Thinking globally, acting regionally: Regional Approaches to Digital Human Rights (Part 2)
Yohannes Eneyew Ayalew
My previous post explored the many ways in which regional systems serve as important forums for developing digital rights—specifically, their role in promoting culturally sensitive human rights, supporting local and context-driven enforcement, and advancing subaltern norms. I also discussed key normative developments in the African human rights system, funnelled through the African Union (AU), the African Commission on Human and Peoples’ Rights (ACmHPR), and regional courts. In this post, I focus on Inter-American perspectives on digital rights and propose regional approaches as a complement to international human rights law’s universalistic vision of digital human rights.
1.Looking back at the origins of the Inter-American system
The Inter-American Human Rights System (IAHRS) is a regional mechanism for the protection of human rights in Latin America—founded on the normative framework of the 1948 American Declaration of the Rights and Duties of Man, the 1969 American Convention on Human Rights, and subsequent normative instruments (see here and here). The IAHRS is being supervised by institutions such as the Organization of American States (OAS) and its constituent organs, including the Inter-American Commission on Human Rights (IACmHR) and the Inter-American Court of Human Rights (IACtHR), whose remit is not only to promote human rights but also to interpret and protect them, both offline and online.
Replete with (hi)stories of authoritarianism, reigns of terror, dictatorships, and cycles of violence across different countries at least since the 1960s, the Inter-American system initially emerged (and sought) to stem gross human rights violations such as torture, enforced disappearances, summary executions, and incommunicado detention committed in those contexts (see here, here and here). Against these backgrounds, the Inter-American system has stood out to defending and protecting human rights in the Americas and has contributed to the global human rights discourses in many ways. In this regard, Kathryn Sikkink has posited that Latin American countries are norm protagonists of the idea of international human rights, citing the fact that the region was a pioneer in introducing the American Declaration of the Rights and Duties of Man on 2 May 1948, before the adoption of the Universal Declaration of Human Rights (UDHR) on 10 December 1948. Drawing on the early engagement of the Inter-American system in human rights standard-setting, Par Engstrom postulates that this engagement on its own ‘demonstrates the important protagonism of the Global South in the emergence and consolidation of global human rights governance.’
One notable contribution that the Inter-American system made to the corpus of international human rights is its development of a victim-oriented jurisprudence and practice. Reflecting on victim-oriented jurisprudence, Clara Sandoval argues that the Inter-American system has advanced a comprehensive and holistic set of reparation policies aimed at protecting the right to an effective judicial remedy. Another area in which the Inter-American system has introduced jurisprudential innovation is the right to a dignified life (vida digna). By combining elements from the right to life (Article 4) and the right to progressive development (Article 26), Thomas Antkowiak submits that the Inter-American Court interprets the right to a dignified life expansively—going beyond mainstream international human rights law (cf. e.g., the UN Human Rights Committee’s General Comment No.36 (2019) on the right to life ¶¶ 3 &26). A third innovation of the Inter-American system lies in the development of indigenous rights, where the Inter-American Court broke new ground by creatively interpreting the right to property ( see e.g., case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua (2001) ¶¶ 148-155, guaranteeing the property rights of an indigenous community to enjoy their traditional lands, in turn, protecting them from a foreign company’s concession). A fourth contribution of the Inter-American system is the elaboration of the contents of specific human rights through a nuanced interpretation. For example, the right to freedom of expression provided under Article 13 of the American Convention has been understood to encompass both individual and collective dimensions (see e.g., Advisory Opinion 5 on the Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (1985) ¶ 30). This means that while the individual dimension enables a person to express their own thoughts, ideas, and information, the collective dimension, on the other hand, upholds a society’s right to seek and receive information, to know the thoughts and ideas of others, and to be well-informed (see also Kimel v Argentina (2008) ¶ 53). The second dimension is, of course, a useful entry point that helps us understand the regional salience of the Inter-American system, which is further taken up below. With this background in mind, I now turn to the major developments in the protection of digital rights in Latin America.
2.Key developments of digital human rights in the Americas
Here I examine how the Inter-American system promotes and protects digital rights using a theoretical framework developed in the context of the ‘Three Generations of Digital Human Rights’ project, which consists of a trilogy of generations: the adaptation of offline rights to the online realm, the creation of new digital rights, and the introduction of rights and obligations to digital actors (see here, here and here).
- First Generation Digital Human Rights: ‘The Same rights people have offline must also be protected online’
On the heels of the landmark UN Human Rights Council resolution adopted in 2012, which proclaimed that ‘the same rights people have offline must also be protected online,’ the Inter-American Commission wasted no time in setting forth the applicable standards for human rights on the Internet, leading to the adoption of an official position through the Office of the Special Rapporteur on Freedom of Expression in a report titled ‘Freedom of Expression and the Internet’ published in 2013. In ¶¶1-2 of this report, the Inter-American Commission endorses the ideal of ‘First Generation of Digital Human Rights’—for example, by transposing offline entitlements to the online realm in the case of freedom of expression:
Freedom of thought and expression is the cornerstone of any democratic society. The inter-American human rights system in particular gives it a very broad scope. Article 13 of the American Convention guarantees the right of all persons to freedom of expression and establishes that this right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice. Article 13 applies fully to communications, ideas and information distributed through the Internet.
This stance is further reinforced in subsequent thematic reports and normative statements developed within the hemisphere. For instance, the Inter-American Commission’s 2017 report, titled Standards for a Free, Open, and Inclusive Internet, is yet another comprehensive regional document that outlines a set of recommended norms for applying human rights in the digital environment in Latin America. In doing so, the report (¶4, ¶¶82–83, and ¶194) recognises the applicability of offline rights—mainly freedom of expression and privacy rights—to online contexts (see here).
Additionally, the applicability of human rights on the Internet through transposition has been reiterated in various thematic and country reports by the Inter-American Commission. For example, in its thematic report on Pandemic and Human Rights (2023) ¶¶183–198, the Commission outlines the interplay of freedom of expression, Internet access, and data protection in the digital realm in the context of COVID-19. Similarly, in its thematic report on Childhood, Freedom of Expression, and the Media (February 2019) ¶¶76–96, the Commission provides a detailed account of how children’s rights can be realised in the digital environment. And, in the context of Protest and Human Rights (September 2019) ¶¶294–302, the Commission recognises the vital role of the Internet in exercising the right to peaceful assembly and demonstration and urges states to protect this right online (¶296). The latest example of such transposition—where the Inter-American Commission addressed the applicability of freedom of expression on the Internet—appears in its 2025 country report on Venezuela, in which the Commission criticised the government’s decision to pull the plug on the Internet following elections (¶¶140–148).
Still, it is important to note that the Inter-American Commission accentuates that transposing offline rights to the online realm is not enough and further recommends that states adopt legislation and practices to protect, for example, the right to privacy in the digital age. In ¶194, the 2017 Thematic Report sets it forth as follows:
States have an obligation to respect and protect the right to privacy in the digital era and adopt legislation and practices—or adapt existing ones—to do so, protecting everyone under their jurisdictions—including, pursuant to international law, those in their custody—without discrimination based on national origin, nationality, sex, race, religion, or for any other grounds.
This suggests that the reliance on existing privacy norms is inadequate to fully address the rapid evolution of digital technologies and their impact on the enjoyment of the right to privacy. Discussing the inadequacy of applying existing norms to the online realm, Dafna Dror-Shpoliansky and Yuval Shany argue (p. 1257): ‘This notion of inadequacy appears to support the development of new digital human rights, liberated from the shadow of offline human rights, since the latter are ill-equipped to afford effective protection of the full gamut of needs and interests of online users.’ Hence, the phrase ‘adopt legislation and practices’ in ¶194 of the report could mean (1) literally recommending that states adopt framework laws and practices to respect and protect privacy in the digital age and (2) perhaps suggesting that states enact legislation and practices that potentially herald ‘new digital rights,’ giving effect to the right to privacy in light of technological developments. On that note, I now turn to discuss the treatment of new digital rights under the Inter-American system.
- Second Generation Digital Human Rights: Creating New Digital Rights
The Inter-American system has already considered (and developed) new digital rights that fit within the category of ‘Second-Generation Digital Human Rights.’ Here, I limit my discussion to three new digital rights that have been discussed or are currently being discussed in the regional system, namely: access to the Internet, the right to be forgotten, and the right to informational self-determination.
Access to the Internet as a standalone right? Whether access to the Internet should be considered a standalone right has been a long-standing debate and remains contentious (see here and here). The Inter-American system does not expressly recognise it as a standalone human right but rather as an instrumental right for many other human rights, including freedom of expression, privacy, and socio-economic rights. Being an instrumental right, access to the Internet could arguably be grouped within the ambit of the first generation of digital human rights discussed above. The Inter-American Commission, in its 2017 Thematic Report (¶32) underscored the crucial role of the Internet in fully exercising specific rights: ‘Access to the Internet is a condition sine qua non for the effective exercise of human rights today, especially including the rights to freedom of expression and opinion, association and assembly, education, health, and culture.’ This has been further reaffirmed in the Commission’s thematic report on Pandemic and Human Rights (2023) ¶ 184.
To fully realise Internet access, states are expected to take not only negative measures, such as refraining from arbitrarily shutting down the Internet, but also positive measures aimed at bridging the digital divide, promoting infrastructure development policies, and more. To translate these duties into action, the Inter-American Commission has adopted two normative rules. Firstly, through Resolution 1/2020, the Inter-American Commission called on states to take positive measures to ensure widespread, immediate Internet access and take swift measures to bridge the digital divide, especially for vulnerable and low-income groups, through support systems, communication strategies, and accessible content. Secondly, the Commission in its Press release R206/2020 has explained how negative measures are applied in practice in that access to the Internet should not be interrupted by blocking, filtering pages or shutting down service for political or discriminatory reasons.
The right to be forgotten – An ambivalent position? The Inter-American human rights system has a strong aversion to the so-called right to be forgotten (see here). Although the Inter-American human rights system protects both the right to privacy (Article 11) and freedom of expression (Article 13) as basic human rights under the Convention, its stance on the right to be forgotten appears to be quite negative. For instance, the Commission confirmed that removing and de-indexing content from the Internet could seriously interfere with the right to freedom of expression, at individual and societal levels, as well as the public’s right to access information in its 2017 Thematic Report (¶133). This stance replaces its previous position published in 2013 on Freedom of Expression and the Internet (¶139), which stated that the right to be forgotten can be claimed in some instances such as: ‘States are required to prohibit the use of personal data for purposes inconsistent with the human rights treaties and to establish rights to information, correction and - if necessary and proportioned - deletion of data.’ At ¶ 134 of the 2017 Thematic Report, the Inter-American Commission has expressed its opposition by stating:
In the Americas, after many years of conflict and authoritarian regimes, individuals and human rights groups have maintained a legitimate claim to access to information regarding governmental and military activity of the past and gross human rights violations. People want to remember and not to forget. In this sense, it is important to recognize the particular context of the region and how a legal mechanism such as the so-called “right to be forgotten” and its incentive for de-indexation might impact the right to truth and memory.
This indicates that the Inter-American human rights system has been sceptical of the notion of the right to be forgotten within the context of the region. Given Latin America’s socio-political history, as mentioned at the start of this post, rebuffing the right to be forgotten seems both appropriate and logical. This is why regional approaches to digital human rights—which I advocate below—are crucial for fully grasping the context and realities of people in the Global South. Notwithstanding the above position, the Inter-American Commission (the 2017 Thematic Report ¶137) leaves some wiggle room for states to apply the right to be forgotten on exceptional grounds under data protection regimes.
The right of informational self-determination—embryonic right? Technically, the right to informational self-determination could mean an individual’s capacity to determine, in principle, the extent of disclosure and use of their personal data. Citing the German Constitutional Court’s 1983 decision, Antoinette Rouvroy and Yves Poullet have analysed the content of this right as the power of individuals to decide when and within what limits personal matters are made public, as well as to control what happens to their personal data. Crucially, the right to informational self-determination has recently emerged as an autonomous right within the Inter-American system, after a landmark ruling by the Inter-American Court of Human Rights (IACHR) in the case Members of the José Alvear Restrepo Lawyers’ Collective v Colombia, handed down on October 18th, 2023. It is gleaned from the facts of the case that Colombian intelligence allegedly spied on members of the José Alvear Restrepo Lawyers’ Collective (CAJAR), gathering and misusing their personal information—some of which was reportedly shared with illegal armed groups. The Inter-American Court made an avant-garde decision and concluded that (¶ 586):
In the view of the Inter-American Court, the aforementioned elements give shape to an autonomous human right: the right to informational self-determination, recognized in various legal systems in the region, and which finds its basis in the protective content of the American Convention, particularly in the rights enshrined in Articles 11(the right to privacy) and 13 (freedom of expression), and, in terms of its judicial protection, in the right guaranteed by Article 25 (emphasis added).
Furthermore, the Inter-American Court (¶588) elaborated that the right to informational self-determination serves as a guarantee for other rights, such as those concerning privacy, the protection of honour, the safeguarding of reputation, and, in general, human dignity. This right may extend to any personal data not only held by public bodies but also by private entities. Yet, this right is still at embryonic level of development in the region.
- Third Generation of Digital Human Rights: Introducing rights and obligations of digital platforms
While both the first and second generations of digital human rights are expected to be realised through state machinery, third-generation rights generally involve a cocktail of rights of digital entities and responsibilities for technology corporations. That said, the Inter-American system acknowledges the important role of the private sector in the protection of digital rights. The Inter-American Commission, in its 2017 Thematic Report ¶95, emphasises the role of private entities as facilitators of human rights, particularly the right to freedom of expression and access to information. There are at least two possible areas where third generation rights could be implicated within the existing norms of Inter-American human rights system.
First, the Inter-American system grants rights and immunities to Internet intermediaries (e.g., social media platforms and search engines). It does so by exempting Internet intermediaries from liability for third-party content. In fact, the Inter-American Commission has identified three models of intermediary liability—namely: complete immunity, strict liability, and safe harbour or notice-based liability—and went further to assess their compliance with the American Convention (see 2017 Thematic Report ¶¶ 102-112 and Edison Lanza pp 510-11). Therefore, the Inter-American system has adopted a seemingly rather liberal approach to intermediary liability where Internet intermediaries are not liable for user-generated content on their platforms (see 2017 Thematic Report ¶¶105 & 112). Simply put, Internet intermediaries are not liable for third-party content on their platforms within the existing Inter-American human rights framework.
Second, a business and human rights framework exists where corporations are expected to respect human rights. Acknowledging the United Nations Guiding Principles on Business and Human Rights (UNGPs), the Inter-American Commission’s 2017 Thematic Report (¶98) recalls that ‘private actors have a responsibility to respect human rights online, and this includes both a responsibility not to restrict rights and a positive responsibility to create an environment in which rights are respected’. It is interesting to note that the Inter-American system adopted a region-specific ‘Business and Human Rights: Inter-American Standards’ in 2019, outlining the corporate responsibility to respect human rights and the State’s duty to protect human rights. Of this report, the section germane to this analysis is the one on the duty of states and businesses in the field of ICT (¶¶ 268–285). For example, as AI-powered search engines help users find information, digital service providers claim to use specific criteria to facilitate this function, which are at times nebulous and opaque. The Inter-American Commission (¶277–278) stresses that assessing human rights guarantees in this context requires transparency, legitimacy, and a general-interest basis in the criteria shaping search result rankings.
3.Towards regional approaches to digital human rights
Although the African and Inter-American human rights systems differ in key respects, they are cut from the same cloth when it comes to their approach and praxis of human rights. Given that both systems are situated in the Global South—a region often overlooked in international human rights scholarship, they champion a unique vision of human rights, rooted in individual freedoms, social justice, and collective norms. Both embrace a communal conception of human rights, emphasising social justice, collective rights, and duties. Notably, the drafting history of the American Convention on Human Rights confirms that the Convention is, among other things, founded on social justice (see Ludovic Hennebel and Hélène Tigroudja’s Commentary pp.10-11). For example, the right to freedom of expression has a social dimension within the established jurisprudence of the Inter-American Court. Likewise, the African system is rooted in communitarian ethos (see Rachel Murray’s Commentary pp.8-10).
Additionally, both systems recognises the existence of communal duties alongside individual rights (here and here). For example, the concept of duties finds expression in Articles 29-37 of the 1948 American Declaration, which are meant to guide individuals in their societal relations. Among these are duties towards society, the duty to receive instruction, to vote, to obey the law to serve the community and the nation, to work, and to pay taxes. Even with the adoption of the American Convention, the concept of duties wasn’t jettisoned but rather incorporated into Article 32, which sets out responsibilities that individuals must assume towards their family, community, and mankind. In the same vein, Articles 28-29 of the African Charter on Human and Peoples’ Rights require individuals to assume a cluster of duties towards their family, community, and state.
Moreover, both systems promote linguistic plurality and cultural diversity. To ensure the participation of linguistic minorities, the Inter-American Commission advocates for diverse languages and cultures in accessing the Internet and digital technologies (see 2017 Thematic Report ¶¶ 46 & 48). Similarly, the African Commission on Human and Peoples’ Rights encourages states to establish community media to develop and disseminate content relevant to geographic communities or those sharing common attributes, such as language and culture (see Principle 15 of the 2019 African Declaration). Building on these critical discourses and alternative epistemologies from the Global South, I propose that regional approaches to digital human rights would be considered as an alternative framework in digital rights discourses, which is grounded in communal conception of human rights as articulated in both African and Inter-American human rights systems.
4.ConclusionIn this two-part post, I have offered some arguments on the important role played by regional systems by way of examining key normative developments of digital rights in the African and Inter-American human rights systems. By advocating for regional approaches to digital human rights, I have sought to bring subaltern norms to the forefront and promote a Global South epistemology in digital rights scholarship. While IHRL’s universal vision of digital human rights seems inclusive at face value, it ignores subaltern norms and epistemologies in the Global South (see here, here and here). The upshot of this two-part post is that one size does not fit all. This ultimately leads to advocating for regional approaches to digital human rights that empower diverse perspectives, epistemologies, and worldviews within the global digital human rights discourse.
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About the author:
Dr Yohannes Eneyew Ayalew is a Postdoctoral Fellow at ‘Three Generations of Digital Human Rights’ Project directed by Professor Yuval Shany under ERC Grant No. 101054745: the Three Generations of Digital Human Rights (DigitalHRGeneration3) at the Faculty of Law, The Hebrew University of Jerusalem and is currently working on Regional Approaches to Digital Human Rights. Prior to that, he was a Sessional Lecturer and Tutor at the Faculty of Law, Monash University, Australia. He holds a PhD in Law at the Faculty of Law, Monash University, Australia. His research interest spans in the areas of Digital Human Rights, Balancing Digital Human Rights, African Human Rights Law, International Human Rights Law and Third World Approaches to International Law (TWAIL).
