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Freedom of Expression and the Internet by Wolfgang Benedek and Matthias C

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ENG With the rise of the Internet, the opportunities to express oneself have grown exponentially, as have the challenges to freedom of expression. From the Arab Spring to the global Occupy movement, freedom of expression on the Internet has had a profound impact on the debates FREEDOM which shape our future. At the same time, an increasing number of states use the Internet to spy on journalists and citizens, to prosecute and jail bloggers, and to censor online information. OF EXPRESSION This book sets out to answer essential questions regarding the extent and limits of freedom of expression online. It seeks to shed light on the often obscure landscape of what we are allowed to say online and how our ideas, and the process of imparting and receiving information, of and the expression Internet Freedom AND THE INTERNET are protected. It shows the large ambit of rights protected by freedom of expression – including freedom of the media and the right to access information via the Internet. It also highlights the importance of the standard-setting, monitoring and promotion activities of international and non-governmental organisations, with a chapter on relevant national practices that illustrates how different states deal with the challenge that the Internet has brought to ensuring freedom of expression for all. As the importance of the Internet in our daily lives grows, readers will find this book to be a valuable resource for understanding the rights and obligations of each actor on the Internet, including states, Internet companies and civil society. Professor Wolfgang Benedek is Head of the Institute of International Law and International Relations and Director of the European Training and Research Centre for Human Rights and Democracy of the University of Graz. His main research interests are human rights, human security, regulation of the Internet, and international economic law with a focus on global governance and international development law. He is the executive editor of the European Yearbook on Human Rights. “Everyone has the right to freedom of expression.” Dr Matthias C. Kettemann LL.M. (Harvard) studied international Article 10, European Convention on Human Rights law in Graz, Geneva and at Harvard Law School, and is a lecturer at the Institute of International Law and International Relations of the University of Graz and a post-doctoral fellow at the Cluster of Excellence “Normative Orders” at the University of Frankfurt/Main. He is co-editor of the European Yearbook on Human Rights. Prems 107513 Prems The Council of Europe is the continent’s leading human rights organisation. Wolfgang Benedek It includes 47 member states, 28 of which and Matthias C. Kettemann are members of the European Union. www.coe.int All Council of Europe member states have signed up to the European Convention on Human Rights, a treaty designed to protect human rights, democracy and the rule of law. The European Court of Human Rights oversees the implementation of the Convention in the member states. Council of Europe http://book.coe.int €29/US$58 ISBN 978-92-871-7702-5 Freedom of expression and the Internet by Wolfgang Benedek and Matthias C. Kettemann Council of Europe Publishing The opinions expressed in this work are the responsibility of the authors and do not necessarily reflect the fficialo policy of the Council of Europe. All rights reserved. No part of this publication may be translated, reproduced or transmitted, in any form or by any means, electronic (CD-Rom, Internet, etc.) or mechanical, including photocopying, recording or any information storage or retrieval system, without prior permission in writing from the Directorate of Communications (F-67075 Strasbourg Cedex or [email protected]). Cover photo: Shutterstock Cover design: Documents and Publications Production Department (SPDP), Council of Europe Layout: Jouve, Paris Council of Europe Publishing F-67075 Strasbourg Cedex http://book.coe.int ISBN 978-92-871-7702-5 © Council of Europe, December 2013 Printed at the Council of Europe Contents List of abbreviations ....................................................................................... 7 Table of cases .................................................................................................. 9 Preface ............................................................................................................ 13 1. Introduction: the challenges of ensuring freedom of expression on the Internet ............................................................................................... 17 2. The content of freedom of expression online ....................................... 23 2.1. Main elements of the right ............................................................. 23 2.1.1. Freedom of opinion .............................................................. 26 2.1.2. Freedom of information ....................................................... 27 2.1.3. Freedom of the press and the media .................................... 28 2.1.4. Freedom of international communication .......................... 32 2.1.5. Freedom of artistic expression ............................................. 33 2.1.6. Freedom of cultural expression ........................................... 35 2.1.7. Freedom of science ............................................................... 36 2.1.8. A new freedom? Internet freedom and openness ............... 36 2.1.9. Right to anonymity .............................................................. 37 2.1.10. Right to whistle-blowing .................................................... 38 2.2. Corollary rights: freedom of assembly and association, right to education and access to knowledge .................................. 39 2.3. Right to access to the Internet ........................................................ 41 3. Restrictions on freedom of expression online ...................................... 45 3.1. Principles and problems .................................................................. 45 3.2. Criteria for restrictions and the practice of the Court in Internet cases ................................................................................................. 47 3.2.1. Criteria for restrictions ........................................................ 47 3.2.2. The practice of the Court ..................................................... 48 3.3. Conclusion ....................................................................................... 54 4. Standard‑setting by the Council of Europe and non‑state actors ....... 55 4.1. The context: the role of human rights in Internet governance .... 55 4.2. Activities of the Council of Europe: awareness raising and standard-setting .............................................................................. 56 4.2.1. Recommendations and declarations .................................... 57 4.2.2. Guidelines and recommendations for business .................. 62 4.3. Activities of non-state actors .......................................................... 66 4.3.1. The Charter on Human Rights and Principles for the Internet ....................................................................................... 66 3 Freedom of expression and the Internet 4.3.2. Standard-setting in the private sector ................................. 68 4.3.3. Transparency to protect freedom of expression ................. 69 5. Specific issues ........................................................................................... 73 5.1. Internet content regulation and freedom of expression ......................74 5.2. Access to the Internet as a precondition for freedom of expression online ............................................................................ 75 5.3. Technological neutrality and freedom of expression .................... 78 5.4. Network neutrality and freedom of expression............................. 79 5.5. Characteristics of protected and unprotected speech online ........ 81 5.6. Fighting online hate speech ............................................................ 82 5.7. Defamation, reputation and freedom of expression online .......... 88 5.8. Protection of children in light of freedom of expression .............. 92 5.9. Freedom of expression and Internet domain names ..................... 93 5.10. The role of Internet intermediaries.............................................. 97 5.11. Freedom of expression in social networks ................................... 98 5.12. Private and public spaces on the Internet.................................. 102 5.13. Transcending the national level ................................................. 107 6. Relevant practice on the national level................................................ 109 6.1. Jurisdiction and freedom of expression online .............................110 6.1.1. France v. US and Yahoo! v. LICRA: a tale of two countries and two courts ...........................................................................110 6.1.2. UK: the Internet comes under national jurisdiction .........111 6.2. Access and freedom of expression online .....................................111 6.2.1. Egypt: Internet shutdowns ................................................ 112 6.2.2 Internet access as a protected right in 20 Council of Europe member states .............................................................. 113 6.3. Copyright and freedom of expression online ............................... 115 6.3.1. France: the limits to enforcing copyright .........................
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