Daily Summary related to Draft Article 13
FREEDOM OF EXPRESSION AND OPINION, AND ACCESS TO INFORMATION
Prepared by Landmine Survivors Network

Volume 3, #4
January 8, 2004

Morning Session
Commenced: 10:34am
Recessed: 1pm

FREEDOM OF OPINION AND EXPRESSION AND THE RIGHT TO ACCESS TO INFORMATION AND COMMUNICATION

The Inter-American Institute on Disability (IAID) stressed the essential role that communication and access to information plays in the lives of all people, and the particular difficulties that PWDs face in this area everyday. Members of the WG who are blind have underlined this problem in expressing the difficulties they experience in following the discussions of the WG. IAID asserted that the treaty must contain an article such as Article 15 of the Chair’s draft, which would guarantee accessibility to information and communication for PWDs. If accessibility is not enacted properly, many disabled people will not attain full participation and inclusion.

World Federation of the Deaf (WFD) expressed concern that Article 15 of the Chair’s draft is not adequate. The delegation gave the example that most deaf children are forbidden to use their own national sign language, which engenders serious illiteracy problems among the deaf. WFD proposed adding text that deaf and hard-of-hearing children be guaranteed the right to natural language development. This right must be secured, they asserted, so that the children may become bi- or multi-lingual. It is not enough that children learn their own national language.

WFD further proposed that the WG draw from the following UNESCO documents. There is are a position paper entitled “Education in a multi-lingual world” and a document entitled “Language, Vitality, Endangerment.” Furthermore, WFD asserted that deaf people and the hard-of-hearing should have access to interpreter services, if they are to enjoy their right to access information and communication to the fullest extent possible.

WFD noted that Articles 21, 23, 24 and 27 of the Chair’s draft also raise this issue, though from different point of view. WFD proposed to introduce new language, emphasizing that it was not calling for new rights--only that existing rights be secured. In this case linguistic rights and the right to language need to be carried out in lives of deaf people to ensure that freedom of expression and opinion is carried out. The Coordinator proposed that WFD read out language that it would like to see in the convention. The WFD proposed some text, but stressed that this was a preliminary draft and that it would like to work on it further and introduce the language at a later stage.

Thailand stressed that this was a core issue in the convention and noted that it may be one of the more unique issues among any human rights instruments. Thailand further stated that the content of Article 15 of the Chair’s draft seemed to have been summarized from the Bangkok draft, and some key points were missing. Thus, Thailand proposed adding the language “including Information and communication technology (ICT) and assistive technologies.” Thailand emphasized that if no mention of ICT was made, this would limit the choices of PWDs and urged the WG to reexamine Articles 16 and 19 of the Bangkok in order to bring back points that might be missing. Thailand asserted that the concept of “universal design” should also be captured.

Thailand further noted that Article 6 (d) of the European Union draft is useful in this context as it advocates “design for all.”

Ireland drew attention to Article 8 (b) of the European draft requiring states to “promote equal access to information and means of communication,” and Article 6 (d) which requires states to “promote the development and availability of design for all, technology and appropriate forms of assistance and support to person with disabilities.” Regarding Article 15 of the Chair’s text, Ireland also questioned whether there is a “right” to access to communication and information. Ireland recognized as an existing right the right to freedom of expression, which includes freedom to seek receive and impart information and ideas. Ireland proposed the phrase “equal access to information” which it preferred to the language “right to access.”

Furthermore, Ireland raised concerns over the meaning of “officially recognized” modes of communication in Article 15.1 in the Chair’s draft. Ireland explored whether this would entail a government officially recognizing a new language, or simply issuing a list of means of communications that it will communicate in. In Europe and other countries the question of official recognition of languages contains a number of sensitive political issues.

Turning to Article 15.2 of the Chair’s draft, Ireland expressed concerns over whether the intention is that governments make all information in the public domain available in all forms of communications, irrespective of whether they had been requested by a PWD. Ireland conceded that it is a different matter if, for example, a person requests specific documents in Braille. There is a need for the WG to further elaborate how governments would implement this article. Ireland preferred a list of measures a government would take to a simple declaration of a right, which may or may not be implementable.

The Coordinator noted that it would useful to have comments on the subject from organizations representing PWD. The Coordinator expressed his view that it was not envisaged that states be required to translate all public documents. It was more matter of ensuring that if a PWD wants access to a document, they could access it through some mechanism. The Coordinator also noted that this convention is aimed at as wide a range of countries as possible, including countries with varying levels of resources. Thus the endeavor requires balancing: One would not want specify obligations that are so “onerous” that they might deter countries from becoming party to the convention. Sierra Leone asserted that, although Article 15 contains a statement of rights and principles, it lacked an action-orientation. Citing Article 10 (2), Article 13(3) and Article 16(4) of the Chair’s draft, the representative raised the concern that there was inconsistency.

Making declarations and listing rights is not enough argued Sierra Leone, there must be a paragraph or a line stating what States Parties are expected to do, as well as requiring States Parties to take action in this regard. The Coordinator noted an understanding in the WG of the objective of article in conceptual terms, and observed that what practically what is required of states is a more difficult question.

Building on comments made by Ireland regarding Article 15.1 of the Chair’s draft, Japan drew attention to the term “officially recognized.” The present formulation is not clear on the meaning of this term.

Article 19 (a) of the Bangkok draft, Japan noted, clearly states that sign language be recognized as one of the official languages of that country. The WG needs to clarify whether the language in Article 15.1 of the Chair’s draft obligates states to include sign language or Braille in their official languages, or requires states to simply recognize alternative modes of communication.

China suggested that this article should be closely examined in connection with the definition of language. There is a need, for example, to clarify the scope of sign language or other similar languages. Regarding Article 15.2 of the Chair’s draft, given that the convention will apply to countries with many different levels of development.

Furthermore, China pointed to the language “in a timely manner” deeming it too vague and proposed the term “progressively.” Finally, China wished to clarify the meaning of “public domain,” exploring whether the term covered private enterprise. China expressed the need to define words in a more practical manner. Government documents should be provided on request, yet “even with such a request” a government may not be “required to provide all information in such forms.”

DPI stressed that a key issue is the right of access information, which - in turn - guarantees the right to exchange information with others and give expression to ideas and the right to receive information so that ideas may be developed. DPI noted the Bangkok draft takes into consideration the need of PWDs to able to communicate using a form of communication of their own choosing. Another useful reference, DPI noted, can be found in the Mexican draft, which asserts the need to involve the mass media and calls for public awareness-raising on those issues. The New Zealand document illustrates how accessible communication intrinsically impacts other rights, such as the right to political participation.

The Coordinator requested the Mexican text reference. Columbia read out the Mexican draft reference. The Coordinator inquired if there was technology existed which could convert text into Braille. As the response was affirmative, the Coordinator concluded that the existence of such technology would seem to resolve much of the issue. Morocco emphasized the high cost of this technology.

The WFDB stressed that access to communication and information is indispensable for people with deaf-blindness. WFDB is a diverse group including some who are totally blind depending Braille and others who are deaf and use sigh language. Particularly, in developing countries deaf-blind people do not have the opportunity to develop one of these communication systems. They often stay in the family only communicating basic needs, or not communicating at all and thus completely isolated. WFDB proposed to include in Article 15.1 the right to develop one’s own communication system and to communicate in a language or communication system which one considers appropriate.

IAID noted that few people have access to information in Braille, and stressed that not all blind people know Braille and not all deaf know sign language, especially in developing countries. This is a daily reality, which has to be overcome with the active involvement of states in providing access to training mechanisms. If a deaf or blind person is looking for job these alternative measures should be available. It is not necessary for states to translate all their documents and this issue can be resolved with a specification in the article to that effect. IAID stressed that access to new information and communication technologies for PWDs should be accessible through programs. This should be guaranteed in this article, otherwise full participation and inclusion will be less possible and the development citizenship illusory.

Thailand outline two different approaches to this issue: Access to information and communication as a measure to achieve freedom of expression of which Article 19 of the Bangkok draft is a good example. Equally, one may cite physical and transportation access as well as access to information and communication. Article 16 of the Bangkok draft is an example of this. Thailand also cited Article 2 of the Bangkok draft, which defines accessibility in relation to language communication; asserting that it is technically possible to say that all information should be made accessible as there is a way to standardize how information is created, stored and disseminated. Electronic information is the central mode of information format. Using international standards or the accessibility standard of electronic information systems, there is a way to transfer this information into several different outputs, such as Braille, audio or multi-media. This convention should mandate the way information is processed from the beginning. This is a “matter of choice and commitment.”

Germany asserted that the convention is a unique opportunity to make sure that countries are made aware that they have the opportunity to reduce costs in putting in place technological advances for PWDs. In addition, Germany reaffirmed that it is important not to seek to create new rights, as well as to safeguard against the creation of substandard rights. Germany pointed to language from Article 19 of CCPR, particularly subparagraph 2, to underline the point that it is already accepted in international law that freedom to choice a means of communication included in the right to freedom of expression.

WBU asserted that interest in education using Braille has decreased while the number of blind people has increased. WBU conceded that ICT offers a way to read, but that there is a need for a written language. Governments must have the responsibility to recognize Braille as the only written script for blind people. Regarding literature, copyright law “closed the door for many blind people” WBU remarked that the United Nations donated two Braille printers when the disability office was placed in Vienna, but the Braille printers have not been used since the Vienna office was closed nor have they been brought to NY.

The Coordinator asked whether the United Nations development programs have a component that deals with disability?

Disability Australia Limited (DAL) endorsed the comments made by Thailand, Germany, WBU and WFD. DAL asserted that the high cost of technology for PWD may be transferred to the corporations dealing with production of hardware and software. Countries have already undertaken to relegate telecommunication, media broadcast and technology standards, which has resulted in reducing the cost on the states and also in corporations widening their customer base. This is possible even for developing countries. Local initiatives have resulted in bringing the cost down, even on the hardware. DAL suggested a systematic approach to deregulation or amendment of regulations which could give way to certain standards in information an telecommunication technology and their services. DAL also urged investment in indigenous technologies and research, noting that the experience is rewarding results, which in the long-term not only benefit PWD but also a large potential section of the population who - due to age - encounter similar impairments.

DAL noted that the universality of the freedom of information could not be denied, but the issue might be resolved by applying the principle of reasonable accommodation.

Slovenia noted that ICT offers new possibilities to overcome obstacles. Regarding sign language, Slovenia stated that over 20 countries recognize sign language in some fashion.

Mexico remarked on two issues in the discussion. First is the linguistic rights of PWD to exercise freedom of expression in their own language or communication system as well as access to these forms and the means to use them. Second, measures to promote access to alternative means of communication and availability of information in accessible formats

South Africa supported submissions by colleagues on the inclusion in the convention of technologies that facilitate communication of PWD. As much as cost is a factor, the WG needs to focus on the principle to minimize the risk of compromising these principles. Domestically, South Africa is developing one technique, using software and hardware, regarding the use of internet that would enable one to operate in the absence of electricity. The importance of information technology should not be masked by the cost factor. South Africa suggested that Article 15.2 of the Chair’s draft include all disabilities so as to not exclude a form of disability, particularly multiple disabilities. The Coordinator asked the South African delegate whether information on the project she described regarding the Internet was readily available to others. He also asked whether there were mechanisms for sharing this kind of information. South Africa did not wish to indicate that the information exchange was perfect and hoped that convention would address this issue.

WFD commenting on the Irish delegation’s concern over the issue of accepting alternative modes of communication as official languages, WFD stressed that it was not calling for official recognition of these modes of communication, only for the right to freedom of expression, which cannot exist when one’s mother tongue cannot be used. WFB recalled that Slovenia had stated that there is legislation on sign language in 20 countries, and noted that in fact 30 countries mention it in some legislation. WFD supported Article 19 of the Bangkok draft and hoped to see that language used. WFD further noted that linguists around world have adequately defined the different types of sign language, so there is no need to detail these.

South African Human Rights Commission observed that access to information and communication forms an integral part of equality. The delegates also noted that South Africa recognizes sign language in its constitution. In addition, public information is available upon request in alternative formats. The South African Commission’s mandate includes ensuring rights of PWDs as well as the rights of PWD to access information. While there is a provision in the law, the actual practice has been different. Without detracting from Article 15.2, the Commission suggested including the phrase “upon request” between “right to provision” and “in a timely manner” in the first line of the paragraph.

South Africa stressed the need for “something that is doable” or a “minimum threshold” in the convention.

II stressed that all official documents should be available in plain language. II also noted that a writing style that is clear and avoids jargon was useful for everyone. This should be stipulated in Article 15 of the Chair’s draft.

Sierra Leone argued that Article 15 of the Chair’s draft should not be too specific. The reference to Braille should not be included as this is not a resolution. Article 8 (a) (b) and (c) of the Mexican proposal is very specific about what governments should do, but there is nothing about specific technologies. Sierra Leone asserted that the convention should not address the issue of the cost of these technologies. As per the phrase “timely manner,” it might allow for much abuse. The article should entail general principles such as the right to communication and to receive information in an appropriate mode, to be followed by specific obligations for states to uphold.

Canada expressed concerns over the use of the word “right” in the title of Article 15 of the Chair’s draft. Canada stated that it was more at ease with existing human rights such as the freedom of expression, which is consistent with ICCPR. The term “right” in other contexts is problematic. Furthermore the phrase “officially recognized” is used in Article 15.1 of the Chair’s draft. In addition, Canada suggested seeking other wording for the term “public domain” in Article 15.2 as it could encompass the private sector where the government’s power is circumscribed. The identification of standards is a positive and important step, but Canada cautioned against establishing prescriptive obligations that cannot be met. If obligations are perceived to be too “onerous,” it would not be “healthy” for this instrument “that we are interested in being a success.” Canada deemed Articles 7 and 8 of the Mexican draft useful for the convention

India was in general agreement with Article 15.1 of the Chair’s draft, but suggested additional language qualifying Article 15.2 “with reasonable accommodation subject to the availability of human financial and technical resources.” She also suggested Article 6 (e) and (f) of the Indian draft are relevant to the title of Article 16 in the Chair’s draft.

Lebanon remarked that, as noted by Thailand, ICT is best enacted at an early stage of design to become available at a minimum cost. Lebanon raised the issue of illiteracy and noted that a large number of PWD are unable to benefit from technology

Uganda remarked that Article 15 seems to assume that all blind people and deaf people know Braille and sign language. This is not the case in developing countries where there is a need to enact measures to enable deaf people and blind people to learn Braille and sign language. Such measures would render the right envisaged in Article 15 meaningful. Sign language might be taught for four years in primary school, not only for PWD to learn sign language, but for others as well. It is important for other people to learn sign language, so that deaf people may overcome the barrier often encountered in communicating with others. Article 15.1 makes a reference to essential services. This is restrictive as an official may claim that a service is not essential. Uganda proposed deleting the word “essential.”

Thailand offered to send to the secretariat relevant materials including information on the World Information Summit. International accessibility standards exists, such as the accessible multi-media standard. Canada stressed the need to ensure that states follow these standards.

DPI asserted that linguistic rights needed to be specifically defined. Sign language is not the only disability related system; Braille can be considered a distinct language, because it uses specific symbols. Article19 of the Bangkok draft and Article 7 of the Mexican draft have begun to address these issues.

Venezuela remarked that a fundamental problem in access to communication is literacy. In many developing countries the illiteracy rate is high, and much higher for PWD, as they are often marginalized and isolated. Venezuela stressed the importance of national training programs in sign language, reading and writing and oral language for deaf people. Taking into consideration Article 8 of the Venezuelan draft found on page 104 of the Compilation, there is need to develop strategies to encourage mass media to make services accessible. Venezuela asserted that Article 15 of the Chair’s draft does not include all the concerns expressed in the WG discussion.

China took note of comments made by Sierra Leone and India who pointed out that in order ensure the accessibility of PWD, states should be proactive and enact measures to that effect. China’s proposal on page 95 of the Compilation outlines such measures in its Article 5 (4) (5) (6).

Volume 3, #7
January 13, 2004

Afternoon Session
Commenced: 3.17 pm
Adjourned: 6.00 pm

FREEDOM OF EXPRESSION AND OPINION, AND ACCESS TO INFORMATION

The Text Proposed by the Coordinator A/AC.265/2004/WG/CRP.3/Add.5 framed this discussion. Footnotes reflecting concerns or disagreements that were raised in the WG discussions will remain in the draft article to be submitted to the AHC. There will therefore be limited comment focusing on the more difficult issues permitted at this time, that could be covered in a further footnote.

South Africa proposed consideration of the role of the media, which plays “a pivotal role” in changing stereotypes. Article 8 (c) of the Mexican draft, on page 100 of the Compilation, alludes to the encouragement of mass media to play an integral role in awareness raising through information campaigns.

Inter-American Institute on Disability (IID) agreed with the concerns expressed by South Africa. The role of the media in creating change and “facilitating access of PWD to information” was missing from the Coordinator’s Text. This is important in promoting a socio-cultural environment free from discrimination, especially in education.

Thailand proposed adding a sub-paragraph, which would enhance further access to information and bolster freedom of expression for PWD. The following language could be included at the end of Article 10: “establishing a system in each country to train and dispatch sign language interpreters, Braille transcribers, Finger Braille interpreters, and human readers and to encourage their employment.” The delegate also raised the issue of copyright law in this context. The Coordinator noted that the question of copyright legislation is going to be referred to the thematic consultation on Article 21 (Accessibility).

India suggested that augmentative and alternative communication (AAC), used by people with Cerebral Palsy, should be included in the chapeau of this article among the modes of communication.

WNUSP suggested modification with respect to (e) of the text. Instead of “format for persons with disabilities” in the third line of this provision, the language “formats for persons with all types of disabilities” was preferred. The addition of “all types” in front of disabilities follows up with language in (a) taking into account all types of disabilities. As there may not be a single format available for everyone, it is crucial to pluralize format. There are people with autism who use alternative forms of communication similar to the one referred to by India. The WG should be open to including additional forms of communication as people with various disabilities make their needs known.

The Coordinator pointed to the wording “of their choice” in the WG text noting that these other forms are to some extent covered by this language. The WFDB suggested introducing the term “tactile” communication in order to include a more comprehensive category than “Finger Braille”.

New Zealand noted the need for training around captioning and note-taking.

Jamaica supported the addition proposed by Thailand, as it is important to have individuals who are well-trained in their respective areas. In developing countries, often people are not well-trained. As such, even if the private sector wants to do something that is inclusive, there is a cost factor which those involved have to take into account. From an economic perspective, having more well-trained professionals will contribute to lowering general costs.

Ireland, speaking on its own behalf, noted that (a) of the Coordinator’s text is intended to refer to a point made by Ireland regarding the provision of information following requests based on the freedom of information. Furthermore, the language “without additional cost” is ambiguous, as under the Irish Freedom of Information Act, people are required to pay for this service. The Coordinator clarified that this provision did not mean that information should be provided for free, but rather that it should be provided without “additional” cost to the person requesting information. The words “accessible, appropriate and usable” in reference to formats had overlapping meanings and could be simplified. Para (b) about PWD using alternative modes of communication with officialdom could be misinterpreted to mean that officialdom should be communicating internally in the same way as well. It was not clear whether para (c) meant that PWD will be provided with education in alternative formats, or whether they will be taught to use alternative formats? The meaning of para (d) was not clear.

With regard to (a), Canada presumed that the term “additional cost” was meant as with compared to other non-disabled users. The representative agreed that there is ambiguity with respect to (c) that might be alleviated with a drafting amendment. Point (d) was also unclear for Canada. In addition, Canada expressed preference for including Thailand’s suggestion as a note in the draft, rather than as a provision. The representative underlined, on the one hand, that Thailand’s suggestion does address some of the difficulties that PWD have, and on the other, that government-training programs are often geared to evolving needs. In other words, some training programs are adequate until technical advances render them outdated. Regarding the word “dispatch” in Thailand’s proposed language, Canada questioned whether this program is intended to address needs in the public or private sector. It would be useful to have the sentiment and the object encapsulated in a footnote, as well as to formulate the idea in away that would elucidate the underlining objective.

China asserted that this article is mainly concerned with the right to freedom of expression and opinion and that the suggestion made by Thailand did not belong in this article.

Thailand clarified that the word “dispatch” indicates that after completing the program, trainees would be made available wherever they are needed. To “encourage their employment” means that they will not do work for free. Thailand reiterated the point made on (a) that no “additional cost” simply means as compared to the cost entailed in hiring other people.

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