Index relies entirely on the support of donors and readers to do its work.
Help us keep amplifying censored voices today.
UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, by email.
CC – Dr. Ana Brian Nougrères, UN Special Rapporteur on the right to privacy, by email.
Re: Concerning developments for human rights online in the UK
Dear Ms Khan,
We are writing to you regarding the UK Government’s Online Safety Bill; legislation which we believe will fundamentally undermine the rights to freedom of expression, privacy and other human rights online in the UK.
We note that in March 2022 you wrote to the UK Government expressing concerns about this Bill (OL GBR 5/2022). In your correspondence you stated:
“I believe the proposed Bill, as currently drafted, contains some key provisions that could undermine its overall objective as well as international human rights principles.”
Regrettably, since this correspondence, the legislation has in no way been materially improved to protect human rights. This is despite the fact that it has now been laid before Parliament and has been subjected to considerable revisions. We therefore urge you to use your mandates to provide recommendations to the UK Government to amend the following concerning aspects of the Bill:
The Bill will lead to the restriction of speech considered “legal but harmful”.
We are particularly concerned over the provisions of the Bill which will place pressure on the largest platforms to restrict content the government has designated to be “harmful” (clause 13). In your correspondence to the UK Government of 14 March 2022 you said of this obligation:
“The duty of care placed upon online providers to protect users of their services against legal but harmful content uses vague terms that are open to broad interpretation, such as “reasonably identify”, “material risk”, “significant adverse physical or psychological impact”, “ordinary sensibilities”, and so risks undue removal of content.”
Despite further revisions to the legislation, the Bill continues to place an obligation on online intermediaries to address content which is “legal but harmful”. Where speech of this nature was given a definition in the draft Bill, no such definition exists in the full Bill. An indicative list of possible categories of harmful content was issued by the government in June this year.1 However, this list is not legally binding and cannot be considered sufficiently precise to meet the legality requirement under international human rights standards. Rather, the power to designate speech which is “legal but harmful” lies within the power of the Secretary of State, which creates scope for political censorship and seriousl compromises the independence of the regulatory framework.
As you noted in your letter, the Bill provides little detail of the obligations regarding harmful content and providers could be required to make subjective assessments of its potential impact. Consequentially, forms of speech which are permitted in the offline world and are protected under international human rights law would be censored online, creating two different standards of permissible speech.
The Bill will mean online platforms, not courts, enforcing UK law
In your letter to the UK Government of 14 March 2022, you noted your concerns about the obligations the Online Safety Bill places on platforms to perform functions – namely the duty to remove illegal content – which should be the preserve of law enforcement bodies and independent courts. You stated:
“I am concerned that this obligation delegates to private companies a responsibility that should be exercised by law enforcement, particularly for offences where the boundary between offensive but legal and illegal conduct may be difficult to discern, such as hate crime.”
The Bill continues to require online platforms to determine whether the speech of people in the UK is legal or not and then remove it if they believe it is illegal, undermining the rule of law (clause 9). Online platforms will inevitably turn to machines, not trained people, which are unable to make such nuanced and difficult legal assessments. As a further development of this obligation, platforms will now have a duty under clause 9 of the Bill to “prevent” content (and not only limit its visibility as required under the draft Bill) that they “reasonably consider” could be what the Government describe as “priority illegal content”. Such priority content is defined in Schedules 5,6, and 7 of the Bill, as a list of criminal offences. The list includes provisions from public order and anti-terror legislation which would set the legal limits of legitimate expression. We are concerned that the new language in clause 9 could push platforms to use “upload filters” and risks collateral censorship on a large scale.
Private actors should not be tasked with making such decisions over the legality of people’s behaviour. This is the role of transparent, independent and accountable public authorities such as courts. However, the Bill does nothing to ensure that the police and courts are properly resourced to prosecute, convict, and sentence those who break the law online, depriving victims of justice.
The Bill compromises end-to-end encryption of private messages
In your letter of 14 March, you noted the importance of the right to privacy as a right which also reinforces protection of the right to freedom of expression. You stated:
“I am concerned that the inclusion of direct private messaging within the scope of the Bill could impact negatively on encryption, security and privacy. I have similar concerns regarding Ofcom’s ability to compel a service to use technology to detect child sexual exploitation and abuse (CSEA) and terrorism content on private and public channels and CSEA content on private communication channels”.
The latest version of the Bill continues to bring encrypted chat services into scope via a definition of content as anything that is “communicated publicly or privately”. The obligations on services mandated by the Bill could be imposed on providers of encrypted messaging services via an enforcement power handed to the regulator, Ofcom, without any further judicial or administrative oversight. This would allow Ofcom to mandate that a service use government-“accredited technology” to surveil private channels, even if they are protected by end-to-end encryption (clause 104).
Encryption tools have become vital for individuals to communicate securely. This is particularly true for human rights defenders, journalists, whistleblowers, victims of domestic abuse or individuals from marginalised groups. Undermining these individuals’ ability to communicate privately and securely would threaten both their safety and their right to freedom of expression.
Your other concerns regarding a media exemption; the lack of any quality standards required for the internal complaints mechanisms; the scale of fines that could be imposed on providers; the inadequate requirement on providers to “have regard” to freedom of expression; and the excessive powers granted by the Bill to the Secretary of State; have also not been addressed.
We believe an intervention from you on the legislation would be timely. The Bill has nearly completed its passage through the House of Commons and will soon enter the House of Lords for further consideration. However, in recent weeks, the Bill has been paused for further review.
We urge you to issue a statement or communicate your concerns with the Government, recalling their long-standing obligations in international and domestic law, and their recent pledges to defend freedom of expression in the UK and abroad.
Mark Johnson – Big Brother Watch
Barbora Bukovská – ARTICLE 19
Sam Grant – Liberty
Dr Monica Horten – Open Rights Group
Daniel Pryor – Adam Smith Institute
Ruth Smeeth – Index on Censorship
“Serious human rights violations” have been committed in Xinjiang and the arbitrary and discriminatory detention of Uyghurs “may constitute…crimes against humanity” according to a controversial UN report that the Chinese government has been trying to quash.
The report also concludes that allegations of patterns of torture or ill-treatment, including forced medical treatment and adverse conditions of detention, as well as allegations of individual incidents of sexual and gender-based violence are “credible”.
What is also abundantly clear is that the report does not make mention of the word “genocide”, something that has left many campaigners unsatisfied.
The UN report goes so far as to push any mention of “suspicious deaths” occurring inside Xinjiang’s re-education centres into a footnote, saying that despite being presented with allegations on these by interviewees it had “not been possible to verify [them] to the requisite standard”. Restricting the ability of the UN to verify claims of human rights abuses is an effective method by which states, such as China, can effectively game the UN’s investigative process. By ensuring the body cannot access the evidence it needs, China can ostensibly shape what the UN can say without exerting any overt control or interference.
Last month it was revealed that the Chinese mission to the UN was lobbying to prevent the release of the report into human rights abuses in Xinjiang. The publication of the report, first commissioned in 2018, had been repeatedly delayed after having been completed in September 2021. Under tremendous pressure from other UN member states, the report was finally made available on 31 August in the last minutes of UN High Commissioner Michelle Bachelet’s term.
The release of the report has not been welcomed by the Chinese government. In its response to its publication, China’s mission to the UN said: “Based on the disinformation and lies fabricated by anti-China forces and out of presumption of guilt, the so-called ‘assessment’ distorts China’s laws and policies, wantonly smears and slanders China, and interferes in China’s internal affairs”.
The attempt to block the report’s publication may come as a shock to some but this incident is only the most recent attempt by the Chinese Communist Party (CCP) to silence Uyghurs both within and outside China and to discredit those who try to shine a light on their treatment. In the past, the UN has abdicated from its duty to challenge this global campaign against the Uyghurs. The publication of the report is a notable improvement on the UN’s poor track record. But the controversy surrounding the report’s release has left few critics of the UN optimistic about the ability of the organisation to defend Uyghurs in the future.
The release of the Xinjiang report reflects a significant departure from the UN’s traditional soft-touch approach to managing its relationship with China. For example, earlier in 2022 Michelle Bachelet became the first UN High Commissioner to visit China in 17 years. While Bachelet praised China’s progress in labour standards and gender rights, she mentioned only in passing the treatment of Uyghurs, which according to credible reports, includes mass enslavement and systemic rape. Bachelet later admitted that her access to Uyghurs was severely restricted, ostensibly because of COVID-19 regulations, but to many her relative silence appeared to validate the Chinese government’s narrative surrounding events in Xinjiang. After her visit, The Global Times, a Chinese newspaper known for inevitably toeing the government line, ran an opinion piece praising Bachelet for changing her perspective on Xinjiang. The piece celebrated Bachelet’s adoption of CCP terminology – highlighting her use of “the term ‘Vocational Education and Training Centre’ instead of the so-called ‘re-education camp’” – and attributed her much-publicised decision not to run for a second term as High Commissioner to pressure she faced after speaking out in favour of China’s counter-terrorism measures.
Bachelet appeared to accept at face value claims that the re-education camps had “been dismantled” and appeared overly optimistic about “China’s stated aim of ensuring quality developed closely linked to developing the rule of law and respect for human rights”. While she expressed some half-hearted concern about the “lack of judicial oversight” in Xinjiang and mentioned Uyghurs she had met before her trip to China who had lost contact with their relatives, her condemnation of the treatment and mass detention of Uyghurs across the region was decidedly muted. Instead she praised China’s “tremendous achievements” in labour and gender rights, an insult to the victims of slave labour and sexual abuse in the camps. She concluded that “there is important work being done to advance gender equality, the rights of LGBTQI people or people with disabilities and all the people among other [groups]”.
China’s mission to the UN now says that the content of the report “is “entirely contradictory to the formal statement issued by [Bachelet]” following her visit. Just like the Global Times, China’s mission is falsely pointing to Bachelet’s Xinjiang trip as an exoneration of the CCP.
Bachelet herself emphasised that her visit “was not an investigation”, which begs the question why it happened in the first place. All her soft touch approach achieved was to grant the Chinese Communist Party (CCP) a significant PR win.
To understand why UN officials like Bachelet have traditionally been so cautious about criticising China, Index spoke to Emma Reilly (left), an Irish former human rights officer at the United Nations Office of the High Commissioner for Human Rights (OHCHR). Reilly was fired in 2021 after blowing the whistle in 2017, revealing how the UN had for years been passing the names of Uyghurs set to testify before the UN to the Chinese government. Reilly explained to Index that Eric Tistounet from the OHCHR told concerned staff that “not giving them over would further Chinese distrust of the UN”.
One of the names on the list was Dolkun Isa who now resides in Germany. After the UN passed over his name to the Chinese authorities, his remaining family members who still resided in Xinjiang received a visit from the police. His parents later died in a re-education camp in circumstances that are still unclear. Reilly told Index that another person the UN exposed without their knowledge died upon their return to Xinjiang.
After the UN issued a medical report about Reilly, the Swiss police visited Reilly’s house and prevented her from attending a meeting about the issue she had exposed. In doing so, the UN effectively transformed the Swiss police into a tool of CCP censorship.
A tribunal was initiated to investigate Reilly’s case with the assistance of Rowan Downing QC, a former President of the UN Dispute Tribunal and an international war crimes judge. When it became clear that Downing’s ruling would not be favourable towards the UN, he was removed from his position. Downing compared this move to a coup.
Reilly told Index that the UN’s general reluctance to criticise the CCP is based on the misguided assumption that significant concessions need to be made to maintain a friendly relationship with the Chinese government. According to Reilly, it is commonly believed at the UN that increased engagement with the Chinese government will lead it to internalise global norms of human rights. But the opposite appears to be the case. In fact, the Chinese government has proven itself to be a powerful norm maker of its own as it becomes increasingly assertive in the UN.
Rosemary Foot’s book “China, the UN and Human Protection” seeks to explain the paradox of a China that is significantly more prominent in the UN system yet increasingly resistant to many of its central tenets. Most significantly, the Chinese government has sought to bolster the importance of sovereignty and undermine the universal nature of human rights.
For example, China had only used its security council veto power six times before the outbreak of the Syrian civil war. It then used it seven times to block resolutions condemning the Assad regime. The Chinese government believes that the treatment of Syrians, Uyghurs and other groups should be treated as “internal affairs” and economic growth should be seen as the principal means of improving human rights. As Kenneth Roth, the former executive director of Human Rights Watch, recently wrote, “if Beijing had its way, human rights would be reduced to a measurement of growth in gross domestic product”.
In her discussion with Index, Reilly expressed dismay that her case had received the most attention from right-leaning outlets sceptical of the UN project. Other outlets tended to focus on the treatment of whistleblowers rather than the behaviour she was uncovering and the necessity of systemic reform. Like many other UN whistleblowers, Reilly remains committed to the UN project and wants it changed, not abandoned.
Disempowering the UN (like the Trump administration tried to do by making significant cuts after its recognition of Jerusalem as the capital of Israel was rejected) will only empower the Chinese government to fill the vacuum. But the typical relationship the UN has had with the Chinese government swings the pendulum too far in the opposite direction. The UN must not allow itself to become a tool for China to censor its opponents but starving the UN of funds, undermining its mandate, and expecting it to reform is not a tenable solution that protects universal rights and targeted groups, including Uyghurs both in China and elsewhere.
Given the UN’s poor track record of endangering critics of the CCP, does the release of the Xinjiang report suggest the arrival of the kind of systemic reform that Reilly and others have called for?
Critics are sceptical that this recent development (while welcome) reflects a newly assertive United Nations. The next step would be for an independent investigation to be conducted into events in Xinjiang. Calls for such an investigation have also come from within the UN system after 50 UN human rights experts urged the Human Rights Council in 2020 to establish an independent UN mandate to monitor and report on human rights violations in China. According to the OHCHR’s own statement on this recommendation “unlike over 120 States, the Government of China has not issued a standing invitation to UN independent experts to conduct official visits.” However, two years later and progress has been glacial. Considering that the release of a report took almost three years once it was completed and was only possible after overwhelming pressure from other member states, any next step looks like an insurmountable challenge requiring consistent international solidarity and pressure at a time of growing international tension. The Chinese government cannot exert total influence over the UN to silence all of its critics but as demonstrated by the delays of the Xinjiang report, the UN process remains too easy for human rights abusers to impede.
Reilly remains critical of the UN. Now that the UN has officially recognised in its report that the CCP carries out “reprisals against Uyghur and other predominately Muslim minorities abroad in connection with their advocacy, and their family members in [Xinjiang]”, their continued smear campaign against her and refusal to condemn the policy she exposed is an increasingly untenable position.
There is also the question of how permanent the UN’s apparent change of strategy will be. It is notable that Bachelet only felt capable of releasing the report upon her departure from office when she would not have to face the consequences of her decision. Perhaps that now Bachelet is gone, her brief experiment with explicitly calling out the CCP’s human rights abuses will be replaced with business as usual.
If the UN has only just reached the stage of officially recognising that this years long campaign is actually taking place, let alone taking active measures to stop it, who can Uyghurs rely on?
[Index made repeated requests to the United Nations for comment on this article but no replies were received at time of publication.]
To learn more about the censorship of Uyghurs in Europe, read Index’s Banned by Beijing report “China’s Long Arm”: https://www.indexoncensorship.org/2022/02/landmark-report-shines-light-on-chinese-long-arm-repression-of-ex-pat-uyghurs/
[vc_row][vc_column][vc_single_image image=”117182″ img_size=”full” add_caption=”yes”][vc_column_text]
[This week, 20 UK media organisations issued an open letter calling for emergency visas for reporters in Afghanistan who have been targeted by the Taliban. Ruchi Kumar recently wrote for Index about the threats against journalists in Afghanistan from the Taliban.] [/vc_column_text][/vc_column][/vc_row]
The International Bill of Human Rights, consisting of the five core human rights treaties of the United Nations that function to advance the fundamental freedoms and to protect the basic human rights of all people, was entered into force in 1967 by the UN General Assembly.
The documents contained in the International Bill of Human Rights are: the Universal Declaration of Human Rights; the International Covenant on Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights; the Optional Protocol to the International Covenant on Civil and Political Rights; and the Second Optional Procotol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty
The full declaration sets out the basic rights all people should enjoy and expect from their governments and other governments. The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights deal directly with freedom of expression.
Article 19 of the Universal Declaration of Human Rights
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 of the International Covenant on Civil and Political Rights
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Article 25 of the International Covenant on Civil and Political Rights
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
c) To have access, on general terms of equality, to public service in his country.
We’ll send you our weekly emails and periodic updates on our events. We won’t share your personal information with anyone outside Index.
You’ll also get access to an exclusive collection of articles from our landmark 250th issue of Index on Censorship magazine exploring journalists under fire and under pressure. Your downloadable PDF will include reports from Lindsey Hilsum, Laura Silvia Battaglia and Hazza Al-Adnan.[/vc_column_text][/vc_column][vc_column width=”1/2″][gravityform id=”20″ title=”false” description=”false” ajax=”false”][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”More information about freedom of expression”][vc_column_text]Why is free speech important? Freedom of expression is a fundamental human right. It reinforces all other human rights, allowing society to develop and progress. The ability to express our opinion and speak freely is essential to bring about change in society.
Why is access to freedom of expression important? All over the world today, both in developing and developed states, liberal democracies and less free societies, there are groups who struggle to gain full access to freedom of expression for a wide range of reasons including poverty, discrimination and cultural pressures. While attention is often, rightly, focused on the damaging impact discrimination or poverty can have on people’s lives, the impact such problems have on free expression is less rarely addres[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_basic_grid post_type=”post” max_items=”4″ element_width=”6″ order=”ASC” grid_id=”vc_gid:1494247299440-5e8d8e06-86b1-1″ taxonomies=”9210″][/vc_column][/vc_row]