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.
Internet Manifesto

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.

Further Reference

Presentation page at the Re:publica site.