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UCI Law Video: Prof. Kaye’s keynote speech to ICORN and WiPC gathering

Video Transcript:

I really regret not being there in Amsterdam for the meeting of the ICORN and PEN Network. For one thing, you’re at the front lines for freedom of expression; not merely advocates, but participants and speakers, writers, exercising your freedom of expression in sometimes harsh environments. Your work is what makes my work worthwhile. Human rights law protects everyone—the professional journalist gathering and reporting information, the blogger and social media poster sharing information and opinions with the world, and everyone who enjoys or seeks access to other’s expression. It protects everyone’s right to challenge or even verify official narratives and conventional opinion by speaking and gathering information, analyzing it and interpreting it, sharing it through any media, regardless of frontiers.

States also have a positive obligation to promote free expression—not merely protect it against interference and attack. Other basic rules of human rights law, such as the prohibition of discrimination, obligates states to promote and protect the equal access and participation in the media of women and members of vulnerable groups.

This year—and recent years, in fact—highlight, unfortunately, a sad reality. We are in a crisis of implementation, promotion and protection. And in crisis, we may be forgiven for considering the thought that these laws mean actually little in the face of the attacks on free expression that have increased in recent years.

Unfortunately, I can mention a long list of individuals detained for exercising their freedom of expression—Mazen Darwish in Syria, Jason Rezaian in Iran, the Zone 9 bloggers in Ethiopia, Ilham Tohti in China, Khadija Ismayilova in Azerbaijan, Thulani Maseko in Swaziland, Mahmoud Abou Zeid—or Shawkan—in Egypt, Zunar, the cartoonist in Malaysia, and many others in Eritrea, Vietnam, Myanmar, and elsewhere. And of course, there are those killed, such as the satirists of Charlie Hebdo, the brave journalists killed by the Islamic State, and the recent brutal hackings to death of three Bangladeshi bloggers.

There’s also the military leader of Thailand claiming power to close down the media, arrest people, order for people to be shot—that’s a quote. The attacks on and the intimidation and others by local police in Ferguson, Missouri. There’s the recent adoption of laws in Europe to restrict expression, including a new law in Spain that purports to ban video recording police at protests. And there’s the widespread pressure on sources for journalists and civil society. This is all especially true for artistic freedom, where the writers and other artists push the boundaries of conventional thinking and in turn suffer for it.

These attacks violate the letter and the spirit of the freedom of expression. To clamp down on unwanted expression or seal off information and ideas from the public, those in power often deploy pretexts instead of legitimate justifications genuinely rooted in the protection of national security or public order or morals. In the pursuit of legitimate objectives, sometimes they adopt disproportionate rules that sweep in or deter a wide range of legitimate expression, often in hurried and anxious reaction to real threats undermining the work of NGOs and others. I’ve mentioned in other places a number of key themes for us to consider, but here, let me highlight three.

First, online surveillance poses a direct threat to the ability of artists, media, NGOs, academics, activists, and others to seek, receive, and impart information without interference. Technology has responded with tools to protect the privacy of our communications, the two most important of which are encryption and anonymity. Ongoing debates over encryption and anonymity all too often focus only on their potential use for criminal purposes, but encryption in anonymity mainly exists to empower individuals to browse, read, develop and share opinions and information without interference, and enable artists, civil society, and many others to exercise the rights to freedom of opinion and expression.

A number of states are adopting laws which seriously limit the capacity of individuals to communicate securely and anonymously. Because of their importance, restrictions on encryption and anonymity must be avoided and only limited—if at all—according to strict application of principles of legality, necessity, proportionality, and legitimacy.

Second, an end to laws designed to deter criticism of government officials and religious institutions. We see these laws in the form of criminal defamation, sedition, less measure stay laws and their cousins prohibiting insult of government officials. We see the same spirit in laws that criminalize blasphemy. These laws are regularly applied to target those working in the arts, in media, civil society, in academics, and elsewhere. They are incompatible with freedom of expression and they must be abolished.

Third, all of these measures connect to state censorship. Whether applied as prior censorship, as in the case of film and news censors, or as punishment after the fact, the efforts of governments to suppress information and ideas ultimately succeed only to breed cynicism and resentment, undermining every people’s right to govern themselves freely and with full information for public debate. Censorship is in a very real way—and you more than anyone know this—the underlying policy that fosters insecurity for artists and speakers everywhere. For all the threats we see and experience today, it’s also important to note that we live in an age of inspiring bravery and long and short form brilliance with the rich variety of media platforms, ideas, images, sounds—all of which cross borders and inform global thinking and global ideas.

Daily, we see remarkable individuals and enterprises struggle against the current in the most difficult environments and succeed in expressing themselves on matters which so many powerful states and groups try to repress.

You are, as I said at the beginning, at the front lines of these efforts and I’m happy to be a part of your efforts to tear down the barriers to these critical goals. Thank you.