Is the internet a human right? No, but....

... disconnecting internet access violates the right to freedom of expression. Saskia Walzel explores the link between the internet and human rights law

Image: CC-AT-SA Flickr: mpd01605

Following Mubarak’s attempt to stem an overwhelming tide of protest by cracking down on the media, and taking Egypt offline, a growing number of commentators now speak of the internet in freedom of expression terms. Today the UN Special Rapporteur of the right to freedom of opinion and expression, Frank La Rue, presents his report on the internet and the right to freedom of expressionto the UN Human Rights Council.

Freedom of expression goes well beyond the more familiar concepts of freedom of speech and freedom of the press. Historically it has been printers and publishers who fought the big legal battles on freedom of expression because it was principally through them that the right could be exercised. What the Special Rapporteur is concerned with is the new freedom of expression frontier – “the right of all individuals to seek, receive and impart information and ideas of all kinds through the Internet.”

Ever since John Milton’s seminal defence of freedom of expression in Areopagitica 1644 the right to freedom of expression is understood to be threefold and to protect the medium though which it is exercised. According to the Universal Declaration of Human Rights 1948 everyone has the right to “seek, receive and impart information and ideas through any media and regardless of frontiers.”

According to the Special Rapporteur the internet is probably the most revolutionary information technology to date and a powerful tool for increasing transparency in the conduct of the powerful, access to information, and for facilitating active citizen participation in building democratic societies. The G8 leaders at Deauville were keen to associate with the Arab Spring, leading to a gushing declaration that the “Internet has become the public arena for our time, a lever of economic development and an instrument for political liberty and emancipation.”

However, the Special Rapporteur is not only ticking off Middle Eastern dictators, but also two of the G8 countries for what is euphemistically known as the ‘graduated response’. The Special Rapporteur says he is “alarmed” by proposals to disconnect users’ internet access for infringing copyright, specifically mentioning Hadopi and the Digital Economy Act. The standard response from the music, film and software industry who is lobbying for this kind of punishment is that the right to freedom of expression does not give people the right to make use of content disregarding copyright.¹

Though the Special Rapporteur is not concerned with the nature of the information uploaded or downloaded, but the punishment – that is, disconnection of internet access. Disconnection is coming within the scope of freedom of expression because the internet is now incorporated into virtually every aspect of modern life. Beyond enabling users to exercise a range of civil and political rights, it has also become vital in exercising economic and social rights, such as the right to education. According to the G8 internet access “is an essential infrastructure for participation in today's economy.”

Of course the right to freedom of expression is not absolute. Human rights law permits freedom of expression to be restricted to safeguard the rights of others, such as in the case of child abuse images, hate speech, defamation, incitement to commit genocide, advocacy of discrimination or violence.

But, such restrictions must follow the principles of legal certainty. They must be provided in law, so that the restriction is clear and predictable to those subject to the law. They must be proportional – that is they are necessary and considering the negative effects beyond the intended aim, they are the least restrictive means required for the stated aim of protecting the rights of others. The Special Rapporteur also highlights that any legislation restricting the right to freedom of expression must be applied by a body which is independent of any political or commercial influences, in a manner that is neither arbitrary nor discriminatory, with adequate safeguard against abuse.

On the basis of this analysis the Special Rapporteur concludes that disconnecting users from internet access is disproportionate in all case, that is, it does not meet test of necessity and least restrictive means required for the stated aim. He urges for laws which permit the disconnection of internet access to be amended or repealed. So the Special Rapporteur has concluded that disconnection is a disproportionate punishment in case of child abuse images as well as copyright infringement – surprisingly enough his decision in the former is less controversial in a UK context than with regards to the latter.

In the UK restrictions on the use of computers or the internet are commonly imposed through sexual offences prevention orders, or SOPOs, under the Sexual Offences Act 2003. SOPOs can be imposed in relation to a number of sexual offences, including the distribution of child abuse images, if the court is satisfied that such an order is ‘necessary’ to protecting the public from harm. A number of early SOPOs imposed a total ban on internet access but such total bans were overturned on the grounds that they were not necessary to achieve the statutory objective or not proportionate to the point of being ‘draconian’.

Instead SOPOs were issued which prohibited the downloading of specific material, or the use of the internet save “for purposes of lawful employment, study, leisure or social interactions with persons over the age of 18.” An early ban on internet access, a restraining order made under the Sex Offenders Act 1997, prevented the defendant from “owning, using, possessing or having any access to any personal computer, laptop computer or any other equipment capable of downloading any material from the Internet”. The order was overturned because such a wide prohibition would also effectively deprive the defendant’s wife and children of access to the internet.²

In France the first letters have been sent under Hadopi, in the UK Ofcom has been tasked with implementing the Digital Economy Act. Both are hangovers from 2009, though the idea of disconnecting internet users as a punishment for copyright infringement, is much older. It was dreamt up in an age when the internet was a luxury to have, now that the internet is becoming essential we are increasingly seeing human rights jurisprudence developing around it.

Disconnecting internet access is not a big deal, if all you do with it is download porn or watch kittens – but today the internet is often the primary communication medium, public services are now “digital by default” and  many depend on the internet for their education and livelihood. As such those who still advocate for disconnection as a punishment ought to answer the question whether it is necessary, and whether it is the least restrictive means required for the protection of copyright.

 

¹ This is not strictly speaking correct, as courts have recognised public interest defences on the grounds of freedom of expression in the face of copyright infringement claims, see for example Ashdown v Telegraph Group 2001 [2001] 2 WLR 967 (Morritt VC); rev’d [2002] CH149 (CA) 1

² Ian Walden & Martin Wasik, The Internet: Access Denied Controlled! Criminal Law Review, April 2011 2

see TO [2010] EWCA Crim 2511; Paul Smith [2009] EWCA Crim 1795; Edmund Smith [2008] EWCA Crim 3083; Hammond [2008] EWCA Crim 1358; Halloren [2004] EWCA Crim 233; [2004] 2 Cr. App. R. (S.) 57; and Collard [2004] EWCA Crim 1664

 

Saskia Walzel is policy advocate at Consumer Focus. She tweets as SaskiaWalzel