In late 2022 and to our utter surprise, UNESCO began a consultation process to generate guidelines for regulating digital platforms. In November, Derechos Digitales was one of the Latin American organizations given the opportunity to participate in a consultation on the initial document, which contained various problematic elements and on which we made several comments. However, right before the holidays, UNESCO launched a public consultation process on a second version of the document, which is only available in English and French.

The deadline for making comments is January 20. UNESCO has convened a global conference that will be held from February 21 to 23 at its Paris headquarters, and it has been announced that a new version of the document will be made available before the event.

The first noteworthy aspect is the haste and opacity of their actions, which are inconsistent with the way other processes for producing internet-related guidelines have been handled. For example, the process for building the Internet Universality Indicators (R.O.A.M. Principles) was accompanied by a broad process of open participation from multiple stakeholders. In contrast, the conceptualization of the “Internet for Trust – Towards Guidelines for Regulating Digital Platforms for Information as a Public Good“ document was accompanied by a group of experts about whom little to no information is available.

We believe that the current process is flawed from the start, with defects that make it difficult for organized civil society to participate effectively. We also believe that the production of a document that follows a predetermined path threatens the exercise of human rights, especially in countries of the “global majority,” which are the most eager to have these kinds of guidelines, issued by international agencies, for making decisions on their domestic regulations.

What concerns us?

In addition to the process’s limited openness and transparency, in comments on the document shared during the regional consultation, we made several substantive critiques.

First, there is a lack of definition regarding the document’s objectives. In its public version, the draft mentions that its purpose is “high-level guidance for member States and other relevant stakeholders who are considering how to regulate on-line content.” However, a careful reading of the document reveals that it continues to swing between establishing standards and providing guidelines, due to which the objective remains in doubt.

One of the proposal’s fundamental deficiencies is related to the conceptualization of what is proposed. There are problems of failing to define key concepts. For example, clarity is missing around what is understood by “information as a public good.” At the same time, it is hard to find a connection to UNESCO’s own prior experiences, so it is unclear how the document serves to confirm this concept. We are above all concerned that the concept refers to a sterile vision of the informational space that is incompatible with pluralism and diversity, which are fundamental to freedom of expression.

In addition, the content that is potentially harmful to democracy and human rights, which the proposal seeks to combat, is not specifically defined, despite recognizing the lack of global consensus on the definition of what constitutes potentially harmful content.

As presented, the document promotes prior censorship by platforms and is incompatible with Article 13 of the American Convention on Human Rights. Defining concepts is a very important part of regulating platforms. However, the most recent draft indicates that this conceptualization is still being developed and will be added in the next version.

The opportunity is missed to address more systematic problems related to the business model based on mining personal data from big platforms, without getting at the fundamental problem, a regulatory strategy that Shoshana Zuboff has characterized as insufficient since “social harms are siloed and treated as disparate crises.” 

The recommendations must target the causes that produce certain effects on content moderation, something that the proposal currently fails to do, citing the complexity of coordinating with other regulatory fields.

Starting over, with a trustworthy process

Civil society organizations, such as Article 19, and multiple stakeholder networks, such as the Global Network Initiative (GNI)—of which Derechos Digitales is a member—have published positions criticizing both the process and the content of the UNESCO proposal. We believe that it is not possible to approve any document or declaration at the conference set to start in a few days in Paris, given the turbulent process and the lack of definition around what UNESCO and its member countries want to do with it.

We at Derechos Digitales recommend the process not be rushed, since a meaningful consultation with multiple stakeholders needs to be held.

In essence, our recommendation is that the proposal focus on where its contribution can be most useful, in accordance with international human rights standards and the implementation guidelines set forth in the United Nations Guiding Principles on Business and Human Rights. It should thus focus on aspects such as transparency requirements for platforms; speedy complaint processes driven by the principle of due process with respect to content moderation decisions; due diligence in the evaluation and mitigation of the platforms’ risks; and complaint, review and compensation mechanisms in cases of wrong decisions, as indicated, for example, in the AI Sur reports on intermediary liability and content moderation from a Latin American perspective.

To successfully build a trustworthy internet, we have known for years that debate, regulation and normalization processes must also be trustworthy, open and transparent, with a multi-stakeholder approach and meaningful participation by civil society.

UNESCO holds all the elements for contributing positively to this environment; it needs only to put it into practice responsibly, with a transparent process, appropriate institutions and the time necessary for debate.