Freedom of Expression in WSIS+20: Speech as Risk
About a year ago, when we published our first column on WSIS+20we warned that fully understanding an international agreement requires an appreciation of the context in which it was produced. The texts reflect the inherent tensions of the process, giving rise to particular phrasing and omissions that are never accidental. However, these conditions of production are often forgotten once the text has been finalized: in the implementation phase, documents become independent of their original context, and their application becomes more relevant than their origins. A reading that seeks to fully understand an agreement requires a certain degree of archaeological, archival, and even investigative work to illuminate what the text cannot reveal on its own.
Thus, for example, the text adopted in 2015 within the framework of WSIS+10 reflects a moment of transition, where the excessive optimism with which different actors had envisioned the widespread expansion of the Internet began to show signs of strain, though not yet a complete rupture. It is a text that was produced in a context shaped—among other things—by Edward Snowden's revelations regarding the role of new technologies in the United States' mass surveillance practices, this is a relevant issue for understanding both how the process was approached and the inclusion of certain emphases, for example, in the area of human rights.
Over the following decade, a series of milestones took place that would later be interpreted through the lens of digital technologies—sometimes to the detriment of other equally or even more decisive factors—including Donald Trump's presidential election in the United States, terrorist attack in Christchurch, New Zealand, and the Rohingya genocide in Myanmar. At the same time, the so-called Big Tech companies consolidated their economic dominance and extended their influence into the geopolitical sphere. Consequently, the interests shaping the WSIS+20 process have shifted. States are exerting greater pressure to advance an agenda focused on issues such as security and national sovereignty, alongside a renewed emphasis on intergovernmental spaces, in a context where discussions have become increasingly fragmented across multiple governance forums.
At the same time, the shift towards a certain degree of techno-pessimism over the past decade has strongly reinforced the notion of risks associated with the use of digital technologies and the need to mitigate them. In practice, this may entail relegating human rights to a secondary role in favor of more flexible approaches that prioritize addressing potential harms, often vaguely defined and potentially in conflict with obligations arising under international law.
From perspective, it is interesting to examine what happened to freedom of expression in the context of WSIS+20. At first glance, the text appears to maintain the human rights standards set in its previous version, with no significant progress, but also without major setbacks. It contains several specific references to international instruments and includes a dedicated subsection on the issue, with particular emphasis on freedom of expression, just as in the previous version.
Regarding the latter, paragraph 45 of WSIS+10 is partially reflected in paragraph 73 of WSIS+20, which reaffirms the commitment to Article 19 of the Universal Declaration of Human Rights concerning freedom of expression. However, the new text omits any reference to the International Covenant on Civil and Political Rights, which had been explicitly included in paragraph 45 of WSIS+10.
The second part of paragraph 45, where WSIS+10 called for respect for media independence, finds a parallel in paragraph 77 of WSIS+20, which also includes references to the protection of journalists, the right to freedom of expression, peaceful assembly, and safeguards against surveillance and arbitrary detention. These provisions are similar to those found in Article 44 of WSIS+10, but with some notable differences.
First, while WSIS+10 explicitly assigned to States the responsibility to protect journalists, media workers, and civil society, WSIS+20 opts for more ambiguous wording, omitting any explicit reference to States as duty-bearers. The text also introduces an equally imprecise call for “all stakeholders” to strengthen the media, support those who work in it, and ensure the exercise of journalism, thus diluting the clear allocation of responsibilities.
Secondly—and perhaps most interestingly—the difference lies in how each text frames the significance of these provisions. Paragraph 45 of WSIS+10 concludes as follows: “We believe that communication is a fundamental social process, a basic human need, and the foundation of all social organization, and that it is, therefore, a central element of the information society.” There is no equivalent formulation in WSIS+20. Instead, paragraph 77 justifies the protection of journalists and media in relation to their role in ensuring “the integrity of information and access to reliable and accurate information.” Thus, what in WSIS+10 was presented as an imperative for personal and social development is, in WSIS+20, subordinated to the achievement of a principle that, while potentially relevant, does not fully capture the richness of the exercise of freedom of expression.
Not only that. Paragraph 78 acknowledges that “digital and emerging technologies can facilitate manipulation of and interference with information in ways that are harmful to societies and individuals,” and paragraph 13 states that “the rapid evolution and power of emerging technologies are creating new opportunities, but also new risks for humanity.” Freedom of expression goes from being a precondition for the development of the “information society”—and therefore something that must necessarily be protected—to being subsumed within a risk management framework, which must be mitigated and controlled. Note that the term “risk” appears 12 times in WSIS+20, whereas it appeared only twice in WSIS+10.
This shift towards risk mitigation is by no means an isolated development. It aligns with the approaches adopted in other technology governance forums, such as the Global Digital Compact, as well as with UNESCO’s initiatives on the governance of digital platforms, the information integrity agenda promoted by the United Nations Secretary-General, and with regulatory models such as the European Union Digital Services Regulation.
From a freedom of expression perspective, this approach has been criticized on several grounds. First, it introduces uncertainty by adding a new layer of loosely defined responsibilities regarding the treatment of categories of lawful speech within the framework of international human rights instruments. Second, it shifts responsibility from states to private actors, while simultaneously granting them broad leeway to define both the approach and the criteria for assessing its impact. Third, it may contribute to displacing human rights from the center of technology governance, integrating them into a framework where they are weighed against other interests. Indeed, the section of WSIS+20 addressing these issues is titled “Human Rights and Ethical Dimensions of the Information Society,” thereby placing two normative frameworks of different nature and legal force on the same footing. Consequently, the protection of freedom of expression is weakened by the expansion of discretionary power for both states and private actors and by the reduced clarity of its limits.
However, as we warned at the outset, it is in the implementation phase that these provisions take on concrete meaning, where the tensions between the different paragraphs are resolved in ways that were previously only speculative. It will be the States, but increasingly also platforms and other actors, that will have to determine whether these ambiguities are ultimately resolved by strengthening existing safeguards or whether the path outlined leads instead to an expansion of the scope of intervention in speech, progressively shifting freedom of expression from a principle to be protected into a risk to be managed.
