Digital Rights Treaty

Why World Governments, Business and Citizens need a New Optional Protocol for Digital Rights

Adapting to the demands of the Digital World

The digitisation of technology is fast becoming the basis that underpins digital rights, digital privacy, digital communications and their intersection with law, social media, broadband and broadcast platforms. This has implications for business, government, education, health, transport, aviation, science, customs and trade, finance, infrastructure, development and philanthropy. Technology allows for the mapping of hitherto unknown territories as well as sustained forays into outer-space. The world as we know it has changed. The opening up of what used to be ‘deep space’ necessitates a strong digital computational framework.

In light of technology’s pervasive outreach and its pioneering role in invention and development which has both utilitarian and social implications, international law must be amended to align with these new realities. Ideally, this would be embodied in an Optional Protocol to both the United Nations International Covenant on Civil and Political Rights (ICCPR) and the United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR), which are international treaties that UN member states accede to. By April 2014, the ICCPR and ICESCR had been acceded to or ratified by 168 and 162 countries respectively. Additional protocols to these covenants may have not been acceded to by all member states, as optional protocols are distinct documents requiring separate ratification.

For instance, one existing optional protocol to the ICCPR authorises the UN’s Human Rights Committee to consider “communications” from those claiming to be victims of state abuses, while another calls for the abolishment of the death penalty, but not all states have ratified these optional protocols.

The need for an international framework for enhancing technological rights has spurred the call for a Digital Rights Treaty as an appropriate way forward. An optional protocol would advance technology and infrastructure, while protecting digital privacy and the plethora of intersectional activities listed above. The protocol would also incorporate technological infrastructure for enhancing political, economic and social rights, thus aligning with the UN Charter, which seeks “to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” art. 1(3)

But what about digital rights per se – is this a separate right or should digital rights be interpreted as a universal right available to all mankind? In addition, is the right to Internet a human right? These are some of the issues that the drafting team will have to engage with as it pitches digital rights onto the world stage.

What can an Optional Protocol achieve?

Since an optional protocol is a distinct document requiring member country ratification, it will engender visibility on the global stage and propel discussions on the need for technology itself, as well as for the governance of technology within the arenas of political, economic and social rights. This is likely to impel governments to consider up-scaling existing technologies as well as establishing infrastructure where none or little currently exists. Further, a protocol will catalyse deeper discussion of digital privacy, government and civil accountability, and the governance of digital privacy. Digital corporate governance and the use of technology for development and to digitise continents and countries, will also feature. A Digital Rights Optional Protocol is potentially a very powerful transformative tool.

Propelling this conversation onto the world stage is more likely to prompt leaders to ask the right questions in today’s warp-speed changing world and may induce them to consider a new optional protocol or even amendments to the existing covenants. This would accelerate a progressive shift to digital rights and governance and towards digital socio-economic development via Information and Communication Technology (ICT).

Digital rights are not a distant future ideal but a reality in our fast-paced and increasingly technological world. The time for a digital treaty is now. It affects all our rights, personal, creative, legal, corporate, governmental and juristic.

Our reality has changed.   Let us move with it.

See Abbrevaited version published : 9 June 2014, Business Law and Tax Review Business Day, South Africa