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Challenges and opportunities for freedom of expression in the networked environment

4. Applications Layer

info: Submitted by Lisa Horner on Sat, 2008-08-09 13:52.

The principles

a) Gatekeepers of content should be transparent about the norms and protocols used to select content.
b) Service providers should not be held liable for content they help users access.
c) Companies and organisations with access to user data should adhere to transparent privacy policies that protect privacy rights as established in international human rights law.
d) People should have access to the means of developing new applications tailored to meet specific needs, for example through open source software development.

Rationale and detail

a) Gatekeepers of content should be transparent about the norms and protocols used to select content.

This principle requires that media outlets and information gatekeepers are transparent about how content is selected and presented so that users can develop informed opinions about the information they are presented with.

Media outlets act as gatekeepers of information and debate. They can influence what news and information enters the public domain, the direction of public debate and the social values that underlie it. Abuse of this power by the media is addressed in some countries through imposing public service obligations on some media outlets which oblige them to adhere to standards of neutrality and diversity. In other countries, it is assumed that the power of individual media outlets will be limited by ensuring that there is diversity in the ownership of outlets across the market as a whole.

The explosion of information available to people over the internet has indirectly given more power to actors who help people to navigate content. One area of particular concern is internet search engines. In the USA, 44% of online searchers use only one search engine, and another 48% use only two or three . 97% of users rarely look beyond the top three search results . This demonstrates the power that search engines have over what information people access online. Most search engines are run by private companies who gain revenue from advertising. Whilst their business models are based around providing users with useful search results, providing relevant information is effectively a secondary concern to securing advertising revenue. In the USA, only 38% of search engine users are aware of the difference between sponsored and un-sponsored links . Issues of transparency and navigability are also relevant within other spheres of online activity. For example, Apple’s iTunes dominates the online music market, exercising considerable influence over what music people download. Companies are also becoming increasingly adept at public relations work via social networking platforms such as MySpace and Facebook, and even via supposedly neutral information platforms such as Wikipedia.

Gatekeeping and applications companies are not only accountable to the needs and demands of the business sector. In many authoritarian countries, search engines filter out content according to local culture or law, a practice which is even more abhorrent when users are not told why they are unable to access certain material or are made unaware that the material exists in the first place. In the arena of offline communications, it is often not clear who owns media outlets and who has the power to bias the selection and presentation news to meet certain agendas.

For these reasons, it is vital that gatekeepers of information operate transparently so that users know what factors are influencing what content they are directed to. This does not necessarily mean that the technical protocols that applications use need to be open and accessible to the public. Rather, the norms and factors that guide the selection of content should be clear and transparent.

b) Service providers should not be held liable for content they help users access.

As networked communications evolve, they are dramatically increasing people’s access to different sources of knowledge and culture from across the globe. This is presenting significant problems for actors who have interests in controlling flows of knowledge, ideas and expression. For example, record companies are struggling to uphold their copyrights over music that users are sharing online, and authoritarian governments are struggling to control public debate and expression in accordance with their interests and values. A common response has been to attack or shut down the applications that people are using to access ‘controlled’ content: record companies are continuing to launch legal disputes against peer to peer file sharing sites; a number of countries including Turkey and Pakistan have blocked access to the video sharing site YouTube due to it hosting political satire; the Chinese government encourages self-censorship by the owners of chat and blogging sites through threatening to close down those which host ‘unacceptable’ discussion.

These dynamics not only threaten the ability of networked environments to support freedom of expression and a healthy public sphere, but also threaten to chill innovation in the applications layer and violate the principle of network neutrality. This would undermine the values of openness, creativity and innovation. If users violate national law they should be held liable as individuals, as long as this is in accordance with international human rights law. As the applications that facilitated their activity also have the potential to support wider social goods, freedoms and creativity, they should not be held liable.

c) Companies and organisations with access to user data should adhere to transparent privacy policies that protect privacy rights as established in international human rights law.

Article 12 of the Universal Declaration of Human Rights protects individuals from arbitrary interference with privacy. Networked communications present new challenges for the protection of this right as personal data is increasingly easy to collect, store, access and manipulate. At best, this leaves users vulnerable to unsolicited marketing e-mails and at worst it can leave them subject to excessive private and government surveillance, a problem that has been exacerbated across the globe by the ongoing ‘war on terror’. The case of the Western company Yahoo providing the Chinese government with the personal details of e-mail account holders accused of being ‘cyber-dissidents’ is just one illustration of how the neglect of human rights by private companies can undermine the ability of the communications environment to support a healthy public sphere. Some countries and regions have laws and conventions that protect privacy, yet many of these are being threatened by excessively restrictive measures being taken in the name of protecting security. Very few countries have adequate data protection laws, and companies operating internationally lack general guidelines on privacy standards at the global level.

Violation of privacy in communications not only contravenes human rights, but can also chill expression as people are more likely to express dissenting opinions if they can do so anonymously. Violation of privacy rights therefore undermines the values of creativity and plurality. States have obligations to uphold the human right to privacy through national legislation to cover government and private sector activity. Companies should implement transparent privacy policies that comply with the law and detail how personal data will be collected, used, disclosed and retained .

d) People should have access to the means of developing new applications tailored to meet specific needs, for example through open source software development.

Building communicative capacity is a good in itself and can provide the foundations for further creativity and innovation. Examples abound of the innovative and unexpected ways that people use communications technology when they have the capacity to do so. This has led to optimism that ICTs can help to achieve development goals, for example with mobile phones in some areas giving previously marginalised groups access to banking, credit and information services. Conditions should therefore be created within communications environments to enable people to harness technology to meet their needs and solve problems in new and innovative ways, thereby upholding the values of openness, creativity and innovation. However, the dominant business model in the applications sector at the international level is based around closed, proprietary software. Users of these systems are effectively locked out of them by licensing and digital rights management, leaving them unable to adapt or build upon them for use in ways other than those intended by their manufacturers.

Both the public and private sectors have responsibilities to ensure that individuals and communities have opportunities to innovate. On the part of governments, this may involve expanding public access to open source software and building capacity to develop it through the educational system. On the part of the private sector, it may involve adopting flexible licensing systems and developing new business models to expand the capabilities of poor and marginalised groups.