“While the roots of the human rights movement can be traced to ancient philosophical writings on natural law, the modern human rights framework has its origins in the formation of the United Nations (UN) in 1945. At the core of the international human rights framework is the principle that ‘all human beings are born free and equal in dignity and rights’ Put this simply, human rights are about what it means to be human; to have the autonomy, personal freedom and value regardless of ethnicity or race, religious belief, gender or other characteristics. Human rights law accepts that human rights come into tension with each other, and with other interests. It provides ways of resolving these tensions to accommodate multiple rights and interests.
Human rights law can help us answer the big questions posed by the rise of new technologies, including how to protect humans in a digital world. Stakeholders contributing to the Commission’s consultation process have reported many ways in which new technologies engage our human rights, and they have been broadly supportive of focusing more on human rights to analyse the social impact of new technologies. Drawing on this broad stakeholder support, human rights approach to analysing the impact of new and emerging technologies is vital in understanding and responding to the risks and opportunities. Applying a human rights framework starts with considering how new and emerging technologies affect humans. The potential human rights impact is enormous and unprecedented. AI, for example, can have far-reaching and irreversible consequences for how we protect privacy, how we combat discrimination and how we deliver health care— to name only three areas. Human rights is already used as a source of law and an established set of norms, to analyse the impact of new technologies.
What are human rights? We are all entitled to enjoy our human rights for one simple reason—that we are human. We possess human rights regardless of our background, age, gender, sexual orientation, political opinion, religious belief or other status. Human rights are centred on the inherent dignity and value of each person, and they recognise humans’ ability to make free choices about how to live. Australia is a signatory to seven core human rights treaties, which cover the full spectrum of human rights, including civil and political rights, and economic, social and cultural rights. Accordingly, Australia has voluntarily agreed to comply with human rights standards and to integrate them into domestic law, policy and practice.
Human rights are universal, meaning that they apply to everyone. They are indivisible, meaning that all human rights have equal status. They are interdependent and interrelated, meaning the improvement of one human right can facilitate the advancement of others. Likewise, the deprivation of one right can also negatively affect other human rights. Accordingly, while there are sometimes complex inter-relationships between different rights, governments must ensure everyone’s human rights are protected.
Overview of technology advancing & restricting human rights
New benefits come, new risks and this comes with new responsibilities.
Right to equality and non-discrimination Applications that use AI, and especially machine learning, must be ‘trained’ using data. Where that data incorporates unfairness, such as discrimination, this can be replicated in the new application. Where training data is collected and used well, new technologies such as AI can enable better service delivery, especially for vulnerable groups. Unequal access to critical new technologies can exacerbate inequalities, especially where access is affected by factors such as socioeconomic status, disability, age or geographical location.
Freedom of expression and new technologies can enable wide-scale surveillance online and in the physical world, which can deter individuals from legitimately sharing their views. New technologies can aid freedom of expression by opening up new forms of communication. New technologies can assist vulnerable groups by enabling new ways of documenting and communicating human rights abuses.
Hate speech, ‘fake news’ and propaganda can be more readily disseminated. Right to benefit from scientific progress New technologies can improve the enjoyment of human rights such as access to food, health and education. Ensuring accessibility across all sectors of the community can be difficult.
Freedom from violence, harassment and exploitation Access to new technologies can provide greater protection from violence and abuse, and the ability to document abuse, but can also facilitate other forms of abuse (such as image-based abuse or covert surveillance). Greater access to information and support through technology can make support for survivors of violence and abuse more affordable and accessible.
Accessibility New technologies can provide new ways to deliver services, thereby increasing accessibility for people with disability and others. Reduced cost of services through affordability of new technology can promote equality for people with disability by ensuring progressive realisation is achieved faster and reasonable adjustments are more affordable. New technologies can increase barriers for people with disability if they are used in products and services in ways that are not accessible. Protecting the community and national security New technologies can increase the government’s capability to identify threats to national security. Use of such technologies for surveillance purposes can be overly broad and, without appropriate safeguards, can impinge unreasonably on the privacy and reputation of innocent people.
Right to privacy, The ease of collecting and using personal information through new technologies such as facial recognition can limit the right to privacy. Personal data can flow easily and quickly, across national and other borders. This can make privacy regulation and enforcement more difficult. It can be difficult to ‘correct’ or remove personal information once communicated. The ease of communicating and distorting personal information (eg, through ‘deep fakes’) can lead to reputational damage and other harms.
Right to education New technologies can improve the availability and accessibility of education. Lack of access to technology can exacerbate inequality, based on factors such as age, disability, Indigenous status, and rural or remote location. Access to information and safety for children Online environments provide children with the opportunity to access a wealth of information, but also pose challenges for their wellbeing.
New technologies create different settings for harassment and bullying that are sometimes challenging to moderate. Digital technology can also facilitate the exploitation of children (and women) and there is an obligation to protect them from exploitation. Obligations of states to protect human rights International human rights law requires the Nation States to respect, protect and fulfil human rights. The obligation to respect means that the Nation-States must refrain from interfering with or curtailing the enjoyment of human rights. In other words, governments themselves must not breach human rights.
The obligation to protect requires the Nation States to protect individuals and groups against human rights abuses. In other words, laws and other processes must protect against breaches of human rights by others, including non-state actors.
New Responsibilities from Governments
The obligation to fulfil means that the Nation-States must take positive action to facilitate the enjoyment of human rights. As noted above, Nation States must recognise that the breach of one human right might affect another; that is, all human rights are ‘indivisible and interdependent and interrelated’. How are human rights protected in Australia? In order to be fully enforceable in Australia, international human rights law must be incorporated into domestic Australian law through legislation, policy and other arrangements.
Human rights are protected in Australia in a number of ways including in Australia’s Constitution—Australia has no federal bill of rights, but a small number of rights are protected directly or indirectly in the Australian Constitution—most particularly, the right to freedom of political communication. It is proposed Digital Communication Technology Standard is more likely to achieve its aims if there are additional measures that can assist people and organisations to understand their responsibilities under the law and to provide increased certainty to them when seeking to comply. This could include a mix of mechanisms within an overall compliance framework.”
Reforms moving forward these reforms must consider free and equitable, and be informed by all stakeholder groups and feedback gathered throughout a broad consultation process which includes people with disabilities and their allies.
Edited: Karen Burgess from the Human Rights and Technology Discussion Paper December (2019) Australian Human Rights Commission.