Curtailing Free Expression, Opinion and Information Online in Southeast Asia Speaking particularly to hate speech online the UN Special Rapporteur on freedom of expression clarified in a report released in October 2019 that the ICCPR, ICERD and the Rabat Plan of Action apply equally online and emphasized that while “online hate is no less harmful because it is online”, it can “incite grave offline harm” due to the “speed of reach of dissemination” of digital technologies.59 His report not only emphasized the importance of State obligations to protect against incitement to violence online, but also asserted the crucial need for ICT companies to implement a human rights-based approach to its business models and ensure protections for human rights in accordance with the UN Guiding Principles on Business and Human Rights.60 UN Guiding Principles on Business and Human Rights The UN Guiding Principles on Business and Human Rights (‘UNGPs’), endorsed by the UN Human Rights Council in June 2011, sets out guidelines for States and business enterprises – including ICT companies – to protect against, prevent and remedy human rights violations committed in business operations.61 These principles are grounded in a UN framework for business and human rights which rests on three pillars: the State’s duty to protect against human rights violations; the corporate responsibility to respect human rights and greater access to effective remedy – judicial or non-judicial – by victims of violations.62 The UNGPs clarify that, even with respect to the exercise of rights on platforms regulated entirely by ICT companies, States retain a primary duty to enact appropriate and effective laws, policies and regulations to ensure protection against violations of those rights online. This duty also extends to taking necessary and appropriate measures to ensure that where violations occur, victims have access to effective remedy through judicial mechanisms or other administrative, legislative or regulatory means. While 59 60 61 62 UN News, ‘Companies ‘failing’ to address offline harm incited by online hate: UN expert’, 21 October 2019, Available at: https://news.un.org/en/story/2019/10/1049671; A/74/48050, paras 4 to 18. A/74/486, para 42; The UN Special Rapporteur’s report presented clear recommendations for ICT companies to integrate international human rights law and standards into their operations and practices. This paper acknowledges that the conduct of ICT companies is a crucial factor with respect to protection of the rights to expression, information and privacy online. For the purposes of this paper, however, the focus will be limited to in-depth analysis of the obligations of States to protect these rights. These principles built on a framework for business and human rights proposed by the Special Representative to Secretary-General, John Ruggie, and approved by the UN Human Rights Council in 2008. UN Guiding Principles on Business and Human Rights, HR/PUB/11/04, 2011, Available at: https:// www.ohchr.org/documents/publications/GuidingprinciplesBusinesshr_eN.pdf 25