R&Fs and International Law Research Paper

The Digital Harm of Human Rights in the 21st Century

JulyAnh Nguyen

CLN4U – Canadian and International Law

Jeff LaForge

2021/01/25
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Over the past century, technology has empowered us by providing new opportunities to build connections

and share ideas beyond our local community.1 Through modern ingenuities such as the internet, we have elevated

industries such commerce, education, and healthcare to unprecedented levels.2 However, the increasing

sophistication of technology to disseminate data has introduced a paradigm shift to question the integrity of our

international human rights.3 Without a doubt, international law has evolved under the presence of existing

technologies but lately acts of surveillance, online harassment and cybercrimes have been scrutinized for posing a

threat to privacy, free expression, and intellectual property worldwide.

The right to privacy has long been recognized in international law since the Universal Declaration of

Human Rights in 1948.4 Article 12 dictates that “No one shall be subjected to arbitrary interference with his privacy,

family, home or correspondence, nor to attacks upon his honour and reputation.”5 However, emerging technologies

have posed problems to governments and private businesses. Concerns have risen regarding the use of mass

surveillance as a tool for law enforcement. Although privacy law was robust with pedigreed principles, it has not

been adapted enough to fit the ever-increasing technological influence. 6

In the past, the use of surveillance was beneficial to providing individual security. However, it has also

violated this benefit for the supposed free citizen.7 Former contractor for the Central Intelligence Agency, Edward

Snowden, was a “whistleblower” for exposing the details of extensive internet and phone surveillance by the U.S

National Security Agency.8 His actions in 2013 held him liable for the theft and leaking of classified governmental

property.9 Since then, Snowden’s disclosures have become the basis for a series of revelations that exposed a veil of

secrecy around broad surveillance programs.10 Worldwide, he has created an unprecedented debate surrounding the

1 Sun, Haochen, “Reinvigorating the Human Right to Technology." Michigan Journal of International Law 41, no. 2
(June 9, 2020): 1-49.
2 Molly, Land and Jay, Aronson, “The Promise and Peril of Human Rights Technology.”, 1–20.
3 Jacopo, Coccoli, "The Challenges of New Technologies in the Implementation of Human Rights: An Analysis of
Some Critical Issues in the Digital Era." Peace Human Rights Governance, 223-50.
4 "The Human Right to Privacy in the Digital Age." American Civil Liberties Union. March 13, 2014. Accessed
January 19, 2021. https://www.aclu.org/other/human-right-privacy-digital-age.
5 United Nations. 1998. The Universal Declaration of Human Rights, 1948-1998. [New York]: [United Nations
Dept. of Public Information.
6 Piracés, Enrique, “The Future of Human Rights Technology: A Practitioner’s View.” Chapter. In New
Technologies for Human Rights Law and Practice, 289–308. Cambridge: Cambridge University Press, 2018
7 Santow, Edward. "Human Rights and Technology Issues Paper." Australian Human Rights Commission, July
2018, 1-64,
8 (American Civil Liberties Union, 2020)
9 Kenneth Roth, "Pardon Edward Snowden," Human Rights Watch, https://www.hrw.org/news/2016/09/15/pardon-
edward-snowden)
10 (Kenneth Roth, 2016)
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limits of government surveillance and authority which has roused significant reforms to privacy law. 11 More recent

times demonstrate the harmful implications of technology following a massive security breach regarding Cambridge

Analytica and its use of Facebook data.12 It was in the wake of former President Trump’s campaign in 2016 that the

data analysis firm pilfered the data of at least 87 million Facebook users to be captured and improperly used to

influence the presidential election. Arguably the largest scandal in Facebook's history, it was ruled as a security

breach by information security standards for exploiting two features: the "access tokens" and "view as." In 2018,

Cambridge Analytica filed for insolvency proceedings and closed operations to the public.13 Meanwhile, mass legal

action was taken by various British and US firms against Facebook for failing to uphold the obligations under the

Data Protection Act of 1998. From a legal perspective, this case had detrimental implications towards our right to

privacy through its misuse of data. The ease of erasing the initial data set that was accessed, shared or sold to third

parties abruptly cuts the correlation between the journey of the data, preventing any possibility of tracing back to the

perpetrator.14 The challenges of the international community to develop a response to data security may be in part

due to the challenges of defining the content and contours of the right to privacy. In the context of digital

communications, what constitutes an interference of privacy still needs to be assessed as there remains an ambiguity

under what parameters constitute a law infringement.15Although privacy is internationally recognized as a

fundamental right, personal privacy needs to be redefined.16 As the United Nation Human Rights Bodies continue to

oversee charter provisions, it must continue to revise the practices of various states and address the rapid erosion of

privacy rights under Article 17.17 In the future, principles should be more reflective of the changing realities of

technological impact.

In light of the internet’s accessibility and capacity to share vast amounts of information, every act online is

an act of expression.18 From the access to the news we watch on the television to the social media platforms we

emulate from our mobile devices on a daily-basis it is all facilitated by press-enabled anonymous speech. We refer

11 Ibid.
12 Lorna, McGregor. "Cambridge Analytica Is More than a Data Breach – It's a Human Rights Problem." The
Conversation. November 19, 2019
13 (Lorna McGregor, 2019)
14 Molly, K. Land and Jay D. Aronson, “The Promise and Peril of Human Rights Technology.”, 12.
15 Ibid, 18
16 Jacopo, Cocoli, “The Challenges of New Technologies in the Implementation of Human Rights: an Analysis of
Some Critical Issues in the Digital Era”, 245
17 Ibid, 246
18 Robert Bodle, “"The Ethics of Online Anonymity or Zuckerberg vs. "Moot",” p.29
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to this digital phenomenon as “Anonymity”. While the Charter dictates that “Everyone has the right to freedom of

opinion and expression,” there have been instances where the liberal application and abuse of this right can lead to

harm.19 This is seen when people lack accountability for their actions online under the veil of anonymity and

discussions can quickly escalate to hateful content. In 2011, Tunisia’s long-serving president, Zine el-Abidine Ben

Ali, experienced increased pressure from social networking activities of WikiLeaks.20 With the series of uprisings

across the Middle East and North Africa against their repressive regimes called ‘Arab Springs’, the use of online

platforms became a focal point of discourse in the Arab world pouring previously confidential government files into

the open, causing mass protests on the ground.21 While technology served to promote human rights by empowering

populism across the Middle East in the short-term, the persistence of unlawful speech through anonymous platforms

remains a legal issue being used as a tool for the exacerbation of social inequalities on the internet. This can be seen

through the use of free expression in cyberspace acting as a catalyst for violence towards racial minorities in the

world.

Online hate speech has proven to be correlated to a global increase in violence towards minorities, mass

shootings and ethnic cleansings in the real-world.22 Incidents have been reported in nearly every continent and much

of the world now communicates on social media, with nearly a third of the world’s population active on Facebook

alone.23 As more and more people transition to the digital sphere, marginalized groups have been more susceptible

towards racist, homophobic or misogynistic verbal harassment. As such, social media platforms have acted as the

stage for violent actors around the world to reinforce their prejudicial views. Regarding the most extreme cases, the

U.S, Myanmar and New Zealand need to be highlighted. In the United States, social media sites have become hubs

for the proliferation of white-supremacist propaganda and the federal trial of Dylann Roof is a testament to number

of white supremacist attacks that have circulated among racist communities online. The Charleston Church shooter

killed nine African-American clergy and worshippers in June of 2015, going on the belief that he was engaged in a

“self-learning process” online that led him to the belief that the goal of white supremacy required violent action. 24

19 United Nations. 1998. The Universal Declaration of Human Rights, 1948-1998. [New York]: [United Nations
Dept. of Public Information.
20 Kenneth Roth, "Pardon Edward Snowden," Human Rights Watch, October 28, 2020,
https://www.hrw.org/news/2016/09/15/pardon-edward-snowden
21 (Roth, 2020)
22 Zachary Laub, "Hate Speech on Social Media: Global Comparisons," Council on Foreign Relations, June 7,
2019, accessed January 19, 2021, https://www.cfr.org/backgrounder/hate-speech-social-media-global-comparisons
23 (Laub, 2019)
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Similarly in New Zealand, two consecutive mass shootings occured at different mosques in Christchurch. 25 The

terrorist attacks resulted in the deaths of forty-nine Muslims which were publicly broadcasted on Twitter for the

purposes of espousing their views on anti-immigration politics and white supremacy. Lastly in Myanmar, military

leaders and Buddhist nationalists used social media to slur and demonize the Rohingya, a minority group making up

4.3% of their population.26 During a campaign of ethnic cleansing they referenced Facebook as a “useful instrument”

for those seeking to spread their hate towards this minority group. Regrettably, we can see the recurring pattern that

the same technologies used to allow activists to rally against such social injustices are now catalyzing hate crimes all

over the world. It is due to the multiple inhumane instances mentioned earlier which mount as evidence suggesting

that technology has played a more divisive and fraudulent role towards the fundamental values of expression.

Historically, when there were no computers, intellectual property crimes involved a considerable amount of

time and labor. Although that was the case, twenty-first century globalization has reduced the cost of transportation

across the world. This has caused an influx of contents to be digitized and an increased flow of copyrightable

works.27 Anything now from the software, films and music we use on a daily-basis have now been all reduced to a

series of zeroes and ones which can be seamlessly transmitted from one place to another. The engagement of these

illegal acts are coined in the modern day as “cybercrimes” and often result in the existence of counterfeit and

pirated products as a means to bribe and corrupt the rule of law.28 As the World Intellectual Property Organization

justifies, “Intellectual property regimes give statutory expression to the moral and economic rights of creators in

their creations and define the rights of the public to access to such creations.” 29 This signifies the need for

intellectual property rights as a significant component towards the protection of original and creative freedoms.

What were once two separate bodies of law, now in more recent times have become increasingly intertwined due to

24 Jelani Cobb, "Inside the Trial of Dylann Roof," The New Yorker, January 30, 2017, accessed January 21, 2021,
https://www.newyorker.com/magazine/2017/02/06/inside-the-trial-of-dylann-roof
25 Robert Evans, "Shitposting, Inspirational Terrorism, and the Christchurch Mosque Massacre," Bellingcat, March
15, 2019, accessed January 21, 2021, https://www.bellingcat.com/news/rest-of-world/2019/03/15/shitposting-
inspirational-terrorism-and-the-christchurch-mosque-massacre
26 Alan Davis, "How Social Media Spurred Myanmar's Latest Violence," Institute for War and Peace Reporting,
September 12, 2017, accessed January 21, 2021, https://iwpr.net/global-voices/how-social-media-spurred-
myanmars-latest
27 Stephen Ezell, Cory Nigel. The Way Forward for Intellectual Property Internationally, Information Technology
and Innovation Foundation, 25 Apr. 2019, https://itif.org/publications/2019/04/25/way-forward-intellectual-
property-internationally
28 (Nigel & Ezell, 2019)
29 Helfer, Laurence R., and Graeme W. Austin. Human Rights and Intellectual Property: Mapping the Global
Interface. New York, NY: Cambridge University Press, 2012, 75
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technology. The new-found relationship between human rights and intellectual property has since been enshrined

under Article 27 in the UDHR where it provides that, “Everyone has the right to the protection of the moral and

material interests resulting from any scientific, literary or artistic production of which he is the author.” 30 These

beliefs acknowledge that intellectual products have intrinsic value to them acting as an expression of human

creativity and are more than just commodities with values determined by their utility and price. 31 However the

interest of human rights law has not been reciprocated under certain circumstances where there is a breach of IPR. It

is through the illegal engagement of cybercrimes such as piracy and counterfeiting where this provision fails to be

safeguarded causing significant ramifications to policymaking over the last two decades. 32 The theft of IP is an

illegal act and those who intentionally forge copies whether by design or without the authorization from the owner

lack a sense of moral integrity. Both cybercrimes pose an ever increasing challenge to governments and legitimate

businesses as they risk destabilizing the socio-economic stability knowing the role IP plays in driving innovation,

development and job creation.33 The magnitude of counterfeiting and piracy can be seen through real-world lawsuits

that further solidify the damage caused by technology.

The economic ramifications of music piracy can be tremendous if targeted for the selling of thousands of

pirated recordings in a single-class action lawsuit. In 2019, Harold Arlen, well-known composer responsible for

American songbook classics such as “Over the Rainbow” and numerous other songs used in Broadway, filed a

lawsuit against some of the world’s biggest technology companies including Apple, Amazon, Google, Microsoft and

Pandora for selling over 6,000 unauthorized recordings of songwriter’s most famous music on their platforms. The

lawsuit claims that these online retailers were selling and streaming these recordings with the full knowledge

knowing that they are unauthorized. The 148-page complaint was filed on May 9 to California’s Central District

Court in Los Angeles arguing that the estate still holds copyright to the songs in the U.S, and that the original labels

who hold the recording right did not give permission for those reissues to be made and distributed unless royalty is

paid whenever the work is copied or distributed digitally. The controversial split surrounding the legal distribution

of music through the internet made this case difficult to reference from. It was prior to the creation of the internet,

patrolling geographical copyright divides with physical musical records were more accessible from a legal

30 United Nations. 1998. The Universal Declaration of Human Rights, 1948-1998. [New York]: [United Nations
Dept. of Public Information.
31 Laurence and Austin, Human Rights and Intellectual Property: Mapping the Global Interface, 90
32 Laurence and Austin, 92
33 Fink, Maskus & Qian, The Economic Effects of Counterfeiting and Piracy: A Review and Implications for
Developing Countries," p. 22-23
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standpoint because buyers and customers would be able to differentiate if an album had been imported from outside.

Nowadays with streaming, music creators are more so entering a quandary because of how it is nearly impossible for

the average consumer to discern what is an authorized issue or not. The Arlen highlights the on-going barriers of the

Criminal Justice System in defending our human rights in the face of the ever-transforming contemporary world. It

is due to the current virtual framework we have created, there are now issues finding ways to justify crimes on the

same platform. It is widely agreed upon that the efficacy of IP right enforcement around the world is insufficient due

to the lack of legal resources allocated to the problem.34 In Canada, there is an increasing demand for prosecutors to

have the knowledge to advocate for it as it virtually affects all areas of an industry and the types of products within.

Yet, when it comes to litigation for counterfeit or pirated goods the offender usually ends up receiving a nominal

fine of up to $1 million and jail-time of five years at most.35 Regrettably, the current legislative provisions are

flawed if criminals are continuing to espouse it through local online black markets and selling illegal copies of

movies, video games and software over the internet. The little impact these have on third-party sellers elevates the

additional measures required in order to maintain order and fairness in the digital era.

Technology has presented both opportunities and challenges for human rights, however to argue the

contrary would be more biased towards existing technologies as tools to further their own personal interests rather

than as a collective whole.36 The paper in question analyzed the efficacy of technology and how it has established

itself as an invasive species in the digital environment. Inevitably, as humanity experiences great transition online, it

casts doubt and led those to question the international framework of preexisting legal norms by exposing

unprecedented risks to our right to privacy, freedom of expression, and even now intellectual property. As the world

embarks into the unforeseen future, no matter the obstacle, the people must remember to emphasize the fundamental

values of security, accountability, and integrity.37 Each of these principles yield insight for an approach that would

mandate a more just and rights-based approach to technology for all.

34 (Nigel & Ezell, 2019)

35 May Cheng. "How E-commerce Platforms Get Drawn into Global War on Counterfeit Goods." Osler, Hoskin &
Harcourt LLP. February 27, 2020. Accessed January 21, 2021.
https://www.osler.com/en/resources/regulations/2020/how-e-commerce-platforms-get-drawn-into-global-war-on-
counterfeit-goods
36 Molly Land, and Jay Aronson. “The Promise and Peril of Human Rights Technology.”, 12
37 Enrique Piracés. “The Future of Human Rights Technology: A Practitioner’s View.”, 300
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