[kictanet] Anti-Shutdown Policy and Human Rights

[waudo siganga]

Hi Andrew - could you share the document with Kictanet list? I
personally have not seen it. 
W.
 
 
On Thu, May 25, 2017, at 10:06 AM, Andrew Alston via kictanet wrote:
> For me, in Art 12 the word "correspondence" should be replaced with
> "communication" which is wider and more encompassing, more so when it
> comes to protection of human rights and matters ICT;> Agreed on the above point, but we have to work with what we’ve got J
> Though it would be good to see the declaration of human rights updated
> to reflect this.> On Art 19 in my opinion, it should be indicated that you can exercise
> that freedom subject to your observance of the right of others to
> protection against unbridled publication of personal opinions. In
> other words you cannot publish false and defamatory material against
> me in the name of exercising your freedom of expression/media.> Agreed – and this is covered in Article 29.3 – which is covered “In
> the exercise of his rights and freedoms, everyone shall be subject
> only to such limitations as are determined by low solely for the
> purpose of securing due recognition and respect for the rights and
> freedoms of others and of meeting the just requirement of mortality,
> public order and general welfare in a democratic society”> On Art 20, the interpretation of the Higher German Court was right in
> my view. Assembling in the current era of IT advancements must be
> taken to encompass online assemblies. Indeed people are daily
> "assembling" more on social media than physical assembling.> Again – agreed – though the debate about distributed denial of service
> is a tricky one – because it has collateral damage and if the denial
> of service were to take place against a blogging site for example, it
> would run afoul of the clauses in Article 19.>  

> Obviously I’m not a lawyer – but these are my interpretations, and I’d
> love to hear legal analysis on this>  

> Andrew

>  

> On 25 May 2017 08:07, "Andrew Alston via kictanet"
> <kictanet at lists.kictanet.or.ke> wrote:>> Hi All,

>>  

>> As some of you may have seen – the latest draft of the anti-shutdown
>> policy has been published on the AFRINIC lists.>>  

>> While once again, the authors need to draw attention to the fact that
>> we know that the policy isn’t perfect – and we know that it still
>> needs a lot of revision before it can ever become reality, we still
>> hope that the dialog created by the policy will continue to spur the
>> debate until real solutions can be found.  As we have said in other
>> forums, we also believe that the timing is right for this debate,
>> especially since there are limited places on the continent where this
>> debate could be held where the debate itself would not get instantly
>> shut down – and Kenya is one of those places, since the Kenyan
>> government has shown a willingness to dialog and discuss when
>> compared to certain other places.>>  

>> There are however some interesting parts in the new draft which I
>> thought I’d elaborate on a little bit, specifically the fact that in
>> the introduction paragraph, we have opted to make reference to the
>> Universal Declaration of Human Rights.  My thanks to the individuals
>> who contributed and drew our attention to certain parts of this.>>  

>> Specifically – I thought that for the sake of discussion, I’d point
>> out certain things here and see what the rest of the KictaNet
>> community thought about the interpretation we are using when we apply
>> these clauses to our thinking.>>  

>> So, firstly, Article 12 reads “No one shall be subjected to arbitrary
>> interference with his privacy, family, home or correspondence, nor to
>> attacks upon his honour and reputation. Everyone has the right to the
>> protection of the law against such interference or attacks.”>>  

>> Now, the most interesting part of that is where it reads “or
>> correspondence”, because it can certainly be argued that internet
>> communication is a form of correspondence.  Email, whatsapp, social
>> media, all of them amount to methods of correspondence between
>> individuals.>>  

>> Then, moving to Article 19.  “Everyone has the right to freedom of
>> opinion and expression; this right includes freedom to hold opinions
>> without interference and to seek, receive and impart information and
>> ideas through any media and regardless of frontiers.”>>  

>> Again, the Internet is a form of media – and by stating that
>> individuals have the right of expression through any media, this can
>> be extrapolated to say that the removal of a form of media in an
>> attempt to remove freedom of expression is a violation of the
>> declaration of human rights.>>  

>> Finally, moving to Article 20, specifically Article 20.1, it reads:
>> “(1) Everyone has the right to freedom of peaceful assembly and
>> association.”>>  

>> This is probably the most contentious assertion – can a virtual
>> online meeting place be considered an assembly and hence protected
>> under this right.  I did a fair amount of research into this and
>> there is some very interesting case law about this.>>  

>> Specifically – In 2001, a guy called Andreas-Thomas Vogel ran a
>> website in Germany that called for action against Lufthansa Airlines
>> (basically denial of service) – he was arrested on charges of
>> coercion, and initially a lower court in Frankfurt found him guilty,
>> primarily due to the economic losses suffered by Lufthana Airlines
>> during the online campaign.  However, on appeal, a higher court
>> overturned this ruling, stating that the online demonstration did not
>> constitute a show of force, but was intended to the influence public
>> opinion – effectively stating that online demonstrations were both a
>> legitimate form of protest and real.  Effectively, the attack that
>> was encouraged was viewed as a form of virtual sit-in against the
>> airline. A Libertad spokesperson then went on to say “Althought it is
>> virtual in nature, the Internet is still a real public space”>>  

>> Now, obviously, that’s in Germany and not in a lot of other
>> countries, indeed in the US, under the CPAA they have taken a
>> completely opposite approach to things like denial of service –
>> however, it does raise an interesting question.  If you can in fact
>> have a virtual sit-in online – then it stands to reason that the
>> right of peaceful assembly extends to the virtual world – and would
>> include virtual assembly on the Internet – and hence an internet
>> shutdown would be a violation of Article 20.1>>  

>> I’d love to see more interpretations and debates on this issue though
>> – and I’m hoping to see some debate on this at the PDP meeting on
>> Nairobi on the 31st – all of you are welcome at that PDP meeting by
>> the way, at the Boma Hotel, starting at 9am and running through to
>> 5:30pm where we will be debating a whole range of policies including
>> the anti-shutdown policy.>>  

>> Hope to see you all there!

>>  

>> Andrew

>>  

>>
>>  _______________________________________________
>>  kictanet mailing list kictanet at lists.kictanet.or.ke
>>  https://lists.kictanet.or.ke/mailman/listinfo/kictanet Twitter:
>>  http://twitter.com/kictanet Facebook:
>>  https://www.facebook.com/KICTANet/
>>
>>  Unsubscribe or change your options at
>>  https://lists.kictanet.or.ke/mailman/options/kictanet/fmwangangi1%40gmail.com
>>
>>  The Kenya ICT Action Network (KICTANet) is a multi-stakeholder
>>  platform for people and institutions interested and involved in ICT
>>  policy and regulation. The network aims to act as a catalyst for
>>  reform in the ICT sector in support of the national aim of ICT
>>  enabled growth and development.
>>
>>  KICTANetiquette : Adhere to the same standards of acceptable
>>  behaviors online that you follow in real life: respect people's
>>  times and bandwidth, share knowledge, don't flame or abuse or
>>  personalize, respect privacy, do not spam, do not market your wares
>>  or qualifications.> _________________________________________________
> kictanet mailing list
> kictanet at lists.kictanet.or.ke
> https://lists.kictanet.or.ke/mailman/listinfo/kictanet
> Twitter: http://twitter.com/kictanet
> Facebook: https://www.facebook.com/KICTANet/
>  
> Unsubscribe or change your options at
> https://lists.kictanet.or.ke/mailman/options/kictanet/emailsignet%40mailcan.com>  
> The Kenya ICT Action Network (KICTANet) is a multi-stakeholder
> platform for people and institutions interested and involved in ICT
> policy and regulation. The network aims to act as a catalyst for
> reform in the ICT sector in support of the national aim of ICT enabled
> growth and development.>  
> KICTANetiquette : Adhere to the same standards of acceptable behaviors
> online that you follow in real life: respect people's times and
> bandwidth, share knowledge, don't flame or abuse or personalize,
> respect privacy, do not spam, do not market your wares or
> qualifications.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://lists.kictanet.or.ke/pipermail/kictanet/attachments/20170525/fdd4739e/attachment.htm>