis of the activities and measures in question. In particular we examine Internet blocking and take-down procedures, and Internet surveillance.

There are a number of difficulties in applying emerging principles relating to online freedoms of communication, expression and association in European law. We have identified three issues that cause particular problems in this regard: the “margin of appreciation” doctrine of the Strasbourg Court; the need to enshrine the rights and duties of private-sector entities in relation to the Internet in law; and the problem of guaranteeing compliance with basic principles of the Rule of Law and due process on the Internet.

We recommend that States should no longer be given the excessive protection accorded to them by the overgenerous application of the “margin of appreciation” doctrine. Emerging Internet governance principles which specifically extend to private-sector entities should become legally enforceable. To ensure the rule of law online, all restrictions should be based on clear, specific and accessible rules, in statute law, with limits on delegated authority and on measures that could lead to arbitrariness. Finally, there should be transparency over Internet blocking, with due process and ex post facto judicial procedures in respect of blocking. We believe that the adoption of these recommendations would greatly strengthen the legal protection of online political activism, and ensure that the potential of the Internet to support human rights in Europe is fully developed.

Number of Pages in PDF File: 22

JEL Classification: K20, K33, O38

Accepted Paper Series