Law in Internet: Pos or Cons for the Freedom of Expression?
11 May, 2009
Introduction During the past few decades the Internet has become an important part of many peoples lives; providing not only access to a wide range of information and services, but also allowing expression, the sharing of views, creating economic opportunities and producing civil and political mobilisation.
The content of the Internet is constantly widening, covering more and more aspects of social and political life, which in itself has a great democratising effect. The role of the Internet is especially valuable for people who live under authoritarian regimes. Due to its global character the Internet has the potential to expose citizens of authoritarian states, where other media is under the state control, to critical and dissenting views about their governments, helping them to develop a different worldview and, potentially, develop aspirations for democratic change.
Development of technology not only provides better and quicker access to information, but also allows for the creation of new alternative sources of information, through blogging and social networking websites. In some cases such self-publishing can be the only source of information; as was the case during the demonstrations of Buddhist monks in Burma in September 2007. In the situation, when the military regime completely isolated the country from the international scene, the shocking and powerful pictures that surfaced from Burma were mostly shot by local bloggers with cell phones. Thanks to the Internet, those pictures – the only information that was coming out of the country - quickly travelled around the globe and entered other media sources. The most recent example of the role of the Internet on political dynamics is the ‘Twitter revolution’ in Moldova which demonstrated how the Internet can help to share political views, as well as organise and mobilise civil or political action.
Meanwhile, the election campaign of President Obama demonstrated that the Internet also has an important role to play in the political lives of those countries that enjoy freedom of media. The victory of Barack Obama’s campaign is largely attributed to the mobilisation of his supporters through expert use of networks, fundraising and social networking. Indeed, many analysts compared the employment of the Internet by Obama’s campaign to the use of the then new television technologies by President Kennedy during his election campaign.
While the democratising potential of the Internet is obvious, one should be aware of some concerns that exist about the use of those new technologies, in particular their use for criminal means. While governments have a legitimate right and even obligation to punish and prevent cyber-crime, safeguards are necessary to ensure that governments do not abuse their power and that freedom of expression is not denied under the pretext of protecting society from online crime.
This paper will address some of these concerns by reviewing issues of: access to the Internet, increasing government control over and manipulations of Internet content, the use of technology for monitoring and surveillance, as well as examine the role that private players play in Internet regulation. All these issues will be viewed and discussed through the prism of the right to freedom of information.
Access Despite the fact that in recent years many new countries have joined the international cyber community and the number of users within those countries continues to grow, there are still serious problems with access to the Internet. In many countries access to the Internet is reserved exclusively for the elite, while in others the prohibiting prices for access to the Internet turn the division between poor and rich into a division between the information-poor and the information- rich. This division applies to sectors of society within specific countries, as well as to the international system; for instance the division between countries.
Considering the important role that the internet has to play in overall social and political life, access to the Internet becomes an important public issue. While governments of many countries are trying to assist and promote access to the Internet, and the international community works to bridge the ‘digital divide’, there are also governments that are employing policies that actually limit Internet access. This comes in the form of, for example, a direct ban on access like in Cuba, or by requiring users or Internet service providers (ISPs) to obtain a license or to register. Such access restrictions may be formally imposed by the State or even informally by private parties, ISPs.
Under international human rights law, any restrictions on access to the Internet must be very carefully scrutinised. Outright restrictions on access to the internet, such as prohibiting the possession of a modem or other communications equipment, constitutes an overt violation of the right to freedom of expression. Burma represents one such example. According to the recent study by Reporters Without Borders1, there are no private service providers and only 2 state-controlled providers in the country. Going online in itself represents a dissident act and the country is one of the worst in terms of internet penetration. Only 0.1% of the population of Burma have access to the Internet2. The situation is identical in North Korea.
Licensing3 of individual Internet users or Internet Service Providers is likewise illegitimate and any registration requirements4 for users as well as for service or content providers are of very doubtful legitimacy. Any of these measures should only be employed if there is evidence that they are necessary for the protection of public order or for the protection of the rights of others. In the absence of such evidence, any state action in limiting or prohibiting access to the Internet constitute a violation of the right to freedom of expression and will have a seriously chilling effect on the right to disseminate information.
However, it is important to remember that the right to free expression goes further than simply prohibiting interference with the means of communication; it includes also a positive obligation on the state to make important means of communication available to the public at large. This includes not only lifting any regulations limiting access, but also working towards the elimination of other obstacles such as poor infrastructure, high costs of telecommunication, monopolies, the lack of training and education, and others.
Content regulation One of the biggest strengths of the Internet – its variety of content – has simultaneously become a matter of some controversy. Governments in many countries have voiced great concern over the free availability on the Internet of pornography. The use of the Internet for criminal purposes has also been a cause for concern. It is undeniable that while providing more opportunities and enhancing communication and freedom of expression, the Internet is also increasingly used for criminal purposes, posing threats to other human rights. These are real and worrying concerns; the use of the Internet to promote paedophile activities, for example, constitutes a very real threat to the human rights of children and should legitimately be restricted.
However any content regulation must not fall below the standards set by international human rights law – a high standard – and must take into account the special nature of the Internet. In Europe, North America and Australia, there has been a considerable backlash against government attempts to regulate Internet content. Content restrictions are often seen as censorship and the US Supreme Court has struck down various legislative proposals to restrict the availability of ‘obscene’ or ‘indecent’ material for this reason. On the Internet there is no ‘scarcity of frequencies’ that would justify overarching regulation. With regard to obscene materials, because the Internet is not like a bookstore, where the top shelve can be designated for certain titles, or like television, where certain material can be broadcast only after 9pm in the evenings, this cannot be regulated as it can in those places. While from a theoretical perspective, the same laws apply – what is obscene off-line is also obscene on-line – they cannot be enforced in the same manner.
A further problem with nationally-imposed content regulation is that a situation is developing whereby various countries each attempt to enforce their national laws over the global Internet. Different national and sub-national legal regimes, often supported by international instruments, have content restrictions on publication (not to say, expression more generally) which may differ quite considerably. The consequence is that the publication of material in one jurisdiction, perfectly legal and non-actionable there, may well be subject to criminal or civil liability in other jurisdictions. This applies, among others, to content restrictions on hate speech, defamation, obscenity or pornography, or blasphemy or sedition.
Some governments are trying to deal with the situation by applying the rules for liability for the content of off-line publication, or ‘newspaper rule’, to Internet.5 According to this rule, a publisher is legally liable for content deemed illegal or otherwise actionable by a given jurisdiction as long as two conditions are met: (1) a copy of the newspaper actually reaches the jurisdiction and is read there; and (2) the publisher had reason to know that the newspaper would probably be read there – because, most prominently, the jurisdiction is in the distribution network of the newspaper. This liability rule, most crucially, imposes liability in every place in the newspaper’s distribution network where the newspaper is read, regardless of where it is produced or where the content was written.
Publication on the Internet is fundamentally different from publication by newspapers in ways directly relevant to the newspaper rule. Fundamentally unlike the typical newspaper, the Internet makes virtually every person with Internet access within the distribution network of any Internet publisher. Thus, application of the newspaper rule to Internet publications subjects an Internet publisher to liability in virtually every jurisdiction in the world. Yet, if the newspaper rule is also the rule for Internet publication, the Internet publisher would be “legitimately” liable for content which is legal and protected in his or her home jurisdiction (and which might also be protected by international law), as long as (1) it is prohibited in a jurisdiction which has Internet access and (2) someone actually downloads it there.
Applying the newspaper rule to Internet publications subjects Internet publishers to the content restrictions of virtually every country on earth, regardless of whether such content restrictions exist in the jurisdictions where such publishers live, and regardless of whether the foreign restrictions comply with the international freedom of expression standards. Application of the newspaper rule will subject persons living in regimes whose laws fully protect freedom of expression to the laws of regimes which regularly censor, deny access or otherwise abuses content-restrictive laws. Or crudely put, there is a perceived danger that the entire Internet might succumb to the standard of the least tolerant regulator. Enforcement of content regulation has led to questions of liability, particularly for Internet Service Providers (ISPs) who, in some countries, have been held liable for the content of Internet pages published by their customers.
Even in the absence of overarching regulation or sector-specific ‘Internet control laws’ the Internet does not operate in a legal vacuum. The laws of the land already apply to on-line content as they do to off-line material; something that is defamatory in newsprint can be just as defamatory on a web-page. However, in many cases it will not be appropriate to apply laws of general application to on-line content without consideration for the special nature of the medium, particularly with regard to the position of ISPs and the jurisdictional issues described, but also bearing in mind that certain parts of the web get much more traffic than others.
For all these reasons, some have hailed self-regulation as the preferred alternative. Initially, this focused on the development of blocking and filtering software to enable ‘parental control’. However, when this software began showing promise it was quickly co-opted by governments around the world. Counties like China have bolted it on to their national points of access to filter out the BBC, CNN and other ‘subversive’ sites. In other countries it is often installed as mandatory on terminals in public libraries. The former example is clearly illegitimate, but the latter is problematic also.
Given that many of the software packages filter on the side of caution, blocking, for example, websites discussing gay and lesbian issues alongside sites offering porn, this seriously restricts the right to access to information of those who rely on those terminals for access – often the poor. Other forms of self-regulation, including the operation of ‘hotlines’ for undesirable content and the development of a ‘global ratings mechanism’ have been criticised as representing government censorship in a corporate guise.
Monitoring, surveillance and content manipulation The chilling effect of the restrictions on access and content of the Internet is particularly severe when, as is so often the case, these measures go hand-in-hand with extensive surveillance operations, which have serious effects on on-line speech and are driven by the political desire to suppress undesirable political speech.
Technological developments, while enabling better communication and advancing freedom of expression, in the hands of repressive governments, are turned into means for control and manipulations over the online content. These techniques clearly have a serious chilling effect on the freedom of expression. If an Internet user suspects that his or her on-line movements are monitored, he or she will exercise caution with regard to statements made or sites visited. Technology can provide some solace; anonymity and encryption tools are constantly developing and improving, and aim to protect users’ online rights of privacy and freedom of expression. However, their success in doing so has meant that governments have tried to restrict the use of such software.
States implement surveillance systems for different reasons. In countries such as Iran, China, Belarus and some countries of Central Asia, law enforcement agencies are alleged to engage in wide-scale monitoring activities to prevent individuals within their jurisdiction from discussing politically damaging issues. In countries such as the United States, UK or The Netherlands, monitoring takes place for law enforcement or national security-related purposes and interception warrants are granted only for these purposes. Since the events of 11 September, many countries have enacted new legislative powers in this field and it may be assumed that such activities are on the rise since then. The Council of Europe’s much-maligned Cyber-crime treaty can be seen as a related development, as can the ever-increasing data-retention demands on ISPs. In addition, several other countries started using the language of ‘fighting terror’ to justify the various measures they take to restrict freedom of expression – on-line as well as off-line.
Of course, it is legitimate that law enforcement agencies should have the appropriate tools to prevent, detect and prosecute on-line crime. However, the balance to be struck between the interests of privacy and free expression on the one hand, and the interests in preventing and detecting crime on the other, is a delicate one, as has been stressed time and time again by courts including the European Court of Human Rights. Legitimate concerns have been expressed that as currently framed, many surveillance laws leave executive agencies too much leeway while providing too little protection for human rights.
Workplace monitoring is on the up too, aided by the ease with which monitoring tools can be installed. If the organisation is networked, software can be installed centrally to track and monitor employees’ Internet movements. If the organisation is not networked, software can be installed on individual computers. The software can analyse an organisation’s entire email traffic phrase-by-phrase, drawing conclusions on whether an individual message is ‘legitimate company business’ or not, it can be instructed to search for particular words or phrases, and some software can even analyse communication patterns.6 Use of this software may be in addition to ‘regular’ filtering software as described above. Managers give a variety of reasons for installing the software, including to protect trade secrets, to prevent sexual harassment incidents, or to ensure that employees do not waste company time.
Another technique employed by some authoritarian governments is manipulation of internet content. This is a relatively new phenomenon which occurred with the increase of self-publishing on the Internet and the development of social networks and sites like YouTube, Facebook, MySpace and others. Governments are very aware of the potential that those sites have in terms of political networking and mobilisation; as has been demonstrated for example in Moldova and Ukraine7. Some of those governments, instead of directly prohibiting such interactions online, are employing more sophisticated measures – manipulation of online content. This is no different from how authoritarian regimes used media in the past to disseminate their propaganda and manipulate public opinion.
A growing body of evidence from China and Russia—the two states most active in posting Web content—shows the pattern continuing on the Internet. Chinese authorities are notorious for creating and operating the so–called Fifty Cent Party, a squad of pro–government online commentators who trawl the Web in search of interesting political discussions and leave anonymous comments on blogs and forums. Similarly, the Russian government often relies on private Internet companies, such as the prominent New Media Stars, which happily advance the government’s views online. New Media Stars recently produced a patriotic movie, War 08.08.08, successfully distributed online and touted on many Russian blogs, which blames the war in South Ossetia solely on Georgia.8 While the new digital public spheres may be getting more democratic, one should be aware of the fact that they are also heavily polluted by government operators.
The role of private actors The role of private actors in restricting access to the Internet should also be taken into account. In many countries there are pressures on private ISPs not to host sites that contain undesirable content. While the prevention of serious crime online is an important goal, it is undesirable that ISPs act on behalf of the authorities or police as censors. Such involvement of private actors represents two major problems in regards to freedom of expression. First, ISPs are not judicially qualified to determine whether a certain website might contravene the law or whether an individual user might be likely to publish something that is considered to be illegal. When faced with a borderline case, they are likely to err on the side of caution and decide not to host the site. Second, there are no safeguards to ensure that ISPs do not abuse their powers and there is no system to call ISPs to account. This is problematic, particularly since the ISP’s actions will have an important impact on the right to freedom of expression of those who they decide to refuse access, as well as the right of others to receive information. Users whose access rights are restricted by a private party can hardly be said to receive a ‘fair trial’.
One of the examples of such involvement of private actors in the state censorship was demonstrated in China when Google, one of the world’s leading Internet search companies, launched a Chinese version of its service, www.google.cn, based in mainland China. While by locating its new service inside the mainland, Google hoped to speed up access for its users, in fact the effect was the exact opposite. In order to be allowed to do business in China, it bowed to government demands that it should filter out any search results that link to sites that the Chinese government disapproves of.
Google, one of few major gateways with excellent Internet search engine technology, could potentially play a major role in realising the right of every Chinese Internet user to access to information and freedom of expression. But by complying with the Chinese authorities’ censorship demands, is achieved the opposite: it became complicit in China’s official censorship regime and it also reneged on its own commitment to support freedom of expression and the right to access information9.
Similarly, Microsoft took down a blog that was critical of Chinese policies at the request of the Chinese authorities10 and Yahoo disclosed confidential account information of a Chinese journalist to the Chinese authorities, after he had provided details of a censorship order to the Asia Democracy Forum and the website Democracy News. As a result, this journalist was sentenced to ten years in prison for “providing state secrets to foreign entities”. More recently, after pro-Tibet demonstrations in March 2008, Yahoo! was pushed into posting portraits of four Tibetan demonstrators alongside an appeal for witnesses. Shortly afterwards, one of the demonstrators gave himself up and another was arrested. The same goes for the company Skype which, following an agreement with Chinese firm TOM, allows the authorities to intercept its communications.11 The realisation of fundamental human rights on the Internet, such as the right to access information and the right to free speech, effectively rests in part with corporations such as Google, Microsoft and Yahoo!. They are the corporate intermediaries that are critical in making freedom of expression a reality. This is evident in the context of the Chinese authorities achieving what no one thought was possible – controlling access to information on the Internet. Such actions of private players have a potential of having a long-lasting regressive impact on their customers, which is why they have to consider their decision carefully and adopt a more meaningful stance to protect the interests of its users who would benefit most from its ethical corporate mandate.
In its statement on this issue, ARTICLE 19 reminded those corporations of the Joint Declaration of the United Nations, the Organisation for Security and Cooperation in Europe and the Organisation of American States12, in which they said:
Filtering systems which are not end-user controlled – whether imposed by a
government or commercial service provider – are a form of prior-censorship
and cannot be justified; and
Corporations which provide Internet searching, chat, publishing services
should make an effort to ensure they respect the rights of their clients to use
the Internet without interference. While this may pose difficulties in relation to
operations in certain countries, these corporations are encouraged to work
control or restrict use of the Internet, contrary to the principles set out herein.
It is important to note that in 2008 Yahoo!, Google and Microsoft signed the Global Network Initiative13, publicly stating their respect for their customers’ right to freedom of expression worldwide. To what extend private companies will be able to resist the pressure from certain governments remains to be seen. But this public expression of the intention to do so is already an important step forward and means that it will no longer be easy for those governments to use private companies as censorship tools.
Conclusion – Position of ARTICLE 1914 ARTICLE 19 believes that fulfilment of the right to freedom of expression should be the focus of the discourse on Internet regulation. As a global network for communication the Internet cannot function without full respect of the internationally agreed right to free expression. Freedom of expression is a key human right; important not only in its own regard but crucial also to the functioning of democracy and to the enforcement of other rights. Freedom of expression is also a necessary precondition for economic, social and democratic development. Nobel Price winning economist Amartya Sen remarked more than twenty years ago that no substantial famine has ever occurred in any independent and democratic country with a relatively free press15. This wisdom has since become internationally accepted.
ARTICLE 19 also believes that it should be globally acknowledged that freedom of expression and development cannot be achieved on the internet if the same rights are not also respected 'off-line'. In too many countries, people are still being killed, harassed, arrested, tried or detained for the peaceful and legitimate exercise of their right to freedom of expression. All too often excessive defamation and national security laws are abused to stifle independent voices; and almost every day, somewhere in the world an independent newspaper or radio station is shut down for being 'too critical'.
ARTICLE 19 stresses that the role of global businesses is crucial in the realisation of the right to free expression online. The Internet is a unique communications forum in many ways; one of them is that the technology used for communications is largely shaped and regulated by business16. The leading search engines in the world, such as Google and Yahoo!, play a powerful role in realising access to the world's information. They should strive to exercise this power responsibly and in the public interest. Internet businesses also hold sensitive private information on their users, which they should treat with extreme care and not provide to governments who are likely to use that information for censorship purposes. Equally important, software providers such as Microsoft and Cisco Systems provide the technical means to surf the net and determine the way in which people access information. This in turn determines most online content and shapes the Internet as we know it. If the Internet is to become a truly global and diverse forum for communications, these businesses will need to be persuaded to play a leading role in that process. Equally as important is that many of these same companies provide the software used by countries such as China and Saudi Arabia to censor the Internet and control its users. We question whether these roles are compatible and we welcome recent attempts to outlaw corporate involvement in such human rights abuses17.
The idea of the free flow of information is at the very heart of the right to freedom of expression. International law recognises this centrality and states that restrictions on open communication may be placed only through a legitimate and democratic process, and when absolutely necessary to protect a set of narrowly defined public interests. Restrictions must always be proportionate and States should always chose the least restrictive option available to them. This establishes a high threshold: to restrict a fundamental right is a serious matter and should be done only as a matter of last resort. These principles apply both to online communications and in the offline world: there is no justification for applying a stricter set of rules to online communications than applied to those offline18. Any legal, policy or regulatory framework for the Internet must therefore abide by these general principles.
Specifically with regard to Internet policy and regulation, a set of minimum principles was adopted by the special rapporteurs on freedom of expression of the United Nations, the Organisation of American States and the Organisation for Security and Cooperation in Europe and the Organisation. In a Joint Declaration, they stated:19
The Internet, at both the global and national levels, should be overseen only by bodies which are protected against government, political and commercial interference, just as freedom from such interference is already universally acknowledged in the area of the print and broadcast media. National regulation of Internet domain names should never be used as a means to control content.
No one should be required to register with or obtain permission from any public body to operate an Internet service provider, website, blog or other online information dissemination system, including Internet broadcasting. This does not apply to registration with a domain name authority for purely technical reasons or rules of general application which apply without distinction to any kind of commercial operation.
Filtering systems which are not end-user controlled - whether imposed by a government or commercial service provider - are a form of prior-censorship and cannot be justified. The distribution of filtering system products designed for end-users should be allowed only where these products provide clear information to end-users about how they work and their potential pitfalls in terms of over-inclusive filtering.
No one should be liable for content on the Internet of which they are not the author, unless they have either adopted that content as their own or refused to obey a court order to remove that content. Jurisdiction in legal cases relating to Internet content should be restricted to States in which the author is established or to which the content is specifically directed; jurisdiction should not be established simply because the content has been downloaded in a certain State.
Restrictions on Internet content, whether they apply to the dissemination or to the receipt of information, should only be imposed in strict conformity with the guarantee of freedom of expression, taking into account the special nature of the Internet.
Corporations which provide Internet searching, chat, publishing or other services should make an effort to ensure that they respect the rights of their clients to use the Internet without interference. While this may pose difficulties in relation to operations in certain countries, these corporations are encouraged to work together, with the support of other stakeholders, to resist official attempts to control or restrict use of the Internet, contrary to the principles set out herein.
We recommend that these principles are adopted as the guiding principles for any form of Internet regulation, whether at the national or at the international level.
Ensuring openness online is not a matter that can be left to States alone. Business has a key role to play in keeping the Internet open and accessible to all. They should be expected to do more than merely ensure wide accessibility and interoperability of their software and systems. Most Internet users depend on search engines to navigate their way around the net and find information. These search engines should fulfil that function transparently and in the public interest.
Attention should be devoted to threats to openness posed by developments in copyright law and policy. While copyright laws are necessary and, when appropriately drafted, can actually help freedom of expression, they should be limited to that which is necessary to stimulate creativity. Fair use should always be allowed. At a minimum, content developed by or with the (financial) support of public authorities should be open; and measures should be taken to allow the individual use of copyright material for legitimate educational purposes. Indigenous knowledge should also enjoy appropriate protection: openness must not lead to a one-way stream of knowledge and ideas from the South to the North.
Attention should be also paid to restrictions on the free flow of information that are imposed by Internet service providers. Service providers should not be called upon to be the arbiters on the legality of content uploaded by their users. They are not qualified to do so and, as commercial businesses, will tend to err on the side of caution and remove any material they believe might be offensive. Instead, service providers should be required to take down material only following a fair judicial process. Service providers should also be required to ensure that they treat all online material equally; no content should be given preferential treatment.
It is important to note that freedom of expression and openness cannot be achieved on the Internet if it is not also respected offline. It is clear from the official reports of such bodies as the UN Special Rapporteur on Freedom of Expression and from reports of non-governmental watchdogs that freedom of expression is under threat everywhere in the world. Threats range from the abuse of laws to protect against defamation or national security to actual physical violence and even murder. Therefore, real steps must be taken by governments and international actors to end threats and actual violence against people for the exercise of the freedom of expression; and repressive laws, for example on criminal libel or requiring the licensing of media, have to be abolished.
As we already established in this paper, if the Internet is truly to become the primary means of mass communications, then access is crucial. At present, only a small minority of the world enjoys the kind of regular and reliable access to the Internet that is necessary for the net to fulfil its potential in aiding development.
While many of the problems experienced in terms of access are caused by poverty, illiteracy and a lack of infrastructure, and due attention must be paid to those matters, Internet access is often also impeded by regulatory problems. To improve access, it is therefore of the utmost importance that an appropriate regulatory framework is in place. At a minimum, this means that the conditions listed under the 'openness' theme are in place. As discussed above, the Internet cannot fulfil its potential under conditions of censorship.
The cost of international connectivity and the way in which the Internet is provided in many countries must also be a part of the discourse on access to the Internet. It is a fact that the cost of access per Mbps in the 'global South' is far higher than it is in the developed world. This is partly because infrastructure in the South is less well-developed; but the role played by cable and satellite companies is also important. Creative solutions to these problems should be found, including by ensuring the availability of multiple international paths of connectivity.
ARTICLE 19 strongly believes that for the Internet to become a relevant global tool for communication and information sharing, it must become more diverse. There is no point in taking measures to improve access to the Internet if there is no relevant information to be found, and if people cannot communicate in their own language. The problems in this regard are not only linguistic, but also cultural, developmental and technical. The problems in relation to the over-reliance of the net's infrastructure on the Latin alphabet have been well-developed elsewhere and we support ongoing efforts to develop standards that will help create greater stability.
While we therefore encourage measures to increase diversity on the Internet, we warn against a heavily State-led form of content development. The promotion of diversity must necessarily go hand in hand with promoting access and openness. It is also important not to understand diversity 'merely' as cultural diversity: States must provide access and encourage the dissemination of all kinds of information and ideas, including political opposition and dissident voices. Under international law, a key positive element of the right to freedom of expression is the obligation on governments to create an environment in which a diverse, independent media can flourish, thereby satisfying the public's right to receive information from a variety of different sources.
ARTICLE 19 agrees that the protection of privacy and security online is a necessary precondition for maintaining the integrity of the Internet as well as for the exercise of the right to freedom of expression. In order to exercise the right to freedom of expression, the right to respect for private life must be guaranteed, including the right to communicate anonymously and the right to use encryption tools. If an Internet user suspects that his or her online movements are monitored, he or she will exercise caution with regard to statements made or sites visited.
At the same time, there are significant tensions between State measures to promote security and the right to privacy freedom of expression. This is particularly so in the area of cybercrime and the fight against terrorism, and the various measures employed by States to monitor internet traffic and communications. ARTICLE 19 believes that the only legitimate way to address these tensions is through international human rights law. In certain circumstances, it may be necessary to monitor or intercept communications, for example for the prevention of serious crime, but guarantees are necessary in order to safeguard against abuse of these powers. International law has laid down some minimum standards that must be respected in this regard:
any surveillance measures must be stated in clear legislation, and be truly "necessary" in order to protect a legitimate public interest;20 and
legislation authorising surveillance must provide adequate guarantees against abuse, including a mechanism of judicial authorisation and democratic oversight.
Guarantees should safeguard against interference by private actors as well as State interference. For example, surveillance in the workplace can be as pervasive and detrimental to the exercise of freedom of expression as State surveillance.
The anonymity of communications should also be protected. Particularly in those countries where there is heavy State monitoring, anonymity tools can allow users to communicate with the outside world without fear of identification and reprisals. Any restrictions on the use of anonymity tools will impact on the right to freedom of expression. Courts around the world have recognised that anonymity is an important pre-condition for the exercise of the right to freedom of expression, as well as of other rights, and may be restricted only in narrow circumstances.
1 Internet Enemies, Reporters without Borders, http://www.rsf.org/article.php3?id_article=19603
3 By ‘licensing’ we refer to a system whereby a user or provider needs to obtain governmental authorisation in order to be able to carry out on-line activities.
4 By registration, we refer to a system whereby a use or provider is required to notify central authorities of their on-line activities.
5 See In the Name of Protecting Freedom of Expression: Rejecting the Wrong Rule for Liability for Internet Content, ARTICLE 19, available at
6 As described in Privacy International, Privacy and Human Rights 2000
7 See, for example, Antony Loewenstein’s The Blogging Revolution or Elizabeth Hanson’s The Information Revolution and World Politics, both published in 2008.
8Evgeny Morozov, Texting Toward Utopia: Does the Internet spread democracy? In the Boston Review, March/April 2009, http://bostonreview.net/BR34.2/morozov.php
9 See, for example, Google’s Prospectus lodged with the Securities and Exchange Commission, 29 April 2004, pvi: http://www.sec.gov/Archives/edgar/data/1288776/000119312504073639/ds1.htm#toc16167_2
10 Article at http://www.vnunet.com/vnunet/news/2148091/microsoft-kowtows-chinese
11 Internet Enemies, Reporters without Borders
12 Available at http://www.article19.org/pdfs/standards/three-mandates-dec-2005.pdf.
14 This is based on the ARTICLE 19’s Position Paper on internet governance for development prepared for the inaugural session of the Internet Governance Forum, 2006. Available at http://www.article19.org/handbook/publications/internet-governance-paper.html
15A. Sen, 'Development: Which Way Now?', Economic Journal 93 (December 1983). See also A. Sen, Resources, Values, and Development, Cambridge, Mass.: Harvard University Press, 1984; and ARTICLE 19's Starving in Silence: A Report on Famine and Censorship, London: ARTICLE 19 International Centre on Censorship, 1990
16Standards on the world-wide web, the part of the internet best-known to people, are developed by the World-wide Web Consortium (W3C), a vendor-neutral forum for the creation of web standards. Although a few of its members have are government entities, no State as such is a member of W3C. This sets it apart from broadcasting, for example, the technical side of which is regulated by international treaties
17 For example, the 'Global Online Freedom Act of 2006', introduced in the US House of Representatives, H.R.4780
18 See the Joint Declaration of the UN Special Rapporteur on Freedom of Opinion and Expression, the OAS Special Rapporteur on Freedom of Expression, and the OSCE Special Representative on Freedom of the Media issued in 2001.
19 Joint Declaration of 21 December 2005
20 See Article 17, ICCPR, and Article 8(2) of the European Convention on Human Rights and the jurisprudence developed under these provisions by national and international human rights courts.