Curtailing Free Expression, Opinion and Information Online in Southeast Asia
cyberspace, but the manner in which effective enforcement can be ensured.
In a lecture delivered in September 2017, Professor Yuval Shany,
now Chair of the UN Human Rights Committee, wondered if a specialized
framework needed to be developed for the internet – lex cybernetica – guided
by ‘traditional’ international human rights law. As he keenly observed:
“The chief attribute that makes cyberspace such a useful and
powerful vehicle for communication and access to data and ideas … is its
universality: It is a space shared by all and freely accessible to all under
more or less equal terms pursuant to the net neutrality principle. An IHRL
framework that requires states to renationalize segments of cyberspace and
to fragment it to overlapping territorial zones of influence and regulation,
cuts against the logic of creating such a space, and may result in ‘throwing
the baby with the bath water’”.86
While the effectiveness of international legal enforcement mechanisms,
such as the GDPR and Convention 108+, remains to be assessed there is
no doubt that extraterritorial obligations to protect human rights extend
to States and non-State actors equally online as offline under international
human rights law.
viii. The rights to peaceful assembly, freedom of association, and
political participation
The rights to freedom of association, assembly, and political
participation are also engaged when individuals engage in online communications
and information-sharing. These rights are protected respectively under
articles 21, 22 and 25 of the ICCPR. The ICCPR provides for no restrictions
to be placed on these rights unless necessary and proportionate for a
legitimate aim:
“Article 21 – The right of peaceful assembly shall be recognized. No restrictions
may be placed on the exercise of this right other than those imposed in
conformity with the law and which are necessary in a democratic society in
the interests of national security or public safety, public order (ordre public),
the protection of public health or morals or the protection of the rights and
freedoms of others.
86
Prof. Yuval Shany, ‘Cyberspace: The Final Frontier of Extra-Territoriality in Human Rights Law’,
26 September 2017, Available at: https://csrcl.huji.ac.il/people/cyberspace-final-frontier-extraterritoriality-human-rights-law
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