Articles 18-19: Freedoms of Thought and Opinion. Co-authored by Klaus Stoll and Prof Sam Lanfranco.¹

Internet Governance, like all governance, needs guiding principles from which policy making, and acceptable behavior, are derived. Identifying the fundamental principles to guide Internet ecosystem policy making around digital citizenship, and around the integrity of digital practices and behavior, can and should start with the Universal Declaration of Human Rights, (UDHR). The UDHR was embraced after World War II to protect the rights of persons in literal space. We are now facing the same challenge regarding digital space.

Our discussion now explores UDHR Articles 18 and 19. The UDHR principles guiding human rights in literal time and space serve as a starting point for the necessary principles guiding digital rights in the Internet ecosystem.² Here, in addition to dealing with the freedom of thought and opinion in cyberspace, we explore some aspects of the development of Internet Governance and the work of the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression.³

Article 18: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.⁴

Article 18 in the UDHR, with its emphasis on religion and belief, was heavily influenced by the terrible events of the inter-war years in the first half of the Twentieth Century. Article 19 generalizes the concerns and principles found in Article 18, and ends with the prophetic words, for the Internet age: “...to seek, receive and impart information and ideas through any media and regardless of frontiers.”

Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Our discussions have explored the relationship between the UDHR and the social and political structures of countries, nations, and states. Articles 18 and 19 focus greater attention on the role, and rights, of the individual. Freedom of thought and opinion are essential to protect the autonomy of the individual from demands by the state, and for informing the state of the wishes of its citizens.

The actions of an individual can be put into three legal categories: prohibited, permitted, or required. Articles 18-19 put freedom of thought and opinion firmly into the permitted category and limit the ability of a state to prohibit or require them. However, issues formal or behavioral restraint arise when expressed opinion is contrary to other principles in the UDHR, for example supporting racism, patrimony, and other forms of discrimination, and growing issue of the circulation of false information on digital platforms.

Manifestation of the Intangible

Article 18 protects not only thought, conscience and religion but also its manifestations by an individual or a group. Any attempts to prohibit them or require conformity are either illegal, or permissible only then the rights of others are affected.⁴ Thoughts, beliefs, religion, and digital data, are intangibles. They become real through their manifestations as actions and through social behaviors and institutional structures and processes. We encounter once again the principle of separate but inseparable as discussed in part 1 of this series on the UDHR.

Freedom of Thought does not mean the Freedom to Think for Others

Bertrand Russell reflected on freedom of thought:

“What makes a freethinker is not his beliefs but the way in which he holds them. If he holds them because his elders told him they were true when he was young, or if he holds them because if he did not he would be unhappy, his thought is not free; but if he holds them because, after careful thought he finds a balance of evidence in their favor, then his thought is free, however odd his conclusions may seem.”⁶

One’s thinking will always be exposed to outside influences, but it should not mirror those influences. It should be like a light that goes through a prism, to be split into its components, for critical evaluation based on dialogue with others. Dialogue is necessary to determine how my thought affects the rights of others, and to reach a consensus over how my thought can manifest itself in behavior without doing harm.

Free thought cannot not exist when the information/data on which it is based is corrupted by misinformation. Historically misinformation, or lack of information, stemmed from censorship, repression, or lack of access. Today, with ease of access and speed of dissemination, this problem is compounded by the of rumors, false news, and false facts through the Internet ecosystem. This prevents, or even perverts, dialogue-based evaluation, and the building of a common consensus.

Thought Leadership

Thought needs the ability to discover the new, to cross boundaries and be shared without fear of reprisal. Freedom of thought is the basis of innovation and has been as a key driver of progress in the digital age. However, the digital venue opens the double-edged sword of so-called thought leadership driven by social media “influencer” thought leaders, influencing both opinions and behavior.⁷

We cannot subjugate our freedom of thought to the opinions of others, especially when in uncritical support for technical or social innovation. We cannot bow to a leadership that postulates the superiority of one thought over another, independent of evidence, logic, and morality, or thought that demands acceptance without accountability. Innovation with integrity is hampered by leadership when that leadership seeks to preserve and strengthen special interests, frequently at the expense of human rights and wellbeing.

A sign of true innovation and leadership with integrity is that it enables and nurtures the processes of free thought, evaluation, dialogue, and consensus. These four steps are integral to the process of sound Internet Governance policy making.

Independent Judiciary

The UDHR envisaged competent tribunals as an important checks and balances.⁸ As history has shown, factions within states pursuing self-preservation and advancing their empowerment frequently restrict the abilities of national tribunals. Hence, in cases such as war crimes and crimes against humanity, such tribunals have been established above and beyond the state.⁹

To exercise free thought and its manifestations in cyberspace requires, as discussed in part 3 of this series, recognition without discrimination and the absence of arbitrary means of repression or presumption of guilt. This freedom can only be secured within Internet Governance when that governance is created and maintained by empowered engagement from all its digital citizen stakeholders.¹⁰

States have their own jurisdiction and sovereignty and will exercise control over domestic Internet Governance. Much like domestic human rights governance, based on the principles of the UDHR, those policies and behaviors should respect the principles behind global digital rights. There will never be a global cyberstate in the sense of an independent digital state with sovereignty over its digital territory. But the digital rights of empowered digital citizens require the principles a global universal declaration of digital rights, backed by an international judiciary, empowered by signature states, and operating with its own jurisdictional independence. This is where the separately but inseparable overlap. Stakeholder engagement in global dialogue, as well as dialogue within existing national and international bodies, is necessary to agree upon the principles and mechanisms for international agreements around the rights (and obligations) of digital citizenship, to establish appropriate judiciary institutions and processes, and to inform behavioral integrity.

Freedom of Conscience

The right to freedom of conscience protects an individual from being forced or coerced into participation in an activity that is against his/her values. When accessing a service, nobody should be arbitrarily refused, or forced to give unwilling consent, or be subjected to discrimination. This is a pressing issue when it comes to required consent to the terms of agreement for access to many of the services, apps, and activities confronting a digital citizen in the Internet ecosystem.

Many digital applications, some of them vital for the exercise of our empowered digital citizenship, are only available after agreeing to term and conditions that are contrary to the users’ interests and rights. Digital technologies and the terms under which they can be used need to conform with basic human rights, expressed as basic digital rights. Coercing individuals to sacrifice or compromise their human and digital rights through denial of services, for example through unreasonable “legal” consent forms, and the failure to fully disclose the true uses of personal data, are unethical and comparable to giving a person the choice to opt in to slavery, or starve.¹¹ Universal Internet access should be a fundamental right, and not be subject to questionable constraints on personal rights and freedoms, or digital date use practices of questionable integrity.

Freedom of Religion, Preserving the Unity of Body and Mind

Does freedom of religion, as manifested and exercised in Cyberspace, present special problems? Does it require special rights and protections? Religion is an attempt to join the separate but inseparable nature of the human mind and body, the so-called mind-body problem.¹² How does my physical body relate to my religion based (virtual) being? Building the links between the virtual and the physical is key to the security and self-preservation of one’s personhood. One’s virtual “residence” in the Internet ecosystem poses similar questions.

Religion, at is core, is virtual, with “residency” within a belief space. For believers that belief space is true. Non-believers express doubt or disbelief. Religion and philosophy provide rationales and rituals to satisfy multiple personal and societal needs. Believers and non-believers both understand that religion’s impact on literal life is real. One’s virtual residence within the Internet ecosystem has a same virtual-to-real personal and societal relationship.

Challenging a person’s religious believe system equates to questioning a believer’s being in mind and body. Since the origins of religious communities, threats and exhortations by religious leaders have driven followers to believe that extreme acts such as crusades, witch hunts and terrorism are necessary and justified. This “thought fascism” allows for multiple terrible means to be deployed to attack religious beliefs and persecute those who hold them, when those beliefs different from one’s own, as was witnessed in the middle of the past Century.

The UDHR puts religion on a same level as thought and conscience, and reaffirms the right of a believer to hold and “to change his[her] religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance”. The core principle here can be applied to the notion, and protection of thoughts and behavior within one’s digital residency.

Capitalism and Technological Thought Fascism

At the start of the 21^st Century Capitalism is under the microscope. The recent era of neoliberal (pro-market) policy has produced major technological and economic advances. At the same time, it has produced extreme concentrations of income and wealth, and increased marginalization. These outcomes are prompting serious reflection on whether market capitalism can be reformed, or needs to be replaced, with no clear idea of how to reform, or replace with what.

Belief systems satisfy our need for physical and spiritual wholeness, acting as personal “global positioning systems”, and provide comfort and security. They also help weave the fabric of society. The role of capitalism, as a technology driver within that fabric is evident. However, its impacts in the rapid development of the Internet ecosystem are driving calls for a critical review of its socio-economic impacts and the integrity of its digital business practices.

One area of particular concern is Surveillance Capitalism. Surveillance capitalism is the newly emergent digital business practice of collecting and monetizing identifiable personal digital data. This raises issues about the integrity of digital data use practices and how they relate to the digital and literal rights of persons. Processing digital data for marketing goods and services, and for feeding information (valid or false) risks the uses of digital technology in the service of thought fascism. Such risks are not new. They arose with the printing press, with radio and with film and television. The risks to human rights posed by such practices in cyberspace are greater today given the scope, scale and speed with which information can flow on the Internet. There may be reasons, and hope, to believe that humankind will be able to deal with this threat:

”...[a] careful final summary indicates commercialism as the great danger to future free thought; but it seems legitimate to hope that the great economic interests bound up with science, together with the spread of education, will prevent any return to the more noxious superstitions of the past.”¹³

While one might passively hope for principled outcomes with integrity, it is better to work on identifying principles and formulating policy through engagement by an empowered digital citizenry.

Freedom of Thought, Firmly Held Opinions, and Internet Governance

To exercise freedom of thought in Cyberspace requires an understanding, almost a paradigm shift, and think about one’s “residency” in the Internet ecosystem. One must think not only of digital rights but also of digital duties (obligations) as a citizen of the internet. As in the case of one’s literal citizenship, duties evolve and become part of the social fabric. Most are not mandated or handed down in policies and regulations but develop as social conventions. Personally, lying or spreading false rumors are frowned on. Politically, voting is an act of good citizenship, but usually it is not required.

Expressed opinions, as a contribution to dialogue and consensus should not contain falsehoods or blatant lapses in logic. Frequently they do not face legal sanctions when they occur. This is a difficult area today regarding social media, where falsehoods are widely circulated, both innocently and with malicious intent. Any system of governance, including Internet Governance, relies on a dynamic blend of binding policies and generally mutually agreed upon individual and private behaviors. Opinions should be contributions to dialogue where common wisdom says: “One is entitled to one’s own opinion but not one’s own facts”.

Multi-layered, multi-lateral and multi-stakeholder political processes include dialogue as part of processes to determine policy, hopefully based on what is right, just, and based on agreed true facts. There is a major challenge to society here today. Much of current traffic (cannot call it dialogue) in the Internet ecosystems social media is evidence-free, false news, and even unfounded conspiracy assertions. Such traffic is not much more than a tug of war in which the respective factions via to gain adherents and influence policy, frequently in ignorance of the costs in terms of damage and what is at stake.

Freedom of thought in the Twenty-First Century is about more than the freedom from the forms of persecution that lay behind Articles 18 and 19. It is about the integrity that goes into those thoughts as they manifest themselves as opinion and actions. The digital age has brought forth new risks to freedom of thought and opinion.

A century ago Bertrand Russell spoke of the “machinery of persecution”, that “insured the triumph of its own views.”¹⁴ A century later we face new forms of “machineries of persecution” as residents of the Internet ecosystem. Digital surveillance in the broadest sense, combined with AI algorithms, fashions digital profiles of us (digital personas) to shape the information, dialogues, and contexts we see in the digital venue. This is shaping our sense of self and of who we are in both a virtual and a literal sense.

This is a serious assault on our freedom of thought and opinion and made worse when driven by a toxic mix of digital business practices (greed driven?) and deception (fallibility driven?) by false or mistaken information, as we form socio-economic and political thoughts and opinions and engage in social and political actions.¹⁵

Where free thought is free from persecution, and where dialogue determines and respects the boundaries of rights, there is greater probability of the formation and manifestation of consensus. This can help overcome the obstacles consensus posted by silo-like views of self-interest, and begin to create new Internet ecosystem behaviors and supporting Internet Governance that is based on, and supports, the free will of empowered digital citizens

Competent Internet Governance will be born out of this kind of new dialogue. Its responsibility is it to enable and educate dialogue based on free thought and the respect of the rights of others. The responsibility of competent Internet Governance will be to support education and knowledge as inputs into thoughts and opinions, but not to control thought or opinion, or delegate it to algorithms¹⁶.

Article 19 is one of the key articles of the UDHR and worth repeating here:

Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 19 could be called the “UDHR Internet article”. Its “through any media and regardless of frontiers” foreshadows the Internet and expresses the core values to be applied to digital communication technologies. It expresses a key concept that connects with and ties together all its articles. Its importance is underlined by the UN Commission on Human Rights which in 1993 established the mandate for the office of the Special Rapporteur.¹⁷ In 2008 it replaced the Commission on Human Rights and its mandate continues to be renewed. Most recently (August 2020) Irene Khan was appointed as UN Special Rapporteur for Freedom of Opinion and Expression and is the first woman to hold this mandate.¹⁸ The previous officeholder David Kaye summed up the Rapporteur mandate and activities as:

“gather all relevant information, wherever it may occur, of discrimination against, threats or use of violence and harassment, including persecution and intimidation, directed at persons seeking to exercise ... against professionals in the field of information ... or to promote the exercise of the right to freedom of opinion and expression…”¹⁹

Rapporteur reports submitted since 2010 contain a wealth of information on relevant topics concerning the right to freedom of opinion and expression in the digital age such as: online hate speech, surveillance, AI, content regulation, role of digital access providers protection of sources and whistleblowers, encryption and anonymity, right of the child to freedom of expression, in an electoral context, protection of journalists and media freedom, health system issues, criminal justice system and new technologies, national security, the rights of women²⁰.

In statements to the 2017/18 General Assembly 2017/18 then Rapporteur David Kaye addressed the member states concerning the state of art of Article 19. His comments, reproduced at length here, sum up what Article 19 means in the context of Cyberspace:

“In the year since my last report, the crisis for freedom of expression has deepened worldwide. Journalists have been murdered, their killers rarely if ever brought to justice. Individuals have been arrested merely for posting online criticism of government policy or officials. Our online security, essential to our ability to take advantage of the digital revolution, has been undermined by governments and government-sponsored and private trolls. The public’s trust in information has been, and continues to be, attacked by political demagogues and their surrogates. Threats to civil society activists continue unabated, subject to digital attack, surveillance, baseless investigations and accusations, xenophobia and much else. And corporate actors in digital space are both attacked by authorities and themselves growing in power that, to many States and observers, seems unaccountable and opaque”.

Rapporteur Kaye in 2017 made specific recommendations that lay out the way forward for the member states regarding Internet Governance:

“It is my hope that the political bodies of the United Nations, especially the General Assembly and Human Rights Council, and other intergovernmental organizations will: (a) Promote the adoption of access to information policies through resolutions and other governance mechanisms; (b) Ensure the development of monitoring and oversight functions; (c) Provide comprehensive information concerning organizational governance mechanisms, including election and selection or appointment processes, and broader and simpler accreditation of organizations to participate in and monitor organizational activities; (d) Promote knowledge of access to information policies, including through the provision of clear information on websites and active dissemination and promotion of those policies to staff and stakeholders.²¹

All the reports and statements include clear recommendations and calls for action to the member states and stakeholders.

Growing frustration by the special Rapporteur is apparent. His recommendations are ignored and even contradicted by actions taken by the members states.²² He goes on to say:

“I apologize for having to begin on a grim note, but while I will spend a few moment describing my formal report, I could not begin by ignoring the vast suffering that mainly governments are causing individuals around the world today. The repression of expression is repression of democracy and rule of law. It is repression of innovation, self-exploration, and connection. I cannot urge you strongly enough to take steps to reverse and resist this trend. I urge your leaders to speak the language of respect for reporting as the crucial public watchdog. I urge you to implement indeed the important normative measures the Human Rights Council adopted earlier this month in its resolution on the safety of journalists. The UN cannot continue on with high-level commitments and limited implementation. That is a recipe for cynicism about the work that you do here, and I dearly hope you can change it.”²³

Giving the UDHR a voice within Internet Governance

David Kaye went on to provide an extensive and highly recommended discussion in his 2018 report on the practical aspects of regulation of user-generated online content.²⁴ But he also knows the game the member states play. They want to look good and as guardians of the UDHR but without accountability. For this reason they install positions like special rapporteurs and allow them to publish critical reports, but at the same time they ensure that the rapporteurs and their reports are absolutely powerless and have no binding consequences that would force action on the recommendations.

Kaye’s reports are an important voice of the UDHR from within the UN, the question is how to make it heard. The rapporteur is reporting ultimately to member states and their citizens. His reports matter to all IG organizations. One way to ensure that they have a real impact would be to put them on the agenda for discussion at the main sessions of the annual meetings of the internet governance fora such as IGF, WSIS and ICANN.²⁵ Reports should not just be discussed. Organizations should report back to the rapporteur on how their institutions plan to address the Rapporteur’s concerns. Organizations should not be able to hide from accountability when issues within their remit have their roots in the UDHR.²⁶

Freedom of Opinion and Domain names

Websites, including social media apps, quickly became crucial and essential means to exercise the right of freedom of opinion and expression.²⁷ Domain names make it easier (than IP addresses) to access websites. Domain names can also convey meaning and values, and point to relevant content. The Domain Name System (DNS) with 1530 Top Level Domains, (gTLDs), for example .org, .com, .net, and numerous second-level domains, for example xyz.org, bridge the connection between the technical infrastructure and content elements of cyberspace.

Domain names, and search engines, are the means that bring Internet access and the dynamics of the Internet ecosystem to life. Without DNS, in the words of Internet pioneer Jon Postel, there is not enough “there there” to make the Internet ecosystem easily accessible.²⁸

The significance of domain names has changed over the past years. Search engines make the knowledge of a site’s specific domain name less necessary. Owning a domain name and maintaining a website are not necessary for digital user to disseminate specific digital content. Users have a choice of social media and other platforms to host their operations. Strong internet-based brands and dialogues can exist without their own domain name, using such hosts as YouTube, Facebook, Amazon, Linkedin and Shopify, or a wide array of social media.

The importance of domains for the freedom of expression is still significant. To express a particular opinion in Cyberspace an individual or organization only has full control over content based on domain name ownership and control of a particular website. The words that replace the numeric IP address of a website can have a meaning. This is part of the rationale behind the exponential explosion of gTLDs such as cat, café, farm, fish, xxx, etc. A domain name ending in .org gives a bit of a different message than one ending in .com. Search engines and artificial intelligence (AI) algorithms might decrease the importance of domain names but a message contained on a site with its own domain may carry more cache than a message on a hosting platform with thousands of similar or contradicting messages, Platforms serve the ends of their creators. Using them as the basis for exercising freedom of information and opinion can be subject to restrictions, manipulation, and loss of control.

Domain name ownership is not without its risks. For civil society groups the terms of access to ownership data (names, locations) can subject activists to risk from repressive authorities or opponents. This is part of the complex and ongoing debates over privacy and “Whois” access to domain name registration data.

Concluding Reflections

The language and the principles of Articles 18 and 19 of the UDHR are heavily shaped by the traumas (WWI, the Depression, the Holocaust and WWII) and the violations of human rights across the first half of the 20^th Century. The challenge here is to understand what the principles mean for one’s existence as a resident of the Internet ecosystem, for one’s rights and duties as a digital citizen in the Internet ecosystem, and how those principles, rights, duties are to be enshrined in Internet Governance, and inform the integrity of behavior within the Internet ecosystem.

These issues have been discussed in this reflection on Articles 18 and 19, but it is premature to draw out the lessons learned. That task is reserved for the final piece in this exploration of the relevance of the UDHR for digital residency and digital citizenship in the Internet ecosystem, and for Internet Governance.

In the next installment of the series we will discuss Articles 20-21 that address such topics as Freedom of Assembly and The Will of the People.