UN report says freedom of expression trumps copyright

The United Nations Special Rapporteur on Freedom of Expression backs up the European Parliament's position on the Telecoms Package which calls for due process where Internet freedom of expression is to be restricted.

A United Nations report released today has a stern message for democratic governments that want to impose meaures to restrict the Internet. He says that restrictions applied to the Internet must be limited to issues such as public security, and that cutting off access - for copyright enforcement or any other reason - is a disproporationate measure. Singled out for special reprimand are the UK's Digital Economy Act and France's Hadopi law, which the report considers 'alarming'.

The report is entitled Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue. It addresses freedom of expression on the Internet from a global perspective. What's interesting is that it does not just focus on autocratic regimes and dictatorships that restrict political speech. Instead, it widens the brief to investigate other restrictions imposed by liberal democracies, including those in the European Union.

The UN report is concerned about liability for content being

imposed onto Internet Service Providers (ISPs) and other intermediaries and suggests that this could lead to self-censorship. Critically, the report argues that ISPs should not be asked to tke action without a judicial ruling.

"To avoid infringing the right to freedom of expression and the right to privacy of Internet users, the Special Rapporteur recommends intermediaries to: only implement restrictions to these rights after judicial intervention;"

"Any requests submitted to intermediaries to prevent access to certain content, or to disclose private information for strictly limited purposes such as administration of criminal justice, should be done through an order issued by a court or a competent body which is independent of any political, commercial or other unwarranted influences."

This is in line with the European Parliament's position taken in the final agreement of the Telecoms Package, which reminds Member State governments of their duty to guarantee the right to due process.

The United Nations report considers that 3-strikes measures do engage the right to freedom of expression, notably where they entail cutting off users fom the Internet. He is critical of both the UK's Digital Economy Act and the French Hadopi law.

"The Special Rapporteur ... is alarmed by proposals to disconnect users from Internet access if they violate intellectual property rights. This also includes legislation based on the concept of "graduated response", which imposes a series of penalties on copyright infringers that could lead to suspension of Internet service, such as the so-called "three strikes- law" in France and the Digital Economy Act 2010 of the United Kingdom. "

"The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate..."

"the Special Rapporteur urges States to repeal or amend existing intellectual copyright laws which permit users to be disconnected from Internet access, and to refrain from adopting such laws."

The citizens' advocacy group, La Quadrature du Net highlight how the position taken by the UN rapporteur is diametrically opposite to the one expressed by the leaders of worlds top eight political powers at the G8 meeting only last week. The G8's Deauville Declaration called for stronger copyright enforcement measures and imposition of greater liability onto intermediaries.

This is an interesting observation and beg the question how democratic governments can continue to lambast China and other autocracies when they are themselves asking economic actors to restrict their own citizens.

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My book The Copyright Enforcement Enigma: Internet Politics and the 'Telecoms Package' explains the Telecoms Package in detail. It will be published in October.

If you want to cite this article: Monica Horten (2011) http://www.iptegrity.com 3 June 2011 .

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