Nicola LucchiDepartment of Accounting & LawJönköping International Business SchoolNicola.Lucchi@jibs.hj.se

INTERNET CONTENT GOVERNANCE & HUMAN RIGHTS

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Regulation of Communication Technologies

Freedom of expression on the Internet could be considered the fundamental freedom of our age:

The Internet has become a key instrument by which individuals can actually exercise their right to freedom of opinion and expression, as guaranteed by article 19 of the UDHRs, the ICCPRs…..and by most national Constitutions.

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UN Report Human Rights Council A/HRC/17/27 (16 May 2011). The report Special Rapporteur Frank La Rue acknowledges the pivotal role the internet plays for the exercise of human rights:

The Special Rapporteur underscores the unique and transformative nature of the Internet not only to  enable individuals to exercise their right to freedom of opinion and expression, but also a range of other human rights, and to promote the progress of society as a whole.

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The relevance of the «digital» freedom of expression

“The right to freedom of opinion and expression is as much a fundamental right on its own accord as it is an “enabler” of other rights, including economic, social and cultural rights, such as the right to education and the right to take part in cultural life and to enjoythe benefits of scientific progress and its applications, as well as civil and political rights, such as the rights to freedom of association and assembly. Thus, by acting as a catalyst forindividuals to exercise their right to freedom of opinion and expression, the Internet also facilitates the realization of a range of other human rights” [U.N. Doc. A/HRC/17/27 (16 May 2011)]

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Internet Content Governance

Many States (democratic and authoritarian) restrict, control, manipulate and censor content disseminated via the Internet.

Such actions are clearly incompatible with States’ obligations under international human rights law, and often create a broader “chilling effect” on the right to freedom of opinion and expression.

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Restrictions to access content on the Internet

States restricts, control and censor Internet content*:1. Arbitrary blocking or filtering of content (e.g. China; Egypt)

2. Criminalization of legitimate expression (One clear example of criminalizing legitimate expression is the imprisonment of bloggers around the world – China, Vietnam, Iran)

3. Imposition of intermediary liability (in recent years, intermediaries’ protection from liability has been eroding)

4. Disconnecting users from Internet access on the basis of violations of intellectual property rights law (Hadopi, DEA etc)

* From the UN Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue. 6

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Digital content reforms recently introduced or discussed in Europe and in the U.S.

A. Some of the recent legislative reforms on Internet content regulation:

A. SOPA (U.S.)

B. PIPA (U.S.)

C. ACTA (international Treaty)

D. “Sinde” Law (Spain)

E. Hadopi Law (France)

F. Digital Economy Act (UK)

All these measures are characterized by two trends: (i) obligations on Internet intermediaries to block content (ii) restrictions and limitations on Internet users.

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The Hadopi Law – graduate response

- Main objective: prevention of illegal copying and redistribution over the Internet of digital content protected by copyright- Main provision: institution of a new independent authority (HADOPI) with the role of monitor suspected infringers- How it works?

– Detection of potential infringement over peer-to-peer networks.– Collection of IP addresses of potential infringers– Notification of these potential infringements to the the HADOPI High Authority.– HADOPI asks ISPs to identify the user– HADOPI requires ISPs to send a first notice to the subscriber– If the infringement is repeated within 6 months: second notice via certified mail– In case of third infrigement (within one year after the 2nd notice) trasmission of the

file to a Judicial Court.a. Penalties can range from suspension of Internet access for up to one year to a fine, or

even imprisonment

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In the first version of the law, penalties were imposed directly by the HADOPI Authority

Decision of the French Constitutional Council

The first version of the HADOPI law was censored by the French Constitutional Council in 2009 on the ground that only a judge could restrict a fundamental right.

“Article 11 of the Declaration of the Rights of Man and the Citizen of 1789 proclaims : “The free communication of ideas and opinions is one of the most precious rights of man. Every citizen may thus speak, write and publish freely, except when such freedom is misused in cases determined by Law”. In the current state of the means of communication and given the generalized development of public online communication services and the importance of the latter for the participation in democracy and the expression of ideas and opinions, this right implies freedom to access such services.” - Conseil Constitutionnel, decision 2009-580 (§ 12)

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The current IP enforcement agenda

Incr

ease

IP s

cope

Increase IP sphere

of protection

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Side effect: any recognition of new rights or the expansion of existing rights implies a step back of other rights

HRs

Human rights are invoked with increasing frequency and intensity, in order to re-balance the conflict caused by the current

expanding nature of intellectual property law, in particular in relation to goods and services crucial to human development

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Conclusion & Policy Recommendations

In order to be in line with the International human rights framework, it would be reasonable to clearly determine and legally define scope, objectives and limitations for controlling online content…harmonizing the current regulatory regime.

In particular, all policies and procedures should be transparent, proportional, fairly applied and administered by independent and impartial judicial institutions (Korff and Brown 2012):a. – focus all restrictions on clear, specific and accessible rules, possibly in statute law;b.– make explicit the limits on “delegated authority” and on measures that could lead to forms of arbitrariness;c.– increase transparency over any forms of Internet blocking;d.– apply principles of due process and ex post facto judicial procedures in respect of any forms of Internet control.

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Nicola LucchiDepartment of Accounting & LawJönköping International Business SchoolNicola.Lucchi@jibs.hj.se