Non-discrimination

Author: Richard Wingfield

The term ‘non-discrimination’ has a very specific definition and understanding under international law (and international human rights law specifically), however, it is also used in a different sense in the context of online platforms. This entry first looks at the agreed international definitions of the term, as found in relevant legal instruments, before turning to other uses.

‘Non-discrimination’ under international (human rights) law

The principle of non-discrimination – and, specifically, the prohibition of discrimination – has been translated into several international human rights instruments, most notably the International Covenant on Civil and Political Rights (ICCPR). While the ICCPR and other international human rights instruments (such as the International Covenant on Economic, Social and Cultural Rights) often prohibit discrimination in the enjoyment of the rights that they set out, the ICCPR also provides a standalone prohibition of discrimination through Article 26 which provides that: 

the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinions, national or social origin, property, birth, or another status.

While “discrimination” is not defined in Article 26 itself, the UN Human Rights Committee (HRC) has provided guidance on the scope of the term in its General Comment No. 18 (UN, 1989)¹. There, the HRC states that “discrimination” should be understood as including “any distinction, exclusion, restriction or preference which is based on any ground such as race, color, sex, language, religion, political or other opinions, national or social origin, property, birth or another status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms”. In setting out this definition, the HRC drew upon other international human rights instruments which do define the term, such as the Convention on the Elimination of All Forms of Discrimination against Women and the International Convention on the Elimination of All Forms of Racial Discrimination. The HRC also clarified that Article 26 of the ICCPR prohibits discrimination “in law or in fact” and “in any field regulated and protected by public authorities”.

In the context of online platforms, the prohibition of discrimination could be breached, for example, as a result of content moderation policies which themselves treat different groups differently, or in their enforcement disproportionately affect users with a particular characteristic; or the use of algorithms which are biased on the basis of a user’s personal characteristics, leading to discriminatory outcomes.

Other uses of the term

Outside of international law, the term “non-discrimination” is most commonly used in the context of online platforms to refer to a legal obligation not to discriminate in the conditions or quality of the services and information that it provides. The European Commission², for example, defines the term as: 

an obligation of non-discrimination ensures that an operator applies equivalent conditions in equivalent circumstances to other undertakings providing equivalent services, and provides services and information to others under the same conditions and of the same quality as it provides for its own services or those of its subsidiaries or partners.

 Examples of discrimination in this context would largely be for commercial reasons and would include differential pricing arrangements or different treatment of traffic.

References

1. UN. (1989). UN Human Rights Committee. General Comment No. 18: Non-discrimination.
2. European Commission. Shaping Europe’s digital future. Glossary. Available at: https://ec.europa.eu/digital-single-market/en/glossary.