Freedom of Expression and the Internet Professor Lorna Woods Centre for Law Justice and Journalism City Law School City University London
Access to the Internet: A fundamental Right?Source: Survey by GlobeScan for the BBC, 2010Available: http://news.bbc.co.uk/1/hi/technology/8548190.stm
Is There a Right?• No treaty that specifies the existence of a right to Internet access, whether at international or regional level. – IFAP, Code of Ethics for the Internet, 2011, endorsed by UNESCO• Human rights are dynamic.• Freedom of expression within ECHR context – Jankovskis v. Lithuania (no 21575/08), communicated – Editorial Board of Pravoye Delo and Shtekel v. Ukraine (no. 33014/05)
What Might this Mean?• Internet? – Infrastructure or content? – Conditions of access?• Negative or positive?• Is the Internet different? – NB ‘traditional’ mass media?• Is freedom of expression different? – Speakers’ rights; audiences’ rights? – Right to a forum? – ‘Meta right’ – see General Comment 34
ARTICLE 101. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests 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 the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Basic Principles: Article 10• Broad approach: – ‘offend, shock or disturb’ = ‘demands of pluralism, tolerance and broadmindedness’ – Renaud v. France (no. 13290/07)• Not unlimited – Licensing: Informationsverein Lentia (nos 13914/88; 15041/89; 15717/89; 15779/89; 17207/90);Centro Europa 7 (no. 38433/09) – Hate speech: Feret v Belgium (c.f Jersild) – ‘Pure’ violation of copyright?• Article 10(2): – Legitimate aim – Necessary in a democratic society = ‘pressing social need’ – Proportionate – note impact of sanctions on court’s assessment
Basic Principles: States’ Obligations• Negative: state actors to refrain from infringing the right• Positive: steps to safeguard a right in conjunction with Article 1, e.g. Tierfabriken No 1 – Horizontal effect – Removing gaps in protection • Editorial Board of Pravoye Delo and Shtekel v. Ukraine (no. 33014/05) – Preventing others from doing something: • Dink – Requiring others to do something?• Boundary between negative and positive?
Negative Obligations• States infringe the right (subject to justification) if: – Individual punished for “saying” something on the Internet (without justification) – “Unplugging” the Internet – Banning/blocking a site • Even temporary • Filters (is this a positive obligation?) – C.f. (state sponsored) ‘walled gardens’? • Link to pluralism – Licensing??
Permitted Restrictions• Perrin v. UK• KU v. Finland• Willem v. France• Sunday Times (no 1 and 2) – Responsible journalism: archives
Positive Obligations• Recognised in Pravoye Delo and Shtekel• Scope of obligations? – Defamation • Sunday Times • Delfi v. Estonia (communicated 11/02/11) – Copyright enforcement • Akdeniz v. Turkey (communicated 16 February 2011)• Breadth of internet functions – Search engines – neutrality? – Pay walls
Right to a Forum• Right to transmission network – Autronic• Private property: – Appleby v. UK • C.f Women on waves – Saliyev v Russia BUT How exceptional are the circumstances? – Khursid Mustafa and Tarzibachi • No discussion of property rights, but nb role of cultural rights?• Choice of means – Women on Waves – BUT – other mechanisms available? – Mouvement Raelien Suisse• Is there right to particular content? – Khursid Mustafa and Tarzibachi – Manole (nb refers also to role of ‘new media’) • ‘the state must be the ultimate guarantor of pluralism’
Appleby47. That provision, notwithstanding the acknowledged importance offreedom of expression, does not bestow any freedom of forum for theexercise of that right. While it is true that demographic, social,economic and technological developments are changing the ways inwhich people move around and come into contact with each other, theCourt is not persuaded that this requires the automatic creation ofrights of entry to private property, or even, necessarily, to all publiclyowned property (government offices and ministries, for instance).Where, however, the bar on access to property has the effect ofpreventing any effective exercise of freedom of expression or it can besaid that the essence of the right has been destroyed, the Court wouldnot exclude that a positive obligation could arise for the State toprotect the enjoyment of the Convention rights by regulating propertyrights. A corporate town where the entire municipality is controlled bya private body might be an example (see Marsh v. Alabama, cited atparagraph 26 above).
Is the Internet Special?• Impact on life as we know it• BUT case law takes this as one factor, making general points about pluralism• So, is freedom of expression special?• Currently, uncertainty as to ‘intensity’ of any right granted, though these themes are being elaborated in documents generated by political institutions.