International human rights standards
ARTICLE 19
Freedom of expression and intermediary liability
At the international level, several human rights bodies and mechanisms have developed soft
law guidance on freedom of expression online and intermediary liability, generally
maintaining that intermediary immunity from liability is critical to protecting freedom of
expression online.
The UN Human Rights Council (UNHCR) affirmed in 2018 that the ‘same rights that people
have offline must also be protected online, in particular freedom of expression, which is
applicable regardless of frontiers and through any media of one’s choice’.6 The UN Human
Rights Committee has made clear that limitations on electronic forms of communication or
expression disseminated over the internet must be justified according to the same criteria
as non-electronic or ‘offline’ communications, as set out above, while taking into account the
differences between these media.7
While international human rights law places obligations on states to protect, promote, and
respect human rights, it is widely recognised that business enterprises also have a
responsibility to respect human rights and to address adverse rights impacts of their
business operations. 8 In meeting their obligations, states may have to regulate the
behaviour of private actors in order to ensure the effective exercise of the right of freedom
of expression.
Importantly, the UN Special Rapporteur on freedom of expression has long held that
censorship measures should never be delegated to private entities. 9 In their 2011 Joint
Declaration on Freedom of Expression and the Internet, the 4 freedom of expression
mandate holders stated that, at a minimum, ‘intermediaries should not be required to monitor
user-generated content and should not be subject to extrajudicial content takedown rules
which fail to provide sufficient protection for freedom of expression’.10
In his June 2016 report to the UNHRC, 11 the UN Special Rapporteur on freedom of
expression enjoined states not to require or otherwise pressure the private sector to take
steps that unnecessarily or disproportionately interfere with freedom of expression, whether
through laws, policies, or extra-legal means. He further recognised that ‘private
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6
UNHRC, The Promotion, Protection and Enjoyment of Human Rights on the Internet, A/HRC/38/L.10/Rev.1,
July 2018.
7 Human Rights Committee, General Comment No. 34, paras 12, 39, 43.
8 The United Nations Guiding Principles on Business and Human Rights: Implementing the United Nations
‘Protect, Respect and Remedy’ Framework (The Ruggie Principles), A/HRC/17/31, 21 March 2011, Annex.
The UNHRC endorsed the guiding principles in Resolution 17/4, 16 June 2011.
9 UNHRC, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of
Opinion and Expression, Frank La Rue, A/HRC/17/27, 16 May 2011, paras 75–76.
10 OSCE, Joint Declaration on Freedom of Expression and the Internet, 2011.
11 Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and
expression, A/HRC/32/38, 11 May 2016, paras 40–44.
11