[governance] China's remarks to the HRC panel on freedom of expression and the Internet

Thu Mar 1 12:14:28 EST 2012

Dear Bill,

A few key issues emerge that require consideration [good news is that we
included them to our contributions to the MAG].

There is no question against what is internationally agreed objectionable
content which includes the like of Child Pornography, Hate Speech,
Defamation, Direct and Public Incitement to commit Genocide, Advocacy of
National, Racial and Religious Hatred, Incitement to discrimination,
hostility and violence.

Whilst the freedom of expression is not absolute,  Article 19 does give
notion to special duties and responsibilities that it may be subject to
certain restrictions such as for the respect of the rights and reputation
of others, protection of national security, or of public order or of public
health or morals.  China in a joint Statement  [China, Algeria, Bangladesh,
Belarus, Burundi, Cambodia, Congo, Cuba, DPRK, Ethiopia, Iran, Laos,
Malaysia, Mauritania, Myanmar, Namibia, Nicaragua, Pakistan, Palestine,
Philippines, Russia, Saudi Arabia, Sri Lanka, Sudan, Turkmenistan,
Venezuela, Vietnam, Uzbekistan, Yemen, Zimbabwe] alluded to this.

Globally we continue to witness the extraordinary muzzling of  Freedom of
Expression through justification of the exception. For example things like
defamation is taken out of context in some instances. Eg. There are
tyrannical usurpers who create draconian anti-sedition legal instruments
and instances. There are instances of abuse of power and a direct
violations of existing checks and balance mechanisms and removal of
accountability. We hear of Jurisdictions that do not even publish Auditor
General's reports or who have closed down these offices etc. We see the
manipulation of the exception. I have seen countries continuously
promulgate State of Emergencies to justify the muzzling of Freedom of
Expression or others continuously invoke the Doctrine of Necessity to hide
behind the veil of National Security.

The National Security exception  and its boundaries in the midst of things
like the Arab Springs and the Occupy "X" movements are undercurrents of a
far deeper problem within those societies.

 In China, the Artist Ai Wei Wei whose art has nudity and in some
jurisdictions this against the "Public Moral" in China, possibly or we hear
of how recently in Tunisia (
http://globalvoicesonline.org/2012/02/20/tunisia-a-year-after-the-revolution-limitations-on-freedom-of-expression-continue
/<http://globalvoicesonline.org/2012/02/20/tunisia-a-year-after-the-revolution-limitations-on-freedom-of-expression-continue/>
)
were arrested for publishing nudity in a newspaper.

There are countries in the world whose public moral "accepts nudity" such
as the tribal communities of  parts of Africa and the Pacific and other
countries where this is frowned upon due to the "public moral" in their
societies.

Take for example, Michaelangelo's "David" which is acclaimed to be a
masterpiece of Renaissance culture between 1501 and 1504. In some
countries, it would be a violation of the "public moral" and in others, it
would be a work of art. I remember going to watch the land diving [this is
the origin of Bungee jumping] in Pentecost Island in Vanuatu a few years
ago where man would jump off a huge man made wooden tower from the top of a
mountain with only a vine attached to his legs as part of a male initiation
rite. If you don't jump you are not considered a "man" in their society and
can't speak in meetings etc. I was shocked because they were all naked.
Friends of mine who went to do some brief work on the island were shocked
but after a while, we began to notice that for them, it was normal and has
been engrained as a part of their culture. Of course, in some cities, if
you were to walk naked in the city, you would be arrested on the spot.

I think in essence countries and people misinterpret Article 19 of the
ICCPR when they fail to consider what I feel is an often overlooked part of
the ICCPR which is the "preamble" which gives context and fully explains
the spirit in which Article 19 was carefully crafted. I am copying part of
the preamble here:

"Considering that, in accordance with the principles proclaimed in the
Charter of the United Nations, *recognition of the inherent dignity and of
the equal and inalienable rights *of *all members of the human family* is
the *foundation of freedom, justice and peace in the world,*

Recognizing that these *rights derive from the inherent dignity of the
human person*,

Recognizing that, in accordance with the Universal Declaration of Human
Rights, the ideal of free human beings enjoying civil and political freedom
and freedom from fear and want can only be achieved if conditions are
created whereby everyone may enjoy his *civil and political rights*, as
well as his *economic, social and cultural rights*,
             If we explore these building blocks that are mentioned in the
preamble, we see the foundation is based on freedom, justice and peace. It
is worthwhile asking whether our systems reflect that.
             We see how the New Delhi (India)'s Court had mentioned that
ISPs should filter obscene publications and have mechanisms in place. We
see how this is provided for in their Obscene Publication Act etc.
             One of the emerging issues in this regard is the *danger of
lawful content* being filtered and how do we protect and safeguard this
from happening. This lawful content if filtered is the muzzling of "freedom
of expression".  EU law precludes the imposition of an injunction by a
national court which requires an Internet Service Provider (ISP) to install
a filtering system with a view to preventing the illegal downloading of
files, see the Press Release:
http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-11/cp110126en.pdf

             The actual Judgment that was just released on the 24th
November, 2011 is available here:
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=Submit&numaff=C-70/10

             What is the role of civil society, governments and private
sector in ensuring that lawful content is not muzzled? What kind of
Policies should be set in place? What kind of Standards should be set in
place?

On Fri, Mar 2, 2012 at 4:12 AM, William Drake <william.drake at uzh.ch> wrote:

>
> http://www.unmultimedia.org/tv/webcast/2012/02/china-panel-on-right-to-freedom-of-expression-19th-session-human-rights-council.html
>
> On behalf of Algeria, Bangladesh, Belarus, Burundi, Cambodia, Congo, Cuba,
> DPRK, Ethiopia, Iran, Laos, Malaysia, Mauritania, Myanmar,
> Namibia, Nicaragua, Pakistan, Palestine, Philippines, Russia, Saudi Arabia,
> Sri Lanka, Sudan, Turkmenistan, Venezuela, Vietnam, Uzbekistan, Yemen,
> Zimbabwe.
>
>
>
>
>
>
>
> ***************************************************
> William J. Drake
> International Fellow & Lecturer
> Media Change & Innovation Division, IPMZ
> University of Zurich, Switzerland
> william.drake at uzh.ch
> www.mediachange.ch/people/william-j-drake
> www.williamdrake.org
> ****************************************************
>
>
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-- 
Salanieta Tamanikaiwaimaro aka Sala

Tweeter: @SalanietaT
Skype:Salanieta.Tamanikaiwaimaro
Cell: +679 998 2851
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