CyberLaw Blog

Archive for December 1st, 2010

Organization for Security and Co-operation in Europe, The Representative on Freedom of the Media (November 2010): Preliminary Report: Study of legal provisions and practices related to freedom of expression, the free flow of information and media pluralism on the Internet in the OSCE participating States.

This preliminary report has been commissioned by the Office of the OSCE Representative on Freedom of the Media and prepared by Dr. Yaman Akdeniz, Associate Professor of Law, Faculty of Law, Istanbul Bilgi University, Turkey.

It presents the first stage of research into the first comprehensive study of legal provisions and practices related to freedom of expression, the free flow of information and media pluralism on the Internet in the OSCE participating States. This preliminary report was prepared in view of the OSCE review conference and OSCE Astana Summit 2010. The final study is expected to be concluded in January 2011 and will be published in both, English and Russian language.

Executive Summary
Today, many OSCE participating States are reacting to the availability and dissemination of certain types of (illegal or unwanted) content through the Internet by trying to regulate or control its dissemination. There is particularly major concern about the availability of terrorist propaganda, racist content, sexually explicit content including child pornography, as well as content defined as hate speech on the Internet.

This OSCE-wide Internet content regulation study involves a comprehensive overview of existing international legal provisions and standards relating to media freedom and freedom of expression on the Internet, and the study will assess whether and how these are incorporated into national legislation, and applied by the OSCE participating States.

Furthermore, the final study will assess the compliance of applicable national Internet legislation and practices with existing OSCE media freedom commitments, Article 10 of the European Convention on Human Rights (where applicable) and other relevant international standards (UN, CoE, etc.). For this purpose the study will involve the compilation of a comprehensive OSCE-wide legal matrix of all legal provisions related to freedom of the media, the free flow of information and media pluralism on the Internet. A survey questionnaire was prepared during the summer of 2010 and distributed to all OSCE participating States on 23 September 2010. Responses to the questionnaire were expected by 15 November, 2010. Depending on timely submissions, the study is expected to be concluded in January 2011.

This preliminary report aims to lay out the first findings of the OSCE Internet Regulation Study based 1) on the review and presentation of major international legal provisions related to the subject; 2) on the examination and assessment of the efficiency, the advantages and disadvantages of various international and national content regulation measures – particularly vis-à-vis fundamental rights of free expression and media freedom; and 3) by taking into account international as well as national academic and policy discussions on the matter. This report also includes preliminary conclusions which will be further developed based on the responses to be received from the OSCE participating States to the questionnaire.

This report argues that access-blocking measures show their inadequacy as an efficient and proportionate method to combat illegal Internet content, and raises concern about the possibility of using blocking measures or upstream filtering tools at state level to silence politically motivated speech on the Internet. The report shows that international organizations such as the Council of Europe and the European Union have recognized the inefficiency of blocking for fighting serious crimes. Furthermore, the report warns that blocking access to any Web 2.0 based applications and services such as YouTube, WordPress, Facebook, and Twitter, to mention a few, may have extreme side effects and strong implications on political expression.

Regarding the protection of children from accessing online content deemed to be harmful, the report states that participating States should encourage the application of end-user based filtering software on home computers, and in schools if their use is deemed necessary. However, the deployment of state level upstream filtering systems should be avoided at all costs.

In concluding, this preliminary report calls for the OSCE participating States to respect OSCE commitments and other international human rights principles when developing their Internet content related policies and regulations. The states’ response should be proportional, correspond to a “pressing social need”, and be in line with the requirements of democracy with regards to content based restrictions. Internet access should be regarded as a fundamental human right, and network neutrality should not only be respected but upheld by the OSCE participating States.

The Preliminary Report is available as a PDF file.

CBC News: WikiLeaks blocked in China:

Last Updated: Wednesday, December 1, 2010 | 9:02 AM ET

The Associated Press
In China, attempts to access wikileaks.org and cablegate.wikileaks.org were met with a notice saying the connection had been reset. That’s the standard response when a website is being blocked by Chinese authorities who exert rigid controls over internet content.In China, attempts to access wikileaks.org and cablegate.wikileaks.org were met with a notice saying the connection had been reset. That’s the standard response when a website is being blocked by Chinese authorities who exert rigid controls over internet content. (Associated Press)

Links to the WikiLeaks website were blocked within China on Wednesday amid potentially embarrassing claims made in leaked U.S. diplomatic cables posted to the site.

Attempts to access wikileaks.org and cablegate.wikileaks.org were met with a notice saying the connection had been reset. That’s the standard response when a website is being blocked by Chinese authorities who exert rigid controls over internet content.

It wasn’t clear when the blocks were imposed, although a vast swath of the internet is inaccessible behind China’s firewall, including social networking sites such as Facebook, Twitter and YouTube.

Human rights and political dissent-themed sites are also routinely banned, although technologically savvy users can easily jump the so-called ‘Great Firewall’ with proxy servers or other alternatives.

WikiLeaks may have been singled out because of some of the assertions made in the leaked cables, including some sent from the U.S. Embassies in Seoul and Beijing, focusing on China’s ally North Korea.

Those included suggestions that North Korea’s communist regime would likely collapse within three years of the death of ruler Kim Jong Il, and that Chinese leaders were prepared to accept South Korea’s eventual rule over the entire Korean peninsula.

In one, a Chinese diplomat is quoted describing North Korea as a ’spoiled child’ for attempting to win U.S. attention with a provocative missile test.

The leaks also claimed that China’s Politburo directed a cyber intrusion into Google’s computer systems, and expressed concern over attempts by Iranian front companies to obtain Chinese nuclear technology.
Foreign Ministry not commenting

China’s government has taken a low-key approach to the leaks, with the Foreign Ministry saying it would not comment on specific assertions in the cables.

‘China takes note of relevant reports. We hope the U.S. side will properly handle the relevant issue. As for the content of the documents, we do not comment on that,’ ministry spokesman Hong Lei said Tuesday.

The Global Times, a provocative tabloid published by the ruling Communist Party mouthpiece Peoples Daily, labelled the disclosure a ‘nefarious slander against China’ on Wednesday.

It also questioned the U.S. government’s perceived inability to block the posting of the leaks, saying it raised questions as to whether it had reached some form of tacit understanding with WikiLeaks.

Shi Yinhong, a professor of international relations at Beijing’s Renmin University, said Beijing shared Washington’s concern about the release of sensitive diplomatic communications. But he said the WikiLeaks blocking was motivated more by the need to stifle further rumour mongering, rather than suppressing specific revelations.

‘The website is blocked because the information is both unprovable and sensitive,’ Shi said.

U.S. Secretary of State Hillary Rodham Clinton has said that WikiLeaks acted illegally in posting the documents. Officials around the world have said the disclosure jeopardizes national security, diplomats, intelligence assets and relationships between foreign governments.

The massive leaks were ‘embarrassing’ and ‘awkward,’ but the consequences for American foreign policy should be limited, U.S. Defence Secretary Robert Gates said Tuesday.