The Governing Council of the Inter-Parliamentary Union,

Referring to the case of Ms. Birgitta Jónsdóttir, a member of the Icelandic Parliament, and to the resolution it adopted at its 189th session (October 2011),

Recalling the following information on file:

• Birgitta Jónsdóttir has been a member of the Icelandic Parliament since July 2009. She was the co-producer of a video, released by WikiLeaks, showing United States soldiers shooting civilians in Baghdad from a helicopter;

• On 7 January 2011, she was informed by Twitter that it had received an Order from the United States District Court for the Eastern Division of Virginia to turn over to the United States the records and other information concerning her account. Twitter was given until 26 January to pass on the information to the United States Government;

• The information sought by the United States Government with respect to Ms. Jónsdóttir concerned extensive subscriber account information;

• The first court order, dated 14 December 2010, was originally kept secret and was only revealed to Ms. Jónsdóttir and two other persons concerned by the same order, after Twitter took steps to ensure that it could notify the individual concerned;

• The order of 14 December 2010 was challenged by the three individuals, with the Electronic Frontier Foundation, the American Civil Liberties Union and the American Civil Liberties Union Foundation representing Ms. Jónsdóttir in the proceedings; on 26 January 2011, the defence counsel of the three individuals submitted a joint sealed motion to the United States District Court for the Eastern District of Virginia, requesting it to unseal the still secret court record of the United States Government's efforts to collect private records from Twitter and other companies which might have received such demands; a second joint motion, filed that same day, requested the Court to reconsider and overturn the 14 October 2010 Order;

• At the request of Ms. Jónsdóttir’s legal counsel in the United States, on 14 February 2011, the IPU submitted a Memorandum to the Court concerning Ms. Jónsdóttir; the Memorandum was accepted by the judge and has become part of the court records; it sets out concerns regarding the potential impact of the Twitter order on: (i) Ms. Jónsdóttir’s freedom of expression and her ability fully to exercise her parliamentary mandate; (ii) parliamentary immunity as the Twitter order renders the immunity guaranteed to her under Article 49 of the Constitution of Iceland null and void; (iii) her right to privacy; and (iv) her right to defend herself insofar as the United States authorities may be seeking disclosure of information from other service providers; the Memorandum, therefore, supported the defence motion to vacate the Twitter order and to unseal all other similar disclosure orders regarding Ms. Jónsdóttir;

• On 11 March 2011, the Court denied the motion to vacate, granted the motion to unseal only in part and took the request for public docketing of certain material under consideration; the defence counsel has filed objections against the ruling, which were dismissed on 10 November 2011; Ms. Jónsdóttir decided not to challenge the latter decision, while pursuing her legal efforts, through her lawyers, to establish whether other US-based service providers had been ordered to provide information on her,

• Members of parliament enjoy fundamental freedoms, including the rights to freedom of expression and privacy as well as specific measures of protection to allow them to carry out their work unimpeded;

• Parliamentary immunity ensures that members of parliament cannot be held to account for the opinions they express and the votes they cast, and countries, as is the case with Iceland, have generally put special mechanisms in place to ensure that they can carry out their mandate without undue restrictions and with full respect for their freedom of expression;

• In all countries, freedom of expression is essential to democracy. It is critical to members of parliament and is recognized as such by courts the world over; without the ability to express their opinions freely, members of parliament cannot represent the people who have elected them. They are unable to perform these duties if they cannot receive and exchange information freely without fear of intimidation;

• Citizens cannot exercise their right to vote or take part in public decision-making if they lack free access to information and ideas and are unable to express their views freely; citizens will not communicate sometimes sensitive information to their representative without the assurance that their identity will be protected. Moreover, citizens may be communicating sensitive information to their representative on the, sometimes erroneous, understanding that the information will only reach the intended recipient,

Considers furthermore that while modern communication technology has radically increased individuals’ access to information and facilitated their active participation in society, it has also contributed to a blurring of the lines between the public and private spheres and permitted unprecedented levels of interference with the right to privacy, primarily by States and businesses; considering also in this regard that the United Nations Guiding Principles on Business and Human Rights, endorsed by the Human Rights Council in 2011, set out a global standard for preventing and addressing adverse impacts on human rights linked to business activity,

1. Reaffirms that freedom of expression lies at the heart of democracy and is essential to members of parliament; without the ability to express their opinions freely, members of parliament cannot represent the people who have elected them; if they cannot receive and exchange information freely without fear of interference, they cannot legislate and hold the government to account;

2. Recalls that Article 19 of the Universal Declaration of Human Rights upholds the right of everyone to freedom of opinion and expression; it stipulates that this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers;

3. Notes that, under standard human rights conventions and their jurisprudence, restrictions on the freedom of expression are subject to a threefold test: they should be prescribed by law, they must be necessary in a democratic society, and they must be proportionate to these necessary purposes;

4. Fails to see how the restrictions on freedom of expression that would result from compliance with the Twitter court order can be justified on such grounds, and holds that, on the contrary, such compliance would jeopardize a member of parliament's right to freedom of expression and hence his/her ability to seek, receive and impart information freely, which is absolutely necessary in a democratic society;

5. Is concerned that the national and international legal framework concerning the use of electronic media, including social media, does not appear to provide sufficient guarantees to ensure respect for freedom of expression, access to information and the right to privacy; the guarantees protecting freedom of expression and privacy in the "offline world" seem not to operate in the "online world";

6. Notes also with concern that the parliamentary immunity Ms. Jónsdóttir would have enjoyed under Icelandic law is not operational in this case; considers that, since the use of social networks by parliamentarians with their constituents and others is today commonplace in many countries, disclosure orders such as that in question would undermine and even render void the ability of States to protect their members of parliament from unwarranted interference with their mandates;

7. Expresses deep concern, therefore, at the efforts made by a State to obtain information about the communications of a member of parliament of another State and the likely consequences of this for members of parliament the world over on their ability to discharge their popular mandate freely;

8. Is further concerned that Ms. Jónsdóttir may have been subject, without her knowledge, to court orders addressed to United States-based service providers other than Twitter with the instruction to give information they possess on her; notes in this regard that, unlike Twitter, other companies do not necessarily inform their users of judicial requests for information concerning them directly; considers that such a situation would be a grave breach of Ms. Jónsdóttir’s fundamental right to defend herself;

9. Requests the Secretary General to communicate the Governing Council’s concerns in this case to the parliamentary authorities in Iceland and in the United States of America, and to seek their views; also requests him to bring the matter to the attention of Twitter, Google, Facebook and Microsoft;

10. Considers that the wider ramifications of the case at hand, which concern fundamental challenges to protecting human rights in the face of fast-moving technological developments, warrants further attention and action; requests therefore the Secretary General to explore ways of promoting a discussion of these challenges, their impact on parliamentary life, and the opportunities for parliamentary action among members of parliaments, human rights experts and representatives of the information technology industry;

11. Requests the Committee to continue examining this case.

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