November 15, 2005

Legal Standards Pertaining to Online Freedom of Expression

Right to Freedom of Expression and Exchange of Information

In his January 29, 1999, report to the U.N. Commission on Human Rights, Special Rapporteur on the protection and promotion of freedom of opinion and expression Abid Hussein observed that "while perhaps unique in its reach and application, the Internet is, at base, merely another form of communication to which any restriction and regulation would violate the rights set out in the Universal Declaration of Human Rights and, in particular, article 19." He further argued:

As regards the impact of new information technology on the right to freedom of opinion and expression, the Special Rapporteur considers it of pre-eminent importance that they be considered in light of the same international standards as other means of communication and that no measures be taken which would unduly restrict freedom of expression and information; in case of doubt, the decision should be in favour of free expression and flow of information. With regard to the Internet, the Special Rapporteur wishes to reiterate that on-line expression should be guided by international standards and be guaranteed the same protection as is awarded to other forms of expression.[20]

One of the most basic articulations of the right to free expression and information can be found in article 19 of the Universal Declaration of Human Rights:

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.

The Universal Declaration is a foundational document of the United Nations to which all member states are deemed to adhere, and is widely considered a statement of the customary international law of human rights.

One of the most widely subscribed human rights treaties, the International Covenant on Civil and Political Rights (ICCPR), reiterates these protections. Article 19 of the ICCPR provides that everyone's right to freedom of expression "shall include the 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." Article 19 further states that restrictions on this right "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." Algeria, Egypt, Iran, Iraq, Israel, Jordan, Lebanon, Kuwait, Libya, Morocco, Syria, Tunisia, and Yemen have ratified the ICCPR. Bahrain, Oman, Qatar, Saudi Arabia, and the United Arab Emirates are not parties to the treaty.[21]

The tension between the right to free expression and information on the one hand, and national security on the other, has been the subject of much inquiry by courts, international bodies, and scholars. A group of experts in international law, national security, and human rights issued the Johannesburg Principles on National Security, Freedom of Expression and Access to Information on October 1, 1995. Over time, these Principles have come to be widely recognized as an authoritative interpretation of the relationship between these rights and interests, reflecting the growing body of international legal opinion and emerging customary international law on the subject. The Johannesburg Principles state that restrictions on freedom of expression should be permitted only when "the government can demonstrate that the restriction is prescribed by law and is necessary in a democratic society to protect a legitimate national security interest" (Principle 1.1, section d). According to the Principles, the burden of demonstrating the validity of the restriction rests with the government. Criticism of the government or its leaders is protected. In addition, a government must demonstrate that "the restriction imposed is the least restrictive means possible for protecting that interest" (Principle 1.3, section b).[22]

Under international law, governments are allowed to restrict the free flow of information to protect certain narrowly determined interests such as national security or public morals. But any decision to limit or restrict access to information should comport with international standards for protecting the right to information.  Prior censorship in particular is severely disfavored in international law, and not permitted in many constitutional systems. A decision to block access to online material should be subject to the highest level of scrutiny, with a burden on the government to demonstrate that censorship would effectively avert a threat of irreparable, imminent, and weighty harm, and that less extreme measures are unavailable as alternatives to protect the state interest at issue.

Virtually all governments in the Middle East that block content on the Internet suppress some political and human rights material that is protected under international treaties governing freedom of expression. In general, the decision of what to block, and what technology to use to block it, should be in the hands of end users, rather than governments. Software programs are readily available to users for this purpose. In Egypt, for example, the government-run ISP TE Data offers a free, optional "family Internet" plan whereby users can voluntarily choose to filter material.

Concern over censorship and other restrictive practices that limit freedom of expression and information in relation to the Internet has been articulated in many international contexts.

The Sana`a Declaration on the Promoting Independent and Pluralistic Arab Media was adopted by Arab journalists on June 11, 1996, and endorsed by Arab states and the Palestinian National Authority during the twenty-ninth session of the General Conference of UNESCO in November 1997 (Resolution 34). It is an important document that describes the difficulties faced by journalists in the region and outlines measures that governments should take to support freedom of expression and information. It states that governments:

[S]hould provide, and reinforce where they exist, constitutional and legal guarantees of freedom of expression and of press freedom and should abolish those laws and measures that limit the freedom of the press; government tendencies to draw limits/ "red lines"; outside the purview of the law restrict these freedoms and are unacceptable….

           

[S]hould cooperate with the United Nations and UNESCO, other governmental and non-governmental development agencies, organizations and professional associations, in order to: enact and/or revise laws with a view to: enforcing the rights to freedom of expression and press freedom and legally enforceable free access to information; […]
and should
Seek the assistance of national, regional and international press freedom and media professional organizations and other relevant NGOs to establish national and regional networks aimed at monitoring and acting against violations of free expression, to create data banks and to provide advice and technical assistance in computerization as well as in new information and communication technologies…[23]

At the first session of WSIS, held in Geneva in December 2003, participants, including Egypt, Iran, Syria, and Tunisia, reaffirmed their belief that the rights to freedom of opinion and expression, as outlined in Article 19 of the ICCPR, are "an essential foundation of the information society."[24]

In its August 3, 2005 report, the Working Group on Internet Governance created by U.N. Secretary-General Kofi Annan after the first session of WSIS urged governments to "ensure that all measures taken in relation to the Internet, in particular those on grounds of security and to fight crime, do not lead to violations of human rights principles."[25]

At its sixty-first session in April 2005, the U.N. Commission on Human Rights, "recognizing the importance of all forms of media, including…the Internet, in the exercise, promotion and protection of the right to freedom of opinion and expression," expressed its concern that violations of the rights enshrined under Article 19 of the ICCPR

continue to occur, often with impunity, including extrajudicial killing, arbitrary detention, torture, intimidation, persecution and harassment, threats and acts of violence and of discrimination, including gender-based violence and discrimination, increased abuse of legal provisions on defamation and criminal libel as well as on surveillance, search and seizure, and censorship, against persons who exercise, seek to promote or defend these rights, including journalists, writers and other media workers, Internet users and human rights defenders.[26]

The Commission called on governments "to facilitate equal participation in, access to and use of, information and communications technology such as the Internet," and to "refrain from imposing restrictions…on access to or use of information and communication technologies, including…the Internet."[27]

In his December 17, 2004, report to the Commission, Special Rapporteur on freedom of opinion and expression Ambeyi Ligabo expressed his belief that "guaranteeing freedom of opinion and expression on the Internet and other new communication tools is the central challenge for the future." He noted that "many Governments use anti-terrorism and national security legislation to restrict, partially or totally, freedom of opinion and expression and the right of access to information," and invited "Governments to adopt laws and regulations allowing people to communicate freely over the Internet and to remove all present obstacles to the free flow of information."[28]

Right to Privacy

Freedom from arbitrary and unlawful interference with one's privacy and correspondence is protected both under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights[29] and applies to electronic communications, including email and newsgroup postings, as well as electronic forms of personal data retained about individuals. Interference that is capricious, unjust or disproportionate would be "arbitrary," as would interference for a purpose inimical to the protection of human rights more generally, such as inhibiting peaceful dissent. States may not randomly or freely intercept or monitor email or Internet usage.[30]

The United Nations Human Rights Committee, the treaty body that is an authoritative interpreter of state duties under the ICCPR, in a General Comment on the right to privacy, has said:

As all persons live in society, the protection of privacy is necessarily relative. However, the competent public authorities should only be able to call for such information relating to an individual's private life the knowledge of which is essential in the interests of society as understood under the Covenant. […] Even with regard to interferences that conform to the Covenant, relevant legislation must specify in detail the precise circumstances in which such interferences may be permitted. A decision to make use of such authorized interference must be made only by the authority designated under the law, and on a case-by-case basis. [….] Correspondence should be delivered to the addressee without interception and without being opened or otherwise read. Surveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conversations should be prohibited.[31]

The right to privacy encompasses both the individual's right to a zone of autonomy within a "private sphere" such as the home, but also with respect to personal choices within the public sphere. This is important, as much of the controversy over how much respect to accord individual choices over Internet usage becomes caught up in characterizations of the Internet as a public space (e.g., a virtual town square or "information highway") or a zone of private communication or research (e.g., a telephone booth or a virtual library). Where the expectation of privacy also serves the purpose of facilitating freedom of expression and information, heightened scrutiny of government intrusion is appropriate. Such an expectation can be found in various contexts, such as attempts to protect the anonymity of an Internet "speaker," or the interests in keeping one's communications and browsing private even when using an Internet café.

Anonymity and Encryption

Both the right to privacy and the right to free expression entail a corollary right to communicate anonymously. The importance of allowing persons to speak anonymously has long been recognized as worthy of protection to encourage communication that might otherwise invite reprisal or stigmatization, from political pamphleteering, to anonymous tips for journalists, to "blowing the whistle" on improprieties in their workplace, to participating in AIDS outreach or support efforts. Anonymity, of course, may also be sought by persons engaged in criminal activity, so one cannot speak in terms of an absolute right. But neither may the freedom to communicate anonymously be subject to such restrictions as would eliminate the right a priori.

Encoding electronic communications ("encryption") is commonly recognized as essential to facilitating the growth of electronic commerce. The International Covenant on Civil and Political Rights requires states to act positively to protect individuals from such interference with privacy or correspondence on the part of third parties such as non-state actors.[32] Encryption, as a technology that protects communications and correspondence from arbitrary interference, should be lawful and accessible to individual users.

"Strong" encryption software, that is, coding that is nearly impossible for third parties to decipher, is widely available now to individuals and businesses, where once only governments had access to this technology. Encryption, by protecting privacy of communications, enables the free expression of ideas and information, particularly where there has been a record of government surveillance and repression. By guaranteeing privacy of communications and authenticating the identity of communicators, encryption enables free association between individuals in cyberspace, an important extension of a traditional right in the new circumstances of globalization.

While there are legitimate law enforcement concerns that must be taken into account in any national policy on encryption, there is no justification for either banning individual use of encryption or licensing users. Encryption should be viewed as a vehicle of expression like a language; the use of encryption alone should not subject an individual to criminal sanction, any more than should the use of Esperanto or Swahili to communicate.[33] Individuals should not be required to obtain authorization from the authorities in order to send or receive encrypted communications, nor should they be compelled to provide in advance to law enforcement authorities access to key recovery or other mechanisms that would permit the decoding of their communications. These are all over-broad policies that penalize law-abiding persons.

Assigning Liability for Online Content

To hold ISPs presumptively liable for all content they host or carry would pose a regulatory burden on providers that would drastically reduce and slow the flow of information-if the burden could be carried at all. The right to free expression is best served by laws that focus liability for speech on the originator of the offending content, rather than on its conduit. ISPs do not fit neatly into any existing media paradigm and governments should not subject them to regulatory structures that may be suitable for other media, such as a newspaper that can be held liable for articles appearing in its pages.

ISPs are data carriers, akin to telephone companies, and typically serve merely as conduits of information, offering the technical means for users to receive and disseminate information. ISPs seldom have knowledge of the content of the messages they transmit, or of the Web sites they host. The situation is arguably different when the offending content is contained in material over which the ISP exercises editorial control, such as a proprietary opinion column; or when the ISP is made aware that offending content has been posted on a Web site it hosts and does not remove it.

Internet Cafés

Internet "cafés" and service centers are often the only affordable way for people of ordinary means to access the Internet. Although in some sense they are public places, the activities conducted in them are entitled to the same protections as they would be if they were engaged in by clients on their own computers at home. Internet café owners should not be held presumptively liable for the browsing habits or communications of their clients any more than ISPs should. Nor should they be required to automatically submit data on all clients to the government in order to keep their licenses.

Country Profiles

[20] Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression to the U.N. Commission on Human Rights, January 29, 1999, E/CN.4/1999/64.

[21] For a list of countries that have ratified the ICCPR, see http://www.un.org/depts/treaty.

[22] The Johannesburg Principles on Freedom of Expression and National Security are available at http://www.article19.org/pdfs/standards/joburgprinciples.pdf.

[23]Declaration of Sana`a, January 11, 1996, Resolution 34 adopted by the General Conference at its twenty-ninth session - November 1997, http://www.unesco.org/webworld/com_media/communication_democracy/sanaa.htm, accessed

October 29, 2005.

[24] World Summit on the Information Society, Declaration of Principles, WSIS-03/GENEVA/DOC/4-E, December 12, 2003, http://www.itu.int/wsis/docs/geneva/official/dop.html, accessed October 27, 2005.

[25] Report from the Working Group on Internet Governance, WSIS-II/PC-3/DOC/5-E, August 3, 2005.

[26] Commission on Human Rights, Report on the Sixty-First Session: The Right to Freedom of Opinion and Expression, Human Rights Resolution 2005/38, See chap. XI, E/CN.4/2005/L.10/Add.11.

[27] Ibid.

[28]The right to freedom of opinion and expression, Report of the Special Rapporteur, Ambeyi Ligabo, December 17, 2004, E/CN.4/2005/64*.

[29] The Universal Declaration of Human Rights affirms in Article 12, "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence." The International Covenant on Civil and Political Rights states in Article 17, "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence..."

[30] See Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary, (Kehl, Strasbourg, Arlington: N.P. Engel) 1993 at pp. 291-294.

[31] United Nations Human Rights Committee, General Comment No. 16: The right to respect of privacy, family, home and correspondence, and protection of honour and reputation (Art. 17), 08/04/88, paras. 7 and 8. 

[32] The ICCPR, article 17(2), states, "Everyone has the right to the protection of the law against such interference or attacks." See also Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Kehl: N.P. Engel, 1993), pp. 289-290.

[33] Dinah PoKempner, "Briefing Paper: Encryption in the Service of Human Rights," August 1, 1997,  http://www.aaas.org/spp/cstc/pne/events/crypto/dinah.htm.