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Archive for the ‘freedom of speech’ Category

United Nations Special Rapporteur on Freedom of Opinion and Expression

Inter-American Commission on Human Rights
Special Rapporteur for Freedom of Expression

JOINT STATEMENT ON WIKILEAKS

December 21, 2010–In light of ongoing developments related to the release of diplomatic cables by the organization Wikileaks, and the publication of information contained in those cables by mainstream news organizations, the United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression and the Inter-American Commission on Human Rights (IACHR) Special Rapporteur for Freedom of Expression see fit to recall a number of international legal principles. The rapporteurs call upon States and other relevant actors to keep these principles in mind when responding to the aforementioned developments.

1. The right to access information held by public authorities is a fundamental human right subject to a strict regime of exceptions. The right to access to information protects the right of every person to access public information and to know what governments are doing on their behalf. It is a right that has received particular attention from the international community, given its importance to the consolidation, functioning and preservation of democratic regimes. Without the protection of this right, it is impossible for citizens to know the truth, demand accountability and fully exercise their right to political participation. National authorities should take active steps to ensure the principle of maximum transparency, address the culture of secrecy that still prevails in many countries and increase the amount of information subject to routine disclosure.

2. At the same time, the right of access to information should be subject to a narrowly tailored system of exceptions to protect overriding public and private interests such as national security and the rights and security of other persons. Secrecy laws should define national security precisely and indicate clearly the criteria which should be used in determining whether or not information can be declared secret. Exceptions to access to information on national security or other grounds should apply only where there is a risk of substantial harm to the protected interest and where that harm is greater than the overall public interest in having access to the information. In accordance with international standards, information regarding human rights violations should not be considered secret or classified.
3. Public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately classified information under their control. Other individuals, including journalists, media workers and civil society representatives, who receive and disseminate classified information because they believe it is in the public interest, should not be subject to liability unless they committed fraud or another crime to obtain the information. In addition, government “whistleblowers” releasing information on violations of the law, on wrongdoing by public bodies, on a serious threat to health, safety or the environment, or on a breach of human rights or humanitarian law should be protected against legal, administrative or employment-related sanctions if they act in good faith. Any attempt to impose subsequent liability on those who disseminate classified information should be grounded in previously established laws enforced by impartial and independent legal systems with full respect for due process guarantees, including the right to appeal.
4. Direct or indirect government interference in or pressure exerted upon any expression or information transmitted through any means of oral, written, artistic, visual or electronic communication must be prohibited by law when it is aimed at influencing content. Such illegitimate interference includes politically motivated legal cases brought against journalists and independent media, and blocking of websites and web domains on political grounds. Calls by public officials for illegitimate retributive action are not acceptable.
5. Filtering systems which are not end-user controlled – whether imposed by a government or commercial service provider – are a form of prior censorship and cannot be justified. Corporations that provide Internet services should make an effort to ensure that they respect the rights of their clients to use the Internet without arbitrary interference.
6. Self-regulatory mechanisms for journalists have played an important role in fostering greater awareness about how to report on and address difficult and controversial subjects. Special journalistic responsibility is called for when reporting information from confidential sources that may affect valuable interests such as fundamental rights or the security of other persons. Ethical codes for journalists should therefore provide for an evaluation of the public interest in obtaining such information. Such codes can also provide useful guidance for new forms of communication and for new media organizations, which should likewise voluntarily adopt ethical best practices to ensure that the information made available is accurate, fairly presented and does not cause substantial harm to legally protected interests such as human rights.

Catalina Botero Marino
Inter-American Commission on Human Rights Special Rapporteur on Freedom of Expression

Frank LaRue
UN Special Rapporteur on Freedom of Opinion and Expression

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.

ARTICLE 19 – 10 September 2010

WikiLeaks and Internet Disclosures

The current debate around WikiLeaks highlights the potential of the internet to make previously secret information of public interest widely available. ARTICLE 19 calls for governments to improve their regimes for public access to information, refrain from punishing WikiLeaks and other sites that are releasing information in the public interest, and to protect and encourage whistleblowers.

ARTICLE 19 welcomes the use of the internet by new and established organisations as a mechanism to expand and democratise the availability of sources of information. We believe that this represents a powerful extension of the media’s role to receive information from confidential sources and make it available to the public.

The recent debate around WikiLeaks and the disclosure of secret US government documents related to the Afghan War Diary and Baghdad airstrike video underscores the need for strong legal rights to be in place in all countries for the public to seek, receive and impart information as guaranteed by the Universal Declaration of Human Rights and other international, regional and national human rights instruments. This includes recognition of the right to information, protection of whistleblowers, and facilitating the media’s ability to obtain and publish information without barriers.

It should be recognised that WikiLeaks is not the only site on the Internet that provides a forum for whistleblowers. Other sites, including Cryptome.com and FAS.org, have provided an important public service making information of this type available for many years.

ARTICLE 19 believes that the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, developed by a group of experts and endorsed by the UN Human Rights Commission, is a proper starting point for evaluating concerns related to national security information in the Wikileaks debate. Moreover, we identified the following issues that must be considered in ensuing that the public’s rights under international law are respected:

1. Ensuring the Public’s Right to Information

It is well established that the right of the public to information held by government bodies is essential in ensuring democracy. Over 90 countries have adopted laws that guarantee that right and it has been recognised in international agreements including the UN Convention against Corruption, the UNECE Convention on Access to Information, Public Participation, and Access to Justice in Environmental Matters, and by many international bodies including the UN, Council of Europe, African Union and the Organisation for American States.

However, while there has been a significant increase in laws and other instruments guaranteeing the public’s right to information around the world in recent years, access to information is still inadequate in many counties, even those such as the United States with its long history of right to information. This is particularly a problem in the area of information classified as ‘state secrets’.

Under international law, governments must show that any restrictions on access to information are prescribed by law and necessary in a democratic society to protect a national security interest. Limits on access to information should only apply to information that governments can demonstrate would cause a specific and articulated harm.

The rules should not be used to hide other interests. Indeed, the existing US rules on secrecy prohibit classifying information about crimes and as a means to prevent embarrassment. Those rules are ignored far too often.

A number of military logs in the Afghan War Diary and the Baghdad airstrike video footage appear to demonstrate attacks on civilians by coalition forces which might amount to violation of the Fourth Geneva Convention. Full official disclosure of information about the allegations of ill treatment of civilians by the coalition forces in Afghanistan and Iraq would allow light to be shed on what has occurred. It would also enable a transparent and fair judicial review. Hence, the Baghdad video and much of the material in the Afghanistan War Diary should have been subject to mandatory disclosure under access to information laws in the respective countries of coalition governments, where, again, the overall public interest should trump secrecy exceptions.

2. Prosecution of Web Sites for Releasing National Security Information

There has been considerable discussion about the possible prosecution of WikiLeaks founder Julian Assange and other WikiLeaks activists under state secrets or espionage legislation in the United States or other countries. ARTICLE 19 believes that this would be an improper use of these laws and urges all governments to refrain from taking this step.

The statements of defence and state officials, calling for or warning of prosecution, might amount to censorship of media at a time and on issues – the war in Iraq and Afghanistan -– where transparency and the public right to know should govern the government’s relationships with the media and the public.

Moreover, it is a well established principle that public authorities bear sole responsibility for protecting the confidentiality of official information. Other persons and entities, including WikiLeaks and journalists, should never be subject to liability for publishing leaked information, unless it was obtained through fraud or another crime.

3. Protection of Whistleblowers

ARTICLE 19 also believes that those who provide information to WikiLeaks should not be prosecuted if there is a strong public interest in the release of the information.

Officials who act as whistleblowers and release information in the public interest without authorisation should not be prosecuted for releasing information that reveals crimes, abuses, mismanagement and other important issues in the public interest. Although we recognise that civil servants may legitimately be placed under obligations of secrecy, these should be limited by their obligation to serve the overall public interest. Anyone disclosing classified information should benefit from a public interest defence whereby, even if disclosure of the information would cause harm to a protected interest, no liability should ensue if the benefits of disclosure outweigh the harm. Instead, there should be strong legal protections and structures to facilitate disclosure.

Countries should adopt comprehensive whistleblowing laws which apply to the public and private sector and apply in national security cases. Secrets laws should recognise that whistleblowers should be protected from prosecution and should include public interest exemptions for revealing information such as human rights abuses and corruption.

Countries should also enact laws based on international standards protecting journalists from revealing their confidential sources and materials and those laws should apply to every person who is engaged in the business of making information available to the public.

4. Ethical Obligations of New Media

ARTICLE 19 believes that new media – including WikiLeaks and similar sites, should follow good ethical practices to ensure that the information made available is accurate, fairly presented and does not substantially harm other persons. While such ethical codes have not yet been developed for new media, we believe that existing journalistic codes provide a useful basis from which to begin.

Sites such as WikiLeaks should also recognise that technical protections to protect the anonymity of sources only have limited effectiveness. If the whistleblower is identified through other means, they can face serious employment and legal sanctions and even physical danger.

ARTICLE 19 is not qualified to take a position on whether the release of all of the Afghan documents by WikiLeaks was appropriate in these terms. To date, no credible information has been made public that links the release of the information to the harm of any individual.

Recommendations:

ARTICLE 19 therefore recommends:

• The governments of coalition forces and other states should refrain from criminal investigation and prosecution of WikiLeaks activists for the publishing of the materials on Iraq and Afghanistan as well as their sources
• All states should adopt and properly implement right to information laws which recognise the public interest in disclosure of information. Restrictions on access for national security reasons should be strictly limited
• All states should adopt comprehensive whistleblower-protection laws
• State Secrets Acts should only apply to those public officials and others who have agreed to be subject to them. Journalists and publishers should not be liable under these laws for disclosing information of public interest. The laws should also include public interest defences for protecting whistleblowers
• Internet sites should follow good ethical practices in their reporting activities.

NOTES TO EDITORS:

• For more information, please contact David Banisar, Senior Legal Counsel, ARTICLE 19, at banisar@article19.org, +44 207 324 2500
• The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, Freedom of Expression and Access to Information are available at

http://www.article19.org/pdfs/standards/joburgprinciples.pdf

Mucky private chat could be illegal soon: “

Risky encounters of the IRC and Twitter kind

Could 2010 be the year when the authorities finally clamp down on the internet – and in the process abolish some fundamental liberties we have been taking for granted for a very long time? The answer from two cases – one now over, though possibly subject to appeal, the other going forward to a full hearing later this year – could be a very worrying affirmative.…

“

(Via The Register – Public Sector.)

European Public Policy Blog: Controversial content and free expression: a refresher:”

Monday, April 19, 2010 | 6:35 PM

Labels: Controversial Content, Free Expression

Two and a half years ago, we outlined our approach to removing content from Google products and services. Our process hasn’t changed since then, but our recent decision to stop censoring search on Google.cn has raised new questions about when we remove content, and how we respond to censorship demands by governments. So we figured it was time for a refresher.

Censorship of the web is a growing problem. According to the Open Net Initiative, the number of governments that censor has grown from about four in 2002 to over 40 today. In fact, some governments are now blocking content before it even reaches their citizens. Even benign intentions can result in the specter of real censorship. Repressive regimes are building firewalls and cracking down on dissent online — dealing harshly with anyone who breaks the rules.

Increased government censorship of the web is undoubtedly driven by the fact that record numbers of people now have access to the Internet, and that they are creating more content than ever before. For example, over 24 hours of video are uploaded to YouTube every minute of every day. This creates big challenges for governments used to controlling traditional print and broadcast media. While everyone agrees that there are limits to what information should be available online — for example child pornography — many of the new government restrictions we are seeing today not only strike at the heart of an open Internet but also violate Article 19 of the Universal Declaration of Human Rights, which states that: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

We see these attempts at control in many ways. China is the most polarizing example, but it is not the only one. Google products — from search and Blogger to YouTube and Google Docs — have been blocked in 25 of the 100 countries where we offer our services. In addition, we regularly receive government requests to restrict or remove content from our properties. When we receive those requests, we examine them to closely to ensure they comply with the law, and if we think they’re overly broad, we attempt to narrow them down. Where possible, we are also transparent with our users about what content we have been required to block or remove so they understand that they may not be getting the full picture.

On our own services, we deal with controversial content in different ways, depending on the product. As a starting point, we distinguish between search (where we are simply linking to other web pages), the content we host, and ads. In a nutshell, here is our approach:

Search is the least restrictive of all our services, because search results are a reflection of the content of the web. We do not remove content from search globally except in narrow circumstances, like child pornography, certain links to copyrighted material, spam, malware, and results that contain sensitive personal information like credit card numbers. Specifically, we don’t want to engage in political censorship. This is especially true in countries like China and Vietnam that do not have democratic processes through which citizens can challenge censorship mandates. We carefully evaluate whether or not to establish a physical presence in countries where political censorship is likely to happen.

Some democratically-elected governments in Europe and elsewhere do have national laws that prohibit certain types of content. Our policy is to comply with the laws of these democratic governments — for example, those that make pro-Nazi material illegal in Germany and France — and remove search results from only our local search engine (for example, www.google.de in Germany). We also comply with youth protection laws in countries like Germany by removing links to certain material that is deemed inappropriate for children or by enabling Safe Search by default, as we do in Korea. Whenever we do remove content, we display a message for our users that X number of results have been removed to comply with local law and we also report those removals to chillingeffects.org, a project run by the Berkman Center for Internet and Society, which tracks online restrictions on speech.

Platforms that host content like Blogger, YouTube, and Picasa Web Albums have content policies that outline what is, and is not, permissible on those sites. A good example of content we do not allow is hate speech. Our enforcement of these policies results in the removal of more content from our hosted content platforms than we remove from Google Search. Blogger, as a pure platform for expression, is among the most open of our services, allowing for example legal pornography, as long as it complies with the Blogger Content Policy. YouTube, as a community intended to permit sharing, comments, and other user-to-user interactions, has its Community Guidelines that define its own rules of the road. For example, pornography is absolutely not allowed on YouTube.

We try to make it as easy as possible for users to flag content that violates our policies. Here’s a video explaining how flagging works on YouTube. We review flagged content across all our products 24 hours a day, seven days a week to remove offending content from our sites. And if there are local laws where we do business that prohibit content that would otherwise be allowed, we restrict access to that content only in the country that prohibits it. For example, in Turkey, videos that insult the founder of modern Turkey, Mustafa Ataturk, are illegal. Two years ago, we were notified of such content on YouTube and blocked those videos in Turkey that violated local law. A Turkish court subsequently demanded that we block them globally, which we refused to do, arguing that Turkish law cannot apply outside Turkey. As a result YouTube has been blocked there.

Finally, our ads products have the most restrictive policies, because they are commercial products intended to generate revenue.

These policies are always evolving. Decisions to allow, restrict or remove content from our services and products often require difficult judgment calls. We have spirited debates about the right course of action, whether it’s about our own content policies or the extent to which we resist a government request. In the end, we rely on the principles that sit at the heart of everything we do.

We’ve said them before, but in these particularly challenging times, they bear repeating: We have a bias in favor of people’s right to free expression. We are driven by a belief that more information means more choice, more freedom and ultimately more power for the individual.

Posted by Rachel Whetstone, Vice President, Global Communications and Public Affairs

Internet race hate pair petition Supreme Court – Peterborough Today

Published on Wed Mar 24 13:55:27 GMT 2010

A Lancashire man who became the first to be convicted of inciting racial hatred online is to petition the Supreme Court for leave to appeal against the convictions.

The move by Stephen Whittle, along with Simon Sheppard who was also convicted of the crime, follows the decision of the Court of Appeal Criminal Division to certify three points of law in the case – although it denied permission to appeal, meaning the pair have to petition the Supreme Court directly.

Lawyers for the two men confirmed that they would be filing petitions with the Supreme Court. The case will raise important issues about whether material placed on the internet counts as written material, and whether the courts have jurisdiction in cases involving material posted online from abroad.

Sheppard, 52, and Whittle, 42, were jailed at Leeds Crown Court in July last year after being convicted of Public Order Act charges of publishing and distributing racially inflammatory material and possessing such material with a view to distribution.

Sheppard, 52, of Brook Street, Selby, was convicted of 16 offences and Whittle, 42, of Avenham Lane, Preston, Lancashire, of five. In January the Court of Appeal rejected their appeals against conviction, but reduced Sheppard’s sentence of four years and 10 months by a year and Stephen Whittle’s term of two years and four months by six months.

The Court has now certified three issues in the case as a point of law of general public importance.

These cover whether a document stored in a computer memory and/or displayed on a screen is written material within the meaning of Section 29 of the Public Order Act 1986, the issue of the correct test of jurisdiction for criminal cases involving or arising from the use of the internet, and whether, for the purposes of Section 19 of the Public Order Act 1986, making material generally accessible or available to placing or offering it to the public via the internet counts as publication to the public or a section of the public.

During the appeal in January, Sheppard’s counsel, Adrian Davies, challenged the convictions on the grounds of jurisdiction, the meaning of ‘publication’ and whether material on the internet was ‘written material’ within the meaning of the Act. The articles complained of were posted on a website in California, where there was no doubt that they were ‘entirely lawful and enjoyed the highest degree of constitutional protection under the laws of the United States’, he said. There was also no evidence that anyone in England and Wales, except the police officer – and the Crown did not claim that he was a member of the public under the Act – had read any of them.

The police investigation which led to the pair being jailed started after a complaint about a leaflet called ‘Tales of the Holohoax’, which was pushed through the door of a Blackpool synagogue and traced back to a post office box in Hull registered to Sheppard. Published material found later included images of murdered Jews alongside cartoons and articles ridiculing ethnic groups.

During their first trial in 2008, Sheppard and Whittle skipped bail and fled to California, where they sought asylum claiming they were being persecuted for their right-wing views. The claims failed and they were deported.

EU – EDRi sends open letter to Commissioners to oppose Internet blocking (EDRI-gram)
EDRi has written to Commissioners Cecilia Malmström (Home Affairs), Viviane Reding (Justice and Fundamental Rights) and Neelie Kroes (Digital Agenda) about the re-launch of the Commission proposal for a revised Framework Decision on combating the sexual abuse, sexual exploitation of children
and child pornography. The Commission made a proposal for the mandatory blocking of websites deemed to contain illegal images of child abuse (‘child pornography’). That measure is, as proven by the remarkably poor accompanying ‘impact assessment’, an example of legislation proposed without evidence and without due regard for human rights. As a measure which superficially sounds like a positive move, it is also an attractive option politically, which creates the temptation to legislate based on impulse rather than on evidence, legality and effectiveness.

(Via QuickLinks Update.)

Online Hate Sites Grow With Social Networks (New York Times)
Terrorists and racists are turning to online social networks and depending less on traditional Web sites, according to a new report on digital terror and hate speech. The report, by the Simon Wiesenthal Center, found a 20 percent increase in the number of hate and terrorist-abetting Web sites, social network pages, chat forums and micro-bloggers over the past year, to a total of 11,500.

March 16, 2010, 9:28 am
Online Hate Sites Grow With Social Networks
By STEVE LOHR

Terrorists and racists are turning to online social networks and depending less on traditional Web sites, according to a new report on digital terror and hate speech.

The report, by the Simon Wiesenthal Center, found a 20 percent increase in the number of hate and terrorist-abetting Web sites, social network pages, chat forums and micro-bloggers over the last year, to a total of 11,500.

“The real growth is where it is for everyone: in social networks,” said Rabbi Abraham Cooper, an associate dean at the center, a Jewish human rights group, which issued the report on Monday.

Longtime Web sites like Stormfront, which bills itself as a leading site of the “White Nationalist Community,” are still around and active, Rabbi Cooper said. But such sites have become the old-line media of online racism.

The annual report is intended as a “collective snapshot” of the activities of hate groups and terrorists online, Rabbi Cooper said. It is distributed as a CD-ROM, mainly to law enforcement agencies and nonprofit groups, instead of online because it includes terrorist tutorials, like video clips of bomb-making instructions.

“We don’t want to help the bad guys,” Rabbi Cooper explained.

The report is part of the center’s effort to raise awareness about hate groups, and the center urges Web users who encounter hate sites, videos or groups to e-mail links to ireport@wiesenthal.com. The center then contacts Web companies or law enforcement agencies, as appropriate.

“The goal is to get the collective genius of the Internet to help combat this problem,” he said.

(Via QuickLinks Update.)

A must read….

BBC News – Is it time to defend our rights?
Copyright is not the only thing that matters online, says Bill Thompson

John Young is a brave and tenacious man, an architect based in New York whose website, cryptome.org, has been a safe online repository for documents that someone, somewhere does not want published.

Aid Urged for Groups Fighting Internet Censors: “Five United States senators want the government to move ahead with plans to provide $45 million to help people in other countries evade Web restrictions.”

(Via NYT > Freedom of Speech and Expression.)