Transcript Content Controls, Freedom of Expression and ISP Liability

Content Controls, Freedom of
Expression and ISP Liability
on the Internet
Advanced Network Workshop
Stockholm
June 2001
Government Regulation, “SelfRegulation” or User Control
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Numerous countries: seek to control Internet
content/access through variety of means
European approach: “self regulation” through
industry codes of conduct
US approach: relatively high degree of
freedom - user control
Government Control Model
Many governments seek to control Internet
content
– Korea - proposal to require filtering by cybercafes
(and ISPs?) to block 120,000 "anti-social" websites
– Japan - proposing to require all ISPs to check
websites for content that would harm reputation
– Mumbai (India) - requires ID at cybercafe
– Saudi Arabia - filters all traffic through single server
– China - banned new cybercafes for 3 months
– Australia - applies film content standards to Web
sites
Government Control Model
– Limited effectiveness - methods for
evasion: SafeWeb.com
– Raises costs of doing business
– Stifles innovation
– Human rights concerns
European Action Plan
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promotion of industry self-regulation and content-monitoring
schemes (for example, dealing with content such as child
pornography or content which incites hatred on grounds of race,
sex, religion, nationality or ethnic origin);
encouraging industry to provide filtering tools and rating
systems, which allow parents or teachers to select content
appropriate for children in their care while allowing adults to
decide what legal content they wish to access, and which take
account of linguistic and cultural diversity;
increasing awareness among users, in particular parents,
teachers and children, so that they can better understand and
take advantage of the opportunities of the Internet;
activities fostering international cooperation in the areas
enumerated above
http://europa.eu.int/ISPO/iap/decision/en.html
European Model
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Does “self-regulation” mean that service
providers regulate the content that their
customers access?
User Empowerment
 Filtering
and blocking software
 GetNetWise.org
 Protection of children in schools and
libraries:
Every school and library receiving federal funding must have in place
“a policy of Internet safety for minors that includes the operation of a
technology protection measure with respect to any of its computers with
Internet access that protects against access through such computers to
visual depictions that are (I) obscene; (II) child pornography; or (III)
harmful to minors;”
ISP Liability
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“No provider or user of an interactive computer
service shall be treated as a publisher or speaker of
any information provided by another information
content provider.” Sec. 230, Communications Act,
USA.
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“Providers shall not be responsible for any third-party
content to which they only provide access.” Sec. 5(3),
Information and Communication Services Act,
Germany.
EU E-Commerce directive
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"Mere conduit" - service provider is not liable
"Caching" - service provider is not liable for
automatic, intermediate and temporary storage for
the sole purpose of efficiency
Hosting - service provider not liable if it does not have
knowledge, and, upon obtaining knowledge, acts
expeditiously to remove or disable access
No general obligation to monitor.
But courts can order injunctions.
Encourages codes of conduct
Universal Declaration of Human
Rights -- Article 19
 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.
http://www.un.org/Overview/rights.html
http://www.unhchr.ch/udhr/index.htm (300 lang.)
European Convention of
Human Rights, Article 10
Everyone has the right to freedom of
expression. This right shall include freedom to
hold opinions and receive and impart
information and ideas without interference by
public authority and regardless of frontiers.
http://conventions.coe.int/treaty/EN/cadreprincipal.htm
Article 10: Permitted Restrictions
these freedoms…may be subject to such ... restrictions or
penalties as are prescribed by law and are necessary in a
democratic society - in the interest of national security, territorial integrity or
public safety,
 for the prevention of disorder or crime,
 for the protection of health or morals,
 for the protection of the reputation or right of others,
 for preventing the disclosure of information received in
confidence or
 for maintaining authority & impartiality of judiciary.
European Convention: Article 25
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The Commission may receive petitions … from any
person, non-governmental organisation or group of
individuals claiming to be the victim of a violation by
one of the High Contracting Parties of the rights set
forth in this Convention, provided that the High
Contracting Party ... has declared that it recognises
the competence of the Commission to receive such
petitions.
ECHR Three Part Test
 prescribed
by law
 aimed at an interest permitted under
paragraph (2)
 necessary in a democratic society
ECHR Principles for
Judicial Review
Exceptions must be narrowly interpreted
 The necessity for any restrictions must be
convincingly established
 The state must claim a pressing social need
 BUT states are granted a “margin of
appreciation”
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International Covenant on Civil and
Political Rights, Article 19
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.
http://www.unhchr.ch/html/menu3/b/a_ccpr.htm (Eng)
http://www.unhchr.ch/french/html/menu3/b/a_ccpr_fr.htm(Fr)
ICCPR: Permitted Restrictions
 For
respect of the rights or
reputations of others;
 For the protection of
– national security
– public order (ordre public), or
– public health or morals.
American Convention, Article 13
Everyone has the right to freedom of
thought and expression. This right
includes freedom to seek, receive, and
impart information and ideas of all kinds,
regardless of frontiers, either orally, in
writing, in print, in the form of art, or
through any other medium of one’s choice.
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http://www1.umn.edu/humanrts/oasinstr/zoas3con.htm(English)
http://www1.umn.edu/humanrts/oasinstr/szoas3con.html (Espanol)
American Convention, Art. 13.3
The right of expression may not be restricted by
indirect methods or 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 any other means
tending to impede the communication and
circulation of ideas and opinions.
African Charter on Human Rights
"Every individual shall have the right to receive
information. Every individual shall have the
right to express and disseminate his opinions
within the law." Article 9.
Individuals should exercise their freedoms "with
due regard to the rights of others, collective
security, morality and common interest."
Article 27
http://www1.umn.edu/humanrts/instree/z1afchar.htm (English)
http://www1.umn.edu/humanrts/instree/french/fz1afchar.html
(Français)