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Dictating the Internet:
V. Moving forward
Laws, regulations, policies and practices continue to be designed
in non-human rights compliant ways by States in Southeast Asia, and
interpreted and applied to unduly restrict the rights to freedom of expression,
opinion and information online. There is therefore a crucial need for States
to implement international law and standards and give full effect to their
human rights obligations regarding these rights. International human rights
law and standards provide the most compelling framework within which to
inform and substantiate the efforts of States to protect, respect and fulfil
human rights online as they seek to address other emerging law and policy
issues. The UN Special Rapporteur on freedom of expression unequivocally
clarified in 2011 that the ICCPR had been drafted with “foresight to include
and to accommodate future technological developments” for persons to
exercise their rights “through any media” and “regardless of frontiers”.587
At least for the suite of laws addressed in this report, and their application,
the ICJ holds that this statement holds true.
The UNGPs are also crucially relevant with respect to States’
obligations to protect and promote human rights online, given the need for
States to integrate obligations and demands on ICT companies to enable
and give effect to physical limitations on free expression and information on
online platforms. In a 2018 report, the UN Special Rapporteur on freedom
of expression raised concerns regarding this co-dependence of the State
and the corporate in content regulation online, which are just as relevant
to Southeast Asia as to the rest of the world:
“Broadly worded restrictive laws on “extremism”, blasphemy,
defamation, “offensive” speech, “false news” and “propaganda” often serve
as pretexts for demanding that companies suppress legitimate discourse.
Increasingly, States target content specifically on online platforms. … Many
States also deploy tools of disinformation and propaganda to limit the
accessibility and trustworthiness of independent media. … Some States impose
obligations on companies to restrict content under vague or complex legal
criteria without prior judicial review and with the threat of harsh penalties.
(S)uch rules involve risks to freedom of expression, putting significant
pressure on companies such that they may remove lawful content in a
587 See Section II (v).