technology

What the Christchurch Call means for international law

The Christchurch Call agreement between governments and tech companies to tackle online extremism has been hailed as a diplomatic win for New Zealand - but does it also show the future of international law?

Perhaps Jacinda Ardern’s most wide-reaching international success as Prime Minister is the creation of the Christchurch Call.

Established in the aftermath of the March 15 terror attack, the voluntary agreement between countries and companies to tackle violent extremism online has expanded to include 48 countries and major tech companies Facebook, Google, and Microsoft among others.

But it is the implications of the Call for international law - and whether that law is fit for purpose - that were the topic of discussion at the Beeby Colloquium on International Law on Thursday.

Victoria Hallum, the acting deputy secretary of the Ministry of Foreign Affairs and Trade’s multilateral and legal affairs group who played an influential role in the development of the agreement, told the audience that while the agreement was not a legal instrument, it had been deliberately designed for compatibility with international human rights law.

Hallum said there were a number of references to human rights in the Call’s joint commitments, as well as an explicit acknowledgement of the responsibilities for both governments and corporations.

The document had also focused on the human rights of the victims, making it clear that freedom of expression - one of the common arguments against regulation of the internet - was just one of the rights at play in addressing terrorist and extremist content online.

“Commentary on countering violent extremism online has tended to frame the debate as one in which security interests are pitched against human rights. and this has tended to privilege some human rights such as freedom of expression over others.”

Google's Ross Young praised the New Zealand government for avoiding a "knee-jerk response" to tech companies following March 15. Photo: Sam Sachdeva.

The rights to privacy, to be free from discrimination, to freedom of assembly and religion - and in the extreme event of a terror attack from someone radicalised online - the right to life were all factors that had to be considered when weighing up freedom of speech protections, Hallum said.

Ross Young, Google’s New Zealand government affairs and policy manager, offered praise to the New Zealand Government for what he described as a constructive approach with tech companies “in the spirit of partnership”.

“The Government could have taken a knee-jerk response, but it didn’t - because of that, it’s achieved a real result.”

Young said Google (which owns YouTube) had in recent years cracked down on extremist content, tightening rules on live-streaming and removing thousands of channels and hundreds of thousands of videos as a result of updated hate speech policies.

Technological changes were also having an effect, with more than 87 percent of the nine million videos removed from YouTube in the second quarter of 2019 first flagged by the company’s automated systems.

Young said Google had also ensured international law and human rights were reflected in its artificial intelligence principles last year, requiring any technology developed to be socially beneficial, avoid creating or reinforcing unfair bias, and not be likely to cause harm or risk.

“It kind of seems that when it comes to the hard laws that protect your interests and protect you from disclosure and liability, you're all OK with hard laws, but when it comes to those that might impose obligations on you, that you're not so comfortable with, they happen to be voluntary.”

While both Hallum and Young praised the voluntary nature of the Christchurch Call, a note of scepticism came from University of Auckland law professor Jane Kelsey who noted that Google and other companies had “worked very hard to get hard and binding enforceable rules” on issues that would benefit them in trade agreements, such as preventing ISPs from being treated as content providers on issues of liability.

“It kind of seems that when it comes to the hard laws that protect your interests and protect you from disclosure and liability, you're all OK with hard laws, but when it comes to those that might impose obligations on you, that you're not so comfortable with, they happen to be voluntary.”

It was a question to which Young did not appear to have an immediate answer, other than noting that tech companies were not responsible for creating trade treaties.

But Hallum - who stressed she was sharing personal reflections and not government policy - suggested that the structure and nature of the Christchurch Call could be replicated in future for other issues which did not fit within traditional multilateral frameworks.

“States are the main subjects of international law, and non-state actors are still only recognised to a limited degree with very constrained rights and responsibilities...yet at the same time, non-state actors have more power and more ability to engage and have impact across borders than ever before.

“I'm talking about multinational companies that operate apparently seamlessly across borders, fishing vessels flying the flag of one state, owned by a corporate entity of another, crewed and mastered by nationals of the third state.”

MFAT's Victoria Hallum said non-state actors had more power and reach than ever before, despite the international legal system's continued focus on states. Photo: Sam Sachdeva.

Many of the “wicked problems” facing the world at present could not be solved by states alone, she said, with the virtual world a “new global commons” that did not adhere to a centralised governance model.

 The traditional legal approach to solving an international problem - negotiating a treaty, and waiting for state to ratify and change their domestic laws - would not have worked for the Christchurch Call given the extended timeframes and the problem at hand.

“We needed an approach that could address a fast-moving, complicated issue for which the solutions did not even necessarily exist.”

Hallum questioned whether there was too much of a focus on “the binding/non-binding” dichotomy, given not all binding commitments were actually met by countries and legal obligations were often not the primary motivation for what states and other actors did.

“Do we have to acknowledge that sources of law are evolving, and should we accept that we live in a...world where non-binding frameworks, unilateral commitments, transparency reviews and voluntary compliance mechanisms are just as important as formal international law?”

We are not in that world yet - but if Hallum’s comments are any indication, it may not be far away.

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