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2015 11 10 WS 153 Freedom of Expression online: Gaps in policy and practice Workshop Room 9 FINISHED
 Welcome to the United Nations | Department of Economic and Social Affairs

The following are the outputs of the real-time captioning taken during the Tenth Annual Meeting of the Internet Governance Forum (IGF) in João Pessoa, Brazil, from 10 to 13 November 2015. Although it is largely accurate, in some cases it may be incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid to understanding the proceedings at the event, but should not be treated as an authoritative record. 




>> MODERATOR:  Good morning to all.  I will be moderating this amazing table.  We will be talking about the APC freedom work and how has it been implemented and applied in different countries.  So let me introduce the speakers first. 

We have Deborah Brown.  She works in APC Internet rights and a lot of topics about internet governance and she has specifically worked with all the partners that are stated here and applied this APC level framework. 

We also have to her right, Ritu Srivastava from India.  She has also applied this framework and will tell us all about it.  We have to my left Domina from Pakistan.  We also have Serene from Malaysia.  She is also a coordinator for the Ink Blot Project.  To my left is the director of content at NGO ‑‑ which I also work for.  Luis Fernando Garcia is the director of our 3‑D digital rights activists NGO in Mexico.  We also have Francisco to the left. 

I would love to start with Deborah.  Tell us what is the APC framework, how is it born, what was the idea that APC had when they were creating this sort of roles in a way? 

>> DEBORAH BROWN:  Thanks very much, and hello, everyone.  I'll start off by saying we were hoping to have Mr. Frank La Rue here.  In the meantime, I can start by giving a brief overview of where this framework came from and why APC development.  In 2011 Frank La Rue really launched a groundbreaking report of freedom of expression online and was the first one to look at freedom of expression and other human rights in the online context and it was presented to the human rights council which led to the resolution that human rights apply online as they do offline. 

And the framework, it's based on freedom of expression and it goes on to look at rights of privacy and I'll give a brief overview and hopefully Mr. La Rue comes himself.  But essentially the report looked at obligations to protect human rights online and outlined a number of recommendations in areas where they need to make improvements.  So the first general aspect of the framework is general protections for freedom of expression.  So really grounding freedom of expression, looking at what protections there are for freedom of expression online.  And the second series of recommendations that he made are related to restrictions of online content.  So we looked at things like arbitrary blocking and filtering and criminalizing legitimate expression, and these are things you would find in national laws offline but also looking at specific things that, aspects that would affect freedom of expression online, such as blocking websites or filtering websites and going into some of the technical ways that freedom of expression is limited online. 

The next indicator looks at imposition of intermediary liability.  So not just what the state is doing, but what the state forces private entities to do.  And Looking back, this was 2011, this was actually a pretty new topic back then in terms of exploring what the different levels of responsibilities are and what steps intermediaries should or shouldn't be made to take order to express freedom of expression online. 

Another component was disconnecting users from the Internet.  Putting this in history and knowing when the Arab Spring happened and the big moment of Egypt being cut off, or the Internet being shut down for some time, this is an important indicator ‑‑ and his position was that Internet access should be maintained at all times and it should not be a blanket ‑‑ disconnection of users from the Internet is not acceptable.  And he also was looking at intellectual property regimes, and there's some restrictions that say that if people violate intellectual property law, that one possible outcome should be that they should be disconnected and he said this was unacceptable.

Another aspect was looking at cyber attacks and specifically whether the state is carrying out cyber attacks and whether anyone is being held accountable for that. 

The next indicator is looking at the right to privacy and data protection.  Which in itself is the right to privacy, but you recognized early on the close connection between the right to privacy and freedom of expression.  And we developed indicators based on this looking at encryption and real‑name registration policies and really getting to look at what type of protections are needed for the right to privacy in order to make freedom of expression online protected. 

And the last set of indicators, which is a separate category, is access.  This came at the end, but it really is an important one in looking at how do you even look at freedom of expression online if people don't have access to the Internet.  So there's a set of indicators looking at ‑‑ steps you can take in terms of natural action plans, fostering independent new media, and effective policies with the private sector and other indicators which I think the partners, when they talk about the reports and the details they went into, can describe some of those. 

So basically this report came out in 2011, and it was really a groundbreaking report at the international level.  And I think earlier that year, the year before, the UN Human Rights Committee, which is the body that looks at implementation of the International Covenant on Civil and Political Rights also came out with a really important general comment, which interpreted article 19 of the ICCPR in the digital context, looking at how protections of freedom of expression apply online. 

So taking these two important documents together, APC developed its framework to see how we can measure freedom of expression online and state obligations and we really looked at the order and the framework that Frank La Rue put forward in his report to see how we can get a little more specific, how we can see whether states are implementing this, and if they're not, how we can create tools for advocacy to help advance freedom of expression online. 

So I think we published the first draft in 2013, and finalized it ‑‑ when I say "finalize," I mean we put it online and started using it, but it's really a work in progress and we want to use this workshop and other opportunities to see how we can improve it, what new challenges there are, how we can adapt it in different contexts, but to really start building a body of research and evidence of how states are or are not protecting freedom of expression online. 

I think I'll stop there and hopefully Mr. La Rue will come and give more detail and context for the report, and I'll hand it back to Gisela for now. 

>> MODERATOR:  Thank you, Deborah. 

Actually we were speaking a little bit before in our previous reunion before this panel, that one of the things that struck me the most is the language of this framework, which could be used as, and the rest of the speakers will later on tell us about it, it's kind of like a yes‑or‑no thing.  It struck me because usually these type of frameworks are written in a normative way.  The state must, the state should, the state.  And Mr. Frank La Rue's framework is soft law because it is the United Nations freedom of expression, but it's still not hard law, especially that doctrine.  So that just taking what you were saying, that language really struck me, how it was designed to say almost as a yes or no answer to evaluate the states.  And I think this is very valuable, because you need a certain set of rules to be able to evaluate or not and see how the states have or not complied. 

I would like to give the word to Luis Fernando from R3D to see if he has something to say about the framework. 

>> LUIS FERNANDO GARCIA:  Good morning.  Thank you for invitation.  I'm director of R3D in Mexico. 

I think the framework is a challenge.  It's a big challenge to try to build a framework that applies globally for freedom of expression given different attitudes that different regions apply to this right.  And I think it's a very good effort, and it creates a general framework that can be applied globally.  Although, of course, it always needs to be taken into account that these different ways in which freedom of expression is conceived in different regions, even legally.  For example, in my country, in general, the system of human rights, the way freedom of expression is conceived, in both in constitutions and in the regional frameworks of human rights, it's a protection against censorship, for example, is much more rigid and much more strong than European conception of freedom of expression.  So taking those differences in consideration, I think the framework does a good job, especially given the subjective evaluation tool for countries and try to identify the challenges and the problems of freedom of expression which take different form in each country and I think this table is going to be very rich in that since we are from diverse backgrounds and countries and we can do that.  So I will do that and tell you about a couple of phenomenons of freedom of expression, how the gaps and taking the title of the meeting a little bit, whether the gaps and the challenges of freedom of expression impose in Mexico. 

For example, in Mexico you don't have this blanket censorship, or these firewalls, but you have other types of challenges.  For example, the interpretation ‑‑ and it's related.  This is related to the differences in how freedom of expression is conceived.  For example, the protection authority of interpretation of protection laws in Mexico modeled or trying to copy the decision by the European Union Corps of Justice and the Costeja case, and just applied it to Mexico in the case in which it ended up trying to block and to remove links to news pieces about corruption and about corruption between companies and between former public figures and the former president. 

So we see in this case a tool and a window for censorship through bad interpretation of the protection of laws trying to apply a precedent ‑‑ it was created in one region in Europe and tried to apply to a traditional human rights context as in Mexico, and the effects are that public interest information might be censored, or at least its access could be difficult to reach given this tool. 

Other challenges that it's important to take into account is how freedom of expression challenges are taking new forms.  For example, in Mexico it took a long time to take down the crimes of defamation and other crimes against honor in criminal codes in Mexico, took  decades of campaigning by freedom of expression groups.  And now there are ‑‑ and there are still in local levels there are still some crimes of this nature, but the federal level in Mexico, it's been repealed a few years ago, but now they're taking new form through cyber crime legislation.  For example two weeks ago a cyber crime proposal was launched in Mexico that would have basically criminalized using a computer because it was very badly drafted, but it also introduced crimes of the defamation and of using personal data without regard of public interest of information. 

So even though a few years ago we scrapped defamation crimes and other crimes in the criminal codes, it's coming back using an excuse that we need to regulate these kind of conducts online. 

And finally, I will just mention briefly how [indiscernible] law is being used for censorship.  And it's not even Mexican law that is being used to censor things in Mexico, but the United States law.  For example, our president in Mexico, he makes lots of mistakes when he's addressing people in public; probably in private as well, but I don't know.  So when he says something that he shouldn't have, his staff is taking down videos from YouTube where he just makes a gaffe or makes a mistake using the VMCA in the United States or taking down its own videos from its own channel, for example.  And this might seem trivial, but there are other instances in which in Ecuador it has happened as well, in which public interest information has been taken down using the DMCA.  In this content it's directed, produced and relevant only in Ecuador or Mexico and it's being taken down by the United States law.  And the worst thing is that the U.S. law is being exported to many countries including the new transpacific partnership agreement, which is pushing for a DMC‑like [indiscernible] laws in our countries.  This is a trap that is important to take note of and that it's going to be very relevant to Mexico in the following years. 

There's many more, but I'm loving to try to listen to other ways in which freedom of expression challenges happen in other parts of the world.

>> MODERATOR:  Thank you very much, Luis Fernando.  I think you bring a very interesting point which could be taken as criticism to this APC framework.  And I have the next questions, that I know you have applied this framework to your countries.  So the question is, is this a global framework?  Are there any other criterias that should be applied that were not taken into consideration here?  Are there any, for example, weekend institutions and judiciary powers or any other political considerations that should be taken into account when evaluating a country in their freedom of expression? 

If you want to start first.

>> PANELIST:  Good morning, everyone.  It's good to be part of this discussion when we are talking about whether the framework is universal or not. 

I come from a country like India where we are third largest Internet penetration in India, but the kind of Internet penetration is a ten‑person population.  When I talk about access, the framework has given the priorities to meet previous parameters, like arbitrary blocking, criminalization and other things.  Access, in terms of access has been given least priority or something forgot to mention about it.  We talk about access, it should not be considered as inequity.  It should be considered as affordability, accessibility, speed, quality of services and other parameters should also be given the parameter. 

The framework has given the priority the state should provide this kind of access to their citizens and that's something which we should also consider it. 

In our research we were doing it as well that we do have a access as a universal service obligation, but there's a huge difference between the connection and the connectivity access and accessibility.  So like when we were talking about ‑‑ we were like 21% of the population said we don't have connectivity, because of infrastructure challenges, because of availability of a local content.  So these kind of parameters should also be deeply looked around it. 

The second point which we really found that human rights aspect is something which is missing in the framework.  And the aspect of a human right and how we are going to protect their human rights.  That should also be included. 

I think that other things might be Pakistan or other colleagues might also speak about those things.  Thank you. 

>> MODERATOR:  Thank you very much.  What a great point.  The women and human rights perspective is not included here and it's definitely a problem we're seeing every time more common in the online environment. 

So would you like to continue with your ‑‑

>> PANELIST:  Thank you.  I think I would just first agree to what was just mentioned because these are some of the issues like accessibility also prevailing in the country I come from, Pakistan.  And I think it's ‑‑ this framework is not really, really universal at the moment, because we believe that there are some of the considerations and issues in Pakistan which are far more important than other issues which we think are likely to be addressed in the same way.  When we were working on the framework and implementing it in the country, we thought that it's better if we just edit it a little bit and adapt it to the context in which we are working.  So what we did was we added a few more indicators that relate more to the situation in Pakistan right now.  For example, freedom of expression is very much talked about these days, it's very crucial, critical, and there are so many issues around freedom of religious expression.  There are so many sects and minorities in Pakistan we thought it was important to address this issue. 

Also there is a very common practice of Internet and mobile network shutdowns in Pakistan, especially in the name of security.  So whenever there's a big event, a national event, for example, or even a religious event, for example there are lots of shi'a community in the country.   Whenever there is a shi'a procession, for example, the government would just simply cut down the network connectivity on all the mobile phones and Internet.  There's no wi‑fi available in case of emergencies.  It's really not possible for us to communicate to the hospitals or anything like that, which I think is a very serious threat to freedom of expression. 

Another important point that we added to this framework was that on the safety and security of bloggers in the country.  We think that freedom of expression is one of the biggest form exists when the journalists have freedom to communicate freely, but there are no such laws or policies or frameworks in the countries that would just provide level of support and safety to these groups.  So we thought that was really important to include that. 

And I think these three points are the most important ones.  And I think there are some issues that were raised in the framework which we thought were less important.  We also removed, for example, there's a whole article, indicator on the child pornography.  Since Pakistan is blocked on most of these websites, we really didn't work on this issue, but maybe this is one of the important human right issues that need to be looked into. 

So that's really it for my thing.  Maybe serene would like to tell more about it from her country.

>> MODERATOR:  Thank you very much.  It is the topic of child pornography definitely something that is prevalent here.  It's like an international consensus of blocking child pornography.  But it's probably seen is that instead of this blocking, it's an over ‑‑ like an over‑criminalizing on blocking instead of attacking the chain of production of child pornography, what we've seen happening on the Internet.  Serene, if you want to continue.  But I just wanted to ask you if you can include what was your perception on how your country was evaluated after this?  Like, did it come out in good terms, in bad terms?  How was Malaysia's government doing in Internet from freedom of speech rights? 

>> Thanks, Gisela. 

So in general we found that the La Rue framework was useful in the discussion of freedom of expression in Malaysia, and it also highlights the many key trends that has been happenings in our country. 

Just a bit of context.  Malaysia has been doing quite badly in terms of freedom of expression offline, so it's not surprised that the ‑‑ I mean from the outcome of the reports, that we fails to meet more than half the indicators.  Especially in criminalization of expression.  In our constitution, freedom of expression is conditioned upon what the government deemed necessary for public morality or public order, and friendly relations with other countries, which essentially means national security.  And with high penetration of Internet in Malaysia, it's become an indispensable part of our social life.  Which has led to expressions of one's identity and opinions and this has brought to significant change in our political landscapes.  The ruling party, for the first time in more than 50 years, actually loses to the majority position in the parliament in 2010. 

And most of the fact that our research relies heavily on online media and content monitoring, it says a lot about the importance of Internet freedom in Malaysia.  A draft of legislation controlling written and spoken words has been used to criminalize dissents of the government.  Last year we witnessed a increase use of draconian laws on more than 44 individuals, and today we have more than 100 individuals who has been investigated, arrested or charged for criticizing the government, the monarchy, judiciaries and the position of Islam as the national religion permits harmful acts to women. 

This has made Internet a chilling space that permits enormous abuse.  Oversight ‑‑ it's abuse.  It can't be justified by free speech or any fundamental freedom.  Thank you. 

>> MODERATOR:  Thank you very much.  You bring some really good points and very interesting Malaysian context to the table. 

I would like to ask ‑‑ I know Juan Carlos is very aware of the Latin American context regarding this APC framework.  So what have you found in Latin‑America, how have countries ranked in this APC framework, and what do you think in general of this approach? 

>> Well, for the Latin American context some of what could be said has been slightly suggested by the Mexican experience.  APC has been carrying out work of implementing the framework as a way of finding out and gathering information of what's going on in certain Latin American countries, Mexico, Colombia, and central America.  We found the Frank La Rue report is something that has been feeding some of our work for some time and connects with many of the things that we have worked in as organizations and as activists for several years now.  But the systematic approach allows us to delve into issues with a certaincy of what we are finding and also make us find the key cases as it has been sought in Latin‑America that can show how the freedom of expression and other Internet rights are being affected online.  Latin American context is special because of the prevalence of the American convention on human rights which is a very good international treaty on human rights that puts very high obligations on states regarding not only the obligation to protect human rights but also to guarantee them and the American court of human rights provided rulings against states that show a very strong support for freedom of expression and for freedom of information and other rights.  In some times, in some issues, actually going further than other international courts have gone, even further than the European courts of human rights in aspects of freedom of information.  Which is a key right in the context of the Internet. 

However, Latin American context again, it's far from an ideal context, in the sense that it still has the legacies first of the colonial times, and it expresses in the way that the powers that be are actually much more stronger than in stronger democracies.  So the power holders act much more freely than in other contexts, and this applies both to governments and also to big companies, especially for multinational companies. 

Aside from that history of colonialism in the content, still it's still very legacy of non‑democratic regimes.  Not only dictatorships, but very authoritarian democratic quote unquote government because they have exerted powers in ways that sometimes seem unbelievable but we have been used to seeing governments abuse their position of power.  The application of the La Rue framework, certain aspects of Internet are being regulated or being subject to rulings has given us some view of how this history replicates on the Internet, this history of abuse is being replicated on the Internet.  Just to give a few examples of it, and as fern an dough mentioned, the TPP for example, copyright has shown in Latin‑America to being an issue to show it's not related to the creation but more to the punishing of infringing people.  Like those who infringe copyright face much higher penalties than the United States.  Like to give an example the Chilean population for infringing copyright is much higher than the U.S.  Not only in proportionately but in absolutely terms.  It's because we have the rules that have been given to us through free trade agreement.  And it has also happened in the Colombian case shows that a person faces many years in jail for sharing an academic paper online. 

Some other aspects show for instance in Mexico that recently rejected publicly a cyber crime film because it was a very bad bill to punish acts related to technology.  But things like that also have happened in other countries.  In Costa Rica has for instance had draft bills that have been called gag laws by the people because of the way that they punish acts such as whistle blowing or certain hacking acts of the purpose of the act. 

Also in the region, the idea of surveillance is still very present today and many countries, including those in the reports can show that stories like the markets of hacking into Latin‑America are very much alive, and in Colombia.  And the fact these are used also against political dissidents, with countries with history of surveillance of their citizens.  Each use of those, like metadata retention arise. 

Finally we still have in many countries strong defamation laws to punish acts of defamation.  We can think about the case of Colombia one person was prosecuted in a common section online.  So this issue still arise.  And they still can be seen in the continents.  So the framework can show us, and I touch the points that it was made before, that the framework does not necessarily apply as a one size fits all kind of measurement of Internet rights, defense or Internet rights violations for Latin American countries.  Many of the issues being presented in the framework issues that are not necessarily regulated or that states do not recognize are being done that way, but that still happen in the region and that's a very complicated issue to assess, especially when we are rather powerless towards the ways that many of us state and many of our governments act. 

And to as a final point, many conclusions can be made from this gathering of information.  For instance the fact that our governments see the Internet as intrinsically space.  So the notion that all of these inequalities and abuses that we have seen for ages are being replicated online and they keep happening.  In many countries we still have work to do to gather that information.  And while there's still work to do regarding the framework and the ways that it controls and tries to assess the issues of Internet rights, it's still something that allows us to bring issues to the table.  Thank you. 

>> MODERATOR:  Thank you very much, Juan Carlos.  A very interesting panoramic on Latin‑America.  And to final list, Fernando, would you add something, would you take something out? 

>> So my name is Francisco and what I have to say here is the La Rue framework ‑‑ well, we apply it on Brazil.  We try to see, if Marco Civil we used to say it was the flagship of freedom of expression.  Applying the framework has showed us that freedom of expression is not independent immediate airy liability only.  People think it's a liability model.  But applying the framework we saw that actually freedom of expression is much more than that.  It's consumer's protection.  It's law enforcement practices, it's the judiciary practices.  And I think this is the whole strength of this framework.  And this is why it was so useful for us to discuss here. 

So we got this activity to see what it covers and what it does not cover by Marco da Civil but it's so important as the provision on the law. 

So what it covers.  It covers an intermediary liability model.  It covers the need of a court order to access personnel data.  But it covers also some things that are not exactly good and need to be seen as that.  Actually, it, Marco da Civil that need to be addressed as something that has serious consequences on freedom of expression.  Because European watched and like all your content and all your online activity are being watched and stored in Brazil.  Not only the registration about your connection, but also all your browsing history. 

And it does not cover cyber attacks.  It does not cover terrorist law.  It does not cover consumer protection.  It does not cover child exploitation practices and how it can be balanced with freedom of expression right. 

So I got here four points that I think can be raised after our analysis.  The first point is how the La Rue framework dialogues with the online violation that we see nowadays.  And this connects a little bit with the woman rights discussion that we were having earlier.  So in Brazil we had these cases of girls that commit suicide because her image, their image were exposed online and actually intimacy images.  And what Marco Civil answered for that, what congress answered for that, we have to block this is revenge porn.  This the name that we are going to attempt.  It does not ‑‑ for example, if we have like a non‑couple image generated, but also intimacy image, it need also be addressed.  I think this term is actually difficult to deal.  And we need to address this discussion with this preoccupation, this concern that actually is harming a lot of people.  But can't be used as a Trojan horse and in Brazil is frequently used as a Trojan horse to establish control and block content by our congressmen. 

The second thing is the right to be forgotten.  In which term this right to be forgotten dialogues with the framework and what it means to discuss the right to be forgotten in different countries.  We are in Latin‑America and what it means to discuss the right to be forgotten in a continent that had so recent story of dictatorships. 

I have some difficulty with the term properly, like what is properly in different countries.  I think this term can be discussed to become a more practical or a more concrete criteria.  It would be helpful, but I know in another way that it is very difficult to create a global framework for anything like we are discussing here.  And many of the criterias that I thought that maybe were repetitive are not listened to you.  So it is very difficult. 

And the last thing, here in Brazil that I would like to add, and is something to think about when we reevaluate the framework, is some episodes of blocking applications.  So we had the secret case, the secret is an application to communicate anonymously that was blocked in Brazil.  Another case was the what's up case when a judge in a Brazilian state actually tried to block what's up because what's up did not respond to a data request. 

The question is, how we ‑‑ the applications were actually similar to content at which tent.  Like what kind of similarities they have and what kind of differences they have. 

And then to which point they could be considered a part of our freedom of expression.  Like what kind of application that we are talking about.  And the other thing is how to balance foreign applications with national law without being, I don't know.  Without something.  I explain. 

We are not ‑‑ we not all have a first amendment concept of freedom of expression.  It is very ‑‑ it is a variety of conceptions and what this judge in this Brazilian state that actually blocked what's up in this totally disproportionate decision, the problem is this guy have a different freedom of expression definition and what he is trying to say in a very clumsy way is it is difficult for us Brazilians to accept your concept of freedom of expression without a discussion, without knowing that we need to put some exceptions here.  Exceptions that maybe you don't have in the United States, as a U.S. company, but I need you to respect my law, to respect my jurisdiction. 

I know, it's totally clumsy.  It's totally disproportionate.  But I think it puts something in our minds that we need to address this jurisdiction questions.  We need to address these differences on what kind of freedom of expression you're talking about.  So thank you very much and I learned a lot listening to you.  Thank you. 

>> MODERATOR:  Wow, Francisco.  You bring a lot of very ‑‑ I feel like asking a lot of questions now.  But definitely I can see some ‑‑ okay.  The first point that you were touching is intimacy violations on the discussion that we were having earlier about women's rights.  And this is my question for APC.  And I know there are some APC members here in the crowd, so feel free to answer it as well, so the burden is not on Deborah 100 %.  So my question is I know that APC has a lot of ‑‑ has put a lot of emphasis and even has a special division on woman's rights so why are we not seeing that work in this framework.  Why is it treated separately?  That would be my question. 

So we have online participation too.  For online questions we will have time at the end.  But if any one of you would like to participate, and I think this is a workshop, it's the point of it, you can come up front and use this microphone so you can also be on the streaming for remote participation.  So Deborah, if you want to say something? 

>> Thanks very much.  That's a very important question.  The simple answer is that this framework is based on Frank La Rue's report and general comment 34 of the human rights committee.  As we're looking for a way to adapt it to make it more meaningful, this is a challenge we've found and seeing it being applied in different countries, something that's come up in the analysis.  We're seeking to advance understanding ‑‑


Please stand by. 

>> Freedom of expression online, we have to be aware, we have to start the freedom of expression.  Because there is no ‑‑ not a separate one.  What brings the discussion comes ‑‑

Please stand by. 

How do that.  I think coming up again with general rules which would give you an immediate result which say it should be here, it should be there, very seldom works.  I think that's also the European code of rights which has been dealing with freedom of expression for 60 years, it comes down it's always contextual judgment you have to make.  You have to bring all the facts together, and to see where you get the balance between the freedom of expression and any other rights of public interest.  And the question comes down to who makes that judgment.  That's where it gets complicated.  Because of course in the European code of human rights in Europe it would ultimately be the court.  But in order for that judgment to be interest of freedom of expression human rights you need to have an independent, autonomous judiciary that is going to respect the law of human rights and bring these decisions out in that context.  So that's one necessity and also problem when you don't have that judiciary.  The other one if you say leave the judiciary out of it, is you come to situation where this judgments and assessments are made arbitrarily.  And arbitrary judgments on freedom of expression at the end will always punish the freedom of expression.  They will always be abused by those who have power to influence those decisions.  At the end of the day it that's to come down to the judiciary to set the rules here. 

My last point would be that we did a similar exercise ‑‑ 47 European countries where we looked at freedom of expression online looking for indicators and apply the situation.  The findings were out of 47 member states of the council of Europe, about 15% of the situation was satisfactory.  And about 15% was not satisfactory and about 70% didn't have the data.  But in order to remedy this, and I think that would be something that would be interesting to a global community is that we're doing a couple of things among the most very detailed review of the national practices of Internet blocking, filtering and removing content in all 47 member states in order to get the best practices, the worst practices out and try to extract from that exercise ‑‑ this would come up before the end of the year and we invite you to keep an eye on it.  Thank you. 

>> MODERATOR:  Thank you, very much.  I would like to see the panelists have any comments to that specifically before we can continue? 

>> A very short response to the question. 

As has been mentioned throughout the panel and in this session, context is very important for the value of freedom of expression regardless of technology used.  And that's very important and a key point.  But also content is important in terms of the process where we arrive at some kind of reaction towards an act of expression that can be challenged.  The distrust that some countries show towards their judiciary, either because of the problems of access to justice or because they cannot trust in terms of corruption or whatever else that is very context specific and where some kind of responsibility is much more valuable sometimes than to search for liability, which in turn has its own costs for the people that might be affected by an act by another person, for instance.  In the case of revenge porn.  Where all the results of constant restriction, for instance those related to the right to be forgotten.  Context sensitive is something we need to work on in more framework such as this. 

>> Just to add a few points.  I think on the question of who the sites, I have my opinion who I think it's best, but it doesn't guarantee you anything.  Take the supreme court ‑‑ I like in theory that the judiciary is objectively and looking at it it looks like the best but it doesn't guarantee you.  I don't like companies making decisions, but I don't like it in theory.  It comes down not to who, but to the standards itself and we need to work on those and we need to recognize the differences.  Not only if I would encourage everyone not to impose in their region.  Like a form of colonialism.  I would be terrified ‑‑ sometimes there is's compulsion to use European rights without understanding legal differences.  So I think it's worth thinking about the standards themselves an the essence of the rule more than who adjudicates the rights.  And in just for example just a brief note and also responding to the jurisdiction which I this is important, when a company adjudicates rights, they issue jurisdiction is very interesting.  I think there's a notion that many people believe that well it's good that most companies are in the U.S. because they have first amendment and that like globalizes first amendment.  But the tradeoff is pure privacy, but I don't like that tradeoff and I'm not so sure about that and the copyright is example of also how in the U.S. of how laws in U.S. affect freedom of expression in my constitutional opinion what the ‑‑ where it is applied and it's censoring important information in Mexico.  So jurisdiction also goes both ways and responsibilities of companies goes both ways.  You're not responsible for whatever your users do.  I agree with that.  I agree with a general safe harbor provision for companies.  But I also think companies need to be responsible about how they enforce their own terms of service.  And if Facebook or any other company applies their terms of service with discrimination or also against human rights standards, I think they should be held accountable, even in my jurisdiction.  If some company becomes crazy and starts censoring indigenous peoples because it's an online company and it decides that it's not going to allow indigenous people to talk on a platform, that's an example.  I think I should be able to challenge that in my country, for example.  I think it's has its risks but I think liability limitations on companies, I agree with it, but it goes both ways.  You can just be free from responsibility to be responsible for user or third party users, but free from responsibility to censor as well and I think that's something that's problematic. 

>> MODERATOR:  I know the Latin American are ‑‑ you also bring up the consumer's practice law regarding intermediary liability this is not in the framework so this is a point we might discuss to make this framework more solid.  Now we have recognized Erica from APC.  You wanted to say something? 

>> You were asking about revenge porn as a term.  So I did want to say we do find it problematic and I think you were just talking about one of the examples.  If you're facing a situation of nonconsensual distribution of intimate photos or videos, there are many things, but a lot of the legal responses to that only do it if you're an intimate partner or they look at the production of it.  Making sexting illegal.  People who are having great fun online.  So I think it's a very concerning if we frame it from a point of view of pornography, it's very concerning.  If we frame it from the point of view of revenge, it's also very concerning.  A lot of the laws if they're trying to prove intent.  There's no harmful intent there, I just put it online because I thought you would like it.  This is actually what someone has said.  I think it's very important to look at that.  And also doesn't look at the first and second and third distributors.  I think there is's so much involved that it's more complicated if we begin to use the word pornography. 

I think violence against women is a different framework.  When you live in a culture where rape is a constant threat, when you start to get these threats on Twitter, given your context, you take it a lot more seriously.  And hearing the response from Facebook or Twitter that's really not ‑‑ I'm going to rape you and hang you up from a hook a thousand times, that's something some women might have to take more serious.  Or other people.  Gender‑based silence is not exclusively about women.  I think it's important to look at freedom of expression issues but understand there's a lot of other rights in play, but it all gets lumped under freedom of expression which is what the framework is looking at.  Sometimes we need to step back and say okay, how can we filter through all of these things and look at all of the different rights being violated?  Without a doubt, women's freedom of expression and other people who are experiencing gender‑based violence online, because it's happening online, it gets labeled as freedom of expression.  But in fact it's going towards other types of violence and there's a whole lot of other work and analysis we have to be drawing into it.  But I am very concerned that the answers to all of these things are protectionist and we know very well if there is legislation around this or action by companies around this, it can be a huge impact on one's freedom of expression.  So it's not something that can be dealt with lightly.  Thank you. 

>> MODERATOR:  Thank you very much.  Before the next participation, I would like to ask if they have something to say about this.  I know the context in your countries is very different than occident.  We have two or three more and then we will open the online questions.  Thank you very much. 

>> I do agree with what Erica just said.  It is an issue happening in Malaysia.  There was this case where a transgender in military campus, so to enter the camp she has to produce her identity card.  So what happened was she took the photos of her identity card and posted online and it was circulated and they label her as someone that is abnormal.  They went to the government's body and launch a police report but what the government said was this is actually they are right.  So they are doing ‑‑ they're not doing anything wrong.  They're just exercising their freedom of expression.  Which is frustrating because nothing has been done. 

So yeah, I do agree that freedom of expression, I mean, abuse is abuse.  You can't say it's free speech. 

>> I totally agree with my colleagues here.  And there's one point I need to make.  There's a proverb that I always like that says your freedom ends where mine starts.  So I think we need to think of freedom as relates to us and we have to give respect to the space and freedom of others as well.  I think that's the only way we can just overcome this issue a little bit, I guess. 

>> MODERATOR:  Thank you. 

>> I just have to give a word on this subject.  Is two points.  The first is one Marco Civil addresses the revenge porn question, we are going to create an exception for this intermediary liability model that is based on the judiciary to be more easy to victims to report a nonultraized content and to remove it from the Internet.  But the concern was who was legitimate to do this request.  The person?  If it is minor, its representative.  And the concern was maybe.  If we did a too broad definition on that, maybe a lot of requests are starting to appear and they're not requests actually based on the offense, but actually based on a moral conception of what kind of image should be on Internet or not. 

And the other thing is related to the terms of services and platforms is we had a recent case in Brazil where this kind of report attack, like pages, like religious pages started to report attacks, like massive report on feminist and other gender‑sensitive political pages.  And they're study to respond.  And what we saw in that question was what kind of policy Facebook have to suspend pages.  Actually they tell us that always have a human eye on it and you're not sensitive to massive reporting.  But actually we saw that some pages were blocked.  And especially pages that were not ‑‑ that they didn't have anything on it.  And what I would like to say is sometimes this kind of mechanism can be seen like ‑‑ there are tools for hate speech.  And it is not like a tool for the right for freedom of expression to be protected.  And it's viewed to protect this kind of right.  But it is sometimes used as a tool for hate speech. 

>> Hate speech is definitely treated in the framework.  You bring up another very important point, which is the corporate responsibility and the framework, the APC level framework is focused definitely only on states.  We have somehow argued that it's the obligation of the states to protect their citizens from their person violation of human rights but still this is something to considered and it has changed a lot in the recent debates.  So we'll just go straight up to also be able to open for online participation. 

>> I work with a non‑profit in India called point of view.  I would like to follow up on the comments that you made about revenge porn and other speakers which I totally agree with.  So without repeating I wanted to say in south Asia we find that the term is sufficient, because the majority of the cases of nonconsensual image distribution we are seeing is actually not due to revenge but due to rape.  We are seeing actual rape being filled and then being circulated and we see that actually on three levels.  The rape itself, the filming and distribution.  And if we want to look at motives, the motives are usually threat, blackmail, silencing, as well as a certain machismo.  I think the other term revenge porn when policy makers in some of our countries hear the term, what they hear is porn.  And the policy response is immediately let's ban pornography.  Which is really not the solution that we want and which is not going to help the issues of privacy rights being violated and underlying issue of consent being dismissed.  So we feel that the time has really come for us to actually introduce the term freedom of sexual expression more explicitly into the discourse.  Because when we think of freedom of sexual expression we tend to think more of politics, et cetera, but we want to see women, men, should be allowed to fully express themselves and nonconsensual images is what policy makers should be looking at. 

>> My question concerns Brazil and possibly other countries as well.  We establish freedom of expression and we put reasonable limits on it and we give some people exceptions to the limits we establish previously.  So this is generally under chamber ‑‑ it's not really a problem because you have the activity speech clearly contextualize in that place.  When it comes to the Internet, key can't know whether the politicians are using his account to speak personally or as a politician so eventually have some homophobic, some racist speech going through Twitter or other social media accounts and the politicians use their status as politicians. 

What would be best practices to deal with this.  How we can solve that problem of a gray area.  The Twitter will always be personal or we establish some rules or it will always be political speech if the person is a politician so.  How do you recommend dealing with that.

>> Let's take all the question because we're running a little short on time.  Thank you very much.

>> I'm Rachel and I work with UNESCO.  I wondered in updating the framework if you've considered looking at more recent report on freedom of expression and specifically the 2000 report by Frank La Rue.  And on the point from the speaker from Pakistan about protection of journalists and bloggers, I would recommend that you look at UNESCO indicators that were launched last year actually we just released the report on the safety of journalism in Pakistan about just ten days ago.  That might be another tool to look at.

>> MODERATOR:  Thank you very much.  We have one more. 

>> My name is Marina.  Here in Brazil we are facing a lot of attacks to principles regarding privacy and what are you doing that they they're insisting on cyber crimes.  They say a lot, now we have a commission of congress discussing cyber crimes.  And my worries are how can we talk about human rights and the crimes that are perpetrated by the web without giving force to these groups.  They're defending that we must have more surveillance online and things like that.

>> MODERATOR:  Thank you very much.  So just to answer, well the framework does talk about cyber attacks although it can be increased maybe we can discuss it a little bit.  And it does also touch the topics of anonymity. 

What are the best practices to solve the divide between personal and political made through the same means in social media, personal and political speech made through the same means in social media and the second one was regarding cyber attacks.  So if anyone has anything to say. 

>> It's a process that we are going to adapt it. 

Emerging issues which are coming up.  Zero‑rating encryption, hate speech defamation.  See how all these frameworks are being dealt with and being adapted by our government.  By non‑state actors as well.  Whether they're adapting this has been universally adapted or uniform accepted by out of state actors.  In fact in the cycle that the framework will be working on just new things which has come to India.  Because of various issues around it.  There are things like zero‑rating and online pornography in India which we are talking about.  But those issues are still coming up.  And we are still thinking about all those issues.  Like we need to, like it's a collaborative effort.  I've been visiting really using where there's gaps and I wanted to respond to a few and give a bit of historical context.  This report that we base the framework on was, as I said, published in 2011.  That same year was when the what we call the principles on business and human rights were also adopted and became more main stream as well as the resolution regarding sexual orientation and gender identity.  That was all in 2011, all these major developments happening.  I think even in a we're still working to develop the framework it's a product of that time and there is a section relating to the role of the private sector but I think based on the framework we can develop that further and even though it's focused on states, states have the responsibility to make sure that companies are not violating rights in their jurisdiction.  I think that's an important thing to add.  There is a section on intermediary liability but it's quite basic.  It's important and fundamental.  It doesn't deal with technology related violence against women or what we're calling revenge porn and it does deal with child pornography and I think the important point there, the framework has a question of whether measures to address child pornography are being used are part of a larger strategy offline, rather than using the Internet and child pornography as a way to censor broader speech.  It's trying to go beyond the idea that you can block and censor things. 

Regarding the question about looking into further reports from David Kay and Frank La Rue's report, absolutely.  I think the framework has basic points on that but they can certainly be developed further now that there's more understanding what those issues should look like.  And regarding cyber crime and cyber security I think was the question.  I think again the necessary proportion principles which are another framework looking at surveillance and what are permissible conditions under which surveillance can happen and cannot happen, that's another set of principles we might want to incorporate into the framework or reference.  There was some other great ideas here and I took some notes but I don't want to go on too long because I know we have about 1 minute left.

>> MODERATOR:  I just wanted to see if we could have one online question? 

>> We have one question from Mr. Larry from Zimbabwe.  Now we'll give him the floor. 

>> Hi, my name is Larry.  Related to the cyber crime and cyber security question.  My focus is more about the knowledge gap between policies that are being made and the person on the ground.  Because more often than not people will then support legislature that seems to speak towards cyber security when it infringing upon their rights.  How do we deal with the knowledge gap that stops people from being abused by policy frameworks and as far as that is concerned. 

>> MODERATOR:  Thank you.  All the way over there from Zimbabwe.  Hi from Brazil.  Thank you for the participation.  Do you want to say something, answer that? 

>> Yes, the question about cyber crime has been raised and the knowledge and the capacity gap is a big issue.  But it's something that goes through the framework.  And this is not an instance to question the framework itself, but to present the challenges that it has been rising time and time again.  All of this shows how freedom of expression is an increasingly complex issue.  Even when we keep the value of freedom of expression relatively constant. 

The question regarding cyber crimes has also things to do with the knowledge gap of our policy makers and how they understand that they are trying to catch butterflies with cannons sometimes and criminalizing acts such as whistle blowing or white hat hacking and security research and the products of those that might be put online.  So these complex questions deserve a very thorough analysis, but also like a very strong process to get to some source of outcome that might be protected through this process. 

>> MODERATOR:  We have run out of time.  It was definitely a very interesting panel.  Thank you all for being here.  Thank you everyone that is remotely participating online.  And we'll see you around.  All the panelists are available if you want to discuss anything further and thank you very much to all of you.