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1 Background and context

The Internet has been in existence since the 1960s, and the World Wide Web since the 1990s.[1] Cyberspace, however, remains a relatively new terrain in terms of the questions it raises about human rights and responsibilities.

The International Telecommunication Union estimates that almost 40% of the world‘s population, and over 76% of people in developed countries, are now internet users.[2] Government, businesses, and organisations in civil society are increasingly using cyberspace platforms in the communication of information and the delivery of services. More than any previous communication medium, the Internet also offers individuals the ability to be active publishers of information on a large scale, rather than only recipients.

Accordingly, the Internet has become a major vehicle for the exercise of the right to freedom of expression and information.

The International Covenant on Civil and Political Rights (ICCPR)[3] states (in article 19(2)):

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

The United Nations Human Rights Committee (HRC) has provided extensive commentary on this article in its General Comment number 34: Freedoms of opinion and expression.[4] The HRC has stated that the freedoms of expression and information under article 19 of the ICCPR include the freedom to receive and communicate information, ideas and opinions through the Internet.[5]

Article 19(3) provides that:

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

This means that (like many other rights) the right to freedom of information must be balanced with other rights.[6] The UN Human Rights Council has stated that ‘the same rights that people have offline must also be protected online’ (mentioning in particular freedom of expression).[7]

Laws seeking to balance rights and responsibilities often distinguish between public and private conduct. The rapid development of the Internet in terms of its use in daily life has blurred these lines.

People are increasingly using the Internet for activities that they would perceive to be ‘private’ communications (i.e. staying in touch with friends, family, social groups). However, defamation law, for example, requires only that a person be identified in material which is established to be defamatory, and that the material be ‘published’ (communicated to someone other than the aggrieved person).

‘Publishing’ can no longer be thought of as restricted to traditionally off-line mediums such as newspapers, television, radio broadcasts, books, posters or handbills. Arguably every time anything is posted on the Internet it constitutes an act of ‘publication’ for the purposes of defamation.

One question is: are people’s expectations of privacy different in cyberspace because they are using an online medium, or does it depend on the context?

Anti-discrimination laws identify and apply to specified areas of ‘public life’ (e.g. employment; accommodation; education; provision of good and services). These areas have themselves been rapidly expanded by the use and application of the Internet in employment and education, as well as in the delivery of goods and services.

But what about activities which do not necessarily fall within a public area in themselves, but might be considered public because they are conducted through the Internet?

In the case of discrimination conducted through the Internet, even where ‘public’ behaviours are identified, there is a question whether the person or people responsible can be identified. Further, how can rules in anti-discrimination or other laws be enforced in relation to conduct on the Internet where there are questions about where the act complained of occurred?

The premise of this paper is that the creation of the Internet has not unleashed a set of ‘new behaviours’ – rather it largely reproduces pre-existing behaviours within an online medium. What has changed is the impact of these behaviours, and challenges regarding the regulation of such behaviours.


[1] See D Connolly, A little history of the World Wide Web, http://www.w3.org/History.html (viewed 27 August 2013).

[2] International Telecommunication Union, Key 2006-2013 ICT data for the world, by geographic regions and by level of development, for the following indicators, at http://www.itu.int/en/ITU-D/Statistics/Documents/statistics/2013/ITU_Key_2005-2013_ICT_data.xls (viewed 27 August 2013).

[3] Opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR), art 9(1), at http://www.austlii.edu.au/au/other/dfat/treaties/1980/23.html (viewed 27 August 2013).

[4] Human Rights Committee, General Comment No. 34 – Article 19: Freedoms of opinion and expression, UN Doc CCPR/C/GC/34 (2011). At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=8&DocTypeID=11 (viewed 27 August 2013).

[5] Human Rights Committee, General Comment No. 34, note 4, para 12.

[6] See the Commission’s page on permissible limitations on human rights at http://www.humanrights.gov.au/permissible-limitations-rights.

[7]The promotion, protection and enjoyment of human rights on the Internet, Human Rights Council Resolution 20/8, UN Doc A/HRC/RES/20/8 (2012), para 1. At http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/20/8 (viewed 27 August 2013).