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A UN rapporteur argues that Southeast Asian countries are undermining their economic potential due to the lack of freedom of expression, adding that social media companies should be more concerned about protecting customers’ privacy.
Average annual GDP growth in the Southeast Asian region for 2017 is forecast by the ADB at 5.0%. However, political liberty across the region is unstoppably in decline. 
Thanks to factors such as the drug war in the Philippines, the military junta in Thailand and the Rohingya crisis in Myanmar, no Southeast Asian country is categorised as “Free” by Freedom House in its Freedom in the World 2017 report.
According to David Kaye, UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression since 2014, the region is walking in the wrong direction. Kaye has found that the authoritarian governments are in fact threats to economic development. 

What is the human right situation in Southeast Asian region?

I would say that generally across the region, the ability to exercise freedom of expression is under real pressure in every country. You see all across the countries of the region pressure by governments to restrict what people can say, to restrict what people can report, to criminalize speech and reporting, to criminalize dissent from government. So I would say generally that this is a region in which freedom of expression scores very very low.

What is the UN’s role in promoting freedom of expression?

The central human rights body in the United Nations system is the Human Rights Council, and the Council does a number of things. It adopts resolutions regarding things like freedom on the internet, safety of journalists and then related to all other kinds of human rights issues. But they also appoint what they call special rapporteurs, individuals who monitor particular areas of human right law around the world, and there are several dozen of us who do this and they appointed me as special rapporteur on freedom of opinion and expression. 
What that means is I communicate directly with governments when we have concerns about their implementation of their obligations to protect freedom of expression. We’ll send them letters, sometimes we’ll do press releases about real serious concerns. We do country visits. We have to be invited by a country for this and we’ll come to a country and spend maybe week or 10 days and speak to government, to activists, to academics, to journalists and then report on the situation in the country.  We report to the Human Rights Council and I do reports on thematic issues. 
It could be the protection of whistleblowers, or the protection of journalists and I’ll report to the General Assembly.  Or it could be about the state of the internet in some particular way and I report on that to the Human Rights Council. Within the UN we are doing a lot of reporting and then in turn we are communicating directly to the governments to encourage them to meet their obligations to protect expression.

Is it difficult to do these things in developing countries, for example Indonesia, where freedom of expression is systematically blocked by state mechanisms such as laws and regulations?  Is it hard for you to work or obtain requests to visit?

It’s not that it’s hard for us to find out what’s happening in the country. I think what’s difficult is that many of the governments in the region have created a legal environment that’is hostile to freedom of expression. 
And I think that’s really self-defeating. These are all countries that have the potential for dynamic economies. We look out at Bangkok right now and it is a growing city and vibrant. You can look at Singapore in the same way. The region as a whole however is developing and I think when you restrict what people are able to say, whether it’s about government or it’s about maybe the economy, when you restrict that and criminalize criticism, then you make it harder for people to be innovative, to participate in the economy, to participate in the life of the country. 
You create this idea or this environment that the creativity, which is a part of free speech, is somehow harmful and I think that’s wrong. So clamping down freedom of speech is also having a negative impact, I think, on economies in the region too, and on development.

How does lack of freedom of expression affects the economy?

Human rights law protects everyone’s right to seek, receive and impart information and ideas of all kinds. That’s the right that we’re talking about. And part of that right involves the right to get information from government. If that is restricted, if it’s harder for journalists to get information about, say, government data, if it’s harder for opposition figure to discuss their ideas to change the way economy is run, that undermines the ability of the government to innovate, and to find new ideas. It makes it so that people generally are afraid of speaking out in a way that could help the economy and help the politics of the country. So to me it’s a very clear way in which restrictions on expression and restrictions on what we can get from the government in terms of information actually undermine the government’s efforts to develop altogether. That’s not just me saying that. In the Sustainable Development Goals that were adopted by the UN last year, the Principle 16 talks about the importance that access to information, for example, plays in development.  So this is not something that I’m just creating.  It’s well understand that expression and access to information are critical to development.

As a UN rapporteur, do you have any concrete success you want to share?

I don’t think right now here’s much of a success story anywhere in the region. In think there’s been some positive developments here and there but overall the whole picture is fairly negative. We can talk about areas but it’s hard to identify success stories. 
I do think there is a very rich civil society across the region. There are great activists, great journalists; there are student organisations around the region. There are people who are very eager to be active. That’s a good sign. It means to me that if the government would lift its restrictions, there’s a very positive environment that could exist for speech, but you don’t really see that.
To give one example where we thought that there’d be generally a success is Myanmar. For several years, Myanmar was in this transition to democratic government. If you go to Yangon now, there’s greater freedom to get news. The internet is very active, particularly in the cities in Myanmar.  So that is positive. But what we’re seeing against that is how the government criminalizes people’s criticism of the military in the country. So even though there’s a possibility there of success, the government undermines it in very significant ways.

Has there been any shift in the debate about freedom of expression and hate speech in the region regarding the influence of the internet and social media?

In Myanmar, you do see actually quite a lot of hate speech. Generally governments are not supposed to regulate plain pure hate speech unless it amounts to incitement to violence or discrimination or hostility. In Myanmar, one thing that we do not see is the government clamping down on incitement. I don’t know of cases in which the government is dealing with incitement.
Instead, they are dealing with the criticism of the military. They are limiting the ability of Rohingya, for example, to express themselves. But they’re not doing anything about extremists’ incitement against Rohingya. I think that’s deeply problematic and shows that the government is not very serious about dealing with hate, whether it’s hate on social media or hate on the street.

What should be the common goal the countries in the region should reach?

I think the region can start small. You can start with baby steps.  And the first steps would be to stop prosecuting people under antiquated laws. So as an example, in Malaysia you have the Sedition Act. There was a time a few years ago, when the leaders of Malaysia said they were going to repeal the Sedition Act. But instead, in fact, the government is using the Sedition Act to prosecute a great number of people, cartoonists like Zunar, individual students, all sorts of people, lawyers. 
That’s one example.  Another is in Thailand. In Thailand there’s still an active prosecution of people for violation of the lèse majesté laws. I think it’s possible to have, in countries like Malaysia and Thailand, a deep respect for government and, say, for royalty without criminalizing criticism of those kinds of institutions. 
I would like to see at least the governments resisting the urge to prosecute people. After that, they can start to do other things like repeal those laws and by repealing those laws that are undermining expression, they can start to create environments in which journalists, for example, are able to do reporting without fear of being slapped with a defamation lawsuit or harassment. They can encourage student groups to be active in thinking about ways to build and develop their societies.  But when you have restrictions on expression, it makes it very hard to do those things. 
So those are two things governments across the region should do. One is stop prosecuting people for their speech. And secondly, repeal the laws that allow them to do that.

Could you talk about ways to communicate with those who think that freedom of expression causes controversy and unrest?

Speech can create controversy but what are we afraid of? Controversy, disagreement is how you get better ideas. If there’s common ground among participants in public debate, and the common ground is that they want to build a society that works for all of its people, that’s non-discriminatory, then disagreement is the way that you build that kind of society. It’s the way you create new ideas that can work. 
The problem that you have now is governments that want to maintain power. And power is not the same as either development or a healthy society. A healthy society is one that allows for debate, allows for democratic ideas, allows for undemocratic ideas to be criticised and it grows through that give and take. So controversy is a good thing.  It’s just that controversy t is often seen by governments as undermining their hold on power and that’s a basic problem.

What role do private internet companies play in promoting freedom of expression? Can we expect this sector to play a major role in promoting freedom of expression?

It’s clear that the internet overall provides remarkable access to information, more information than people ever had access to in human history. So if you’re an entrepreneur in Bangkok and you’re looking to maybe study examples of how other entrepreneurs have achieved their success in other countries, the internet gives you the tools to do that. It gives you the ability to search, and not only to search but to reach out to people, contact them directly, communicate with people directly. Or let’s say you’re an investor in Bangkok and you want to know about the legal system in Europe, or the economic data in Latin America, whatever it is, the internet gives you that ability. There’s no going back from a time in which the internet is central to our economies. That’s fundamental. 
There are two kinds of problems right now. One is that governments are trying to restrict the expression on social media space. People are being prosecuted for things that they post on Facebook, or on Twitter or Line, whatever it might be. So that’s one problem.
The second kind of problem is that the companies themselves regulate this space. They have their own rules about what can be said, what can be expressed. And they are not very clear about what those rules are and how automation is taking down content and why it’s taking down content. So it’s creating, I think, an environment in which people aren't necessarily sure about what the rules are for speech today. 
So I think that the companies which manage such space, it really is like public space, they have a growing responsibility to protect that space, to protect it against government surveillance, and government monitoring but also to protect it as a place in which people can express themselves.

How can we make private companies concerned about protecting this space?  Does it start with education of some kind of financial tools?

It’s already starting in the sense that people are raising concerns with the companies and the companies need to be responsive to the concerns that people have. Governments are raising concerns about things like the spread of fake news. That needs to be handled very carefully so that companies aren’t censoring news and information. So it’s already starting.
We’re trying to be a part of that conversation. We’re doing a study on the responsibilities of social media and search companies when it comes to regulating content. And we hope by next year to have a report that will feed into these discussions. That’s our hope.
It’s pretty clear that the companies face the threat of regulation by government and they need to find the way to meet their obligations to their customers but also to protect customer’s human rights. They can’t be in the position of complicity with human rights violations.
David Kaye
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