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GILC PRINCIPLES |
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The Global Internet Liberty Campaign is a group of human rights and civil liberties organizations that advocate the following:
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ACKNOWLEDGEMENTS |
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This report was made possible by a grant from the Open Society Institute, http://www.soros.org/osiny.html. It was written principally by James X. Dempsey, senior staff counsel, and Daniel J. Weitzner, deputy director, Center for Democracy and Technology, http://www.cdt.org, with the assistance of other members of the Global Internet Liberty Campaign. |
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I. Introduction & Overview |
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"Everyone has the right to freedom of opinion and expression; 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."
Like no medium before it, the Internet permits any individual with a computer and a gateway to the Internet to communicate instantaneously with others worldwide. The Internet offers educational institutions, businesses, and non-profit organizations an opportunity to exchange ideas and promote scientific, cultural, and economic progress. Traditional forms of media can greatly expand their audiences at nominal cost. The Internet is global in its reach. To a degree that no other technology can, it transcends national borders and eliminates barriers to the free flow of information. These unique features of this new technology, if properly supported, can foster the freedom of expression essential to democratic rule and civil society in ways previously impossible. Governments, however, have already begun to impose controls on the Internet, threatening the potential of this new medium. Some governments have enacted laws prohibiting certain content on the Internet and have sought to prosecute users and service providers. Others have tried to control access, by insisting on the installation of national "proxy servers" and requiring the blocking of targeted web sites. And in other countries, governments have encouraged forms of "self-regulation" that are in fact intended to enlist service providers to control the behavior of their customers. [1] An increasingly well-established body of international law protects the right to freedom of expression. As we shall see, various human rights instruments are diluted by exceptions and may be difficult to enforce. Moreover, not all countries are parties to a binding human rights agreement. But international human rights law undoubtedly has advanced the cause of free expression and undoubtedly applies to the Internet and other digital media. Given the broad language of international and regional human rights documents, there is no doubt that government measures to control the Internet are subject to challenge under international law. The purpose of this report is to lay the groundwork for the proposition that the unique qualities of the Internet support an even more robust application of international free expression principles to online communications. The technology itself both demands and can support fuller protection of free expression: The borderless nature of the Internet requires that the phrase "regardless of frontiers," which appears in the key international human rights instruments, be applied with a fresh eye. The concept of a right to "impart" information takes on new meaning when anyone can be a publisher. Since censorship in one country may constitute a direct infringement on the right of persons in other countries to "impart" information "without regard to frontiers," the traditional deference given to local norms should be less relevant to the Internet. The decentralized nature of the Internet makes government controls less effective (even futile), because Internet users have numerous ways of circumventing them. At the same time, the user-controlled nature of the technology means that government controls are less necessary in some contexts. Furthermore, given the essentially unlimited capacity of the Internet, there is less need for government intervention to ensure fairness or balance or to protect reputation. On the Internet, the marketplace of ideas can function with less regulation since good ideas can always achieve the space they deserve. Mistakes can be corrected and the right of reply can be effectuated instantaneously. Under international law, necessity, proportionality, and efficacy are key concepts in judging the validity of restrictions on freedom of expression. If government regulation of content on the Internet is not likely to succeed and not necessary, then it becomes less supportable under international rules. This paper is merely a beginning, intended to spark further action. A closer examination of the caselaw of the international tribunals is required. A fuller effort is needed to educate judges of the international tribunals, staff of the human rights commissions, and policymakers at international bodies on the unique elements of the Internet and the special significance of user control. Ultimately, free expression cases involving the Internet will be brought before the international human rights tribunals. With further development of the principles outlined here, the Internet could serve as a fulcrum for the expansion of free expression principles. This report is addressed both to governments and to Internet activists. To governments, it says, "Don't try to censor the Internet because your efforts may well violate international human rights law, especially given the unique nature of the Internet." To activists, the paper says, "Consider how to use international human rights documents to challenge Internet censorship. Here are some arguments why the Internet is entitled to even greater protection that other media." |
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II. The Internet is Uniquely Suited to Promoting Democracy and Inherently Resistant to Government Controls |
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A. The Internet is a Unique Communications Medium Applying international human rights principles to the Internet requires an appreciation of the fundamental characteristics of the digital on-line media. The unique qualities of the Internet justify according the strongest protection to free expression on-line and should prompt a new vision of the right to receive and impart information "regardless of frontiers." The Internet is really a network of networks and is comprised of a number of different technologies and infrastructures. Viewed as a whole, it is uniquely:
Courts and other institutions that have considered in depth the question of Internet regulation have recognized these unique features. In a 1996 Communication, the European Commission noted: "A unique characteristic of the Internet is that it functions simultaneously as a medium for publishing and for communication. Unlike in the case of traditional media, the Internet supports a variety of communication modes: one-to-one, one-to-many, many-to-many. An Internet user may "speak" or "listen" interchangeably. At any given time, a receiver can and does become content provider, of his own accord, or through "re-posting" of content by a third party. The Internet therefore is radically different from traditional broadcasting. It also differs radically from a traditional telecommunication service." [2] The European Commission Legal Advisory Board, which advises the European Commission on legal matters concerning the European information market, also recognized the uniqueness of the Internet, calling it "a positive instrument, empowering citizens and educators, lowering the barriers to the creation and distribution of content and offering universal access to ever richer sources of digital information." [3] The United States Supreme Court, in ruling that the Communications Decency Act was unconstitutional and that the Internet merited the strongest protection of free expression, based its judgment on the conclusion that the Internet was "a unique and wholly new medium of worldwide human communication." [4]
The vast new potential of the Internet for expanding access to information and participation in government and civil society has already begun to show itself with concrete contributions to democracy and human rights.
1. Facilitating participation in government The bi-directional nature of the Internet has tremendous potential for fostering democratic participation, giving voice to the voiceless. The Internet could allow citizens to communicate with their government, to pose questions to their elected representatives, and to submit comments on pending issues. [5] While many governments have been slow to take advantage of the democratic potential of the Internet, some harbingers of progress can be seen. In January 1995, the municipality of Bologna created the Iperbole system -- a free-of-charge "civic network" offering citizens and businesses an opportunity to send requests, suggestions, claims and complaints by email to more than 1,300 municipal offices. The system also includes discussion and newsgroups dealing with specific topics, suggested by citizens, business enterprises, public and private institutions, and by the municipal administration itself. http://www.comune.bologna.it. [6] The UK conducted a one-time on-line consultation on the government's freedom of information proposal. http://foi.democracy.org.uk. In the United States, most Members of Congress have email addresses like talk2bob@hr.house.gov (for Rep. Bob Goodlatte) or senator_leahy@leahy.senate.gov. Western governments are not the only ones that have begun to respond. In Hungary earlier this year, Hungary's iNteRNeTTo held an online debate between politicians from the two leading parties. The Costa Rican government, to make voting more convenient, is working to shift to an electronic voting system. Taking advantage of a literacy rate of 94% and the fact that about 50% of grade schools have Internet-connected computers, Costa Rica hopes to run an entirely electronic balloting in 2002. International bodies also use the Internet to promote public participation in their activities. For example, last year the EU conducted an online forum regarding illegal or harmful content on the Internet. Grassroots organizations can use the Internet to mobilize voters to be active on issues. One example is the Adopt your Legislator campaign developed by CDT in the US, http://www.crypto.com/adopt.
2. Expanding access to government information One of the most important potential benefits of the Internet is the ability to provide rapid access to the full text of government documents. If a government is willing, it can provide its citizens access to enacted and proposed laws, regulations, government reports and statistics, transcripts of parliamentary debates, judicial decisions, all searchable by word or concept. Information previously available only to experts, usually only in the capital city, and often only with great expenditure of time and money can now be made available to individuals in the smallest rural town and at public libraries in the poorest neighborhoods. This vast openness need not be the luxury of only wealthy nations. In almost every country in the world, most government information is now created by word processing, meaning that the information is already digitized. Again, if the government is willing, the information can be rapidly and inexpensively put on-line, even using simple Gopher technology. Many nations have begun to use the Internet, nations as diverse as the United Kingdom, http://www.parliament.the-stationery-office.co.uk, the Czech Republic, http://www.czech.cz, and South Africa, http://www.gov.za. The European Union is a most effective user of the Web to make its voluminous publications available to a wide audience. http://europa.eu.int. Some examples from the U.S. include THOMAS, the Website of the Library of Congress http://thomas.loc.gov, and GPO Access http://www.access.gpo.gov/su_docs/aces/aaces002.html, providing access to materials from the Government Printing Office, including all proposed federal regulations, and transcripts of daily Congressional debates.
3. Strengthening civil society through the building of networks among individuals The Internet has opened up new opportunities for discourse, on matters political, intellectual, and personal. The Internet's architecture allows for a diversity of views and exchange of information that is simply not possible in any other media. As of August 1998, one service identified 29,000 IRC (Internet Relay Chat) channels, 30,000 Usenet newsgroups, and 90,095 mailings lists -- each one representing a network of individuals worldwide interested in a particular subject. http://www.liszt.com. Among the first to use the Internet were human rights activists. In 1992, the International Freedom of Expression eXchange (IFEX) was established to provide accurate and timely information regarding censorship and attacks on journalists. http://www.ifex.org. The primary method of transmitting information is by e-mail: whenever there is a serious threat to freedom of expression, the IFEX action alert network sends out detailed information on the case via e-mail to participating organizations and individuals, who in turn mount international protests from their own regions. GILC member "Derechos" is an on-line human rights organization focusing on Latin America that exists largely through the Internet, http://www.derechos.org. The Internet has been at the forefront of democratic uprisings. In Indonesia, "Bypassing the government-controlled television and radio stations, dissidents shared information about protests by e-mail, inundated news groups with stories of President Suharto's corruption, and used chat groups to exchange tips about resisting troops." [7] 4. Broadening access to traditional media and promoting pluralism The Web has become a place where there is ready access to newspapers and other publications. A wide range of print publications are available on-line, and many broadcast media now have on-line services that allow searching of past broadcasts, a capability previously available only to governments and a few research institutes. http://www.newslink.org. The Radio Free Europe/Radio Liberty Newsline illustrates the use of old-fashioned e-mail to disseminate information to a dispersed audience very inexpensively. http://www.rferl.org. The Internet makes it possible for more organizations to distribute news and commentary, increasing the diversity of voices. The Association for Independent Media in Bosnia has made use of the Internet, both e-mail and the World Wide Web, http://www.aimpress.org. AIM operates on the principle of a mail-box system. Information is exchanged via a central computer located in Paris. AIM texts are available in Serbian, Croatian, Bosnian, and a choice of texts is available in English. Subscribers to AIM regularly receive the whole production of AIM via e-mail. The China News Digest makes available news from non-official sources. While the site is sometimes blocked by the Chinese government, users in China have found ways to access it. The service also uses e-mail to disseminate its news within China. http://www.cnd.org.
C.The Internet is Uniquely Resistant to Government Controls With the Internet, it is increasingly difficult for governments to control content. The Internet offers creative ways to disseminate information around the controls of censors. Radio B92 in Belgrade is one of the leading examples of this. When authorities shut down the radio station, it put its programming on the Internet through RealAudio, using a Dutch service provider; Radio Free Europe, Voice of America, and Deutche Welle picked up the station off the Net and rebroadcast it back into Serbia, where it served as the source of independent reporting and a focal point for democratic opposition. http://www.opennet.org. Faced with this strategy, the government allowed the station back on the air. In June of 1997, Chinese dissidents founded Tunnel, a Chinese language journal of dissent. http://www.geocities.com/CollegePark/Union/1761/tunnel.html. Tunnel is managed and edited in China. Once an issue is ready to be published, it is secretly delivered to the United States and then emailed back to China from an anonymous address. "Thus its staff remains safely hidden in cyberspace, and all of its contributors, both in China and abroad, write under pseudonyms." [8] The Digital Freedom Network, http://www.dfn.org, was created with the primary objective of publishing on-line material that has been suppressed. When the government of Belarus suppressed the independent newspaper Svaboda, Radio Free Europe/Radio Liberty made its reports available in three different ways: the Belarus service of RFE/RL featured materials from Svaboda journalists, its website posted their articles, and the daily live RealAudio news broadcast of RFE/RL's Belarus service carried Svaboda content. The technology of the Internet frustrates control in other ways. Proxy servers purportedly block access to web sites known to contain objectionable content and thus preclude such content from being accessed. Such servers fail to achieve their goal, however, because (1) web site operators whose sites are targeted as containing undesirable content can simply change their web site address; and (2) an Internet user in a country imposing controls can simply dial into a server outside the country and access the desired information, thereby avoiding the proxy server altogether. An "Anti-Censorship Proxy" has been created that allows users to evade filters. http://www.osiris.ml.org:8800/. Even if the telephone company is state-owned, it cannot differentiate a telephone call to a foreign server from an international fax. Furthermore, encryption allows determined users to create "tunnels" to banned foreign sites in ways that completely evade government control. And while access through an Internet Service Provider is desirable, dial-up access is available from any telephone that can make an international call. Access to the Internet can also be wireless, making it even harder for governments to exercise controls. The creation of mirror sites is one practice that helps assure the free flow of information, even against government censorship efforts. Given the global nature of the Internet, content can be published from anywhere in the world. When a government tries to prosecute a content provider or force the withdrawal of material, there are others around the world prepared to copy or mirror the information on their own sites, in countries where the information is legal. One example involved the site of a Basque organization hosted by an American service provider. The site was supporting Basque independence, although it did not promote violence. Nonetheless, from Spain, there came an apparently orchestrated campaign of "mailbombing" -- flooding the site's service provider with e-mail in order to disrupt service. The service provider publicized the problem and soon a number of organizations, one in Holland, one in England, several in the U.S., installed mirror websites, which were perfectly legal in the host country. With so many sites, the harassment campaign fizzled out. The Internet Freedom Campaign, an English group hosting one of the mirror sites, set up an on-line bulletin board for surfers to post their opinions about the issue, showing how the Net is the perfect place for controversial information to appear, http://www.netfreedom.org/uk/index.html. Similarly, when a local governmental body in the UK, the Nottinghamshire County Council, sought to suppress the publication of the so-called JET Report, an official report on the hysteria that has attended certain child abuse cases, the report was immediately mirrored on numerous sites, ultimately totaling 35, as a result of a campaign organized by GILC member Cyber-Rights & Cyber-Liberties (UK), http://www.xs4all.nl/~yaman/jetrep.htm. When an issue of a Zambian newspaper carrying an article critical of the government was banned, the issue was mirrored outside the country. One site that mirrors a number of banned documents is http://www.samsara.law.cwru.edu/comp_law/.
D. Governments Have Sought to Impose Various Controls on Internet Content and Access Despite the power of the Internet -- or perhaps because of that very power -- governments have sought to restrict it. Government actions infringing freedom of expression on the Internet take many forms: [9]
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III. International and Regional Agreements Manifest a Universal Commitment to the Right to Free Expression |
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Over the past half-century, international human rights law has enshrined the rights to free expression, access to information, and privacy of communications, creating a strong presumption against governmental intrusions. These rights are reflected both in the provisions of numerous international and regional agreements and in decisions rendered by human rights tribunals. These human rights doctrines protecting freedom of expression are fully applicable to the Internet. Indeed, these protections may offer especially strong protection to the Internet, given its unique features. These human rights instruments have their limitations. The Universal Declaration has been accepted in effect by all 185 Member States of the United Nations, but not all of its provisions have become binding. The International Covenant on Civil and Political Rights is binding, but its enforcement mechanisms are limited. While there are binding regional agreements for the Americas, for Europe, and for Africa, there are none for Asia or the Middle East. Enforcement mechanisms are available under these regional agreements, but they are limited too. Where individual review is available, the time required to pursue a case all the way to the international level may be substantial. Most importantly, these instruments, particularly the European Convention, are burdened with exceptions that have been seriously criticized as over-broad. Nonetheless, these human rights agreements have served to expand freedom of expression worldwide, becoming part of international law and affecting the domestic laws of many nations. The numerous international and regional instruments discussed herein provide substantial evidence that the principle of free expression is a well-settled principle of international law. The collection of treaties, agreements, and international tribunal decisions also evidences an international consensus on the scope of this right: it applies to all forms of media, it applies to the ability to receive and to impart information, and it is subject to only limited restrictions. The advent of the Internet raises the question of how these human rights instruments apply to the new communications media. The answers are in some respects encouraging: the instruments are drafted with very forward-looking language, with powerful implications for a medium that operates "regardless of frontiers." A. International Agreements The international community has stated its commitment to the right to free expression in a series of fundamental agreements, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. 1. Universal Declaration of Human Rights The right of free expression was first proclaimed an international norm by the then-members of the United Nations in the 1948 Universal Declaration of Human Rights ("Universal Declaration"). [11] Taken together, Articles 19, 12, and 27 of the Universal Declaration constitute a blueprint for the protection of free expression on the Internet. Article 19 of the Universal Declaration proclaims:
Article 12 of the Universal Declaration provides: "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence." The language of this provision is broad enough to encompass all communications directed to an individual or group of individuals, including electronic mail and newsgroup communications. Finally, the right to seek, receive and impart information guaranteed in Article 19 of the Universal Declaration is reinforced by Article 27, which upholds the right of each individual "freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits." Given that the Internet's roots are in the exchange of scientific information, Article 27 seems particularly apt to the protection of communications on the Internet. The foresightful language of Article 19 ("through any medium") makes it clearly applicable to expression via the Internet. The rights to "seek" and "impart" information seem particularly relevant to "surfing" the 'Net and posting information on Web sites for all to read, while the right to "receive" information encompasses the exchange of electronic mail and the downloading of information. The Universal Declaration is subject to exceptions. Article 29(2) provides:
Enforcement: The Universal Declaration is not a treaty. It was adopted by the United Nations General Assembly as a resolution having no force of law on its own. However, over time the Declaration has become a normative instrument that creates some legal obligations for Member States of the UN. [12] Many of the principles established by the Universal Declaration have since entered the corpus of international law as evidenced by an overwhelming consensus of opinion and practice among states. This consensus is illustrated in subsequent international and regional treaties and agreements, decisions of international tribunals, and domestic constitutions and legislation. [13] Further, the Declaration has served as an inspiration for other human rights agreements of more direct effect. The United Nations Commission on Human Rights was created in 1946 under Article 68 of the UN Charter. States name representatives to the 53 member Commission, where they serve as instructed governmental delegates. The Commission prepares reports and coordinates an expansive network of working groups and rapporteurs with thematic or country mandates. It has been criticized for being politically motivated and selective in approach, but it serves as the principal UN forum for addressing charges of human rights violations and as a focal point for broadening the human rights agenda of the UN. [14] In 1993, the Commission established the position of Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. In his 1998 report to the Commission, the Special Rapporteur specifically commented on the impact of new communications technologies and governmental efforts to regulate them:
In its resolution of April 1998 on the right to freedom of expression, the Commission welcomed the Special Rapporteur's report and specifically invited him to "assess the advantages and challenges of new telecommunications technologies, including the Internet, on the exercise of the right to freedom of opinion and expression,... taking into account the work undertaken by the Committee on the Elimination of Racial Discrimination on racism, racial discrimination, xenophobia, and related intolerance."
2. International Covenant on Civil and Political Rights The principles first enunciated in the Universal Declaration are reiterated and expanded upon in the 1966 International Covenant on Civil and Political Rights ("ICCPR"), [16] which took effect in 1976 and has now been ratified by 140 nations. Article 19 of the ICCPR restates Article 19 of the Universal Declaration almost verbatim. It declares: "Everyone shall have the right to hold opinions without interference. ... Everyone shall have the right to freedom of expression... ." In words somewhat more expansive than the Universal Declaration, Article 19 of the ICCPR expressly states that the freedom of expression extends to all forms of media: "this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice." The ICCPR also reiterates the crux of Article 12 of the Universal Declaration: "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence." The ICCPR defines the scope of limitations that could be imposed on the freedom of expression. Consistent with the law of most if not all nations, the ICCPR recognizes that freedom of expression may be curtailed under certain circumstances. The ICCPR requires, however, that restrictions on free speech be narrowly defined and not arbitrary. Article 19(3) of the ICCPR provides that restrictions on the freedom of expression are valid only where such restrictions are "provided by law and are necessary: a. For respect of the rights or reputation of others; [or] b. For the protection of national security or of public order, or of public health or morals." The essence of applying the ICCPR involves interpreting this limitation. It has been urged that this provision means that laws restricting freedom of expression must be "accessible, unambiguous, drawn narrowly, and with precision." [17] Moreover, the burden of demonstrating the validity of a restriction on free speech should lie with the government. [18] The key hurdle for governments is the requirement that restrictions be "necessary;" this has generally been interpreted as a high standard. The ICCPR includes several other provisions relevant to freedom of expression. Article 17 provides, "No one shall be subjected... to unlawful attacks on his honour and reputation. ... Everyone has the right to the protection of the law against such... attacks." Article 20 states, "Any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law." Enforcement: Under the Covenant, States Parties are required to submit reports every five years on the measures they have taken to protect and advance human rights. The Covenant established a Human Rights Committee, one of the principal functions of which is to examine these reports. The Committee makes conclusions on individual state reports and also issues general comments, which serve as advisory opinions on the Covenant. (The Committee also has had since its inception jurisdiction over complaints filed by one State Party against another, but few states declared their acceptance of the mechanism and it has never been used). In 1976, an optional protocol went into force which enables private parties to file individual complaints against States Parties that have ratified the covenant. [19] The protocol is itself a treaty, and therefore binds the states that have ratified it. Complainants must exhaust domestic remedies first. Once a complaint has been admitted as properly drawn, the Committee brings the matter to the attention of the state involved, which has six months to respond. The Committee, after considering all the written communications on the matter, issues its "views." The Committee has no power to enforce its findings, but it does require States Parties to indicate in their periodic reports what measures they have taken to give effect to the Committee's recommendations. "In particular, the State Party should indicate what remedy it has afforded the author of the communication whose rights the Committee has found to have been violated." [20] 3. International Covenant on Economic, Social and Cultural Rights Restrictions on the Internet also implicate rights established by the International Covenant on Economic, Social, and Cultural Rights ("ICESCR"). [21] Echoing Article 27 of the Universal Declaration, Article 15 of the ICESCR recognizes the important "benefits to be derived from the encouragement and development of international contacts and cooperation in the scientific and cultural fields." Accordingly, the 136 signatories pledge to "diffuse science and culture" and to "respect the freedom indispensable for scientific research and creative activity." These provisions articulate that free expression across borders must be respected to realize social, scientific, and cultural advancements. To take advantage of such progress, Article 15 of the ICESCR establishes that all individuals are entitled "to enjoy the benefits of scientific progress and its applications." One of the most effective means of doing so is through Internet communication, which enables people in distant and diverse countries to share valuable scientific research and social insights. Enforcement: The ICESCR does not establish any interstate or individual complaint system. It only requires the States Parties to submit "reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized herein." Art. 16(1). There is a Committee on Economic, Social and Cultural Rights, which reviews the country reports and issues General Comments and analyses, which serve as a platform for the Committee to try to advance awareness of human rights issues arising in the social context.
B. Regional Agreements Regional human rights agreements in Europe, the Americas, and Africa establish the right of free expression for all individuals and privacy in their communications with others. Such freedoms are protected in all forms of media and "regardless of frontiers." These regional agreements are especially important because of the opportunities they offer for international judicial review of actions restricting free expression. 1. European Convention of Human Rights The European Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention") [22] was adopted in 1950 by members of the Council of Europe. [23] Article 10 states in full:
The European Convention thus establishes that the right of free expression pertains to cross-border communication, which naturally applies to much of the content available on the Internet. Closely linked to freedom of expression are additional rights in the European Convention: the right to respect for correspondence and privacy, contained in Article 8; [24] the right to freedom of peaceful assembly and freedom of association, contained in Article 11; and the right to manifest one's religion or belief, contained in Article 9. Article 10 is not stated in absolute terms. The second paragraph specifies that freedom of expression can be curtailed in furtherance of a series of enumerated interests. It has been widely debated whether these exceptions are too broad. But even in the U.S. and other countries with constitutional free speech provisions, restrictions are permitted through judicial interpretation. Supporters of Article 10's approach argue that Article 10 is preferable because the catalogue of possible restrictions is limited and because Article 10 also establishes that any restriction on the exercise of the freedom of expression must be "prescribed by law" and "necessary in a democratic society" to serve one of the enumerated interests. Application of the exceptions in the second paragraph will always turn on the factual and legal context, considered case by case. In specific situations, it has been found that there was no violation of Article 10 in: the application of blasphemy laws to seize a film, the UK's ban on broadcasting interviews with representatives of the IRA, prohibitions on Nazi material, laws against obscenity, even state disciplinary measures against a lawyer who used aggressive or insulting language. [25] Article 10 must be interpreted in light of other Articles, notably Article 17, which states that nothing in the Convention creates a right to engage in activities "aimed at the destruction of any of the rights or freedoms set forth in the convention." Article 17, it has been held, was intended "to prevent totalitarian groups from exploiting, in their own interests, the principles enunciated in the convention." Accordingly, for example, the Court has concluded that it was not a violation of the Convention for the Netherlands to convict extremist right-wing Dutch politicians for distributing racist leaflets. Other provisions affecting the freedom of expression include Article 6, which guarantees the right to a fair trial, and the right to personal privacy in Article 8, which protects a person's honor and reputation against attack, both of which concepts are also reflected in Article 10(2) itself. Most European countries that are party to the Convention have made it part of their national law, meaning that it can be invoked in the national courts. For many years, the UK declined to do this, but the Convention will be fully incorporated in UK law when the Human Rights Bill 1998 is enacted. Enforcement: The European Convention has an explicit enforcement mechanism based on judicial review by an independent regional tribunal, the European Court of Human Rights, located in Strasbourg. [26] The most important feature of the Court's jurisdiction is that individuals can bring complaints against Contracting States alleging violations of the Convention. The procedures of the Court are well beyond the scope of this paper. It is sufficient to note that individuals may bring their cases before the Court after exhausting local remedies and that an application must first be presented to the European Commission on Human Rights. The Commission decides on the admissibility of the complaint. If the Commission decides that the case is admissible, it issues a report (which is not binding), and there is a procedure for referring cases to the Court. [27] The Court's judgments on the merits are binding but declaratory in nature. The Court has no power to quash the impugned decisions of the national authorities. The Court may, however, award "just satisfaction" in the form of financial compensation. In most cases, States have been reasonably swift to make the changes in their laws and practices necessary to bring them into conformity with the Court's decision.
Case Law of the European Court Relevant to the Internet: [28] The European Court described the scope and importance of the right of free expression under Article 10 in its landmark decision in Handyside v. UK:
The Court applies a three-part test. Any restriction on the freedom of expression must (1) be prescribed by law; (2) have as its aim a goal that is legitimate under paragraph 2 of Article 10; and (3) be "necessary in a democratic society" to achieve that goal. [30] The Court has stated that the exceptions in paragraph 2 "must be narrowly interpreted and the necessity for any restrictions must be convincingly established." [31] At the same time, the Court has concluded that states are allowed a "margin of appreciation" to determine whether a restriction is necessary in light of local circumstances. This means that what can be prohibited can vary from country to country. This is particularly true in the area of morals. Thus, in the Handyside case, the Court held that it was permissible for the UK to prosecute the publisher and seize and destroy copies of a certain book even though the book was acceptable in most other countries. In Sunday Times v. UK, the court found that states were not entitled to such a margin of deference regarding the "far more objective notion of the 'authority' of the judiciary." [32] Much of the interpretation of Article 10 turns on the interplay between the concept of "appreciation" and the requirement that any restriction be "necessary in a democratic society." The unique elements of the Internet require a reconsideration of both concepts. The Court has made it clear that the free expression principles of Article 10 apply differently to different media. The nature and extent of permissible restrictions depends on the nature of the medium. In particular, "the potential impact of the medium concerned is an important factor" to be considered in applying Article 10. [33] The Court has noted that material that might not be proper for broadcast could not be banned from print. The Internet, for all its power, tends to be a less immediate, less inflammatory medium. For example, offensive or heated language that would pose a threat to public order in front of a crowd poses no danger on the Internet when readers are dispersed in location and may even be dispersed over time. The necessity test has several elements: First, the European Court has made it clear that any government action must be effective, in that it must be reasonably likely to in fact serve one of the permitted governmental interests. Second, the Court has made it clear that any restriction must be proportional, meaning that it cannot be overbroad. Third, the concept of proportionality implies that a government restriction should not be permitted if a less restrictive alternative would serve the same goal while respecting other values such as the primacy of the family. Various forms of government Internet censorship would violate Article 10 under one or more of these tests. First, none of the proposed methods of control (short of denying access to the Internet altogether) are likely to be effective, given the very nature of the Internet. Users will almost always be able to find ways around the censor, both to post banned material and to access it. As demonstrated by the examples of mirroring and anti-censorship proxies cited above in Section II.C, given the borderless nature of the Internet, a user in a repressive country can usually find a host in another country that will host banned content. In addition, to further protect themselves from government controls, speakers can render themselves anonymous/unidentifiable. Efforts to block offensive material at the national level have proven to be very spotty at best -- even the simple changing of a URL can frustrate a filter. Unencrypted email is extremely difficult to filter, while it is absolutely impossible to filter email if it is encrypted, even at a very low level of security. Government censorship also will not meet the proportionality test. For example, government bans on information deemed harmful to minors will result in making the same information unavailable to adults, who are entitled to see it. Finally, in some contexts, the user-controlled nature of the Internet makes government control unnecessary because user control offers alternative means of achieving certain goals. This point could be especially relevant in the area of protection of morals, where the Court has granted states the widest margin of appreciation. Many of the proposed governmental controls on content on the Internet are put forth in the name of protecting children from content that is permissible for adults. But the unique user-controlled nature of the Internet makes government control for this purpose unnecessary, because parents are in a better position than the government to control what their children see, by supervision, training, and, if they chose, by using filtering software. While the use of filtering, labeling and rating tools raises serious freedom of expression concerns, both the US Supreme Court and the European Commission have relied on the availability of filtering software as a reason not to pursue governmental censorship. [34] This argument does not assume that filtering is effective. GILC members have documented the flaws in various filtering programs, including their overbroad blocking of perfectly appropriate material. [35] So this argument is not in any way an endorsement of filtering software. Further, any government-mandated filtering by schools, libraries or ISPs is censorship and would violate the free expression principles discussed here. See section V.C below. The argument here simply recognizes that filtering software is available to users. Families can use it if they want. If government tried to require families to use it, that would constitute impermissible censorship and probably infringe on other human rights principles protecting the sanctity of the family. But the values supposedly promoted by government censorship in the area of protecting children are already reflected in products available to the end user. The fact that filtering is available to individuals is not a reason for the government to mandate its use; rather, under free expression principles, the availability of filtering software to parents is one reason why governments should not mandate it or otherwise restrict expression on the Internet. It is not necessary for governments to regulate the Internet to protect children because parents can exercise control. A family's choice to use filtering preserves their moral values without limiting the options of other users. Since there is an alternative means of satisfying the government's goal that also empowers families, the government restriction on speech should violate Article 10. Particularly relevant to the Internet, given the practice of mirroring, are a number of Court decisions holding that prohibition on publishing certain content was not "necessary in a democratic society" if the information was otherwise available. Perhaps the most important case on this subject is the famous "Spycatcher" case, involving the memoirs of a former member of the British Security Service. [36] The Court held that the injunction against publishing the book was no longer appropriate under Article 10 after the book was published in the United States. (It is noteworthy that the government's interest lost its force when the information was published in another country.) From that point on, since the confidentiality had been breached, the injunction in the UK violated Article 10. In Weber v. Switzerland, the Court unanimously found that the sentencing of Mr. Weber to a fine for having breached, at a press conference, the confidentiality of a judicial investigation was not "necessary" for the protection and impartiality of the judiciary because the information had already been disclosed at a prior press conference. In Vereniging Weekblad Bluf! v. the Netherlands, the Court followed the same approach with regard to the seizure and withdrawal from circulation of a magazine article on the activities of the Internal Security Services of the Netherlands. In that case, after the magazine had been seized, the publishers quickly reprinted a large number of copies and sold them on the streets of Amsterdam. Since the information in question had already been made public, the Court concluded that preventing its disclosure was not "necessary in a democratic society." While there was a dispute as to the number of people to whom the information had been made accessible, the court noted that those people "were able in their turn to communicate it to others." The Court has also recognized a distinction between those who make certain offensive statements, and those who serve as the conduits for that information to the public. The distinction arose in a case concerning the liability of a journalist, but it may have relevance to the question of ISP liability. The Court said that a journalist could not be prosecuted for publishing racist remarks uttered by others. The Court said: "The punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so." [37] Substitute "ISP" for "journalist" or "the press" and one has a good statement of the importance of not holding ISPs liable for content they did not create. Other cases has also drawn a distinction between the author of statements and the conveyor of those statements. Finally, in Informationsverein Lentia v. Austria, the Court concluded that Contracting States are under a positive obligation under Article 10 to take measures to ensure pluralism in the media. The case concerned applicants to set up a radio station and a television station. In Austria, that right was vested solely in the Austrian Broadcasting Authority. The Court found that as a result of technical progress, restrictions in the form of a public monopoly could no longer be justified and therefore violated Article 10. The Court has decided very few cases based on Article 10's right to "receive" ideas and information and those have focused on claims of access to government files. In Leander v. Sweden, the Court held that the right to receive information under Article 10 "basically prohibits a Government from restricting a person from receiving information that others may wish or may be willing to impart to him." [38] In Z v. Austria, Application no. 10392/83, 56 DR 13, admissibility decision of 13 April 1988, the Commission held that freedom to receive information is "primarily a freedom of access to general sources of information which may not be restricted by positive action of the authorities." While the Convention does not apply to private actions, the Court concluded, however, in one case that an official reprimand by a professional association qualified as a public action. [39] This raises the question of whether a "self-regulatory" code of conduct adopted by an association of ISPs would rise to the level of action covered by the Convention. The answer will depend on a country-by-country understanding of the nature of the association, its relationship with the government, the circumstances under which a particular "code of conduct" was adopted, and the mechanism, if any, for enforcing the code and sanctioning an ISP that did not comply. Given governments' increasing reliance on "self-regulation" to achieve public objectives, a broader interpretation of what constitutes public action may be needed.
2. Declaration on the Freedom of Expression and Information European countries also manifested their commitment to free speech in the Council of Europe's 1982 Declaration on the Freedom of Expression and Information ("Council of Europe Declaration"). This Declaration reaffirms Article 10 of the European Convention and proclaims that the freedom of expression is "a fundamental element [of] the principles of genuine democracy, the rule of law and respect for human rights." The Declaration also provides that the freedom of expression and information is "necessary for the social, economic, cultural and political development of every human being, and constitutes a condition for the harmonious progress of social and cultural groups, nations and the international community." The Council of Europe Declaration thus recognizes that the freedom of expression serves not only an individual interest, but the interests of nation states and the international community as well. Significant in the context of Internet communication, the Council of Europe Declaration recognizes that "the continued development of information and communication technology should serve to further that right, regardless of frontiers, to express, seek, to receive and to impart information and ideas, whatever their source." To achieve this high level of protection, the Council of Europe member states agreed to the following objectives:
3. Charter of Paris for a New Europe and other OSCE Instruments The 55-member Organization for Security and Co-operation in Europe ("OSCE"), formerly known as the Conference on Security and Co-operation in Europe, sponsored the 1990 Charter of Paris for a New Europe. Signed by 31 countries from Europe, Russia, Canada, and the United States, the Charter proclaims: "We affirm that, without discrimination, every individual has the right to freedom of thought, conscience and religion or belief, [and] freedom of expression." The OSCE's 1994 Budapest Summit Declaration, "Towards a Genuine Partnership in a New Era," complements the Charter by asserting that participating members "take as their guiding principle that they will safeguard" the right to freedom of expression and recognize that "independent and pluralistic media are essential to a free and open society." The Internet is the most "independent and pluralistic" of all media; it should therefore benefit from the strongest protection against restrictions on the free flow of information. [40] OSCE member states also have committed to making "efforts to facilitate the freer and wider dissemination of information of all kinds [and] to encourage co-operation in the field of information." [41] In accordance with this commitment, and in recognition of commitments made under the Universal Declaration and the ICCPR, the OSCE declared that its member states "will ensure that individuals can freely choose their sources of information." Finally, countries of the OSCE reaffirmed the ICCPR's limitations on the scope of permissible restrictions on the right of free expression. The 1990 Conference on the Human Dimension concluded that any restrictions on fundamental rights and freedoms must be (1) provided by law; (2) consistent with obligations under international law, particularly those made pursuant to the ICCPR and the Universal Declaration; and (3) must relate to one of the objectives of the applicable law and be strictly proportionate to the aim of that law.
4. The American Declaration of the Rights and Duties of Man & the American Convention on Human Rights Regional agreements from the Americas also explicitly embrace the freedom of expression. The American Declaration of the Rights and Duties of Man was the first international human rights instrument, predating even the Universal Declaration. Article IV of the American Declaration states: "Every person has the right to freedom of... expression and dissemination of ideas, by any medium whatsoever." The American Convention on Human Rights ("American Convention") [42] was adopted in 1969 and entered into force in 1978. It is worth quoting in full, for several of its provisions are of particular relevance to current debates concerning the Internet:
As is the case with the international and European counterparts to these agreements, the plain language of the American Convention is clearly applicable to the Internet. Notably, the American Convention has several features that go beyond other human rights instruments. For one, the American Convention explicitly states that the exercise of the right of freedom of expression "shall not be subject to prior censorship." The rule against prior censorship is also reinforced by Article 14, which provides for a right of reply by anyone inured by inaccurate or offensive statements or ideas disseminated to the general public. In a provision that may be relevant to the problems posed by Internet "self-regulation," the American Convention applies to private action and makes it clear that the right of expression may not be restricted by indirect methods or means. Article 13(3) provides that the "right of expression may not be restricted by indirect means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by another means tending to impede the communication and circulation of ideas and opinions." The American Convention, in language identical to the ICCPR, sets forth a list of permitted grounds for restriction, a list narrower than that in the European Convention: restrictions on speech must be "expressly established by law to the extent necessary to ensure [either] [r]espect for the rights or reputation of others... or [t]he protection of national security, public order, or public health or morals." Article 11 of the American Convention, like other international agreements, protects the privacy of personal communications: "No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence."
Enforcement of the American Convention: The protections of the Convention are enforced by the Inter-American Commission on Human Rights and by the Inter-American Court of Human Rights. The Commission is an institution of the Organization of the American States. It has the authority to conduct investigations and make recommendations to both the OAS and to Member States. It can "prepare such studies or reports as it considers advisable in the performance of its duties." It can issue advisory opinions to governments. And it is required to take action on petitions by individuals or NGOs and "communications" by Member States. The Inter-American Court of Human Rights is the principal judicial organ of the inter-American system. Only the Commission and the States Parties have standing before the Court; individuals cannot directly institute proceedings. The Court hears cases of an adjudicatory (or "contentious") nature and also can issue advisory opinions. Proceedings are instituted by the filing of an application either by a State Party or by the Commission. An individual wishing to bring his or her case before the Court must file at the Commission (after exhausting domestic remedies). The Commission then takes the case to the Court The Inter-American Court has noted that the American Convention is more generous in its guarantee of freedom of expression than the corresponding provisions of both the European Convention and the ICCPR. The Court stated in one case:
One of the leading opinions of the court has to do with the indirect means of controlling freedom of expression, and specifically with a form of self-regulation. The Compulsory Membership case involved a United States citizen who was working in Costa Rica as a journalist without being a member of the Association of Journalists as required by Costa Rican law. He was convicted of the illegal exercise of the profession of journalism in the absence of membership in the Association. The Court said that any restrictions on the freedom of expression must meet four requirements: the existence of previously established grounds for liability; the express and precise definition of these grounds by law; the legitimacy of the ends sought to be achieved; a showing that these grounds are necessary to ensure the ends. The Court placed considerable emphasis on the requirement of necessity, in terms that have relevance to attempts to censor the Internet. Following the rulings of the ECHR, the Court concluded that necessity implied the existence of "a pressing social need." It was not enough to demonstrate that the regulation was simply useful, reasonable or desirable. The necessity and hence the legality of restrictions "depend upon a showing that the restrictions are required by a compelling governmental interest." Furthermore, the court held that in accordance with the principle of proportionality, the restriction must be "closely tailored to the accomplishment of the legitimate governmental objective necessitating it." The Court noted that the Inter-American Convention prohibited private controls on the freedom of expression. It indicated that the type of private controls prohibited by the Convention might arise when monopolies or oligopolies instituted practices that restricted speech. The association of journalists was another form of private control, albeit one backed up by a law compelling membership. In defense of the rule, it was argued that compulsory membership was the normal way to organize a profession in order to guarantee adequate standards, thus better serving the community. The Court found this argument unpersuasive. In order to demonstrate that the restriction was necessary, it had to be shown that the same results could not be achieved by less restrictive measures. The Commission in a 1994 report adopted and reiterated the principles expressed by the court. The Commission proceeding involved "desacato" laws, [44] which criminalized expression that offended, insulted or threatened a public official in the performance of his or her duties. The Commission found that such laws did not serve a legitimate purpose and were not necessary. The Commission also adopted a test similar to the Brandenburg test in the united States, stating that "criminalization of speech can only apply in those exceptional circumstances when there is an obvious and direct threat of lawless violence."
5. The African Charter on Human and Peoples' Rights The African Charter on Human and Peoples' Rights ("African Charter"), [45] adopted by 50 countries of the Organization for African Unity, declares in Article 9: "Every individual shall have the right to receive information . . . [and] to express and disseminate his opinions within the law." The plain language of this provision clearly establishes that the African Charter protects the full range of modes of communication among people, including communication on the Internet, as well as access to information on the Internet. The African Charter also provides that the parties "have the duty to promote and ensure through teaching, education and publication, the respect of the rights and freedoms contained in the [African Charter] and to see to it that these freedoms and rights as well as corresponding obligations and duties are understood." Finally, the African Charter circumscribes any potential restrictions on the fundamental right to free expression; instead, Article 27 provides that individuals should exercise protected freedoms "with due regard to the rights of others, collective security, morality and common interest." The African Charter also has an enforcement mechanism that hears individual cases.
Undertaking a judicial case in order to advance the cause of human rights is always a risky business. It requires careful selection of the complainant, the respondent, and the forum. It calls for a clear-eyed weighing of the chances of success. A poorly conceived case can yield an adverse decision that represents a set back for the cause of liberty. Mindful of these concerns, it is clear that the international human rights instruments offer opportunities to NGOs seeking to challenge governmental regulation of Internet content and access. In some cases, the most promising venues may be under the regional agreements. Europe: Individuals or other private parties may seek to take their cases before the European Commission and the European Court, after they have exhausted their domestic remedies. Therefore, an NGO concretely affected by a law or practice could bring a case challenging Internet censorship to the Commission and then to the Court. Complaints in the abstract are excluded, however. The ECHR also allows the submission of amicus briefs. (Amicus briefs are not accepted by the Commission, although with an applicant's consent it is possible to contribute arguments before the Commission as part of an application.) Article 36(2) of the Rules of the Court provide that "The President of the Court may, in the interest of the proper administration of justice, invite... any person concerned who is not the applicant to submit written comments or take part in hearings." The Council of Europe's Explanatory Report notes that the "person concerned" referred to in Article 36(2) may be a natural or legal person. A person wishing to participate should fax a request to the President of the Court as soon as possible after a case has been brought before the court. A number of NGOs (including Amnesty International and Article 19) have filed such briefs before the Court, and the Court in its judgments has explicitly referred to the arguments and information supplied by amici. Americas: Under the Inter-American system, while individuals do not have standing to bring their cases directly before the court, they can ask the Commission to take up their cases. Indeed, according to Article 44 of the Inter-American Convention, petitions containing denunciations or complaints of violations of the convention by a State Party may be lodged at the Commission by any person, any group of persons, and any non-governmental organization legally recognized in one or more Member States of the OAS. These categories of potential complainants with standing are considerably broader than those in most other international human rights instruments. There is no requirement that petitioners be the actual victims of a Convention violation. "Furthermore, there is no requirement that the complainant be within the jurisdiction of the respondent state. ... The reference to [NGOs] clearly recognizes the important role which they may discharge in the protection of human rights. ... It should be noted that it matters not that an NGO be legally present and recognized in the territory of the respondent State Party; it is enough that it is recognized in one or more OAS Member States." [46] United Nations: In preparing its annual reports, the UN's Commission on Human Rights regularly draws on information provided by NGOs. Likewise, the Human Rights Committee, which oversees compliance with the ICCPR through the reporting mechanism, also accepts submissions from NGOs. Both the Commission and the Committee should be educated on, and urged to examine, Internet issues. |
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IV. National Laws Restricting Freedom of Expression on the Internet Violate the Human Rights of Internet Users Around the World |
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In the past, it was assumed that a country could control content within its borders, subject to free expression principles, and that publishers had some ability to control and direct the distribution of their materials. (Even in the broadcast realm, there were limits to the reach of most transmitters. But satellite transmission of television signals is forcing a parallel breakdown of borders in the broadcast field.) Thus, in Handyside, even though the book at issue was legal in most countries of Europe, Article 10 of the European Convention was not violated by the UK's efforts to prohibit its sale in the UK. If a restriction was justified in a particular country, then it applied to both domestically produced and foreign produced material, even if the foreign material was legal where produced. A magazine printed legally in the Netherlands would have to be tested by German standards if someone wanted to distribute or possess it in Germany. But this margin of appreciation doctrine -- clearly in tension with the language "regardless of frontiers" -- was based in large part on the physical nature of the media by which information and ideas were produced and disseminated. Respect for differing legal norms -- even though freedom of expression was raised to the level of an international right -- was based on the premise that a country had a reasonable chance of success in keeping material out of its territory, at least things like books or reels of film or paintings on canvas, and that publishers had a reasonable chance of success in controlling distribution of their materials. On the Internet, neither governments nor publishers have this type of control over information, for information is no longer tied to physical objects. The global nature of the Internet should give new relevance to the concept "regardless of frontiers" found in human rights instruments. As Judge Martens said in a separate opinion in the Spycatcher case, "in this 'age of information' information and ideas cannot be stopped at frontiers any longer." [47] Judges Pettiti and Farinha made the same point in their separate opinion: "In the era of satellite television it is impossible territorially to partition thought and its expression or to restrict the right of information of the inhabitants of a country whose newspapers are subject to a prohibition." Under human rights principles, expression on the Internet will still be subject to restriction, but without the "margin of appreciation" that has supported restrictions in so many cases. The Internet requires the adoption of a true international standard of review, one that must look to consensus rules generally. (The user controlled nature of the Internet furthers this conclusion. Sensibilities are not likely to be inadvertently offended.) The rise of the Internet also requires a reexamination of the meaning of the concept to "seek and receive" and to "impart" information. National restrictions on local speech have a direct and negative impact on the ability of Internet users around the world to "seek and receive" information and ideas, as well as their right to "impart" information. For example, if citizens of one country are prohibited from discussing political issues critically online, then not only are their rights infringed upon, but also the right of others around the world to "seek and receive" that information is directly implicated. Similarly, a country's efforts to block certain content from outside its border implicates the right of those in other countries to "impart" the information. A new rule is called for: only that content can be prohibited which all (or virtually all) countries agree is prohibited. |
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V. Indirect Methods of Control are just as Dangerous as Direct Government Censorship |
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A. Internet Service Providers Should Not Be Liable for Content They Do Not Create Internet Service Providers (ISPs) play a special role in the operation of the Internet. While ISPs differ in nature from country to country, most people most of the time access the Internet through an ISP. The crucial role ISPs play in providing access to the Internet has made them the target of some governments' efforts to regulate content on the Internet. Those countries have assumed that if they can control ISPs, they can control content on the Internet. ISPs do not fit any of the existing media paradigms. They are very distinct from broadcasters. For this reason, it is not legitimate to subject them to regulatory structures designed for other technologies. There are two sets of arguments against making ISPs responsible for content they do not create. First, trying to make ISPs responsible for information that flows over their systems (but which they did not create) would fundamentally change the nature of the Internet and could destroy its power. Second, there is growing recognition that ISPs cannot technically assume responsibility for content they did not create. The task of sifting information is impossible. It would be so easy to encrypt content, to change addresses, to send images by email. Technical factors prevent a service provider from blocking the free flow of information on the Internet. First, an Internet service provider cannot easily stop the incoming flow of material. No one can monitor the enormous quantity of network traffic, which may consist of hundreds of thousands of emails, newsgroup messages, files, and Web pages that pass through in dozens of text and binary formats, some of them readable only by particular proprietary tools. As the European Commission noted recently, "it is as yet unclear how far it is technically possible to block access to content once it is identified as illegal." [48] A second technical problem is that a provider cannot selectively disable transmission to particular users. Electronic networks typically do not allow for the identification of particular users or their national region. ISPs cannot provide material in one country while blocking it in another; such a distinction would require an enormous new infrastructure on top of the current network. Some networking technologies, such as newsgroups, may allow individual operators to select some groups or items and block others. But many technologies, such as the World Wide Web, currently do not support such selectivity. A number of countries have recognized, after considerable study and debate, that ISPs should not be liable for content they did not create. This reflects a judgment that while ISPs ought to provide law enforcement reasonable assistance in investigating criminal activity, confusing the role of private companies and police authorities risks substantial violation of individual civil liberties. In 1997, Germany adopted a Multimedia Law (the Information and Communications Services Act) which provides that access providers are not responsible for any third-party content to which they only provide access. [49] Providers also are not responsible for "any third-party content which they make available for use unless they have knowledge of such content and are technically able and can reasonably be expected to block the use of such content." In the United States, section 230 of the Communications Act, 47 United States Code sec.230, states "No Provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." In adopting this provision, Congress specifically found that "the Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity," and it said that its goal was "to promote the continued development of the Internet." The European Commission also has concluded that regulation of ISPs was not the best way to address content regulation. In its 1996 Communication to the European Parliament, The Council, The Economic and Social Committee and the Committee of the Regions on Illegal and Harmful Content on the Internet, the Commission stated that "Internet access providers and host service providers play a key role in giving users access to Internet content. It should not however be forgotten that the prime responsibility for content lies with authors and content providers." [50] The Commission stated that blocking access at the level of access providers would go far beyond the limited category of illegal content and "such a restrictive regime is inconceivable for Europe as it would severely interfere with the freedom of the individual and its political traditions." Therefore "the law may need to be changed or clarified to assist access providers and host service providers, whose primary business is to provide a service to customers." "Therefore, the position of the ISPs should be clarified, and they should not be targeted by the individual governments and law enforcement bodies where the ISPs have no control of the Internet content." The European Parliament in its decision of 13 May 1998 and the Council of The European Union in it recommendation of 28 May 1998 both agreed with the Commission and concluded, in effect, that ISPs should not be liable for content they did not create. (The self-regulatory approach endorsed by the Union raises other concerns, discussed below.) The "Bonn Declaration" of European Ministers likewise underlined the importance of clearly defining the relevant legal rules on responsibility for content of the various actors in the chain between creation and use. The Declaration recognized the need to make a clear distinction between the responsibility of those who produce and place content in circulation and that of intermediaries such as the Internet Service Providers. [51] B. "Self-regulation" versus user control
In the EU and in a number of other countries, "self-regulation" has been offered as a viable alternative to governmental control of Internet content. The use of the term "self-regulation" is a misnomer in the context of controlling speech on the Internet. In the normal sense of the phrase, "self-regulation" is when a group of people or companies decide that, in their own best interest, they should themselves regulate how they go about their joint interests. However, what is being suggested by the term "self-regulation" as applied to the Internet is not that ISPs as a group should regulate their own behavior, but rather that ISPs should regulate the behavior of their customers by taking down offensive websites or blocking offensive content. Under international law, privatized control may be harder to challenge. However, in a number of cases, it may be clear that the ISP is acting under pressure from the government and has, in essence become the agent of the government for carrying out a government policy. What is often promoted as Internet "self-regulation" is actually "privatized censorship." It is consistent with the fairly common occurrence of having a formerly direct government function turned over to a private business. The backing is still state power and government threat, but the actual implementation and mechanics of the suppression of material is delegated to a trade group. GILC member Cyber-Rights & Cyber-Liberties (UK) wrote in its report "Who Watches the Watchmen: Internet Content Rating Systems, and Privatised Censorship" http://leeds.ac.uk/law/pgs/yamn/watchmen.htm:
If it can be shown that "self-regulatory" measures are mere proxies for more direct government control, they may be vulnerable to challenge under human rights law. For one, they do not meet the test of proportionality. When ISPs come together to self-regulate certain classes of content in exchange for some limit on their liability for that content, the overwhelming tendency will be to censor more material, rather than less, in an effort by the ISPs to be certain that they have removed any material that might be illegal. Where ISPs are dependent on government grants of liability limitations, their "self-regulating" actions must satisfy the perceived demands of law enforcement, even if this results in removal of legal, protected speech. Initial reports from "self-regulatory" systems cast doubt on their effectiveness and suggest that the only effective way to combat crime such as child pornography is with well trained police. The two most important hotlines in Europe, the Dutch hotline and the UK hotline, have observed that despite the large amount of complaints they receive, this amount is tiny compared to the vast volume available on the Internet. The effects these hotlines have on dissemination of illegal content is also tiny. The Dutch Hotline, in its annual report, warned that it had absolutely no effect on distribution of illegal content in chat-boxes and E-mail, and that its influence on such distribution in newsgroups was very limited. According to the Internet Watch Foundation Annual Report, of the 4,300 items blocked by private action, "[o]nly the few articles appearing to have originated in the UK are suitable for investigation and action by the UK police." Thus with little measurable law enforcement impact, thousands of presumably legal items were nevertheless removed from the Internet. [53]
C. Filtering, Rating and Labeling Systems Pose Risks to the Free Flow of Information and Can Be Used by Governments to Violate Human Rights Blocking, filtering, and labeling techniques can restrict freedom of expression and limit access to information when used or mandated by governments or their agents. [54] Specifically, such techniques can prevent individuals from using the Internet to exchange information on topics that may be controversial or unpopular, enable the development of country profiles to facilitate a global/universal rating system desired by governments, block access to content on entire domains, block access to Internet content available at any domain or page which contains a specific key-word or character string in the URL, and over-ride self-rating labels provided by content creators and providers. Government-mandated use of blocking, filtering, and labeling systems are subject to the same limitations under basic international human rights protections as other Internet restrictions: No matter what the means, government restriction on speech or access to speech of others violates basic freedom of expression protections. Filtering is inappropriate in public educational institutions and libraries. In its statement to the OECD in March 1998, GILC articulated several policy principles related to filtering and labeling:
D. Anonymity Is An Important Guarantor of Free Expression Central to free expression and the protection of privacy is the right to express political beliefs without fear of retribution and to control the disclosure of personal identity. Protecting the right of anonymity is therefore an essential goal for the protection of personal freedoms in the online world. Anonymity has been an integral part of the growth and development of the Internet. Some governments are working to extend techniques for anonymity. The Netherlands and the Canadian province of Ontario are pursuing studies on anonymity. The German government has recently adopted legislation that would encourage the adoption of anonymous payments systems for the Internet. But other efforts are underway to establish mandatory identification requirements and to limit the use of techniques that protect anonymity. For example, in December 1997, the Interior and Justice Ministers of the G-8 endorsed a proposal to require identification for Internet users. Some governments have also tried adopt legislation that would prohibit access to the Internet without the disclosure of personal identity. Governments should not require the identification of Internet users or restrict the ability to express political beliefs on the Internet anonymously. Efforts to develop new techniques to protect anonymity and identity should be encouraged. The governments of Canada, Germany, and the Netherlands are to be commended for their recent efforts to support anonymity. ISPs should not establish unnecessary identification requirements for customers and should, wherever practicable, preserve the right of users to access the Internet anonymously. |
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VI. Conclusion: Free Expression on the Internet Enhances Democracy and Human Culture |
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The vast majority of Internet use is for legitimate and indeed positive purposes. The effect of access and use of this global interactive medium has been to promote democracy and civil society worldwide. On the Internet, citizens are not mere consumers of content but also creators of content. The Internet is a unique communication medium. It is more than a mere industry. Like no other medium before, it allows individuals to express their ideas and opinions directly to a world audience, while allowing them access to other ideas, opinions and information to which they may not otherwise have access. While the mass media usually responds to the economic and political interests of those who control it, such controls do not presently exist on the Internet. Here, citizens from the most repressive regimes are able to find information about matters concerning their governments or their human rights records that no local newspaper may dare print, while denouncing the conditions under which they live for the world to hear. The Internet allows us an intimate look at other countries, other people and other cultures which few before were ever able to attain. This power to give and receive information, so central to any conception of democracy, can be truly achieved on the Internet, as nowhere before. Restrictions on the free flow of information on the Internet should be subject to the strongest protections under international law. The free flow of information and ideas is the very essence of the Internet. One state's restrictions on Internet content infringe upon the rights of all Internet users around the world to benefit from a free exchange of social, political, economic, cultural, scientific, and personal information. Technology surely will outpace states' efforts to restrict the free flow of information on the Internet. New methods of accessing the Internet, for example by satellite, will make territorial boundaries even less relevant to the Internet than they are today. Attempts to suppress information and communication on the Internet, therefore, not only violate international human rights laws, in the end they are likely to be futile. |
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