Im Rahmen des Master-Studiengangs Information Science an der HTW Chur müssen Studierende im vierten Semester unter anderem im Modul „Informationsethik“ bei Prof. Rainer Kuhlen als Teil des Leistungsnachweises zu einer These ein Essay verfassen. Wir stellen ausgewählte Essays aus dem vergangenen Frühlingssemester 2012 in den nächsten Tagen hier im Blog vor.

Freedom of expression on the Internet
Autorin: Fabienne Mabillard

The Internet is the latest revolution in the techniques of transmission of information and ideas after means of communication such as radio and television. However, unlike those means, Internet is interactive. It is no longer based on one-way transmission. As we can see now with the Web 2.0 tools, everyone can share and participate in the creation of content. We are no more only passive recipients but we are active publishers. Furthermore, on this network, there is no control or border. Each participant is equal to all others. It is thus a great mean to use the right to freedom of expression guaranteed at the international level by the United Nations (UN) in the Universal Declaration of Human Rights, Article 191:

“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 frontier.”

The Internet also allows access to information and knowledge that previously were unattainable. It is thus a mean to challenge the authorities that try to regulate the flow of information and communication as it increases transparency. It also facilitates active citizen participation in building democratic societies. As we saw in the recent wave of demonstrations in the Arabic world, the social networks and the Web can play an important role by mobilizing the population to call for justice, equality…

For those reasons, there should be as little restrictions as possible to the flow of information via the Internet, except in few, exceptional, and limited circumstances. The UN stresses that “the full guarantee of the right to freedom of expression must be the norm, and any limitation considered as an exception, and that this principle should never be reversed2. In this paper, we will see the different kinds of restrictions.

We can identify 2 types of restrictions:

  • Educational/technological restrictions: skills to use the Internet, the availability of the necessary infrastructure and information communication technologies.
  • Some restrictions are permitted under international human rights law. But we will see that the States often use this pretext and are going too far in the restrictions of the access to the Internet.

Digital divide

Let’s begin with the educational and technological restrictions. The access to Internet should be a fundamental right but still not everyone can enjoy it in today’s world. Some still need the necessary knowledge, skills or even infrastructures to use the Internet and thus enjoy their freedom of expression.

Concerning the educational restrictions, not every individual possesses the information and communications technology (ICT) skills to make full use of the Internet, called the “digital literacy”. Those skills can only be basic computer skills up to the creation of Web pages. In terms of the right to freedom of expression, it is not only about the benefits of accessing the online information, but also contributing to it.

For the technological restrictions, to access the Internet, as a mean by which the right to freedom of expression can be exercised, individuals need the necessary infrastructure such as cables, modems, computers and software. Not everyone possesses it yet. So the States should assume their commitment to develop effective policies to attain universal access to the Internet. Otherwise, the Internet will become a technological tool that is only accessible to a certain elite and thus perpetrating the “digital divide”. This term refers to the gap between those who have access to the Internet and those who do not have such access. This gap is particularly a problem in developing countries where Internet use is still lagging. Marginalized groups and developing countries remain trapped in a disadvantaged situation, thereby perpetrating the existing socio-economic disparities both within and between countries.3

State restrictions

As we saw it before, the Internet has become a mean by which individuals can exercise their right to freedom of expression, as guaranteed by article 19 of the Universal Declaration of Human Rights. However this right is not hard and fast and there are a few limits defined at the international level in the International Covenant on Civil and Political Rights, Article 19 paragraph 34:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; 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.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

We can say that this framework of international human rights law for the freedom of expression remains relevant to the Internet. That is the idea that individual freedom should end where the one of the others begins. Freedom to say everything and in every case could restrict the freedom of others, by inflicting them direct or indirect damages. Freedom of expression is thus thwarted by certain duties and responsibilities to others.

According to the article 19 paragraph 3, those restrictions to the freedom of expression can thus be divided into two groups:

1) Protection of people, groups and values:

  • child pornography, to protect the rights of children
  • hate speech, to protect the rights of affected communities
  • defamation, to protect the rights and reputation of others against unjustified attacks

2) Protection of the State protection

  • National security
  • Public order

But then those points should still respect the principle of necessity and proportionality. For example, the governments are too often using the excuse of terrorism to put the Web under surveillance. It is easy because everybody agrees on it, everybody should be against terrorism. An example is what happened in France in March 2012. After the murders of Toulouse, the French President Sarkozy said that anyone who would consult websites that advocates terrorism or incites hatred will be criminally punished. This raised some important questions; the first one is who decides what a terrorism website is. What is the definition of a terrorism website? What is the definition of terrorism? Why punishing the consultation of the websites and not the ones who put the content, when we know that people as journalists, researchers or lawyers can consult these sites. We know that consulting a website does not mean adhering to the promoted thesis. Then how can we know who consult those website? So we see here that this can easily lead to a widespread surveillance of the Web. This was just an example which finally ended well because the final legislation was not so strict; there were some modifications and the text is now going in the good direction. But it shows us where the excuse of fighting terrorism can lead.

But we can see that they are still countries, mostly undemocratic States, which restrict, control, manipulate and censor content disseminated via the Internet in a manner that is clearly unnecessary and disproportionate. The distinctive characteristics of the Internet, as its speed, worldwide reach and relative anonymity enable individuals to disseminate information in “real time” and to mobilize people. This creates fear amongst Governments and increases State restrictions on the Internet as for example:5

  • Filtering/blocking: this means preventing users to access specific Internet Protocol (IP) addresses, websites or pages containing specific keywords. This cannot be justified by the Article 19 paragraph 3 of the International Covenant on Civil and Political Rights as it is difficult to know if this is for a legitimate purpose or not, as the blocking lists are kept secret. Then the conditions for justifying blocking are not established by law. We also have the risk that more content than necessary is being blocked. Besides this method is not efficient as users can change the spelling of words. For example in China, there are more than 500 blocked keywords for Tiananmen. As filtering is not so efficient the States use more the surveillance now. This is also more dangerous. This is again most of the time justified by the fight against the terrorism and child pornography but we know that in the repressive States this is used to track down the dissidents.6
  • Imposition of intermediary liability: many States have laws that engage the intermediaries responsibility if they do not filter, remove or block the content, considered as illegal, published by the users. Let’s see here the example of India7. Since the Mumbai attacks in 2008, the authorities have conterminously strengthened the surveillance and the legislation of the Web, as with the regulations “IT Rules 2011” that are dangerous for the freedom of expression. These new regulations require companies to withdraw from the Internet, within 36 hours after notification by the authorities, content considered as defamatory, hateful or harmful for children, etc… at the risk of proceedings. Social networks and service providers must include these restrictions in their conditions of use. By doing so, intermediaries become like a censorship police of the Internet. Furthermore, regulations lean in favor of complainants. Even before a case is litigated, the site must remove the content. This undermines the freedom of expression. From this example we can say that if the protection of national security is essential, it should not come at the expense of the freedom of expression on the Internet. Intermediaries, like Google, are like the postman: they bring the news and should not be held responsible for the content.
  • Disconnecting users from Internet access. As we saw it before access to Internet is a fundamental right and thus nobody should be deprived of it. The cut off can be due to political reasons as it happened in Egypt: during the protests the Egyptian government cut off the access to Internet during five days. But it can also be on the basis of violations of intellectual property rights law, as for example in France with the Hadopi law: the copyright infringe could lead to the suspension of Internet service.
  • Protection of the right to privacy. The right to privacy can be important for certain persons who wish to freely express themselves without fear of possible consequences. So the Internet allows them to engage themselves in public debates through the use of pseudonyms. But at the same time some Internet tools allow the States to collect information about individuals‘ activities online. This compromises their ability to anonymously express themselves, particularly in countries where human rights are frequently violated. This again raises the question of surveillance as we saw it before. This can be justified for the purposes of administration of criminal justice, prevention of crime or combating terrorism. But the conditions must be clearly defined by the law and respect the principle of proportionality.

Conclusion

While the right to freedom of expression on the Internet can be considered as a fundamental right, we see that not everyone has the opportunity to enjoy it freely. If some restrictions can be justified by the international law, others are unacceptable. The „digital gap“ still exists and many people still lack the skills or infrastructures to enjoy this freedom. Others are prevented by their States on behalf of national security or other reasons because the governments fear the power of the Internet and use it to track the dissidents. In both case, the States must as much as possible limit those restrictions so that everyone can enjoy their right to freedom of expression on the Internet.

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1See http://www.un.org/en/documents/udhr/index.shtml#a19

2La Rue, Frank, „Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression“, May 2011. Available from: http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf

3La Rue, Frank, idem.

4See http://www2.ohchr.org/english/law/ccpr.htm#art19

5La Rue, Frank, idem.

6Reporters sans frontières, „Les ennemis d’internet“, March 2012. Available from: http://12mars.rsf.org/i/Rapport_Ennemis_Internet_2012.pdf

7See http://fr.rsf.org/inde-de-nouvelles-regulations-19-05-2011,40316.html