Johannesburg, February 18, 2025

Keynote Speaker: Judge Navi Pillay

I am pleased to join you in these  discussions on establishing a South African Freedom of Speech Legal Network. Thank you, Anton Harber, of The Campaign for Free Expression and SANEF, for this opportunity.

All of us agree that the right to freedom of Expression is of fundamental importance; all of us agree that a free, uncensored and independent media is crucial for democratic societies. The media  can educate and inform public democratic participation to ensure good governance, truth, justice and accountability and respect for human rights.  I anticipate no hesitation over establishing the initiative for a protection network in your discussions.

I shall use the opportunity, instead, to restate well known principles relating to the right to freedom of expression, the imperative to ensure protection for media personnel and the challenges they face today.

It must be stressed that governments , including ours, must take concrete action to promote a free and independent media- instrumental to combat disinformation, build public trust and advance the promotion and protection of fundamental rights.

South Africa was suspended by the UN General Assembly for its apartheid policies in 1974 and was  readmitted as a member in 1994 after the country dismantled apartheid. Its history of expulsion and readmission into UN membership has built and reinforced expectations that South Africa would and should hold a principled view and position on human rights on the international scene, and in Africa, in particular. Human rights and democratic principles became founding values of our constitution, a document that has since become the envy and blueprint of many states emerging from autocracy into the promise of democracy and a human rights-abiding future.

The South African story teaches us that development – like life itself –  is about struggle. Social change creates both winners and losers. Progress for the poor today can be wiped out by the powerful tomorrow. It is a matter of grave concern that the direction in which the world is speeding is one where  the rich are getting richer and the poor are getting impoverished. Elon Musk, the richest billionaire in the world, is leading US [President Donald] Trump’s charge to entrench the control, power and wealth of the billionaire class. The world is far from achieving the development goals of the 2030 UN Agenda for development: namely equality and non-discrimination and the principles of “ do no harm” and “ leave no one behind.” Therefore our continuing struggle for democratic rights must be sustained by national and global advocacy. The Network we set up must think global while acting local.

There is already a clear and universal framework on the right to freedom of expression. The principal framework is the International Convention on Civil and Political Rights and the Covenant on Economic social and cultural rights . President Mandela signed up immediately  to the ICCPR in 1994, and it is no surprise that our Constitution, born out of our history of oppression, guarantees civil and political rights.

Article 19 of the ICCPR places a duty on states to safeguard the right to freedom of expression; and Article 20 obliges states to prohibit hate speech amounting to incitement to crime and violence.

In addition to the obligations to protect freedom of expression that South Africa has undertaken under international law, under our constitution and in our national laws, our government has become a member of the International Partnership for Information and Democracy, which asserts forcefully, the principles of media freedom, safety of journalists  and media sustainability. In so doing, our government has undertaken to actively promote media rights. It followed the formation of the International Commission on Information and Democracy by President Macron of France. SANEF has correctly recognised that I am the only South African serving on this Commission.Bodies such as this, who carry out global campaigns for media freedom, are  important allies for the SA Legal Defense Network, and are entry points to hold our government accountable to implement its protection obligations.

The UN  Resolution on World Press Freedom Day on 3 May of each year,  focuses on  the media. It affords an opportunity for consolidating international action for  freedom of expression and greater  respect and protection for  journalists – who are the frontline providers of information to the public.    Every call to action is addressed to all states including South Africa; thus the responsibility and duty of our government on how to implement their obligations  flows from the international obligations they signed up to.

Last year’s focus of World Press Freedom Day was on surveillance and spying  upon the media, and  the resulting invasion of the independent media.

In a statement issued jointly by  the UN General Assembly  and Human Rights Council and UNESCO on May 3,2022, their presidents emphasised the paramount importance of ensuring that journalists and media workers can work freely, independently and safely without hindrance, threats, violence or reprisals. “Each and every day,” they said, “we are reminded of how vital the information they provide is for democracy, for the promotion and protection of human rights and for fighting corruption, for sustainable development and for the preservation of international peace and security”.

It is said that 2024 was the worst year for reprisals against the media. The  number of arrests and killings of journalists in the world is staggering and according to UNESCO, 87% of the murders are not investigated nor perpetrators brought to justice. The internationally known cases of Khasshogi , killed in the Saudi Arabian Embassy in Turkey , and Shireen Abu Akleh, likely shot dead by Israeli military, are notorious examples of impunity. In the case of the killing of Shireen Abu Akleh, the UN Commission on Palestine and Israel, of which I am the chair, was able to investigate with UN-wide expertise, and identified the battalion of the Israeli security forces  that was responsible. Israel has refused to investigate or share any information and has stopped the US government agency from investigating the killing. Ms Akleh was a US citizen. The Commision set up by Journalists in Gaza reported that 160 journalists have been killed since October 7, 2023 to date.

Around the world, people have increasingly taken to the streets to protest and demand their economic and social rights as well as an end to discrimination, racism, corruption and impunity. Journalists, fulfilling their fundamental role of reporting on these social protests have become targets – subjected to violence at the hands of law enforcement, arbitrary arrests and killings.

The Office of the High Commissioner for Human Rights in their world press freedom day statement of 3 May 2022 recalled that in today’s world, with conflicts intensifying, many of which demonstrate little or no regard for  IHRL and IHL (International Human Rights Law and International Humanitarian Law), the work of journalists to expose atrocities is ever more critical. Journalists work in countries where they have little choice but to work amidst ever-increasing harassment, intimidation, surveillance and risk to their lives and livelihoods. They do so, she reminded us, for the sake of all of us; so that we can have access to free, accurate and independent information;  so that we can live in just, peaceful societies.

The  statements made on World Press Freedom Day highlighted the rising use of surveillance tools against journalists, such as Pegasus or Candiru spyware. This  use is a violation of the right to privacy and obstructs freedom of expression. Surveillance led to arrests, intimidation of journalists and put them and their families at risk.  Pegasus spyware is reportedly used in at least 45 countries, often in total secrecy and outside of any legal framework.

Domestic law must regulate their use, permitting the use if they met a legitimate goal. Governments, including ours as well as business enterprises should publicly affirm their responsibility to respect freedom of expression and the right to privacy and to undertake human rights due diligence .

It is crucial that governments, including our,  take concrete action to promote a free and independent press – instrumental to combat disinformation, build  public trust and advance the promotion and protection of human rights.  Here I would say that such action must also protect media sources and whistleblowers, who bravely and at great risk commit to bring us the truth. As we know from the criminal assassination of whistleblowers and witnesses in our country, such as Mrs Babita  Deokaran. When I was High Commissioner for Human Rights (2008-2014) I stated , in the context of the pursuit of  whistleblowers Snowdon and Assange that individuals who report human rights violations are human rights defenders, not criminals.

Now, after ten years of impunity for all manner of criminalities, subterfuge and diversionary tactics, shocking revelations are emerging from the many court cases, commissions of Inquiry such as the Zondo Commission into state capture, private investigations, and  media exposures of unbridled looting and theft of state assets, corruption, nepotism, patronage and incompetence within state and non-state actors.

While these secret and hidden acts of criminal conduct are now coming to light because of media exposure, because of brave witnesses speaking out, transparent nature of inquiries and court proceedings and the political will to hold them albeit  under much public pressure,– the withholding of information, obfuscation and less than candid disclosures and intimidation of witnesses should make us fear that truth is being held to ransom.

My narrative so far has looked at the challenges faced by journalists. The reality here and globally is of a negative and dark environment.  Their work is challenging but also necessary.

So let me highlight one significant positive side:  On the positive side, the world  honours brave and fearless journals. The award of the  Nobel  Peace Prize  to journalists, Maria Reesa of the Philippines and  Dmitry Muratov are welcome recognition of the  achievements for journalists. The SANEF Nat Nakasa Courageous Journalism Awards  also  falls into that spirit of celebration of brave and courageous journalists and expresses public  gratitude for their work. This is what counts – the appreciation of the constituency to whom you are accountable. The silencing of journalists is a loss to society; honouring them is a gain.

As I mentioned earlier, 2022 shone a light on the evil of surveillance.

When I assumed office as UN High Commissioner for Human Rights in 2008, my office, OHCHR, communicated important human rights messages by writing op-eds that may or may not be published by mainline media. Even where they were published, we had no idea whether they were being read.

With the advent of the internet, our statements went round the world digitally, instantly reaching millions of users and the feedback came back just as speedily.

In the digital era, communications technology enhanced freedom of expression but also came with challenges of false information, the use of surveillance and invasion of personal privacy. In my case, fraudulent Facebook and web accounts were created in my name and vile, anti-human rights messages attributed to me.  Photos of me on Google images were superimposed by the face of Osama Bin Laden.  UN Security tracked threats issued against me and continue to maintain watch as I serve in my current position as the Chair of the UN/HRC COI on Israel/Palestine.

The risk of surveillance in the digital era first came  for consideration before the UN in 2013. The alarm was raised by two presidents: Chancellor Angel Merkel of Germany and President Dilma Rousself of Brazil, both of whom discovered that their personal cell phones had been hacked and they took their complaint to the UNGA.

The UNGA, in Resolution 68/167,  directed me as HC for Human Rights  to submit a report on the protection and promotion of the right to privacy in the context of domestic and extraterritorial surveillance and/or the interception of digital communications and the collection of personal data, including on a mass scale.

In my report( A/HRC/27/37 dated 30 June 2014) I noted that digital communications technologies, such as the internet, mobile smartphones and WiFi-enabled devices have come to dominate our everyday lives. As contemporary life is played out ever more online, the Internet has become both ubiquitous and intimate.

Digital technologies facilitate global debate and foster democratic participation. They also have enhanced the capacity of governments, enterprises and individuals to conduct surveillance, interception and data collection and sharing. The state now has greater capability to conduct simultaneous, invasive, targeted and broad surveillance than ever before.

Technological platforms upon which global, political, economic and social life depend are not only vulnerable to mass surveillance, they may actually facilitate it. My report noted the proliferation of overt and covert surveillance by state and non-state actors.

Government surveillance involves: demands for direct access to communication traffic;  tapped fibre-optic cables for surveillance purposes;  requiring companies to disclose bulk information on users;  targeting political opponents and dissenters  and trade  competitors; monitoring by host governments at global events, and state and non-state groups developing sophisticated digital surveillance capabilities outside regulated controls.

The UNGA Resolution 68/167, following my report, affirmed that human rights held by people offline must also be protected online and called upon all states to respect and protect the right to privacy in the area of digital communications. It called upon all states to review their procedures, practices and legislations related to communications surveillance, interception and collection of personal data, emphasising the need for states to ensure full and effective implementation of their obligations under International Human Rights Law.

There is already a clear and universal framework on the protection of the right to privacy. Article 12 of the UDHR provides, “no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, no to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”  Article 17 of ICCPR provides that ”no one shall be subjected to arbitrary or unlawful interference in privacy, family ,home or correspondence, nor to unlawful attacks on his or her honour and reputation”.

These safeguards are embedded in our national legislation.

It is also clear that mass surveillance, the interception of digital communications and the collection of personal data impinge on other human rights besides the right to privacy, namely, the rights to freedom of expression, access to information, freedom of assembly and association and family life and the right to health are increasingly exercised through digital media.

My report makes reference to the use of collected data in torture and metadata derived from electronic surveillance to identify the location of targets for lethal drone attacks.

The law guards against arbitrary or unlawful interference with privacy, family, home and correspondence, not data collection itself.  Surveillance of electronic data can be a necessary and effective measure for legitimate law enforcement, or intelligence purposes and even of interest to the media in the public interest.

Challenges arise over how to protect confidentiality and personal identities in the new and emerging market of big data collection. “Metadata“ may give an insight into an individual’s behaviour, social relationships, private preferences and identity that go beyond even that conveyed by accessing the content of private communications. This risk needs to be countered by reform of existing policies and practices to ensure greater protection for privacy.

Surveillance based on claims of national security or the prevention of terrorism or other crimes may meet the “legitimate aim” allowed in Article 17 of ICCPR. The degree of interference in the right to privacy, however, must be assessed against the necessity of the measure to achieve that aim and the actual benefit it yields towards such a purpose.

In assessing the necessity of a measure, the UN  Human Rights Committee (General Comment No. 27, on Article 12 of ICCPR)  stressed that the restrictions must not impair the essence of the right. It must be the least intrusive option.

Applying all the checks and balances of International Human Rights Law, namely ,the surveillance must be lawful, proportionate, necessary serving a legitimate aim, respectful of other human rights and so on, mass or bulk surveillance programmes are deemed to be arbitrary, even if they serve a legitimate aim and have been adopted on the basis of an accessible legal regime.

Mandatory third party data retention-where states compel internet service providers to store metadata about their clients’ communications for law enforcement and intelligence agency access, is deemed to fall short of necessity and proportionality tests. Many national frameworks lack “ use limitations”, allowing data collected for one purpose to be used in other ways or allowing the sharing of the data among different agencies. Unlimited data-sharing may not be in compliance with a state’s obligations under Article 17 of ICCPR.

A word about the obligations of the private sector- The responsibility to respect human rights applies throughout a company’s global operations regardless of where its users are located, and exists independently of whether the State meets its own human rights obligations. The Guiding Principles on Business and Human Rights, endorsed by the Human Rights Council in 2011 provide a global standard for preventing and addressing adverse effects on human rights linked to business activity.

The Guiding Principles is not a legally binding instrument but many companies have  adopted explicit policies and commitment to respect human rights, to have due diligence, and impact assessment oversight, exercise transparency and consultations with affected stakeholders and provide remedies and plans against recurrence of lack of protections.

However gaps in implementation remain. Massive increases in technological resources and inexpensive potentially limitless cloud storage enable the storage by organisations of massive amounts of data on private individuals and in many cases use of this data as a source of revenue.

To address this concern, the EU introduced the General Data Protection Regulation (GDPR) with global territorial scope to protect data privacy of EU citizens. Heavy penalties levied so far show the reach and impact of GDPR – billions of dollars in fines against Facebook’s Campaign Analytica, the political research group that accessed the data of 87 million Facebook users. Others who were penalised with huge fines were British Airways, Haga Hospital, Netherlands, Google, Vodafone and Marriot Hotels.

Similar legislation has been adopted by other states.

South Africa adopted the Protection of Personal Information Act ( POPIA) on 1st July 2020 that came into effect on 1st July 2021. It has some similarities with GDPR, on guiding principles, accountability, transparency, security and data minimisation and ensuring the rights of data subjects. But does not stipulate that the prior consent of users must be obtained except for special personal information and information relating to children. POPIA permits transfer of personal data to outside the country but does not prohibit cross-border transfer of information.  There may have been recent developments to POPIA that I may have missed. If this is the case, I apologise  .It must be stressed that national legislation cannot be enacted independently of the international context.

Effective protection of the right to privacy in the context of modern communications technology will require an ongoing, concerted multi-stakeholder engagement.

The International Commission on Information and Democracy addressed an appeal to the leaders of the digital platforms and social networks who have acquired wealth and power online to commit to a decisive transformation that favours reliability of information and platform accountability based on democratic principles. We ask you, Sundar Pichai, Mark Zuckerberg, Tim Cook, Jack Dorsey, Jeff Bezos, Brad Smith and others, to take all necessary measures, regardless of the cost to your companies in the short term, to guarantee the right to reliable information, a constituent of the freedom of opinion and expression.

We are seeking this systemic change from the leaders of digital companies wherever their headquarters are, but we are counting on you to set an example. The companies you head – Google, Facebook, Apple, Twitter, Microsoft, Amazon and others – nowadays have the power of parliaments and courts to organize the online public space as you see fit. As “code is law” and the terms of use are non-negotiable, you define the framework and rules of the public debate, a role formerly (and normally) assigned to our legislators. But you are not subject to the procedures, checks and balances, and transparency obligations that are imposed on the laws and machinery of democratic states. You have an enormous impact on our societies, our freedoms and our lives without, for the main part, being accountable.

You are sometimes rendered dizzy by your power and the phenomena you cause. The digital platforms have had very positive effects on horizontal communication. But the information chaos – attributable to the absence of obligations – threatens democratic life, civil harmony, the survival of news media and everyone’s basic ability to distinguish true from false or to withdraw from the echo chambers surrounding them. Algorithms hierarchize contents according to the platforms’ interests and even unintentionally favor sponsored content. Thanks to surveillance methods, private information becomes accessible. Conversely, news media that try to serve the public interest by revealing information are being undermined.

If there were still any need, the Covid-19 global epidemic has confirmed the importance of the right to information – meaning reliable information. The “disinfodemic” is one of the symptoms of the information chaos. Without a public debate based on “factual truths,” we cannot effectively address global and local challenges that include public health crises, armed conflicts, terrorism, corruption, discrimination, human rights violations, global warming, the decline in biodiversity and organized crime. As we said in the preamble to the International Declaration on Information and Democracy, which we drafted in the fall of 2018, “knowledge is necessary for human beings to develop their biological, psychological, social, political and economic capacities.”

In our declaration, we wrote that the global information and communication space “should preserve and strengthen our ability to address challenges of the present time, to anticipate our common destiny and to help us shape global sustainable development which takes into account the rights and interests of future generations.” This space for debate is a common good of humankind. It is the reason why 36 countries have signed the International Partnership for Information and Democracy that was launched on the sidelines of the last UN General Assembly on the basis of our declaration.

As a result of our initiative, these democratic governments urge you to respect “the principles of transparency [and] accountability (…) to foster access to reliable information and to counter the dissemination of false or manipulative information intended to deceive audiences.” They also ask you to “uphold the responsibilities incumbent on [you] according, among others, to the UN principles on business and human rights ahead of the design of new programs, software and connected devices.”

To ensure that your companies respect and promote the “common good,” to respect the necessary due diligence, you must base your actions on collaborative initiatives founded on principles. We invite you to promote reliable news and information sources in search engine algorithms in a structural manner, by example, by implementing the Journalism Trust Initiative (JTI), a self-regulatory project launched by Reporters Without Borders (RSF) in which 120 media outlets, unions, rights organizations, consumer groups and digital platforms have collaborated.

We invite you to work with the Information and Democracy Forum that was created in November 2019 by 11 organisations, think tanks and research centres in nine countries in order to implement the Partnership. The purpose of this independent entity is to bring together jurists, IT researchers and civil society representatives to produce recommendations for regulation and self-regulation, starting from the dilemmas posed by paradigm change in the public space. We invite you to cooperate with this civil society-led organization in order to work together to emerge from this crisis and avoid all the others that could follow.

You have managed to put unprecedented measures in place in order to combat rumor and disinformation about the coronavirus, sometimes contrary to well-entrenched practices. We salute your efforts. But the projects you have launched or supported will not suffice because they aim to rein in phenomena when it is the entire framework that needs rethinking. We are calling on you to take a huge step, in order to contribute to the implementation of a global framework that will enable public debate that is open, tolerant and as honest as possible.”

I wish to acknowledge the presence and participation of the large numbers of young media lawyers who have volunteered to assist the South African Freedom of Speech Legal Network. This is an exciting development, as you will be drawn into advising the media on new and emerging issues that impact them, such as surveillance and disinformation.

18 February 2025.