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.