Hello. Thank you all for joining here at this of point in the program. I know it’s never very easy to draw a crowd when you announce that you’ll be talking about legal stuff. But I’ll try to make to make this interesting for you. As was just mentioned, I’m the legal director of the Media Legal Defense Initiative, short MLDI. We have a London-based NGO that works worldwide to help journalists and bloggers defend their rights. We have about a hundred-odd cases going on at any one time, in between forty and fifty different jurisdictions. So that gives us a basically a good overview of what’s happening globally in the field of journalism, and also online.
We all know that a lot of speech is moving online these days, either by choice because it’s a cheap and accessible way of publishing, or by necessity which is something that we see a lot in in our practice. I think of countries such as Vietnam and Ethiopia, where people basically can only express dissenting views online as it’s not possible to do so in traditional media.
At the same time we see an increase in attempts to control free speech online, in what should actually be a space in which information can flow freely. And that is what I’ll be talking about today.
As I discuss some of these restrictions on online speech, I want you to keep in mind the 2009 Internet Manifesto which consists of a seventeen declarations on how journalism works today. And I will read this out because I know some people will be listening to the audio stream and some may have forgotten their reading glasses. Principle number four of the seventeen decorations says that the freedom of the Internet is inviolable and it says that
The Internet’s open architecture constitutes the basic IT law of a society which communicates digitally and, consequently, of journalism. It may not be modified for the sake of protecting the special commercial or political interests often hidden behind the pretense of public interest. Regardless of how it is done, blocking access to the Internet endangers the free flow of information and corrupts our fundamental right to a self-determined level of information.
So think of this idea of a free flow of information as I discuss a number of the restrictions that we find on online to online speech. And the four that I will be discussing are the blocking of online platforms; copyrights and other legislative loopholes that are used to curtail free speech; liability for user comments; and the right to be forgotten.
The first example of the blocking of online platforms comes from India, which has an IT Act, and Article 69A of that IT act allows the Indian government or any of its agents to order the blocking within seventy two hours if it’s considered to be necessary in the view of the government for the protection of friendly relations with foreign states, national security, the defense of the state, and all sorts of other kind of vaguely-defined criteria. If this is order is not complied with, this potentially leads to seven-year prison sentence or a fine for the intermediary.
There’s no appeal possible to such a decision or such an order to block a web site. There’s only some sort of internal review process by a government panel, and that review process basically consists of checking whether or not Article 69A has been applied. So it’s kind of an interesting circular reasoning.
The language of Article 69A is overly broad. It’s very vague. It speaks of necessity without actually explaining what “necessary” means. It lists a number of general terms under which this blocking can be ordered and therefore it’s very prone to abuse. It can be interpreted in many different ways.
In December 2014, over sixty web sites have been blocked on Article 69A, and as I mentioned there’s no appeal possible so people can actually challenges it. Sites that were blocked under this provision, some of them are listed here. Dailymotion, Vimeo, SourceForge, and Github. A great number of of web sites that are used for citizen journalism, also.
Even though I just said that the provisions are overly broad and therefore prone to abuse, the Supreme Court of India very recently decided that there was nothing wrong with this provision. There was a challenge brought at the constitutional court there which challenged a number provisions from the IT Acts, including the notorious Article 66A, which is the article under which the two girls who made some posts on Facebook were prosecuted, and I’m sure some of you will have heard of that case. But the Indian Supreme Court in its decision called Article 69A narrowly-defined and a constitutionally sound article. So I’m afraid of we’ll have to deal with it for a little while to come.
Imperfect as the situation in India may be, at least there is some sort of legal framework, which is not the situation in Pakistan, where YouTube has been blocked since September 2012, even if the video that led to its blocking The Innocence of Muslims is no longer available on it.
But YouTube is not the only web site that gets blocked by Pakistan Telecommunication Authority. What basically happens is that government ministries can contact the PTA saying that they are unhappy with certain online contents, and the PTA just pulls the plug on those web sites. There’s no law, there’s no decree, there’s no legal framework, and there’s also no regulatory framework by which people can actually challenge those blocking decisions.
The Pakistani NGO Bytes for All has challenged the blocking of YouTube, but has not only challenged the blocking of YouTube but it has also asked for high court of Lahore to order that a proper regulatory mechanism is established. So a proper form of due process will actually be created for that. The case has been ongoing for quite some time. The last hearing on this matter was in November last year, where the high court in Lahore said that they were very much inclined to unblock YouTube but it was impossible for them at this point as there is a Supreme Court order which several years ago ordered the blocking of a site called UTube, so not “you” but UTube, at the request of a government official who had sent a letter to the court basically, and the court then ordered the blocking of the web site. So in order for the high court to order the unblocking, first clarification needs to be requested from the Supreme Court. So that is a pending matter at the moment.
Before moving on to the next topic I just want to mention two examples that are a little bit closer to home. The first one is Turkey, where as we all know a lot of blocking of online platforms is taking place. An example there was the blocking off of Google Sites a number of years ago, and this is actually the blocking of the entire platform because the government wanted to take one particular site offline as a preventative measure. This case was actually appealed all the way up to the European Court of Human Rights, which very clearly said that this was a disproportionate measure. They could have just focused on this one specific site but instead decided to block the entire platform. And that the legal framework in Turkey to challenge these things is actually also very much lacking. So this was a win at the international level but there are still many more instances in which web sites get blocked. Twitter bans on grounds of national security are a frequent occurrence. So this is a remaining problem in Turkey.
The second example I wanted to mention here is France. After the Charlie Hebdo attacks a decree was adopted there that allows the Interior Minister to order to blocking of content online within twenty-four hours if it’s considered to be terrorist or pro-jihadist. We don’t really have any numbers on how many sites have been blocked under this decree at this point in time, but anecdotal evidence suggests that the basically the decree is being used in a rather heavy-handed way. Also parts of web sites that actually have no links with terrorism whatsoever are being blocked. The review process, there is some sort of way in which ISPs can actually appeal these decisions, but the burden lies very much with them. So it’s not exactly a situation in which you have equality of arms. And it’s sadly part of a wider pattern in the country which reflects a crackdown on free speech after the Charlie Hebdo attacks.
So moving on to to copyrights and other legislative loopholes. Copyright is a double-edged sword. It has a pro- and it has a contra- freedom of expression component. It is intended as an incentive to bring good ideas and images, etc. into the market. And at the same time it restricts its circulation. And the example that I listed here from the USA, I’m sure we are all familiar with this image.
This is from the video of the shooting of Walter Scott, an unarmed black man who was shot in the back by a policeman recently. This was a videotape by passerby on their their phone, and them circulated widely in the media. And in April a letter started to emerge that was sent out by a a publicity company to news outlets worldwide, basically asking people to cease and desist or to stop using this footage and these images as the person who shot the video claimed to have copyright of this.
There’s always a loophole there, right? For news outlets there’s Fair Use. If something has news value, you should be able to kind of not have to comply with these copyright obligations. And it’s interesting that there’s actually a discussion on this point in the US as to whether or not something that was news at some point could no longer be deemed news after a certain timeframe, meaning that copyright laws would kick in. I would say that this is news now and will remain news, but we’ll have to see how that debate unfolds.
We then returned to India. The documentary India’s Daughter is a nice example of the various creative of ways that can be used to make sure that certain ideas don’t get into circulation. As we all have heard in the news, the Indian government wasn’t very much in favor of this documentary being broadcast, and they tried several things. The first attempt was by accusing the director of breach of contract, because they said that there actually was an agreement with the director that the film shouldn’t be produced for commercial purposes. That didn’t work. So then they proceeded to a claim of contempt of court. The grounds for that were that the death penalty that the people portrayed in the film had been convicted to was still under appeal at a higher court. Then the third attempt to suppress the film was on the grounds of hate speech. They used a provision in the Indian penal code which actually is aimed at preventing hate speech between different religious groups, as to apply to some of the things that the lawyers of the defendants in the film had said, which was really misogynist comments. So they kind of gave it a twist as hate speech towards women. This also didn’t work. BBC in the end has broadcast the documentary, and that in turn led to a copyright dispute. They ordered YouTube to take the film down. So this documentary has almost every single possible a legal action aimed at it.
Italy is another really good example of copyright being used very effectively in removing content from the Internet. As of May 2014, 450 sites were blocked in Italy due to copyright reasons. AGCOM, which is the telecom regulator, has an internal administrative panel that out of its own initiative can decide that certain web sites violate copyright rules and then order the hosting provider to take the web site down within seventy-two hours. And if they don’t do that, they can order the ISP to do so without a court order. So there’s no actual judicial review for any of these decisions.
The legislative basis for this has been referred to the Italian Constitutional Court and this will actually be the first constitutional court in Europe to consider the impact of administrative measures on the right to freedom of expression [on] copyrights infringement grounds. The case isn’t moving very quickly. It will be heard in October 2015 and it’s expected to take a little bit longer for the Constitutional Court to reach a decision, but it will be very interesting to watch out for, so keep that in mind if you like.
So, the third points, liability for user comments. Delfi is an Estonian news portal, and at some point it published an article about a ferry company that had changed its ferry roots. Apparently this was a very sensitive issue in the Estonian community, because it elicited an enormous storm of comments, a lot of which were very insulting and unpleasant towards the major shareholder of the ferry company. The lawyers of the shareholder then notified Delfi saying, “Look there are all these comments online, we’re not happy with them. Please them off and also please pay damages to our client.” Delfi complied with the request to remove the comments but refused to pay the damages because they said that they weren’t liable for comments that were made by third parties on their web site.
This was taken to court by the shareholder’s lawyers, and the national courts basically said, “Well, you actually can control the contents. See, you could take it away taken offline. So therefore you are liable and you cannot hide behind the e-commerce directive,” which is the directive within the EU that provides a safe harbor for web sites that act as, as they say, as a mere conduit, so they are passive in passing on the news and information that is published on those web sites.
The European courts I would say foolishly upheld this decision by the national court, but I would say it’s a rather short-sighted decision. They completely failed to take into account the framework that has been developed very carefully by the court of justice of the European Union regarding the e-commerce directive and didn’t look at any other jurisdictions and how they regulate liability of web sites for user comments. Fortunately the matter has been referred to Grand Chamber, so it’s basically on appeal within the European Court system.
Our organization intervened in that actually, together with a coalition of twenty-eighth press freedom and media organizations, arguing this point that the court to take into account what the case law was developed in the context of the e-commerce directive. Also presenting with comparative law examples from the US, which has a much more liberal system for liability, basically leaving it to self-regulation in the market. And also showing best practices. For a lot of news web sites, it’s very common practice to kind of make sure that the readers get engaged with new stories. It’s something that you want, that people comment on news pieces. And web sites each have their own way to kind of encourage good comments, so to speak, and filter out the ones that form a less positive contribution to the circulation of news. So decision there is pending. A hearing was held earlier this year. So we’ll have to wait and see what the European Court does with that.
Then a final point I wanted to flag is the right to be forgotten. I think we’ve all heard of the Court of Justice of the European Union judgment in the case of Google Spain versus the Spanish Data Protection Authority. The court found that search engine activity amounted to the processing of personal data, and that the activity of a search engine in that case had to be equated with that of a controller.
The most interesting feature from a freedom of expression point of view of this case is the fact that the court did not really mention the right to free expression at all in its judgment. The court does say explicitly that fundamental rights should be taken into account when interpreting the directive on data protection. But the only rights it actually mentions are the right to privacy and the right to protection of personal data. The court kind of hints at an aspect of the right to free expression, which is the right to actually access information, but calls this an “interest” and not even a rights. And that is while there is a very explicit article in the European Charter which the court is supposed to apply, which is Article 11, which deals with the right to free speech. So this is kind of puzzling.
Based on this decision, information does not get removed from the Internet, it just gets deindexed. And then the question is a little bit, well the content exists, it’s still online… So what’s the problem then, basically? The two main factors here are that a very fundamental element of the right to free speech is not only the rights to disseminate and share ideas and views, but also to access them. And this is the part that gets taken away from you if you cannot access information online as easily because it’s been removed by certain of search engines.
Another issue is transparency. Google is of course the main search engine the we all know, and since the March 2014 decision, 307,000 links were deindexed by the latest data that I have. This number will have increased since then, and the question is, how did this happen? What are the criteria that are being applied? Google always indicates a number of general factors that they take into account with these decisions. But they’re pretty broad, so we don’t exactly know what happens in these decisions on an individual basis. So that leaves a lot to guess.
There is some light at the horizon, though. National courts have been pretty good in actually following up on this decision from the from the Court of Justice of the European Union. One example is from the Netherlands. A recent ruling basically said that this could not be applied to anything that was should be considered news. And also the Spanish courts have handed down some more restrictive interpretations of this ruling. So that is a positive development in and of itself.
When you look at all of this, the situation may look pretty grim and also depressing. You may also wonder why I’m telling you all this. And I want to go back to to the manifesto that I mentioned earlier at the beginning of this talk. And I want to combine it with the old saying that that knowledge is power. If you want the Internet to remain what what it is, or to become what we want it to be, I’m referring back to what Ethan Zuckerman also mentioned in his opening talk today, you know, the web we want. And if you want to make sure it’s a place where information can flow freely, we also need to know what the possible impediments are for this. What are the pitfalls that you need to navigate?
And it also requires you to be a bit flexible and a little bit creative. So, if your web site gets blocked in a certain jurisdiction, one of the things that you could do is set up an IP proxy or get someone else to host a mirror site for you. If you get a copyright claim (first of all I would advise you as a lawyer to make sure that you provide proper accreditation when you use someone else’s images) but there are also other ways you can you can change the work so that it kind of falls outside the realm of copyright protection. If your content gets deindexed because someone claims that they have a right to be forgotten, make sure that it gets known. Tweet about it, write about it, make sure that the information that you wanted to share gets out there and that people know that people have prevented you from actually trying to publish on these issues.
These are just things that I would wish for those who publish on the Internet think of beforehand. If you have something to say, it’s good to have a Plan B, and it’s also good to kind of be prepared to be a bit flexible in how you share your information when it comes down to it, and if you’re you’re challenged.
And if everything goes wrong you can always get in touch with us. I’m very happy to to take questions from the floor if we have time for that. Also feel free to come and talk to me whenever.
Presentation page at the Re:publica site.