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To be or not to be (connected)- The right to be (dis)connected

Jasna Čošabić, PhD

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From the proclaimed right to be connected to the evolving right to be disconnected, only few years have passed. However in internet sphere, prompted by the fast developing world of technologies, law has to catch up as well.

As from 1 January 2017, France has made effective the law which provides that companies with more then 50 employees should establish hours when staff should not send or answer emails. The law comes as a response to increasingly present praxis that workers, after leaving their place of work, actually stay at work, but this time, through their various electronic devices, being obliged to check on their mail, respond and eventually work from home, during the time that should be their private time dedicated to their private life and family. Health and psychology experts were very much concerned about the consequences such connectivity may have on health and personality of workers, who were thus not able to close the door of their office completely at the end of their working day.

So what happened between the right to be connected and the right to be disconnected?

Back in 2010, it was a great breakthrough into the freedom of expression in ‘online’ context when Finland, being a pioneer, provided its citizens with the legal right to access a 1 Mbps (megabit per second) broadband connection. It led to broadband access being included in basic communications servers, like telephone and postal services, and making Finland first country to provide for such a right.

Soon thereafter, in May 2011, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, in his Report, made a step further towards the protection of right to expression online, acknowledging that ‘the Internet has become a key means by which individuals can exercise their right to freedom of opinion and expression, as guaranteed under Article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights’ . A huge step was made in the new digital era when the classic human rights instruments have spread their effects to ‘online’ sphere as well.

The above Report pointed out two segments of the right to internet which would enable individuals to exercise their right to internet:

•Access to online content, and

•Availability of the necessary infrastructure and information communication technologies

The problem of access to internet would include arbitrary blocking or filtering of content, with the exception of legitimate grounds of state interference, criminalization of legitimate expression, imposition of intermediary liability, disconnecting users from internet access, cyber attacks and inadequate protection of the right to privacy and data protection.

Countries worldwide have provided for the access to fast internet, and the technology has adequately responded with the storming of devices that provide such access.

Internet may be one of the most important instruments of the 21st century. It appears that in 2016, there were 46.1% of internet users globally. . The United Nations Human Rights Council has in 2016 passed a resolution for the promotion, protection, and enjoyment of human rights on the internet, as a logical sequence to its resolution on internet access in 2012 and 2014. It provided that the same rights that people have offline must also be protected online, which in particular concerned the freedom of expression, that is applicable regardless of frontiers and through any media of one’s choice. It has recognized the global and open nature of the Internet as a driving force in accelerating progress towards development in its various forms.

However, the globally prevailing access to internet raised some legal concerns of being constantly online. They concern, in particular, the work-home balance, and relying back to some long ago established principles such as work hours, absence, annual leave etc.

A year ago, the European Court of Human Rights (‘the ECtHR’), in the case of Barbulescu v. Romania, has dealt with the question of whether an employer is entitled to look into his employee’s private messages at Yahoo Messenger, written during the working time. The employer monitored and made transcript of messages made at the Yahoo Messenger account that was created at the employer’s request for the purposes of contacts with clients, but the transcript also contained five short messages that Mr. Barbulescu, the employee, exchanged with his fiancée using a personal Yahoo Messenger account. The ECtHR found no violation of the right to respect the private life by such actions of the employer, having in mind, inter alia, that the company did adopt internal rules according to which it was strictly forbidden to use computers, photocopiers, telephones, telex and fax machines for personal purposes.

This case alerted employees and employers worldwide, as to the right of the employers to monitor private messages made using the internet during work hours in certain circumstances, and employees at the same time, to abstain from it.

However the issue which exists vice-versa, and which was not addressed at that time, is the question of whether an employer has the right to request his employee to be connected, and to stay online, outside of working hours. If so, does that time count as overtime? Is it to be considered as ‘work from home’? Does that interfere with the right to leave / rest between two working days. What may be the psychological effects of being constantly ‘on call’? How that affects the health?

The first act on labour standards that International Labour Organization adopted was the Convention Limiting the Hours of Work in Industrial Undertakings to Eight in the Day and Forty-eight in the Week (Entry into force: 13 Jun 1921). The international labour standards, such as the need to protect workers’ health and safety by providing adequate periods of rest and recuperation, including weekly rest and paid annual leave, may appear affected by the overuse of internet technologies. Some companies adopted flexible working hours and flexible place of work. But one should be concerned that these temporal flexibility and spatial flexibility, does not diminish workers’ rights that took so long to be established.

So first came the right to internet, or the right to be connected. Later, followed by the development of technologies, social online interactions, came the right of employers to review employees private messages and correspondence during work hours. Then, starting in France, came finally the right not to be connected. If a person cannot communicate privately during work hours, then he should not communicate for work, during private hours.

The ratio work/private life, has its long history and was cause of many social revolutions which have resulted in decrease of working hours, right to free time between two working days, right to annual leave, and the scope of overtime. France is the best example of when we should say stop to technologies, for the preservation of basic human rights.

The new French law means a small but important victory of human rights over IT, and a victory of workers’ rights and rights to privacy over IT technologies and smart communications. How that victory will influence further developments in labour law when speaking of its online element, remains to be seen.

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Electric Vehicle Revolution Will Slash Travel Costs in Cities

MD Staff

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Autonomous and shared mobility, digitalization and decentralization of energy systems require new approaches to electric mobility, according to the World Economic Forum’s report Electric Vehicles for Smarter Cities: The Future of Energy and Mobility.

The report, produced in collaboration with Bain & Company, examines the major trends affecting the transformation of energy and mobility systems, with a special focus on cities. In this context, it considers electrification, decentralization and digitalization of the energy system, along with the shift towards shared mobility and autonomous driving.

The report calls for the urgent integration of urban-energy-mobility patterns to accelerate the ability of cities to meet climate goals, support energy efficiency and foster innovation of services and infrastructure. Combined, these could dramatically increase productivity and generate economic growth, ultimately providing great benefits to citizens.

In the US alone, achieving the transformation will quadruple value for society by 2030, a gain that could be worth up to $635 billion. As the share of journeys made by electrified vehicles increases, the energy system will see:

  • A reduction in cost per mile of up to 40% as a result of increased use of electrified autonomous vehicles (AV)
  • Additional flexibility for energy system management as electrified non-AV and AV fleets of public, commercial and mobility-as-a-service vehicles connect to smarter charging and ancillary services
  • Lower carbon emissions driven by increased use of solar and wind energy to meet demand for the electricity required to power electric fleets

Cities leading the charge on electric vehicles

Berlin, Germany: The EUREF Campus business park hosts technology companies and research institutions, and offers charging stations for electric vehicles (EVs) as well as inductive charging for fleet operation. Its microgrid uses artificial intelligence to optimize EV charging and send energy surplus back to the grid, based on dynamic pricing.

Buenos Aires, Argentina, Montreal, Canada and Santiago, Chile: Have all prioritized the electrification of public transport through the public procurement of electric buses.

Dortmund, Germany: The city is developing non-financial incentives for last-mile delivery companies to electrify their fleets: EVs receive permission for extended access to the city centre.

Guangzhou, China: The city plans to speed up bus electrification and aims to reach 200,000 new units in 2018. China’s government has also announced it will develop national regulations for testing AV on public roads in cities across the country.

Hong Kong SAR: The local government encourages developers to scale-up the EV charging infrastructure. This includes solutions integrated with the smart payment system, Octopus, which is also used to access the public transport network.

Los Angeles, USA: The Los Angeles Police Department (LAPD) decided to switch 260 fleet vehicles to EVs. Charging infrastructure development is also under way and being integrated with decentralized solar power generation. By leasing rather than buying vehicles, the LAPD can invest in charging stations, including fast-charging stations in city centre car parks.

London, UK: The Transport for London office requires all new black cabs to be electric or emission-free, and diesel vehicles will not be permitted in London by 2032. A total of 80 charging points will be dedicated to black cabs, with plans to implement 150 by the end of 2018 and 300 by 2020.

Oslo, Norway: The city plans to have its fleet of 1,200 public vehicles using electricity by 2020, has introduced restrictions on cars entering the city centre and granted access to priority lanes for shared EVs only. A project in Vulkan on the city’s outskirts demonstrates a public-private cooperation model between the city, a utility company and a real-estate firm for smart charging stations.

Paris, France: The region of Ile-de-France and private partners developed Autolib, an electric car sharing service with 4,000 EVs and 1,100 charging stations with more than 6,200 charging points across the region, accessible to service users and other EV owners.

San Francisco, USA: The Department of Motor Vehicles provides licences to test driverless cars on public roads in the Silicon Valley as part of an experimental programme.

Recommendations for action
The report gathers and analyses practical examples and best practices, which can be tailored to local specificities. The principles – required for action by both public and private sectors – and their corresponding recommendations are described below.

Take a multistakeholder and market-specific approach: A comprehensive approach to electrification of transport will require engagement of stakeholders from different industries and sectors and may vary significantly across different markets based on the local energy mix or mobility patterns.

Prioritize high-use vehicles: The shift of the approach to transport electrification, through advancing and reforming regulation, should prioritize high-use vehicles, such as fleet and autonomous vehicles. The goal is to accelerate the electrification of miles to maximize the value creation.

Deploy critical charging infrastructure today while anticipating mobility transformation: In the context of mobility and energy systems transformation, planning charging infrastructures is critical to cope with the risk of stranded assets as well as ensure the sustainable implementation and use of the charging stations and hubs.

“The convergence of mobility and energy strategies can magnify the economic and social benefits of electric mobility in cities, and ensure increased sustainability, reliability and customer choice”, explains Roberto Bocca, Head of Energy and Basic Industries, Member of the Executive Committee, World Economic Forum.

“Autonomous vehicles and grid edge technologies are around the corner, and cities, in particular the smartest ones, will deploy them at rapid pace. The mobility and energy players should start building strategies and business models now to embrace these changes and leverage them for sustainable and profitable growth”, added Joseph Scalise, who leads the Americas Utilities and Alternative Energy Sector at Bain & Company.

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Leverage the Digital Future for Prosperous Communities

MD Staff

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Sharing the benefits of growth and embracing the digital economy were key themes for senior Asia-Pacific business leaders meeting in Auckland, New Zealand this week.

At its first of four meetings for 2018, the APEC Business Advisory Council (ABAC) welcomed the forecasts for strong regional growth, noting the IMF prediction that Asia-Pacific GDP would expand by 5.4% this year, far outstripping the rate of 2% in advanced economies.

“Growth is clearly an essential but not a sufficient condition for secure and prosperous communities,” said ABAC Chair for 2018, David Toua. “We need to look closely at our economies’ policies to ensure that people can actually take advantage of the opportunities that growth brings. Harnessing inclusive opportunities is a key mantra for this year,” added Mr Toua.

Mr Toua explained that a second big focus was the digital economy. “We have created a new working group to focus specifically on digital and innovation issues,” Mr Toua explained. “The digital economy is growing exponentially. We are seeing a surge of disruptive business models. Even in traditional sectors like agriculture and manufacturing, innovative technologies, digital services, fintech and e-commerce are now central.

“Importantly, the digital economy provides a springboard for small business, women and other disadvantaged groups to take part in trade and connect around the region.

“But we cannot realise the full potential of a ‘Digital Asia-Pacific’ without putting resources and energy into countering the digital divide that risks leaving the most vulnerable behind. In all economies, we also need to nurture a future-ready workforce. That means putting in place the right settings for digital infrastructure, skills and education, and region-wide digital business- friendly regulation,” said Mr Toua.

ABAC members had welcomed the recent conclusion of the Comprehensive and Progressive Trans-Pacific Partnership by 11 APEC economies, Mr. Toua noted that “the agreement was seen as one of the key ‘pathways’ to an eventual integrated Free Trade Area of the Asia Pacific.”

Other priorities discussed included improving connectivity; structural reform especially in the services sector; reducing trade and investment barriers; facilitating creating opportunities for micro, small and medium enterprises; strengthening financial systems, and grappling with issues around sustainable growth such as food and energy security. “Big strategic considerations we will look at include ‘smarter globalisation’ so that the benefits are more widely shared in terms of jobs and living standards, and our ‘Vision’ for the region in the coming decades,” said Toua.

“Our Auckland meeting was also the occasion for our annual Dialogue with APEC Senior Officials. We had extended discussions including on the APEC Post 2020 Vision which will help both sides to develop robust policy approaches on all our key issues for the period ahead,” concluded Chairman Toua.

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Open Internet and quality of information: key to preserve integrity of elections

MD Staff

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© UNESCO

On 8 February, UNESCO and the Global Initiative Network (link is external) (GNI) held a forum at UNESCO HQ in Paris to examine how Internet could support electoral integrity, as well as counter threats such as disinformation and internet shutdowns which reduced the trust and knowledge of voters.

The Colloquium “Improving the information ecosystem to protect the integrity of elections” brought together UNESCO Member States, UN Representatives, national electoral authorities and media organizations with board members of the GNI.

The GNI is a multi-stakeholder organization of information and communication technology companies, civil society organizations, academics, and socially responsible investors.

In his opening remarks, Mr. Getachew Engida, UNESCO Deputy Director spoke about preserving freedom of expression and the value of effective self-regulation in regard to problems on the Internet in times of elections.

Ms. Judith Lichtenberg, Executive Director of the GNI, underlined the need to forge a common approach to protect freedom of expression online especially during elections time when ICT innovations are being abused by malicious actors and internet services are restricted or even shut down.

Participants addressed issues concerning digital manipulation of election processes, including the impact of malware attacks. Furthermore, the Colloquium also sought to assist electoral assistance providers in contributing with ideas on how to improve their electoral programs and activities.

The potential sensitivities around interruptions of digital information during vote counting, and the difficulty of monitoring the “black box” of political advertising based on datamining and targeted profiling, were highlighted by Patrick Costello, Head of Division of  European External Action Service at the European Union.

Noting the varying degree of digitalization of electoral processes across countries, Simon Pierre Nanitelamio, Deputy Director of the UN’s Electoral Assistance Division, highlighted the role multi-stakeholder consultation to bridge the gaps between differently equipped countries.

In a context where economic growth depends increasingly on Internet access, as affirmed in the UN Sustainable Development Agenda, Constance Bommelaer, Senior Director of The Internet Society ISOC, pointed out that shutdowns can cause long-lasting and costly effects on societies and on user’s trust.

Large-scale internet shutdowns and the blocking and filtering of online content has been seen to be on the rise in the last five years, as noted in the latest edition of the World Trends in Freedom of Expression and Media Development

Internet providers’ difficult position to cope with internet shutdowns during elections was highlighted by Yves Nissim, Head of Transformation and Operation in Corporate Social Responsibility from Orange. Mr He commented that companies are frequently unable to avoid demands to interrupt services because of license agreements and risks to their employees’ safety, but they sought to be transparent about receiving such demands.

Fernando Garcia, Executive director of Red en Defensa de los Derechos Digitales a Mexican-based network that defends digital rights and Aiste Zilinskiene, Member of the Central Electoral Commission of Lithuania, drew upon citizen digital experiences to hold political actors accountable via elections. They also raised awareness about the threats to privacy posed by malware attacks surveilling journalists and human rights activists.

Nana Gyan-Apenteng, head of Ghana’s National Media Commission and chair of the African Communications Regulation Authorities network signaled the potential to apply electoral laws to media at the point where social media content emerged onto traditional media platforms.

The UNESCO-GNI Colloquium also featured together representatives from technology companies to discuss what can be done to enhance the quality of public information during such elections in order to counter misinformation.

Steve Crown, Microsoft’s Vice President and Deputy General Counsel, pointed out the moral challenges around setting national or regional regulations given the global nature of internet and the potential for legislation to be implemented as censorship.

Ludovic Peran, Policy and Government Affairs Manager of Google, shared the company’s initiatives to address fake news, such as the development of fact-checking tools, quality guidelines and the tracking of misleading sources. Meanwhile, Andy O’Connell, Public Policy Manager of Facebook stated that his company had pledged transparency in paid political advertising.

He also noted Facebook’s work to limit the economic incentives of “fake news”, and to remove accounts with false profiles.

The importance of strengthening media and information literacy as part of voter education, was raised by. Divina Frau-Meigs, UNESCO Chair Savoir Devenir, Nouvelle Sorbonne, Paris. She said there was a need to teach young people that casting a ballot was not the same as “liking” something on social media, and encouraged “digital citizenship” as a way to boost the integrity of elections.

UNESCO hopes to follow up through highlighting the incompatibility of Internet shut-downs with the free flow of information that is needed for elections.

The Organisation will also seek to work on methodologies that can benefit election stakeholders who monitor electoral communications, to provide a knowledge base for policy on regulation and self-regulation.

Further work will entail training journalists to be able to give deeper coverage of the role of social media in relation to polls, including ways to find and rebut disinformation online.

Another follow up is promoting the value to election integrity of programmes in media and information literacy.

The over-regulation of digital electoral communications that can disproportionately limit freedom of expression and privacy, is an area where UNESCO can play a monitoring role.

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