CyberLaw Blog

Archive for the ‘Access’ Category

Government already has network suspension powers if public order threatened: “The Government has the power to suspend communications networks in the interests of public safety or national security. Communications network operators have told MPs that such bans would not improve public safety.”

(Via OUT-LAW News.)

New Zealand’s Illegal File-Sharing Law Takes Effect: “

Law allows for fines of up to NZ$15,000 ($12,000) and Internet account suspensions for up to six months; Labour Party vows to repeal ‘within 90 days.’

Today is a sad day for Internet users in New Zealand as the country’s long-delayed ‘three-strikes’ law takes effect in that country.

New Zealand enacted ‘three-strikes’ legislation this past April after several years of ill-fated attempts. The law allows for fines of up to NZ$15,000 ($12,000) and Internet account suspensions for up to six months.

The law takes effect despite a UN report that concluded disconnecting Internet users, ‘regardless of the justification provided,’ is a violation of the International Covenant on Civil and Political Rights because it limits the type of media individuals are allowed to use to express themselves.

UN Special Rapporteur Frank La Rue said that he was ‘alarmed’ by ‘disproportionate’ Internet disconnection proposals, and that individuals should never have their Internet access terminated for any reason, including copyright infringement.

Following that report, the opposition Labour Party, which had originally voted in favor of the legislation, said it agreed with La Rue’s assessment that Internet disconnection violates international law, and called for a ‘complete review’ of New Zealand’s copyright laws.

It reiterated its opposition to Internet disconnection in a recent press release, vowing to introduce a Bill within 90 days to remove the ‘termination clauses’ from the Copyright Act; it promises to introduce a new Bill within 18 months to ‘update’ and ‘extend’ digital copyright laws that won’t disconnect copyright infringers.

‘Termination is unsustainable,’ said Clare Curran, Labour’s Communications and IT spokesperson. ‘Labour voted for the Bill in April because we stuck by a commitment to work with the Government to enable Internet service providers and rights holders to reach a compromise on copyright law.’

‘That compromise meant that termination of Internet access as an ultimate penalty for repeat copyright infringement remained in the Bill, but could not be enacted without the consent of the Minister, but it is clear that this won’t work long-term.’

She said the real debate is about shifting power, access to information, out-dated business models, and the immense potential of the Internet to change the world as we know it.

‘These solutions are, of course, bigger than simply tinkering with a single section of the Copyright Act,’ added. ‘That’s why Labour will review the whole Act with a view to encouraging new business models to emerge which will distribute digital content easily and affordably.

‘It’s a fundamental principle to ensure that the work of Kiwi creators is valued and that they can maintain control over their own works. The old business models — by which the distribution of creative works was controlled by big companies — have gone.

She’s right, and that’s what they whole fight has been about: prying loose old distribution models and democratizing them. For the first time artists can disseminate their works to the entire world on their own terms, and individuals can likewise access creative works on a scale that was for most of man’s existence unimaginable.

‘Citizens everywhere are hungry for information and creative material via the digital environment. It is absolutely essential we get the balance right,’ Curran said.

Stay tuned.

jared@zeropaid.com “

(Via ZeroPaid.com.)

Internet disconnection breaches free expression rights, says co-operation body | Pinsent Masons LLP

OUT-LAW News, 20/07/2011

Countries that block internet access on copyright infringement grounds are stifling freedom of expression and the free flow of information, according to a new report on the internet and freedom of speech.

The Organisation for Security and Co-operation in Europe (OSCE) said that website blocking was ‘an extreme measure’ that countries should not use as a means of punishment. The OSCE is made up of 56 member countries and aims to identify, prevent and solve areas of political, economic and other areas of conflict.

‘As blocking mechanisms are not immune from significant deficiencies, they may result in the blocking of access to legitimate sites and content,’ the OSCE said in a report (233-page / 1.88MB PDF) on Freedom of Expression on the Internet.

‘Further, blocking is an extreme measure and has a very strong impact on freedom of expression and the free flow of information. Participating States should therefore refrain from using blocking as a permanent solution or as a means of punishment,’ the report said.

‘Blocking of online content can only be justified if in accordance with these standards and done pursuant to court order and where absolutely necessary. Blocking criteria should always be made public and provide for legal redress,’ the report said.

Freedom of expression is a fundamental human right guaranteed in the European Convention on Human Rights and in the UK by the Human Rights Act.

In the UK provisions within the Digital Economy Act allow the Culture Secretary to draw up new regulations that would see courts decide whether to force ISPs to block access to pirated copyright works.

The DEA also allows Ofcom, the UK’s communications regulator, to draw up new regulations to detail how internet service providers (ISPs) should be involved in attempts to stop copyright infringement.

In a draft code of practice published in May last year, Ofcom said that internet users should receive three warning letters from their ISP if they are suspected of copyright infringements online.

Details of illegal filesharers that receive more than three letters in a year would be added to a blacklist, the draft code said. Copyright holders would have access to the list to enable them to identify infringers, it said.

The Government is expected to approve Ofcom’s draft code next year.

BT, the largest UK ISP, is also currently fighting a court battle against the Motion Picture Association (MPA) arguing that it should not have to cut off its customers’ access to a copyright infringing website.

The MPA is challenging BT under Section 97A of the Copyright, Designs and Patents Act and is seeking a court injunction against BT to compel it to act.

Section 97A of the Act gives the High Court, or in Scotland the Court of Session, the power to grant an injunction against a service provider if it had ‘actual knowledge’ that someone has used its service to infringe copyright.

The Act does not specify what purpose an injunction must serve. Section 97A implements the requirements of the EU Copyright Directive which states that countries must ensure that copyright holders have the right to apply for injunctions against intermediaries, such as ISPs, whose services are used to infringe copyright.

Blocking measures also exist in other countries. In France a controversial ‘three strikes’ policy currently exists where a court can punish serial copyright infringers by ordering ISPs to disconnect them from the internet for up to a month.

A voluntary agreement between ISPs and copyright holders in the US was also recently formed which could result in ISPs slowing or blocking customers’ web browsing.

The OSCE criticised its members that do not have measures in place to ensure net neutrality. Net neutrality is a principle which ensures that ISP customers have the right to access all online information equally rather than having easier access to content from companies that have paid their ISP.

‘Network neutrality is an important prerequisite for the Internet to be equally accessible and affordable to all,’ the OSCE report said. ‘It is, therefore, concerning that over 80% of the OSCE participating States do not have legal provisions in place yet to guarantee net neutrality.’

‘Users should have the greatest possible access to Internet-based content, applications, or services of their choice without the Internet traffic they use being managed, prioritized, or discriminated by the network operators,’ the report said.

The OSCE also said that countries must ensure that their residents can access the internet.

‘Everyone should have a right to participate in the information society, and the states have a responsibility to ensure citizens’ access to the internet is guaranteed,’ the OSCE report said.

Technology law news is also available from Bootlaw, a free resource for technology start-ups, with regular events hosted by Pinsent Masons.

See: The OSCE report (233-page / 1.88MB PDF)

OSCE: Internet access is a fundamental human right

Geoff DuncanJuly 11, 2011

A new report from the Organization for Security and Cooperation in Europe says Internet access should be a fundamental human right, like freedom of expression.

The Organization for Security and Cooperation in Europe has released its first overview report (PDF) examining laws regulating use of the Internet in member states, and posits that access to the Internet should be considered a fundamental human right, akin to freedom of expression. The study also argues that Internet blocking and content filtering mandates and technologies are, in most cases, cannot be reconciled with the free flow of information and freedom of expression—both of which are basic commitments made by the 56 members of the OSCE.

‘Everyone should have a right to participate in the information society and states have a responsibility to ensure citizens’ access to the Internet is guaranteed,’ the report reads.

The study, authored by Istabul Bilgi University’s Yaman Akdeniz and commissions by the OSCE Representative on Freedom of the Media Dunja Mijatović examines the level of Internet content regulation in the OSCE region and evaluations how member states’ laws embody their OSCE commitments and international standards.

Some member states were unable to supply information to the study due to legal restrictions or simply because information wasn’t available. The study emphasizes that governments’ lack of transparency on how they manage and regulate Internet access creates more difficulties for users trying to understand Internet regulation regimes that may apply to them. Both the report and Akdeniz note Internet blocking does take place within the OSCE area.

‘Legislation in many countries does not recognize that freedom of expression and freedom of the media equally apply to Internet as a modern means of exercising these rights, ’ said Representative Mijatović, in a statement. ‘In some of our states, ‘extremism’, terrorist propaganda, harmful content, and hate speech are vaguely defined and may be widely interpreted to ban speech types that Internet users may not deem illegal.’

The report also noted that many countries permit the complete suspension of Internet access and services during a declared state of emergency, war, or in response to other security threats.

The OSCE is comprised of 56 member states throughout Europe and Central Asia—including the United Kingdom, Germany, Italy, France, Greece, Sweden, the Russian Federation, Uzbekistan, Kyrgyzstan, Turkey, and Croatia. It also includes Canada and the United States.

The Internet is a human right | memeburn

By Staff Reporter
07.12.11

Recognition of the internet’s part in the Arab Spring — the uprisings for democracy in the Middle East this year — has cemented the role of the internet as a tool for freedom and protest.

The Organisation for Security and Co-operation in Europe (OSCE), comprised of 56 nations from across the developed and developing world, has now formally recognised this fact.

In a report published last week, the transnational body recognised that ‘access to the internet should be seen as a fundamental human right and respected as much as freedom of expression’.

The OSCE’s analysis was the first ever of state regulations on Internet access within the 56-member body, and found that ‘everyone should have a right to participate in the information society and states have a responsibility to ensure citizens’ access to the internet is guaranteed’.

Highlighting Finland and Estonia — which were praised — Dunja Mijatovic, the OSCE’s media representative said presenting the report, ‘some governments already recognise access to the internet as a human right. This trend should be supported as a crucial element of media freedom in the 21st century’.

Since last year, Finnish citizens have a legal right to broadband internet access, the first country to lay down such a rule, while Norway has also taken steps in that direction. Since the early 2000s, Estonia has also been receiving praise for its progressive internet policies.

Seven other states admitted they had regulations, however, to defend national security and to protect public health, allowing them to limit access to the internet in cases of state emergencies. At least 10 states also failed to submit any data to the OSCE for its report.

‘Legislation in many countries does not recognise that freedom of expression and freedom of the media equally apply to internet as a modern means of exercising these rights’, Mijatovic noted.

As a result, the organisation offered guidelines to these countries to ensure that citizen access to the web was guaranteed, through clearly worded laws, for example, was well as refraining from blocking content and generally respecting freedom of expression and of the media.

‘We will use the study as an advocacy tool to promote speech-friendly Internet regulation in the OSCE participating States,’ Mijatovic said.

This recognition of internet access as equal to other basic human rights — such as freedom of opinion and expression — is in step with findings by the United Nations Human Rights Council (UNHRC).

A report tabled by the UNHRC before the United Nations General Assembly found disconnecting users from internet access to be a human rights violation.

The United Nations finding flies in the face of the authoritarian regimes of the Middle-East where leaders, facing protests organised via social networks, often choose to disconnect the internet entirely in retort.

A forced lack of internet access can also affect citizens of democratic nations, however, where there is a perceived threat to the status quo.

Laws in France and the United Kingdom — to give two examples — allowed the government to cut off internet access to people repeatedly found guilty of swapping files illegally on the internet.

These laws have proven to be controversial and are opposed by advocates of an ‘open internet’ and ‘net neutrality’ movement. — AFP with additional reporting by Staff Reporter

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.

Foreign Office to hold talks on whether internet access is a human right – 14 Jul 2011 – Computing News

by Gareth Morgan
14 Jul 2011

The Foreign and Commonwealth Office will host a multidisciplinary meeting next week exploring the UK’s policy towards freedom of expression on the internet.

The first meeting, which will be led by Jeremy Browne, minister for state at the FCO, takes place on 20 July. It will include representatives from human rights campaigners.

Internet access has become a defining feature of the Arab Spring protests – a wave of revolutions and protests in the Arab world – with several regimes blocking citizens’ internet access in an effort to quell protests.

That has resulted in widespread calls from human rights campaigners for governments to acknowledge the critical role the internet plays in people’s lives.

In early July 2011, the UN-affiliated Organization for Security and Co-operation in Europe (OSCE) called for internet access to be treated as a fundamental human right.

‘Some governments already recognise access to the internet as a human right. This trend should be supported as a crucial element of media freedom in the 21st century,’ said Dunja Mijatovic, an OSCE’s spokesman.

The UK government has recognised the increasing importance of internet access, even if it lacks a formal stance on whether it counts as a human right.

In a parliamentary written answer, Foreign Secretary William Hague said the government were committed to supporting people’s right to access – and express their views on – the internet.

‘[We] will continue to encourage states that restrict access to online media to uphold their international human rights commitments,’ he said.

UN: Disconnecting File-Sharers Breaches Human Rights: “

According to a UN report published in May and set to be adopted today, tough provisions in the UK’s Digital Economy Act and and France’s ‘Hadopi’ legislation breach human rights.

The Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression details concern for measures being put in place by various governments to punish online copyright infringement. In many cases those measures include the draconian step of denying citizens’ Internet access.

‘While blocking and filtering measures deny users access to specific content on the Internet, States have also taken measures to cut off access to the Internet entirely,’ says the report.

‘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 and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.’

The report highlights the so-called 3 strikes-style schemes adopted by France and the UK, noting that the author of the report, Frank La Rue, is ‘alarmed’ by proposals to severely punish Internet users 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,’ notes the report.

In addition to calling on governments to maintain Internet access ‘during times of political unrest,’ the report goes on to urge States to change copyright laws, not in favor of the music and movie industries as has been the recent trend, but in keeping with citizens’ rights.

‘In particular, 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 report adds.

Whether or not the report will carry any influence with these so-far stubborn governments remains to be seen, but the Open Rights Group are keeping up the pressure on Culture Secretary Jeremy Hunt. ORG have written to Hunt asking for his reaction to the Special Rapporteur’s report and his recommendation that the Digital Economy Act’s disconnection provisions should be repealed.

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Source: UN: Disconnecting File-Sharers Breaches Human Rights

“

(Via TorrentFreak.)

Senate Hearing on Digital Trade Protectionism: “posted by Heather West, Policy Analyst

This afternoon Senator Ron Wyden of Oregon put the spotlight on an issue close to our heart and business operations: the need to protect and promote the free flow of information in international trade agreements. In a hearing on International Trade in the Digital Economy, Senator Wyden called for the U.S. government and others to come together to combat protectionism against digital exports — a position that mirrors themes we raised in the trade white paper we released earlier this week.

At the hearing, Senator Wyden noted how the international reach of American technology companies directly affects the ability of all American companies to export goods and services, both digital and otherwise. The hearing noted the effect of these restrictions on all kinds of American companies, holding back trade and exports whether it is in digital services or physical goods.

We commend the Subcommittee’s leadership on this issue and agree with the fundamental principle that new trade agreements should require governments to preserve the free flow of information on the Internet. As a company, we’re particularly focused on the Trans-Pacific Partnership, negotiations among the United States and eight Pacific Rim nations that we hope will produce a first-rate modern trade pact for today’s information economy. Embedding the free flow of information into this agreement will be critical.

Testimony and video of the hearing should be online soon at the Subcommittee’s website.

“

(Via Google Public Policy Blog.)

Commission urged to force transparency on network traffic shaping: “The European Commission has been told that it should force companies to define themselves either as neutral internet service providers or as ‘managed services’ that give priority to content providers that they are in a business relationship with.“

(Via OUT-LAW News.)