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

Friday, July 15th, 2011

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.

French Constitutional Council Validates Internet Censorship | La Quadrature du Net

Wednesday, March 23rd, 2011

French Constitutional Council Validates Internet Censorship | La Quadrature du Net

Submitted on 11 March 2011

Paris, March 10th, 2011 — The French Constitutional Council has released its decision1 regarding the LOPPSI bill. Judges held that article 4 of the bill, which allows the executive branch to censor the Net under the pretext of fighting child pornography, is not contrary to the Constitution. In doing so, the constitutional court has failed to protect fundamental freedoms on the Internet, and in particular freedom of expression. Hopes lie now in European institutions, which are the only ones with the power to prohibit or at least supervise administrative website blocking and its inherent risks of abuse.

The LOPSSI law compiled many repressive measures on vastly unrelated subjects. The Constitutional Council found itself caught by this strategy. While it did strike down some of the most shocking provisions, it left untouched those that seemed less harmful or were proposed in the name of noble goals, in spite of having a highly detrimental impact on civil liberties, such as the ones related to the Internet.

LOPPSI’s article 4 gives the executive branch the power to suppress the flow of information on the Internet. In a highly hypocritical move, the government claims to be fighting child pornography, a goal for which filtering is both ineffective and vastly overkill, especially given the risk of collateral censorship of perfectly legal websites2. There is a high risk of seeing such a scheme used for other goals.

‘This decision about article 4 is a great disappointment. It is obvious that Internet censorship will not help solve the child pornography problem in any way, as experiments in other countries have shown 3. After HADOPI’s Internet access suspension measures, calls to ban WikiLeaks hosting and recent talks against Net Neutrality, France is siding ever more with the group of countries hostile to a free Internet by adopting administrative filtering of the Internet.’, says Jérémie Zimmermann, co-founder and spokesperson for La Quadrature du Net.

‘It is unfortunate that the Constitutional Council did not build on its own HADOPI jurisprudence by giving the judiciary branch exclusive authority to control restrictions to online free speech. The solution may lie in European institutions: the EU Parliament is currently trying to supervise blocking measures adopted at the national level, which could impede their implementation in France4. Moreover, administrative Net filtering seems contrary to the European Convention on Human Rights5, and one can expect an appeal before European judges.’, concludes Félix Tréguer, policy and legal analyst for the advocacy group.

The French supreme court recognizes hosting status of Web 2.0 services | EDRI

Thursday, February 24th, 2011

The French supreme court recognizes hosting status of Web 2.0 services | EDRI

23 February, 2011

On 17 February 2011 the French Court of Cassation recognized the hosting status of Dailymotion and Fuzz.fr. The court also confirmed, in relation to the Amen website case, that the judges had to verify that the content withdrawal requests observed the requirements of LCEN (loi pour la confiance dans l’économie numérique – French implementation of the EU E-commerce Directive) before condemning a hosting site that had not withdrawn promptly the notified content.

The decisions of the Court of Cassation establish clearly the boundary between a content hosting site and a web service editor. In the Dailymotion case, it comes to confirm the decision of the French Court of Appeal of May 2009 which overturned a 2007 court decision that considered the hosting site liable for the content posted online on its platform. Moreover, the site had responded immediately after having been notified that it was hosting illegal content.

The Court of Cassation also overturned the decision against Fuzz.fr in the case introduced by actor Olivier Martinez. In 2008, a French court decided that the owner of the website had an editorial responsibility, even if the website was a digg-like service (where the users can vote which news comes on first) and forced him to pay 1000 euro in damages for infringing the actor’s privacy and an additional 1500 euro in legal fees. The Court of Cassation considered fuzz.fr a hosting site in terms of LCEN and therefore not liable for the content posted on it.

An important clarification in relation both to Dailymotion and the Amen hosting site is the necessity to correctly formulate the requests for content withdrawal by taking all actions stipulated by the law.

According to LCEN, the request to withdraw content must cover a series of elements including the notification date, the identification data of the notifying person (either natural or legal), the identification data of the addressee, the description of the litigious facts and precise location, the reasons for the withdrawal, including legal basis and justification, , a copy of the correspondence addressed to the author or editor of the litigious actions asking for their interruption, withdrawal or modification, or the justification of the fact that the author or editor could not be contacted.

The subsidiarity principle is thus observed, meaning that a hosting site cannot be required to withdraw content before proving that the author of the content has been first contacted and required to withdraw the respective content. This could be the end of mass withdrawals of files without any previous procedure.

However, the Legal Commission of the Senate seems to want to change the rules and on 15 February 2011 it proposed the creation of a new status between hoster and editor that will have filtering and surveillance obligations.

Dailymotion and Fuzz recognised as hosters by the Cassation Court (only in French, 17.02.2011)

http://www.01net.com/www.01net.com/editorial/528466/dailymotion-et-fuz…

The Cassation Court saves Fuzz.fr service as well (only in French, 18.02.2011)

http://www.numerama.com/magazine/18104-la-cour-de-cassation-sauve-auss…

The Cassation Court protects the hosting status of Dailymotion. Thanks Hadopi ? (only in French, 17.02.2011)

http://www.numerama.com/magazine/18099-la-cour-de-cassation-protege-le…

The assignees will not be able to withdraw mass contents (only in French, 17.02.2011)

http://www.numerama.com/magazine/18098-les-ayants-droit-ne-pourront-pl…

The Senate proposes the creation of web service editor status (only in French, (16.02.2011)

http://www.journaldunet.com/ebusiness/le-net/statut-d-editeur-de-servi…

EDRi-gram: French courts give clear decisions for hosted content (20.05.2009)

http://www.edri.org/edri-gram/number7.10/france-decisions-hosting

UK, France move to filter the internet > Policy Management > Risk Management > News > SC Magazine Australia/NZ

Wednesday, December 22nd, 2010

UK, France move to filter the internet

By John Hilvert
Dec 20, 2010 5:23 PM

Separate bills to end ‘Wild West’ approach.

The UK and French Governments have separately conceived plans to block internet pornography on an internet service provider level.

British communications minister Ed Vaizey reportedly planned to meet with ISPs about blocking pornography by default, so adults would have to opt-in to view it.

Although he hoped ISPs would decide to self-regulate, Vaizey said the UK Government was ‘keeping an eye on the situation’. He expected to introduce a new communications bill ‘in the next couple of years’.

Meanwhile, members of French General Assembly adopted a bill on December 15 to allow the Government to filter the internet without court intervention.

Article 4 of the so-called ‘LOPPSI 2′ (loi d’orientation et de programmation pour la performance de la sécurité intérieure – law on guidelines and programming for the performance of internal security), referred to the blocking of child pornography sites.

The bill was reportedly designed to ‘Fight against child pornography: the internet access providers must prevent access by internet users to illegal content’.

But some MPs among the assembly attacked Article 4, which in effect allowed the government to filter the Internet using a blacklist issued by the Ministry of Interior, without the intervention of the judiciary.

Critics of the measure argued it might also allow the ISP-level blocking of websites considered by the authorities as undesirable, without judiciary control.

This may also give the French police authority to install spyware on PCs, without the users’ knowledge and without having to justify their actions, critics argued.

One MP who voted against the measure was Lionel Tardy, UMP (Haute-Savoie).

‘Make no mistake: whatever features you put in place, such sites are created and disappear like the wind,’ he said.

‘As soon as they feel identified, these people change their address. I do not see what device, what order, will fight in real time against stealth sites that will move without stopping, which can be deployed on mirror sites.

‘We’re here to pass a law. You can put whatever you want in place, connect fifty addresses of banned sites to which you want to operators or ISPs to block them, two minutes later you will see 200 new sites are created and people will continue to access them as before.

‘It is a reality. The problem is international. By legislating in the French framework, we have it all wrong.

‘We must act at the source of the servers. It is possible through international agreements, since we know the countries that pose problem.’

Socialist politician Patrick Bloche, meanwhile, said Article 4 ‘is not talking about victims or perpetrators, those who make these images and movies. It needs to hunt them.’

He regretted that the Assembly had not voted for the reinstatement of the judiciary, because ‘without the safeguards of the judge, there is a risk of collateral damage’ – that non-pedophile sites might also be filtered.

However, Eric Ciotti for the Government countered, ‘We share your desire to avoid the risk of over-blocking. However, we are under a measure that falls within the administrative police: the interference of a magistrate referent – whose mode of designation is to remain unclear – does not seem relevant. Remember, it is always possible to appeal before the administrative courts to challenge these lists.’

After passing through the French National Assembly, the text will go back to the Senate at the beginning of 2011.

The Australian Government’s ISP-level internet filtering proposal has raised similar fears of over-blocking and censorship. The regime was expected to be introduced after mid-2011, with the Government reviewing its blacklist in the meantime.

Copyright © iTnews.com.au . All rights reserved.

The French Government Can Now Censor the Internet – Slashdot

Tuesday, December 21st, 2010

The French Government Can Now Censor the Internet – Slashdot: “‘A new episode in French internet legislation — French ministers have passed a bill (original in French) allowing the government to add any website to a black list, which access providers will have to enforce. This black list will be defined by the government only, without requiring the intervention of the legal system. Although originally intended against pedo-pornographic websites, this bill is already outdated, as was Hadopi in its time, and instead paves the way for a global censorship of the ‘French internet.””

French court orders ISPs to block gambling site

Thursday, August 19th, 2010

French court orders ISPs to block gambling site: “A French court has told internet service providers (ISPs) to block access to a gambling site that is operated out of Gibraltar and does not have a licence to operate in France, according to news agency Agence France Presse (AFP).

(Via OUT-LAW News.)

IP address in anti-piracy probe was not personal data, says French court

Wednesday, March 3rd, 2010

IP address in anti-piracy probe was not personal data, says French court: “A French music collecting society did not breach data protection rules when it collected the internet protocol (IP) address of an internet user, according to the Paris Appeal Court.”

(Via OUT-LAW News.)

French Parliament approves Net censorship | La Quadrature du Net

Thursday, February 11th, 2010

French Parliament approves Net censorship | La Quadrature du Net French Parliament approves Net censorship

Submitted on 11 February 2010

Paris, February 11th, 2010 – During the debate over the French security bill (LOPPSI), the government opposed all the amendments seeking to minimize the risks attached to filtering Internet sites. The refusal to make this measure experimental and temporary shows that the executive could not care less about its effectivity to tackle online child pornography or about its disastrous consequences. This measure will allow the French government to take control of the Internet, as the door is now open to the extension of Net filtering.

The refusal to enact Net filtering as an experimental measure is a proof of the ill-intended objective of the government. Making Net filtering a temporary measure would have shown that it is uneffective to fight child pornography.

As the recent move1 of the German government shows, only measures tackling the problem at its roots (by deleting the incriminated content from the servers; by attacking financial flows) and the reinforcement of the means of police investigators can combat child pornography.

Moreover, whereas the effectivity of the Net filtering provision cannot be proven, the French government refuses to take into account the fact that over-blocking – i.e the “collateral censorship” of perfectly lawful websites – is inevitable2. Net filtering can now be extended to other areas, as President Sarkozy promised to the pro-HADOPI (“Three-Strikes” law) industries3.

“Protection of childhood is shamelessly exploited by Nicolas Sarkozy to implement a measure that will lead to collateral censorship and very dangerous drifts. After the HADOPI comes the LOPPSI: the securitarian machinery of the government is being deployed in an attempt to control the Internet at the expense of freedoms”, concludes Jérémie Zimmermann, spokesperson for La Quadrature du Net.

1. 1. See: http://www.spiegel.de/politik/deutschland/0,1518,676669,00.html
2. 2. Every study, including the government’s own impact assessment comes to that conclusion.
3. 3. “The more we will be able to automatically depollute the networks and the servers from all sources of piracy, the less it will be necessary to take measures weighing on the end-users. [...] We must therefore experiment promptly filtering schemes.” Speech to the world of culture: http://www.elysee.fr/download/?mode=press&filename=100107-discours-Voeux…

EBay fined by Paris court over sales of authentic perfumes

Tuesday, December 1st, 2009

EBay fined by Paris court over sales of authentic perfumes: “A French court has told internet auction site eBay that it cannot allow sales of luxury goods without the brand owner’s permission. EBay has been fined €1.7 million for not stopping the sales of perfumes.”

(Via OUT-LAW News.)

France Passes New 3 Strikes Anti-Piracy Bill

Wednesday, September 16th, 2009

Here we go again… Hadopi strikes 2

(Via TorrentFreak.)

France Passes New 3 Strikes Anti-Piracy Bill

Following its initial adoption in May 2009, the original version of the controversial Hadopi anti-piracy legislation was nuked by the Constitutional Council, France’s highest legal authority. It took a similar view to that of the European Parliament, declared the proposals unconstitutional and demanded that those accused should enjoy a fair trial.

On July 8th, a modified version of the bill was accepted by the French Senate after assurances were made that the final decision of disconnection under a 3 strikes-style regime would be passed to a judge.

The new structure is suggested as follows. Once an individual has been warned about a third online copyright infringement, he or she will enter a mechanism which will see them reported to a judge. After a hearing the judge will have the power to cut the individual off from the Internet, issue a fine of up to 300,000 euros, or even hand out a 2 year jail sentence.

Furthermore, innocent ISP account holders who find themselves accused over the infringements of a 3rd party could be found guilty of ‘negligence’, risking a maximum 1,500 euro fine and a 4 week disconnection.

Today French legislators voted on the new compromise bill. In the National Assembly it passed with 225 votes against and 285 votes in favor. The bill (now known as Hadopi 2) will now move to the upper house (the Senate) for approval. It will then be signed into French law.