The Human Right to Access Communications

References and Principles.

APT-ITU workshop on the International Telecommunications RegulationsBangkok, 6-8 February 2012Preetam Maloor, ITU

The Human Right to Access Communications

1. Background

2. References to the right to communicate included in the instruments of the Union

3. The forms, types and context of communication that are addressed by human rights standards

4. Human rights protection regarding • the media

• ICTs

• access to information

5. Legitimate restrictions on communication

1 - Background

• The right of the public to access international telecommunication services has been considered by ITU Membership since the adoption of the ITRs.

• Key references can be found in:Instrument References

The Constitution and Convention of the Union

Articles 33, 34, 36 and 37

The International Telecommunication Regulations (ITRs)

Articles 3 and 4

1 - Background

• The international and regional human rights treaties and related instruments do not identify explicitly a specific and distinct right of communication.

• Nevertheless, they guarantee and protect many dimensions of communication in the framework of their provisions on the right of freedom of expression and related rights.

1 - Background

• Principles already adopted by membership relevant to “human right to access to communications”…

Level Instruments

InternationalUN Human Right

Treaties

• International Covenant on Civil and Political Rights (1966)

• Convention on the Rights of the Child (1989)• International Convention on the Protection of the

Rights of All Migrant Workers and Members of Their Families (1990)

• Convention on the Rights of Persons with Disabilities (2006)

Regional human right treaties

• European Convention on Human Rights (1950)• American Convention on Human Rights (1969)• African Charter on Human and Peoples’ Rights (1981)

The Human Right to Access Communications

1. Background

2. References to the right to communicate included in the instruments of the Union

3. The forms, types and context of communication that are addressed by human rights standards

4. Human rights protection regarding • the media

• ICTs

• access to information

5. Legitimate restrictions on communication

2 - References to the right to communicate included in the instruments of the Union

ITU Constitution and Convention (1992)Article 33 - The Right of the Public to Use the International

Telecommunication Service• 179. Member States recognize the right of the public to

correspond by means of the international service of public correspondence. The services, the charges and the safeguards shall be the same for all users in each category of correspondence without any priority or preference.

Other referencesArticle 34 (Stoppage of Telecommunications), Article 35 (Suspension of Services), Article 36 (Responsibility), Article 37 (Secrecy of Telecommunications)

2 - References to the right to communicate included in the instruments of the Union

International Telecommunication Regulations (1989)Article 3 - International Network• 3.4. Subject to national law, any user, by having access to

the international network established by an administration*, has the right to send traffic. A satisfactory quality of service should be maintained to the greatest extent practicable

Other referencesArticle 4 (International Telecommunication Services)

The Human Right to Access Communications

1. Background

2. References to the right to communicate included in the instruments of the Union

3. The forms, types and context of communication that are addressed by human rights standards

4. Human rights protection regarding • the media

• ICTs

• access to information

5. Legitimate restrictions on communication

3 - The forms, types and context of communication that are addressed by human rights standards

International Covenant on Civil and Political Rights(1966)

Article 19• 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.

(further references – UN treaties)

• Convention on the Rights of the Child (1989), Articles 12 and 13.

• International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990), Article 13.

• Convention on the Rights of Persons with Disabilities (2006), Article 2 , Article 21.

Regional treaties:

• European Convention on Human Rights (1950), Article 10.

• American Convention on Human Rights (1969), Article 13.

• African Charter on Human and Peoples’ Rights (1981), Article 9.

The Human Right to Access Communications

1. Background

2. References to the right to communicate included in the instruments of the Union

3. The forms, types and context of communication that are addressed by human rights standards

4. Human rights protection regarding • the media

• ICTs

• access to information

5. Legitimate restrictions on communication

4. 1 - Human rights protection regarding the media

International Covenant on Civil and Political Rights (1966)

Human Rights Committee, General Comment No. 34

• A free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression (…) It constitutes one of the cornerstones of a democratic society.

• The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential.

• This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. The public also has a corresponding right to receive media output.

(further references)

• Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, Article 9.

• Inter-American Declaration of Principles on Freedom of Expression (2000), Principle 1.

• Windhoek Declaration: Declarations on Promoting Independent and Pluralistic Media (1991), Declaration 10, Declaration 11.

The Human Right to Access Communications

1. Background

2. References to the right to communicate included in the instruments of the Union

3. The forms, types and context of communication that are addressed by human rights standards

4. Human rights protection regarding • the media

• ICTs

• access to information

5. Legitimate restrictions on communication

4.2 - Human rights protection regarding ICTs

International Covenant on Civil and Political Rights (1966)Human Rights Committee, General Comment No. 34

• States parties should take account of the extent to which developments in information and communication technologies, such as Internet and mobile based electronic information dissemination systems, have substantially changed communication practices around the world.

• There is now a global network for exchanging ideas and opinions that does not necessarily rely on the traditional mass media intermediaries.

• States parties should take all necessary steps to foster the independence of these new media and to ensure access of individuals thereto.

(further references)

• Joint Declaration on Freedom of Expression on Internet, adopted by UN Special Rapporteur on Freedom of Opinion and Expression, OSCE Representative on Freedom of the Media, OAS Special Rapporteur on Freedom of Expression, and ACHPR Special Rapporteur on Freedom of Expression and Access to Information (2011)

• Council of Europe Committee of Ministers, Declaration on Freedom of communication on the Internet (2003)

• ACHPR Declaration of Principles on Freedom of Expression in Africa (2002)

The Human Right to Access Communications

1. Background

2. References to the right to communicate included in the instruments of the Union

3. The forms, types and context of communication that are addressed by human rights standards

4. Human rights protection regarding • the media

• ICTs

• access to information

5. Legitimate restrictions on communication

4.3 - Human rights protection regarding access to information

International Covenant on Civil and Political Rights (1966)

Human Rights Committee, General Comment No. 34

• Article 19, paragraph 2 embraces a right of access to information held by public bodies. Such information includes records held by a public body, regardless of the form in which the information is stored, its source and the date of production.

• Public bodies are as indicated in paragraph 7 of this general comment. The designation of such bodies may also include other entities when such entities are carrying out public functions. …

See also:• ACHPR Declaration of Principles on Freedom of Expression in Africa

(2002)

The Human Right to Access Communications

1. Background

2. References to the right to communicate included in the instruments of the Union

3. The forms, types and context of communication that are addressed by human rights standards

4. Human rights protection regarding • the media

• ICTs

• access to information

5. Legitimate restrictions on communication

5. Legitimate restrictions on communication (as found in the human rights standards) International Covenant on Civil and Political Rights (1966)

Article 19• 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:– For respect of the rights or reputations of others;– For the protection of national security or of public

order (ordre public), or of public health or morals.

(further references – UN treaties)

• Convention on the Rights of the Child (1989), Article 13.• International Convention on the Protection of the Rights

of All Migrant Workers and Members of Their Families (1990), Article 13.

• Regional human rights treaties– European Convention on Human Rights (1950), Article 10– American Convention on Human Rights (1969), Article 13

(further references – other instruments)

• Directive 2009/140/EC of the European Parliament and of

the Council of 25 November 2009 amending Directives

2002/21/EC on a common regulatory framework for

electronic communications networks and services,

2002/19/EC on access to, and interconnection of, electronic

communications networks and associated facilities, and

2002/20/EC on the authorization of electronic

communications networks and services Text with EEA

relevance.

The Human Right to Access Communications

References and Principles.