Content Controls, Freedom of Expression and ISP Liability on the Internet

1. Content Controls, Freedom of Expression and ISP Liability on the Internet Advanced Network Workshop Stockholm June 2001

2. Government Regulation, “Self-Regulation” or User Control • 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

3. 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

4. Government Control Model • Limited effectiveness - methods for evasion: SafeWeb.com • Raises costs of doing business • Stifles innovation • Human rights concerns

5. European Action Plan • 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

6. European Model • Does “self-regulation” mean that service providers regulate the content that their customers access?

7. 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;”

8. ISP Liability • “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. • “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.

9. EU E-Commerce directive • "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

10. 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.)

11. 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

12. 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.

13. European Convention: Article 25 • 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.

14. ECHR Three Part Test • prescribed by law • aimed at an interest permitted under paragraph (2) • necessary in a democratic society

15. 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”

16. 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)

17. 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.

18. 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. • http://www1.umn.edu/humanrts/oasinstr/zoas3con.htm(English) • http://www1.umn.edu/humanrts/oasinstr/szoas3con.html (Espanol)

19. 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.

20. 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)