Below are the key areas being developed by the BPF Gender & Digital Rights in its 2022 report. Comments can be added below each section by clicking on ''View and Add Comments for Paragraph''.

Deadline to post comments is 11 November 2022.
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How regulatory practices undermine gender-diverse rights

Human rights must be observed in all aspects of one’s life – personal and professional, online and offline. On the Internet, both women and gender-diverse communities have found safe spaces to freely express themselves. Similarly, journalists and human rights activists were able to exercise their right to freedom of expression without being targeted as if they were using traditional media.

Notwithstanding, censorship based on sex and gender still happen; persecution of dissident voices, likewise. The tool that promotes civic spaces and global outreach is the same that amplifies discrimination. In some countries, legal instruments provide the regulatory base to suppress the rights of marginalized communities in different spheres. Once pushed away from societal life, these marginalized communities are now leaving the online space as a means to protect their privacy and safety.

This BPF Gender & Digital Rights report presents a collection of regulatory practices which can lead to gendered censorship, classified under three topics: Reproductive Privacy and Surveillance; Freedom of Expression/Gendered Disinformation; and Freedom of Association and Religion. Curbing rights or misinterpreting legislation can have disastrous effects on women and LGBTQIA+ communities, undermining their agency and removing their constitutional rights.

Each of the topics above-mentioned is accompanied by support case studies. Under reproductive privacy, the report brings examples of gendered and social surveillance. Gendered disinformation, the BPF Gender & Digital Rights’ work theme in 2021, is put under the spotlight once more for its connections with freedom of expression – and legislation which tries to curb it. Additionally, this second focus area discusses discriminatory laws and hate speech, and sexual and cultural expressions as freedom of expression. Freedom of Association and Religion explores cases of legally imposed restrictions to civil society organizations. All examples presented here are country-based, yet they paint a global picture of the issues faced by women and gender-diverse communities both in the online and offline environments.

Lastly, this document collates a few recommendations with regard to the protection of human rights and the enactment of regulation that ensures a fair and equal treatment to all.

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The BPF Gender & Digital Rights welcomes referrals of cases related to the area below, as well as comments on the issues already included in the report, as follows. Particular interest lies on the area of reproductive privacy.
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Focus Area 1: Privacy and surveillance / Reproductive privacy

 

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The BPF Gender & Digital Rights welcomes referrals of cases related to the area below, as well as comments on the issues already included in the report, as follows. The section is still work in progress.
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Focus Area 2: Freedom of expression / Gendered disinformation

Background

In 2022, the free speech mandate holders (United Nations Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression, and the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information) launched a Joint Declaration on Freedom of Expression and Gender Justice.

The Joint Declaration addresses gender justice as a precondition for the universal right to freedom of expression: women – and others who experience discrimination and marginalization – face structural barriers to the enjoyment of their rights, online and offline. Restricted access to information, gender-based harassment and abuse, the digital divide, as well as biased technologies or discriminatory deployment of technology limit women’s ability to exercise their right to freedom of expression. Free speech challenges are greater for women in the public sphere or executing scrutiny, such as women journalists, as well as those with intersecting identities. It is also possible to draw a clear link to authoritarian trends and the overall backsliding of human rights and civic space.

The Joint Declaration’s recommendations provide guidance on eliminating discrimination and prejudice; ensuring access to information; averting gender-specific restrictions on expression; addressing online sexual and gender-based violence; and on human rights due diligence. Thereby, the Declaration recognizes the gender impact of regulation inevitably has and historically regularly led to marginalizing women’s expression.

Below there is a collection of examples of regulatory efforts that, despite allegedly seeking varied objectives, including many related to the protection of human rights, had the effect of (or have the potential to) curtail non-binary persons’ freedom of expression . 

Sexual expression and cultural expression as freedom of expression

One of the main impacts of looking at freedom of expression from a gender justice lens is the realization that the very meaning of freedom of expression is something different for women and gender-diverse people, if compared with the traditional view based on the lived experiences of cis, and mainly white, men. This is particularly evident when reviewing cases on violations of gender and sexual expression, and of cultural expression. 

While a liberal approach to freedom of expression is centered mainly on the expression of opinions and ideas, as well as on the issue of speech and press freedom, a gender justice approach to freedom of expression highlights other forms of expression that should be equally protected under law. These embodiments are at the core of the notion of identity, both individual and collective.

As explained by the former Special Rapporteur in the field of cultural rights, Farida Shaheed, 

“[i]Individual identities promote characteristics that distinguish one person from another, while collective identities privilege similarities among the individual members of a group. However, each individual is the bearer of a multiple and complex identity, making her or him a unique human being and, at the same time, enabling her or him to be part of communities of shared culture (...) Collective identity plays a central role in concepts and processes of inclusion/exclusion that define who we are and who we are not; who the other(s) is/are; what we can do and what we cannot do. Belonging does not confer equality, however, and every ‘collective identity’ is in a constant state of flux, being defined and redefined in response to external factors and internal reflection. Collective identity thus entails contestations over meanings and definitions, and is always linked to the underlying structures and dynamics of power related to accessing and exercising control over economic, political and cultural resources.”

Collective identities, therefore, are built and reinforced according to power relations within a group and “cultural rights must be understood as also relating to who in the community holds the power to define its collective identity.” When individual and collective identities clash, individuals’ ability to express their individual identifies may be put at risk and censored, lead to discrimination, and even violence. 

The most common manifestation of this scenario is the weaponization of religion and public morals to restrict freedom of expression. Examples of such are blasphemy laws, legislation criminalizing homosexuality or protecting family values, as well as the removal of content considered indecent or obscene.  

a. United States of America: the gag rule in the US school system

In the first nine months of 2021, PEN America identified 54 bills characterized as “educational gag orders” which were introduced or pre-filed in 24 states of the United States of America. The bills referred to ‘prohibited’ or ‘divisive’ concepts that mostly referred to discussions pertaining race, gender, and American history. An example is a bill introduced in Tennessee that sought to ban curricular materials that “promote, normalize, support, or address lesbian, gay, bisexual, or transgender (LGBT) issues or lifestyles.”

In the same year, Texas state representative Matt Krause wrote a letter to the Texas Education Agency's Deputy Commissioner of School Programs and School Superintendents, announcing an inquiry into the school books offered by the districts. According to National Public Radio (NPR), “Krause attached a 16-page list of roughly 850 book titles, most of which appear to be related to gender identity, sexuality, race, and sexual health. They were published between the 1960s and this year, and several have won awards. An analysis from The Dallas Morning News found that ‘of the first 100 titles listed, 97 were written by women, people of color or LGBTQ authors’." This trend continued in 2022, according to the American Library Association (ALA). 

b. India: the Information Technology Act (2000)

Section 67 of the Indian IT Act refers to punishment for publishing or transmitting obscene material in electronic form. The norm provides that:

Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.

Gendered disinformation 

a. The Philippines: Maria Ressa

Verify report below to build the case

Maria Ressa: Fighting an Onslaught of Online Violence | International Center for Journalists (icfj.org)

Discriminatory and hate speech

a. Brazil: ban on the practice of content moderation 

In 2021, President Jair Bolsonaro issued a Provisional Executive Order that intended to forbid the practice of content moderation - except for ‘justified’ cases - under the pretense of allowing ample freedom of expression, communication, and expression of thought. Among the exceptions, that is, content authorized to be excluded or blocked, were the “practice, support, promotion or incitement of acts of threat or violence, including for reasons of discrimination or prejudice of race, color, sex, ethnicity, religion or sexual orientation”. Although it established exceptions, by determining as a general rule the prohibition of content removal with sanctions for non-compliance, the regulation could have created an online environment prone to the circulation of harmful speech, particularly distorted speech of political gender violence, hate speech, and misinformation targeting women and LGBTQIA+ people. The uncertainties and broad interpretation loopholes on the exceptions’ interpretive space raised the cost of improperly excluding content.

It is also noteworthy that there is no mention of gender-based violence among the listed bypass possibilities, which opens a gap for the maintenance of this type of discourse on social networks. Additionally, the regulation reinforces the legal and State marginalization of gender-diverse people by establishing a biological attribute to a specific form of discrimination when referring to sex-based prejudice. Thus, when the norm excludes that community from its scope, it denies the existence of such forms of discrimination or, at least, denies that particular discourses represent violence against them and so they deserve to be suppressed from the public debate. In this sense, the very discriminatory nature of the law becomes clear, which deprives of any value the existence of some groups in the digital public space.

On 14 September 2021, the president of the Senate summarily rejected the Executive Order.

Reporting on gender-based violence 

a. Ecuador: regulation against digital sexual violence and computer crimes

On May 2021, the National Assembly approved the Law to Prevent and Combat Digital Sexual Violence and Strengthen the Fight against Computer Crimes, which proposes amendments to the Criminal Code to prevent and tackle online sexual violence. While the objective seems legitimate, the norm brings potential risks on targeting journalists and human rights defenders who try to report sexual and gender abuses. The chilling effect of such regulation could precisely silence those it seeks to protect given the fear of being criminalized - restricting the free flow of information on issues of public interest.

President Guillerme Lasso has vetoed parts of the bill. The article below was vetoed in its entirety:

Art. 11 (art. 179 of the Criminal Code): The person who, without legal consent or authorization, accesses, intercepts, examines, records, reveals, disseminates, publishes or gives any improper or unauthorized treatment to third-party content, personal data and documents, data messages, voice, audio and video, personal photos, postal objects, information contained in computer media, digital content or private or reserved communications, by any means or through any of the information and communication technologies, will be sanctioned with a custodial sentence of one to three years.

Defamation laws 

An ongoing OSCE study on online abuse and harassment against women journalists in Central Asia indicates that defamation laws or legislation on countering disinformation have been misused to silence women journalists.

Verify reports below to build the case

Misogyny and Misinformation: An analysis of gendered disinformation tactics during the COVID-19 pandemic - EU DisinfoLab

#ShePersisted - Research and Thought Leadership (she-persisted.org)


Child protection laws 

a. Hungary: legal amendments that criminalize gender diversity

Over the past decades, the Hungarian government has issued a series of Act amendments to ensure child protection. However, the norms actually started to criminalize gender diversity. Below are some examples.

 Amendment to Act XXXI of 1997 on the protection of children and guardianship administration:

Section 6/A: For ensuring the fulfilment of the objectives set out in this Act and the implementation of the rights of the child, it is forbidden to make accessible to persons who have not attained the age of eighteen years content that is pornographic or that depicts sexuality in a gratuitous manner or that propagates or portrays divergence from self-identity corresponding to sex at birth, sex change or homosexuality.

Amendment to Act XLVIII of 2008 on the basic conditions of and certain restrictions on economic advertising activities:

In section 8 of Act XLVIII of 2008 on the basic conditions of and certain restrictions on economic advertising activities, the following paragraph (1a) shall be added:

(1a) It shall be forbidden to make accessible to persons who have not attained the age of eighteen years advertisement that depicts sexuality in a gratuitous manner or that propagates or portrays divergence from self-identity corresponding to sex at birth, sex change or homosexuality.

Amendment to Act CLXXXV of 2010 on media services and mass communication: 

In Section 9 (1) of Act CLXXXV of 2010 on media services and mass communication (hereinafter the “Mttv.”) shall be replaced by the following provision: 

“(1) With the exception of news programmes, political information programmes, sports programmes, programme previews, political advertisements, teleshopping, community facility advertisements, and public service announcements, media service providers offering linear media services shall classify all programmes they wish to broadcast into one of the categories under paragraphs (2) to (7).”

(2) Section 9 (6) of the Mttv. shall be replaced by the following provision:

“(6) Programmes shall be classified into category V if they are capable of exerting negative influence on the physical, mental or moral development of minors, in particular as a result of having as their central element violence, propagation or portrayal of divergence from selfidentity corresponding to sex at birth, sex change or homosexuality or direct, naturalistic or gratuitous depiction of sexuality. These programmes shall be rated as follows: not appropriate for audiences under the age of eighteen.” 

(3) In section 32 of the Mttv., the following paragraph (4a) shall be added: 

“(4a) Programmes shall not qualify as public service announcements and community facility advertisements if they are capable of exerting negative influence on the appropriate physical, mental or moral development of minors, in particular as a result of having as their central element gratuitous depiction of sexuality, pornography, propagation or portrayal of divergence from self-identity corresponding to sex at birth, sex change or homosexuality.”

Amendment to Act CXC of 2011 on national public upbringing Section 11: 

(1) In section 9 of Act CXC of 2011 on national public upbringing (hereinafter the “Nktv.”), the following paragraph (12) shall be added: 

“(12) In the conduct of activities concerning sexual culture, sex, sexual orientation and sexual development, special attention shall be paid to the provisions of Article XVI (1) of the Fundamental Law. Such activities cannot be aimed at the propagation of divergence from self-identity corresponding to sex at birth, sex change or homosexuality.” 

(2) In subtitle 7 of the Nktv., the following section 9/A shall be added: “Section 9/A (1) A person or organisation other than an employee employed as a teacher by an educational and upbringing institution, a professional providing school health services in such an institution and a state organ party to a cooperation agreement concluded with such an institution may conduct an activity in class or organised otherwise for students relating to sexual culture, sex, sexual orientation, sexual development, the adverse effects of drug consumption, the dangers of the Internet, and any form of physical or mental health development (for the purposes of this section, hereinafter the “programme”) only if he is registered by the organ designated by law. (2) Data in the register under paragraph (1) shall qualify as data accessible on public interest grounds that shall be published on the website of the organ designated by law to keep the register under paragraph (1). (3) The register under paragraph (1) shall contain the following:

 a) title of the programme,

b) contact data and b) name of a natural person programme owner or bb) name and seat of an organisation programme owner, 

c) specification of the type of public upbringing institution in which the programme is to be implemented, 

d) date of registration and period (school year) during which the registered programme may be carried out in a public upbringing institution, and 

e) topic of the programme.

 

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The BPF Gender & Digital Rights welcomes referrals of cases related to the area below, as well as comments on the issues already included in the report, as follows. The BPF is particularly interested in collating more cases for this focus area. The section is still work in progress.
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Focus Area 3: Freedom of association and religion

a. Guatemala

In May 2021, the Constitutional Court of Guatemala revoked an injunction that suspended the implementation of the Decree 4-2020. The norm amended the Law of Non-Governmental Organizations for Development and the Civil Code in Guatemala to restrict the activities of civil society organizations and amplify state control over them. The State held that the amendment aimed at improving ‘the development of Guatemala by establishing mechanisms that allow transparency in the actions of national or international Non-Governmental Organizations’. It establishes a set of legally disproportionate requirements for the constitution, registration, regulation, operation, and supervision of national and international NGOs, in addition to allowing arbitrary restrictions. 

Concerning provisions include: 

  • An obligation to inscribe and register non-governmental organizations established abroad
  • A numerus clausus of types of organizations that are non-governmental, excluding any other institution from this characterization 
  • A prohibition on the existence of organizations with similar denominations, indicating that the NGO registration will be canceled if it falls under this case 
  • Articles 5, 8, 9, 10 and 12 impose mandatory registration in various State dependencies, as well as the creation of a centralized registry, which violates international standards on freedom of association. Any NGO which does not update its registration details will be dissolved
  • Article 13 criminalizes foreign funding for “activities that alter public order in national territory.” The vagueness of ‘activities that alter public order’ offers large discretion to judges to criminalize NGOs’ activities that report state abuses and express criticism or dissent against government 
  • The law authorizes state authorities to request the closure of any NGO that violates the law without offering due process guarantees. 

The regulation came into force in a context of increasing harassment and discrimination against women, indigenous journalists and human rights defenders in the country. Frontline Defenders pointed out that women human rights defenders who work on the protection of the land and of sexual diversity are particularly in risk. The organization expresses that drug trafficking and the pandemic have been used as an excuse to enhance state persecution.

In this political and social environment, the Network of Ancestral Healers of Territorial Community Feminism has denounced being under constant risk of political persecution and state surveillance. It is also worth mentioning the recent case of Anastasia Mejía Tiriquiz, indigenous journalist and director of the broadcasting radio and TV station Xol Abaj. She was arrested in September 2020 by the Specialized Criminal Investigation Division of the National Civil Police for the crimes of sedition and attack with specific aggravations. 

b. Malaysia: Sisters in Islam (Sis)

In Malaysia, state religious authorities have targeted a feminist Muslim women’s rights group named Sisters in Islam (Sis) as a deviant organization through a fatwa which called for any ‘liberal and plural’ publications or content to be banned and seized. Internet regulators have also actively blocked online content and initiated investigations against individuals who were accused of spreading anti-islam content through social media. On cases involving gender and religion, “the critical issue, from the human rights perspective, is not whether and how religion, culture and tradition prevail over women’s human rights, but how to arrive at a point at which women own both their culture (and religion and tradition) and their human rights.”

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Recommendations

Recommendations to the issues presented in the report will be developed after cases' analysis is completed. The BPF welcomes further considerations from the IGF Community to be added to the section.

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