FEM provided the following comments to UNESCO’s formal guidelines version 3 consultation on 27 June 2023.

UNESCO should not be promoting regulation, which is fundamentally what the guidelines do.

The digital space has created serious risks to human rights, as has been seen for example in Myanmar.

However, any promotion of regulations will likely be used by authoritarian states to justify and legitimise their own regulatory approaches. Effectively, authoritarian states will argue that they must regulate because the UN is promoting regulation. They will argue that the international standard is to regulate.

Until now, civil society and businesses have been urging authoritarian states not to regulate because the risks or over-regulation or mis-regulation are high. The promotion of regulations will undermine civil society and business in authoritarian states.

Instead, UNESCO should be promoting better mechanisms. The UN works best when it is assessing countries against principles. For example, as seen in the Human Rights Council’s Universal Periodic Review. 

Human rights impact assessment

Principle 1 of the draft guidelines states that platforms must “conduct human rights due diligence”, specifically “prior to any … major decisions … or new activity”. Acting before considering the human rights impacts of acting has consistently been a platform problem in Myanmar.

Therefore, it is particularly concerning that UNESCO did not conduct a Human Rights Impact Assessment (HRIA) before making the “major decision” of creating guidelines.

UNESCO has confirmed in writing that it did not conduct a HRIA in any form, or request external expert support to conduct one.

It seems hypocritical of UNESCO to establish a principle of platforms conducting HRIAs without UNESCO abiding by that same very principle.

UNESCO should have conducted a multi-stakeholder HRIA, with a particular focus upon authoritarian states and marginalised groups, before deciding to create guidelines.

Without a HRIA, UNESCO does not know the risks associated with creating regulatory guidelines, and therefore cannot adequately mitigate or manage those risk within the process or within the document.

It is not too late to conduct a HRIA. Principle 1 of the draft guidelines states that platforms should conduct “period assessments”.

It is therefore necessary that UNESCO conduct a HRIA before finalising the guidelines, and that UNESCO adequately integrates the findings of any assessment.

FEM co-authored a joint letter to UNESCO on 31 May 2023 calling for a Human Rights Impact Assessment of the intergovernmental body’s decision to make guidelines encouraging State regulation of digital platforms like Facebook.

We have been following your efforts to set out Guidelines for Regulating Digital Platforms with increasing alarm.

As representatives of civil society from across the Asia Pacific region, we have been at the forefront of the very type of abuse these guidelines set out to address. We know better than most the harmful role that tech platforms can play. We also understand how government overreach and over-regulation can result in even greater harm. In our region, these harms often work hand-in-hand, with authoritarianism on the rise and governments turning to tech platforms to advance their undemocratic agendas.

Rather than rein in big tech and safeguard human rights, we fear that the guidelines will:

Rubber stamp local over-regulation 

In our region, local regulation is regularly used to control and intimidate citizens. In practice, these guidelines will be used to justify increased regulation rather than better regulation. 

Embolden authoritarian regulators 

Our regulators lack independence, capacity and human rights commitments. Empowering these regulators means handing over more power to undemocratic processes.

Incentivise platforms to comply with illegitimate government requests

Companies are already caving to our governments regardless of the impact on human rights. The proposed UNESCO model risks accelerating this slide, providing companies greater cover to comply.

It does not appear that UNESCO has considered safeguards to protect against these significant risks. 

We have raised our concerns with UNESCO, as have many of our peers – to no avail.

Our voices are not getting heard. 

We therefore urge UNESCO to:

1. Pause the current timeline. 
2. Undertake an independent human rights impact assessment of the guidelines, inclusive of views and perspectives from civil society in authoritarian contexts.

We stand ready to engage with this assessment and explore safeguards and alternatives. 

In anticipation of your response.  

Sincerely, 

🇦🇺 Australia

• OPTF

🇧🇩 Bangladesh

• Bangladesh Internet Governance Forum
• Bangladesh NGOs Network for Radio and Communication
• Digitally Right

🇰🇭 Cambodia

• Cambodian Youth Network Association

🇮🇳 India

• Alternative Solutions for Rural Communities (ASORCOM) 
• Software Freedom Law Center

🇮🇩 Indonesia

• Combine Resource Institution
• Public Virtue Research Institute
• PurpleCode Collective
• Southeast Asia Freedom of Expression Network (SAFEnet)
• Tifa Foundation

🇱🇦 Lao

• Manushya Foundation 

🇲🇾 Malaysia

• Centre for Independent Journalism, Malaysia (CIJ)
• The IO Foundation
• KRYSS Network

🇲🇲  Myanmar

• Alternative Solutions for Rural Communities (ASORCOM) 
• Athan – Freedom of Expression Activist Organization
• Digital Rights Collective
• Free Expression Myanmar
• Myanmar Internet Project

🇳🇵Nepal

• Body & Data
• Digital Rights Nepal

🇵🇰 Pakistan

• Media Matters for Democracy 
• Digital Rights Foundation

🇵🇭 Philippines

• DAKILA
• Filipino Freethinkers 
• Foundation for Media Alternatives
• Human Rights Online Philippines (HRonlinePH)
• Philippine Alliance of Human Rights Advocates (PAHRA)

🇰🇷 South Korea

• Open Net

🇱🇰 Sri Lanka 

• Hashtag Generation

🇹🇼 Taiwan

• Doublethink Lab

🇹🇭 Thailand 

• Manushya Foundation 
• Thai Netizen Network

Vietnam

• Viet Tan 

🌏 Regional

• ASEAN Youth Forum
• Asian Forum for Human Rights and Development (FORUM-ASIA)
• Digital Rights Kashmir
• EngageMedia

🌏 Global Solidarity 

• Access Now
• ARTICLE 19
• Association for Progressive Communications 
• Electronic Frontier Foundation
• Global Voices Advox
• Internet Governance Project (IGP)
• SMEX
• Tribeless Youth
• WITNESS

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FEM co-submitted a statement to UNESCO on 27 June 2023 calling for the guidelines to be paused.

The UNESCO Guidelines may become the first UN document condoning and encouraging online administrative censorship.  Administrative censorship means that an executive branch (“the regulator” in the guideline) deliberates on specific contents and censors or penalizes the contents or their authors. Administrative censorship bodies, unavoidably impaneled through majoritarian political process, cannot be impartial and often become the tools of pro-incumbent manipulation of public opinions or imposing majoritarian values on minority groups as seen in Türkiye, South Korea, and China. For instance, Korea Communication Standards Commission, under the influence of the religious right, has blocked womenonweb.org which distributes information about medicinal abortion, a lifeline for women in abortion-banned countries or low-income women not being able to afford surgical alternatives. Many of the website blockings in Türkiye initiated through administrative censorship have targeted dissident postings. Also, cutting off speech from the marketplace of ideas without prior judicial authorization causes severe chilling effects on those who would rather be silenced than go through the legal costs of proving that their speech are protected.  For these reasons, administrative online censorship has been judged as unconstitutional in Philippines, France, and Spain by their respective highest courts, and unlike broadcast medium, only a small number of countries had dedicated internet censorship bodies. 

That will all change if UNESCO recommendations, which purports to “draw lessons from UNESCO’s work in the domain of broadcast regulation over several decades(para. 3)” are adopted. In Asian countries where the social fabric is often more vertical than other parts of the world, such danger is real: the administrative branch already plays an expansive and intrusive role in peoples’ communicative lives. As planned by the government in Myanmar, where democracy is being threatened, and as already legislated in Viet Nam, Indonesia and Thailand, ICT ministries are fast adopting administrative censorship systems whereby platforms are to be penalized for not taking down what they consider to be “prohibited”, “illegal”, “against the state”, “damaging to the public” or falling under any of the undesired categories within a stringent time limit of sometimes several hours.  UNESCO recommendations will entrench these harmful laws and encourage other Asian countries to follow suit thereby giving breathing spaces to the emerging digital authoritarianism.     

The proponent of the Guideline argues that it does not encourage administrative censorship and merely sets out the safeguards restricting the countries that want to adopt administrative censorship.  Those safeguards are non-existent. The absence is understandable from UNESCO’s initial reliance on broadcast regulation, which around the world has included censorship of even lawful contents. The internet has given tools of mass communication to countless number of powerless individuals who could not have their opinions reflected in the pre-internet media. It is clear that the UNESCO proposal is in danger of validating the intentions of some governments in developing countries, especially authoritarian regimes, to control the Internet and the information that can be disseminated through digital platforms. 

At this point, we demand that UNESCO stop this process of providing guidelines for the governments to justify censorship and modify it into guidelines for platforms to follow in combatting disinformation and hate speech and especially remove reference to or reliance on “broadcast medium” for comparison, which will send a wrong message to the regulators around the world that it is consistent with human rights to regulate the internet content space in a manner similar to broadcasting.  

Southeast Asian Collaborative Policy Network

*Member organizations: Southeast Asia Freedom of Expression Network (SAFEnet), Foundation for Media Alternatives (FMA), ICT Watch, Human Rights Online Philippines (HRonlinePH), DAKILA, Public Virtue Research Institute (PVRI), Manushya Foundation, Free Expression Myanmar, Thai Netizen Network, Out of the Box, Open Net, Security Matters (SecM), KRYSS Network, PurpleCode Collective