OSCE – Three Strikes Laws Incompatible with International Obligations to Free Speech

OSCE – Three Strikes Laws Incompatible with International Obligations to Free Speech

Written By Drew Wilson
July 13, 2011

The Organization for Security and Co-operation in Europe (OSCE), the world’s largest security-oriented intergovernmental organization has issued a report that explicitly states that a three strikes law is a disproportionate response to dealing with copyright infringement.

Last month, Frank La Rue, the UN’s Special Rapporteur slammed attempts to put in place three strikes laws as a violation of human rights. Now, it appears, that another large organization agrees with this.

The OSCE recently published a paper documenting freedom of speech on the internet and laws that impacted such freedoms. The available PDF states the following with regards to the emerging of three strikes laws around the world:

The increased use of so-called ‘three-strikes’ legal measures to combat Internet piracy is worrisome given the growing importance of the Internet in daily life. ‘Three-strikes’ measures provide a ‘graduated response’ resulting in restricting or cutting off the users’ access to the Internet in cases where a user has attempted to download pirated material. The third strike usually leads to the user’s access to the Internet being completely cut off. This disproportionate response is most likely to be incompatible with OSCE commitment on the ‘freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.’ (55) In the Charter for European Security, the participating States in 1999 ‘reaffirmed the importance of independent media and the free flow of information as well s the public’s access to information [and committed] to take all necessary steps to ensure the basic conditions for free and independent media and unimpeded transborder and intra-State flwo of information, which [they] consider the be an essential component of any democratic, free and open society.’ (56) Any interference with such a fundamental human right, as with any other human right, must be motivated by a pressing social need, whose existence must be demonstrated by the OSCE participating States and must be proportionate to the legitimate aim pursued. (57) Access to the Internet must be recognized as a human right, and therefore ‘graduated response’ mechanisms which could restrict users’ access to the Internet should be avoided by the OSCE participating States.

(55) Paragraph 9.1. of the Final Act of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, June 1990. http://www.osce.org/documents/odihr/2006/06/19392_en.pdf

(56) Paragraph 26 of the Charter for European Security adopted at the OSCE Istanbul Summit 1999. See at

http://www.osce.org/mc/17502.

(57) See Paragraph 26 of the Final Document o fthe Moscow Meeting of the Conference on the Human
Dimension of the CSCE, at http://www.osce.org/fom/item_11_30426.html. See also Olsson v. Sweden
(No. 1), judgment of 24 March 1988, Series A no. 130, § 67, and Bladet Tromsø and Stensaas v. Norway
[GC], no. 21980/93, ECHR 1999-III.

In other words, if a government of a given state supports their international obligations to free speech, then the ‘graduated response’ laws where users are cut off after a third accusation of infringement must be avoided. You can’t have free speech and a three strikes law at the same time.

It’s particularly interesting that this finding was made since France, the country that has a three strikes law already in place, is also a member of the OSCE. Another member of interest is the US, the same country that has been pushing other countries to implement a three strikes law.

What this report essentially does is help solidify the point that a ‘graduated response’ or a three strikes law is a violation of human rights. There are international bodies that do agree with this.

The next question will no doubt be whether countries will actually listen to the report or push for laws that disregards human rights. We already know that the United States seems to be content with sacrificing their national security in favor of a six strikes agreement, so, it’s difficult to say that free speech will be a motivating factor to slow down the implementation of these laws.

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