Freedom of Expression on the Internet Freedom of Expression on the Internet A study of legal provisions and practices related to freedom of expression, the free flow of information and media THE REPRESENTATIVE ON FREEDOM OF THE MEDIA THE REPRESENTATIVE pluralism on the Internet in OSCE participating States www.osce.org/fom THE REPRESENTATIVE ON FREEDOM OF THE MEDIA The Representative on ISBN 978-92-9234-638-6 Freedom of the Media The views expressed by the author in this publication are his own and do not necessarily reflect the views of the OSCE Representative on Freedom of the Media. Edited by Ženet Mujić, Deniz Yazici and Mike Stone © 2012 The Representative on Freedom of the Media Organization for Security and Co-operation in Europe Wallnerstrasse 6, 1010 Vienna Austria Telephone: +43-1-51436-6800 Fax: +43-1-51436-6802 Design and Layout: Bakhtiyor Tukhtabaev ISBN 978-92-9234-638-6 Authored by Professor Yaman Akdeniz, Faculty of Law, Istanbul Bilgi University, Turkey ([email protected])* Commissioned by The Office of the OSCE Representative on Freedom of the Media This report presents the conclusions of the first comprehensive research on Internet content regulation in the OSCE region. A preliminary report was prepared and published in view of the OSCE review conference and OSCE Astana Summit 2010. The information contained in this report is based on data received from OSCE participating States as well as bona fide sources in response to a questionnaire sent out on 23 September 2010. * Yaman Akdeniz’ recent publications include Internet Child Pornography and the Law: National and International Responses (London: Ashgate, 2008: ISBN: 0 7546 2297 5), Racism on the Internet, Council of Europe Publishing, 2010 (ISBN 978-92-871-6634-0). For further information about his work see <http://cyberlaw.org.uk/about/>. ii Freedom of Expression on the Internet A study of legal provisions and practices related to freedom of expression, the free flow of information and media pluralism on the Internet in OSCE participating States iii iv TABLE OF CONTENTS FOREWORD DUNJA MIJATOVIĆ 3 INTRODUCTION 5 OSCE COMMITMENTS 9 METHODOLOGY 11 PART I FINDINGS, CONCLUSIONS AND RECOMMENDATIONS 14 A. INTERNET ACCESS 14 B. INTERNET CONTENT REGULATION 19 C. BLOCKING, FILTERING, AND CONTENT REMOVAL 32 D. LICENSING AND LIABILITY RELATED ISSUES, AND HOTLINES TO REPORT ILLEGAL CONTENT 42 E. CONCLUSIONS AND RECOMMENDATIONS 49 PART II OVERVIEW OF LAWS AND PRACTICES ON INTERNET CONTENT REGULATION IN THE OSCE AREA 54 A. INTERNET ACCESS 54 Internet Access – A Fundamental Human Right 54 Legal provisions which could restrict users’ access to the Internet 56 Legal provisions guaranteeing or regulating “Net Neutrality” 58 Conclusion to Part A 69 B. INTERNET CONTENT REGULATION 70 Legal provisions outlawing racist content and hate speech 75 Legal provisions outlawing the denial or justification of genocide 94 Legal provisions outlawing incitement to terrorism 102 Legal provisions criminalizing child pornography 119 Legal provisions outlawing obscene and sexually explicit (pornographic) content 145 1 Legal Provisions Outlawing Internet piracy 151 Legal provisions outlawing libel and insult (defamation) on the Internet 168 Legal provisions outlawing the expression of "extremism" 185 Legal provisions outlawing the distribution of “harmful content” 194 Legal provisions outlawing any other categories of Internet content 196 Conclusion to Part B 199 C. BLOCKING, FILTERING, AND CONTENT REMOVAL 203 EU and CoE policies and projects on blocking access to websites 216 Legal provisions which require closing down and/or blocking access to websites 217 Policies on filtering software and children’s access to harmful content 254 Legal provisions requiring schools, libraries, and Internet cafes to use 258 filtering software Conclusion to Part C 265 D. LICENSING AND LIABILITY & HOTLINES TO REPORT ILLEGAL CONTENT 271 Hotlines to report allegedly illegal content 305 Conclusion to Part D 320 APPENDIX II: RESPONSE FREQUENCIES 334 Response Statistics – Inside Back Cover 2 Foreword By Dunja Mijatović I am pleased to present the first comprehensive study of Internet regulation in the OSCE region. This study, commissioned by my Office and carried out by Professor Yaman Akdeniz of Istanbul Bilgi University in Turkey, shows a disturbing trend: Attempts to control the Internet are growing. We are witnessing more and more participating States adopt laws aimed at regulating the web. We also see more and more governments trying to put the topic of web regulation on international agenda. The affect of these attempts could be disastrous to media pluralism. At the exact time when we, in this digital age, can access and consume whatever media we want, wherever and whenever through methods never before believed possible, states are taking steps to hinder, restrict and in many cases simply shut off access to information. The emergence of new media has completely changed the way people communicate and share and receive information. New media offer a promise of a truly democratic culture with more equal participation and interactivity. But yet, the trend is for unnecessary laws and regulations that retard that promise. To date, the levels of Internet regulation throughout the OSCE region differ significantly. Although it is true that today more information is available and more easily accessible, new laws and other restrictive measures in many countries hinder the opportunities that new media can offer. Let me be clear here. Governments do have a role to play when it comes to Internet content and to protecting children, fighting racism, incitement to hatred and cybercrime. The question is not whether governments should or should not regulate the Internet. The questions are how, what and to what extent content should be regulated? And, perhaps most importantly, with what results? Has governmental regulation proved to be efficient and, if not, are there alternative speech-friendly methods that would be more efficient? These are issues raised by this study. As you read this report, keep in mind that it is only the first attempt to determine where the participating States stand on the issue of Internet regulation. It also is an effort to bring critical issues of Internet regulation to the forefront so they may be debated across our region. 3 My Office will continue to closely monitor developments in this sphere and will offer advice on legal and regulatory issues that affect media pluralism to all interested participating States. Vienna December 2011 Dunja Mijatović is the OSCE Representative on Freedom of the Media. 4 Introduction Whenever new communications and media platforms have been introduced, their innovation and application was met with scepticism, fear or outright banning by the ruling parties and authorities who feared the unknown medium, and its capacity to oust them from power. Therefore, new (mass) media historically face suspicion, and are liable to excessive regulation as they spark fear of potential detrimental effects on society, security and political power structures. This has proven true in the publication and transmission of certain types of content from the printing press through the advent of radio, television and satellite transmissions, as well as other forms of communication systems. During the 1990s, as attention turned to the Internet and as access to this borderless new communications platform increased, the widespread availability of various content, including sexually explicit content and other types of content 1 deemed to be harmful for children, stirred up a ‘moral panic’ shared by many states and governments and certain civil-society representatives and concerned citizens. Prior to the 1990s, information and content was predominantly within the strict boundaries and control of individual states, whether through paper- based publications, audio-visual transmissions limited to a particular area or even through public demonstrations and debates. Much of the media content made available and the discussions it triggered remained confined within territorially defined areas. Today, however, information and content, with its digital transmission and widespread availability through the Internet, do not necessarily respect national rules or territorial boundaries. This dissolution of the “sovereignty” of content control, coupled with the globalization of information, comes along with an increased multilingualism observable in many countries. The increasing popularity of user-driven interactive Web 2.0 applications and services such as YouTube, Facebook and Twitter seem to eliminate virtual Internet borders even further by creating a seamless global public sphere. This, inevitably complicates state-level efforts to find an appropriate balance between the universal right to freedom of opinion and expression, which includes the right to receive and impart information, and the prohibition on certain types of content deemed illegal by nation-state authorities or intergovernmental organizations. With the widespread availability of the Internet and 1 Cohen, S., Folk Devils and Moral Panics: Creation of Mods and Rockers, Routledge: th 30 Anniversary edition, 2002; Jenkins, P., Intimate Enemies: Moral Panics in Contemporary Great Britain, Aldine De Gruyter, 1992. 5 increasing number of users, online content regulation became an important focus of governments and supranational bodies across the globe. Today, many OSCE participating States feel the need to react to the development of the