Freedom of Expression on the InternetCouncil of Europe Standards

Dr Monica HortenVisiting Fellow, London School of Economics & Political Science

How do we communicate?

In the 21st century

Why freedom of expression applies to the Internet• The free communication of thoughts and opinions is one of most

precious rights because it is a condition for democracy(France 1789 Declaration of the Rights of Man, Article 11)

• In the modern State, the means of communication, and especially the development of public online services have an importance in democratic life and for the expression of ideas and opinions.

• This right of free speech implies the liberty of access to such services.

(French Constutional Court June 2009)

The Internet, the law & human rights

• Right to freedom of expression enshrined in European Convention on Human Rights (ECHR)Article 10

• Other important rights : – Article 11 Right to freedom of assembly and association

– Article 8 Right to a private and family life

– Article 6 Right to due process

– European Court of Human Rights – Internet is the way we exercise these rights in the 21st century

– Article 10 applies to blogging and social media, email and all forms of online communications

Right to freedom of expression

•Two-way right to impart and receive information

•Without interference from a public authority

•Applies ‘regardless of frontiers’

•May be balanced against other rights eg property, security • Any restriction should be prescribed by law, fulfil a legitimate aim, and be proportionate to that aim

Freedom of access

- Freedom of expression relies on open access to the networks

- Creates opportunities for access to knowledge and creation

- Disconnecting individuals is a restriction

- Public networks should remain accessible at all times

- And an infrastructure that is open

- Enables people to create and build new technologies for communication, which in turn facilitate new opportunities for free speech.

- anyone can build a new application and attach it to the network, without needing to ask permission

- network providers should not technically discriminate between applications

• Technological developments – Blocking, filtering and

disconnection

– Traffic management practices fast/slow lanes, deep packet inspection

– Interception, back doors,

– Traffic analysis, big data profiling,

Key issues for human rights and the Internet

Blocking

Filtering ISP scans Internet traffic against database containing a

blocklist of webpages, images or specific content• Users will be prevented from accessing content on the the blocklist

Platforms and social media sites scan uploaded content against pre-determined criteria

•Files are taken down by the site owner

Risk of over-blocking or taking down of legitimate content

Cross-border issues

• Upstream filtering

• Technical errors such as routing error

• DNS seizures have taken websites off-line worldwide

• Possible implications for cloud services

Freedom from Interference

• Blocking & filtering may interfere with free speech and privacy rights

• Blocking access to the Internet, or parts of the Internet, for whole populations or segments of the public can never be justified, including in the interests of justice, public order or national security.

(Yildirim v Turkey ECtHR 2012)

• Filtering indiscriminately, to all customers, as a preventative measure, for an unlimited time, would be a disproproportionate interference.

(Scarlet Extended ECJ 2011)

•Take down notices - law enforcement, copyright, defamation

•Scan and filter - copyright enforcement

•Filter search results - commercial interests

•Backdoors - law enforcement, security services, copyright enforcement

Freedom of expression, blogs & social media

Essential State guarantees for online media

•Online media should be able to publish without interference •Editorial independence •Confidentiality of journalists sources •May operate without permission from the State •Not harassed or pressured by State authorities•Without fear of restrictions imposed by State •Regulation proactively protects media freedoms

•Applies to social networks, blogs, websites and online applications

Freedom of expression & due process

• Any measures to restrict the Internet must include a prior, fair and impartial hearin (right to due process

•Balance against other rights eg property, security

•Any restriction should be prescribed by law, fulfil a legitimate aim, and be proportionate to that aim

Two key questions: • Is the interference with freedom of expression,

necessary and proportionate to other objectives such as security?

• What is the potential for these powers to be applied in a disproportionate manner which could lead to a breach of internet users’ rights? (Source: UK Parliament, Joint Committee on Human Rights 2010)

Respect for freedom of expression

Dr Monica HortenVisiting Fellow, London School of Economics & Political Science

Blog: www.iptegrity.comTwitter: @Iptegrity

References: Council of Europe Guide to Human Rights for Internet Usershttp://www.coe.int/en/web/internet-users-rights/guideRecommendation CM/Rec(2016)5 of the Committee of Ministers to member States on Internet freedomhttps://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016806415fa

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