158
Dictating the Internet:
Tightly targeted regulation, not heavy-handed viewpoint-based
regulation, should be relied upon, focused on ensuring company
transparency and remediation to enable the public to make choices
about how and whether to engage in online fora;
f)
States should refrain from imposing disproportionate penalties,
such as excessive fines or imprisonment terms, on individuals,
internet intermediaries or internet service providers, through content
regulation laws or regulations, given their significant chilling effect
on free expression online;
g)
States should refrain from establishing laws, legal frameworks or
regulatory models which enable “proactive” monitoring or filtering
of content online, which can infringe upon the right to privacy and
likely facilitate pre-publication censorship;
h)
States should publicly publish detailed transparency reports on all
content-related requests issued to individuals, internet intermediaries
and internet service providers, and involve genuine inputs from the
public – including civil society, academics, lawyers, ICT experts
and other independent policy advisers or technical experts – in
all considerations of appropriate legal frameworks or regulatory
models;590
i)
States should refrain from comprehensively shutting down the
internet. In exceptional circumstances, where they restrict – in a
narrow, proportionate and limited manner – access to the internet
or online services for a legitimate aim, they should clearly and
publicly provide justifications for such limitations and alternative
measures for access that will uphold the rights of individuals to free
expression, information, security, assembly association, education,
health and work, amongst other rights.
These recommendations will also assist, and should be undertaken
along with, efforts taken by States and ICT companies to respect the right
to privacy online, which is also crucially affected when laws, regulations or
legal frameworks enable undue restrictions of the rights to free expression,
opinion, privacy and information online.
590 (a) to (g) are drawn from the Rapporteur’s report, see A/HRC/38/35, paras 65 to 69.