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Organization for Security and Co-operation in Europe The Office of the Representative on Freedom of the Media DUNJA MIJATOVIĆ REPORT Freedom of Expression on the Internet A study of legal provisions and practices related to freedom of expression, the free flow of information and media pluralism on the Internet in OSCE participating States The report has been commissioned by the Office of the OSCE Representative on Freedom of the Media. It was prepared by Professor Yaman Akdeniz, Faculty of Law, Istanbul Bilgi University, Turkey. * This report presents the conclusions of the first comprehensive research on Internet content regulation in the OSCE region. A preliminary report was prepared and published in view of the OSCE review conference and OSCE Astana Summit 2010. The information contained in this report is based on data received from OSCE participating States as well as bona fide sources in response to a questionnaire sent out on 23 September 2010. * Yaman Akdeniz’ recent publications include Internet Child Pornography and the Law: National and International Responses (London: Ashgate, 2008: ISBN: 0 7546 2297 5), Racism on the Internet, Council of Europe Publishing, 2010 (ISBN 978-92-871-6634-0). For further information about his work see . Akdeniz can be contacted at yaman.akdeniz@bilgi.edu.tr. 2 TABLE OF CONTENTS INTRODUCTION 4 OSCE COMMITMENTS 7 METHODOLOGY 8 A. INTERNET ACCESS 10 B. INTERNET CONTENT REGULATION 13 C. BLOCKING, FILTERING, AND CONTENT REMOVAL 22 D. LICENSING AND LIABILITY RELATED ISSUES, AND HOTLINES TO REPORT ILLEGAL CONTENT 28 E. CONCLUSIONS AND RECOMMENDATIONS 33 OVERVIEW OF LAWS AND PRACTICES ON INTERNET CONTENT REGULATION IN THE OSCE AREA 37 A. INTERNET ACCESS 37 Internet Access – A Fundamental Human Right 37 Legal provisions which could restrict users’ access to the Internet 38 40 Legal provisions guaranteeing or regulating “Net Neutrality” Conclusion to Part A 47 B. INTERNET CONTENT REGULATION 48 51 Legal provisions outlawing racist content, xenophobia, and hate speech on the Internet Legal provisions outlawing the denial, gross minimisation, approval or justification of genocide or crimes against humanity 64 Legal provisions outlawing incitement to terrorism, terrorist propaganda and/or terrorist use of the Internet 69 Legal provisions criminalizing Child Pornography 81 Legal provisions outlawing obscene and sexually explicit (pornographic) content 99 Legal Provisions Outlawing Internet Piracy 103 Legal provisions outlawing libel and insult (defamation) on the Internet 115 Legal provisions outlawing the expression of views perceived to be encouraging extremism 127 Legal provisions outlawing the distribution of “harmful content” 133 135 Legal provisions outlawing any other categories of Internet content Conclusion to Part B 136 C. BLOCKING, FILTERING, AND CONTENT REMOVAL 139 European Union and Council of Europe policies and projects on blocking access to websites 139 Legal provisions which require closing down and/or blocking access to websites and access to Web 2.0 based services 149 174 Policies on Filtering Software and Children’s Access to Harmful Content Legal provisions requiring schools, libraries, and Internet cafes to use filtering and blocking systems and software 176 Conclusion to Part C 181 D. LICENSING AND LIABILITY RELATED ISSUES, AND HOTLINES TO REPORT ILLEGAL CONTENT 186 Hotlines to report allegedly illegal content 208 Conclusion to Part D 219 APPENDIX II: RESPONSE STATISTICS 229 APPENDIX III: RESPONSE FREQUENCIES 230 3 Introduction Whenever new communications and media platforms have been introduced, their innovation and application was met with scepticism, fear or outright banning by the ruling parties and authorities who feared the unknown medium, and its capacity to oust them from power. Therefore, new (mass) media historically face suspicion, and are liable to excessive regulation as they spark fear of potential detrimental effects on society, security and political power structures. This has proven true in the publication and transmission of certain types of content from the printing press through the advent of radio, television and satellite transmissions, as well as other forms of communication systems. During the 1990s, as attention turned to the Internet and as access to this borderless new communications platform increased, the widespread availability of various content, including sexually explicit content and other types of content deemed to be harmful for children, stirred up a ‘moral panic’ 1 shared by many states and governments and certain civil-society representatives and concerned citizens. Prior to the 1990s, information and content was predominantly within the strict boundaries and control of individual states, whether through paper-based publications, audio-visual transmissions limited to a particular area or even through public demonstrations and debates. Much of the media content made available and the discussions it triggered remained confined within territorially defined areas. Today, however, information and content, with its digital transmission and widespread availability through the Internet, do not necessarily respect national rules or territorial boundaries. This dissolution of the “sovereignty” of content control, coupled with the globalization of information, comes along with an increased multilingualism observable in many countries. The increasing popularity of user-driven interactive Web 2.0 applications and services such as YouTube, Facebook and Twitter seem to eliminate virtual Internet borders even further by creating a seamless global public sphere. This, inevitably complicates state-level efforts to find an appropriate balance between the universal right to freedom of opinion and expression, which includes the right to receive and impart information, and the prohibition on certain types of content deemed illegal by nationstate authorities or intergovernmental organizations. With the widespread availability of the Internet and increasing number of users, online content regulation became an important focus of governments and supranational bodies across the globe. Today, many OSCE participating States feel the need to react to the development of the Internet as a major media and communication platform. Governments think that it is, on the one hand, the infrastructure that requires protective measures and, on the other hand, content made available that necessitates regulation. The past few years have shown that more people access the Internet, more content is made available online and more states feel obliged to regulate online content. A number of countries across the OSCE region have introduced new legal provisions in response to the availability and dissemination of certain types of (illegal or unwanted) content. Governments are particularly concerned about the availability of terrorist propaganda, 2 racist content, 3 hate speech, sexually explicit content, including child 1 2 3 Cohen, S., Folk Devils and Moral Panics: Creation of Mods and Rockers, Routledge: 30th Anniversary edition, 2002; Jenkins, P., Intimate Enemies: Moral Panics in Contemporary Great Britain, Aldine De Gruyter, 1992. See generally Weimann, G., Terror on the Internet: The New Arena, the New Challenges (Washington: US Institute of Peace, 2006). For a detailed assessment of legal issues surrounding racist content and hate speech on the Internet see Akdeniz, Y., Racism on the Internet, Council of Europe Publishing, 2010 (ISBN 978-92-871-6634-0); Akdeniz, Y., “Introduction,” in Legal Instruments for Combating Racism on the Internet, Council of Europe Publishing, Human Rights and Democracy Series, 2009, pp 7-37. 4 pornography, 4 as well as state secrets and content critical to certain governments or business practices. However, the governance of illegal as well as harmful (which falls short of illegal) Internet content may differ from one country to another and variations are evident within the OSCE participating States. 5 “Harm criteria” remain distinct within different jurisdictions with individual states deciding what is legal and illegal based upon different cultural, moral, religious and historical differences and constitutional values. Typically, the stance taken by many states is that what is illegal and punishable in an offline form must at least be treated equally online. There are, however, several features of the Internet which fundamentally affect approaches to its governance and while rules and boundaries still exist, enforcement of existing laws, rules and regulations to digital content becomes evidently complex and problematic. Despite the introduction of new laws or amendments to existing laws criminalizing publication or distribution of certain types of content, in almost all instances extraterritoriality remains a major problem when content hosted or distributed from outside the jurisdiction is deemed illegal in another.6 Therefore, the question of jurisdiction over content adds to the challenges faced by the governments and regulators. Which country’s laws should apply for content providers or for Web 2.0 based platform providers? Should the providers be liable in the country where the content has been uploaded, viewed, or downloaded or where the server is placed or where the responsible providers reside? Many of these questions remain unanswered. Some countries fear the Internet could undermine their judicial sovereignty; others embrace the Internet and praise its global nature. However, the Internet certainly has created challenges for governments and these challenges are particularly visible when analyzing measures aimed at regulating online content. Based on the limited effectiveness of state laws and lack of harmonization at international level (despite some efforts at regional level that will be addressed in this study) 7 a number of states, including some in the OSCE region, introduced policies to block access to Internet content, websites deemed illegal and Web 2.0 based social media platforms which are outside their jurisdiction. The new trend in Internet regulation seems to entail blocking access to content if state authorities are not in a position to reach the perpetrators for prosecution or if their request for removal or take down of such content is rejected or ignored by foreign law enforcement authorities or hosting and content providers. Furthermore, in certain countries, governments went further and developed measures which could restrict users’ access to the Internet. This new blocking trend has been triggered in a number of countries as a result of increased piracy and intellectual property infringements on the Internet. These developments, as well as new policy trends in Internet content regulation, are detailed in this study. 4 5 6 7 For a detailed assessment of legal issues surrounding child pornography see Akdeniz, Y., Internet Child Pornography and the Law: National and International Responses, Ashgate, 2008. Harm is a criterion which depends upon cultural differences and this is accepted within the jurisprudence of the European Court of Human Rights. See for example Handyside v UK, App. no. no. 5493/72, Ser A vol.24, (1976) 1 EHRR 737. Nevertheless, the availability of harmful Internet content is a politically sensitive area and a cause for concern for European regulators. See generally Akdeniz, Y., Racism on the Internet, Council of Europe Publishing, 2010, pp 21-31. Note the Council of Europe Convention on Cybercrime (ETS No. 185), and the Additional Protocol Concerning the Criminalisation of Acts of a Racist and Xenophobic Nature Committed Through Computer Systems (ETS No. 189). 5 While the intention of states to combat illegal activity over the Internet and to protect their citizens from harmful content is legitimate, there are also significant legal and policy developments which directly or indirectly and sometimes have an unintended negative impact on freedom of expression and the free flow of information. Recent laws and certain legal measures currently under development have provoked much controversy over the past few years. Concerned with such developments, the OSCE Representative on Freedom of the Media commissioned a report to assess whether and how access to and content on the Internet are regulated across the OSCE region by examining existing laws and practices related to freedom of expression, the free flow of information and media pluralism. This first OSCEwide content regulation study also provides a comprehensive overview of existing international legal provisions and standards relating to media freedom and freedom of expression on the Internet. The study aims to assess whether and how these provisions are incorporated into national legislation by the OSCE participating States. 8 The report also assesses the compliance of applicable national Internet legislation and practices with existing OSCE media freedom commitments, Article 19 of the Universal Declaration of Human Rights, Article 19 of the International Covenant on Civil and Political Rights, Article 10 of the European Convention on Human Rights (where applicable) as well as the case law of the European Court of Human Rights. 8 The study focuses on Internet content regulation. Therefore, certain policy considerations involving Internet’s technical infrastructure which may affect the development of the Internet are left outside the scope of this study. 6 OSCE Commitments The Organization for Security and Co-operation in Europe is the world’s largest regional security organization and comprises 56 states of Europe, Asia and North America. Founded in 1975 on the basis of the Helsinki Final Act of the Conference on Security and Co-operation in Europe, the OSCE has assumed the tasks of identifying the potential for the outbreak of conflicts and of their prevention, settling and dealing with their aftermaths. The development of democratic institutions and the protection of human rights are among the OSCE’s main means for guaranteeing stability and security in its participating States. In various documents, the participating States committed themselves to uphold freedom of the media and guarantee their citizens the right to free expression. In the Helsinki Final Act, the participating States decided to “act in conformity with the purposes and principles of the […] Universal Declaration of Human Rights.” They agreed to recognize “the importance of the dissemination of information from the other participating States”, “make it their aim to facilitate the freer and wider dissemination of information of all kinds” and “encourage cooperation in the field of information and the exchange of information with other countries”. 9 At the Budapest Summit in 1994, the participating States reaffirmed “that freedom of expression is a fundamental human right and a basic component of a democratic society. In this respect, independent and pluralistic media are essential to a free and open society and accountable systems of government. They take as their guiding principle that they will safeguard this right.” 10 This was echoed by the 1996 Lisbon Summit where the OSCE participating States declared that “[f]reedom of the press and media are among the basic prerequisites for truly democratic and civil societies. In the Helsinki Final Act, we have pledged ourselves to respect this principle.” 11 Only three years later, in the 1999 Charter for European Security, the participating States reaffirmed “the importance of independent media and the free flow of information as well as the public’s access to information. We commit ourselves to take all necessary steps to ensure the basic conditions for free and independent media and unimpeded transborder and intraState flow of information, which we consider to be an essential component of any democratic, free and open society.” 12 This was further defined to explicitly include the Internet by the OSCE Permanent Council Decision No. 633 where the participating States pledged to “take action to ensure that the Internet remains an open and public forum for freedom of opinion and expression, as enshrined in the Universal Declaration of Human Rights, and to foster access to the Internet both in homes and in schools.” The OSCE PC Decision 633 further asks the participating States to “study the effectiveness of laws and other measures regulating Internet content”. 13 9 10 11 12 13 Final Act of the Conference on Security and Cooperation in Europe, Helsinki, 1 August 1975. See the full official text at http://www.osce.org/documents/mcs/1975/08/4044_en.pdf. Budapest Summit Declaration, 21 December 1994. See the full official text at http://www.osce.org/mc/39554. Lisbon Summit Document, 3 December 1996. See the full official text at http://www.osce.org/mc/5869. Charter for European Security, adopted at the OSCE Istanbul Summit, November 1999. The full official text is available at http://www.osce.org/documents/mcs/1999/11/4050_en.pdf. OSCE PC.DEC/633 on Promoting Tolerance and Media Freedom on the Internet, endorsed by MC.DEC/12/04 at the OSCE Ministerial Council in Sofia, 7 December 2004. See at http://www.osce.org/mc/23133. 7 Methodology The purpose of the present study is twofold: First, it aims to provide an overview of existing legislative provisions on Internet content regulation, including governmental practices related to freedom of expression and freedom of the media across the OSCE region. Second, the study assesses the impact these regulations and practices have on the free flow of information and the freedom of expression on the Internet. The study is a compilation of a comprehensive OSCE-wide legal matrix of legal provisions related to freedom of expression, freedom of the media and the free flow of information on the Internet. The study assesses how these provisions are applied by the participating States. Furthermore, the study assesses 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 such as Article 19 of the Universal Declaration of Human Rights, Article 19 of the International Covenant on Civil and Political Rights 14 as well as the case-law of the European Court of Human Rights. For this purpose, the OSCE Office of the Representative on Freedom of the Media conducted a survey of all 56 OSCE participating States by means of a questionnaire (annexed to this study). The 20 questions (and 101 sub-questions) were prepared during the summer of 2010 and distributed to all OSCE participating States on 23 September 2010. 15 Responses to the questionnaire were expected by 15 November, 2010. However, the majority of the responses were received in January and February 2011. The latest response was received in mid-May 2011. The study assessed data collected on 46 participating States. It should be noted that 14 participating States did not provide official responses; however, information on five of those participating States was obtained from bona fide sources. The intention was to analyse data officially obtained from the participating States, but also to encourage the states to embark on an “inventory” of their own Internet legislation applicable to online content. The questionnaire aimed at gathering information related to general access provisions, the regulation of specific content, blocking and filtering requirements, and information related to the role and liability of Internet service providers (ISPs). In detail, this study includes four parts based on the questions 16 and assessments related to: A. B. C. D. 14 15 16 Internet access Internet content regulation Blocking, content removal and filtering Licensing and liability General Comment No.34 on Article 19 was adopted during the 102nd session of the UN Human Rights Committee, Geneva, 11-29 July 2011, at . See OSCE FOM.GAL/3/10, 23 September, 2010 and Appendix I. See Appendix I. 8 Based on the data gathered 17 on 46 OSCE participating States, 18 and with the assessment of the efficiency and applicability of existing international legal provisions as well as their transposition into national law, the study intends to serve as an OSCE-wide legal reference tool to monitor further development in the area of Internet content regulation. A preliminary report, published on 26 November 2010 19 , set forth the first findings 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. 20 Disclaimer: For the present report and assessment, use has been made of the replies in the form in which they were received. Neither the author nor the Office of the OSCE Representative on Freedom of the Media assumes responsibility for the completeness, correctness and exhaustiveness of the information submitted. Not all replies were concise and some needed translation into English. Although the utmost has been done to convey the content of the replies correctly, it cannot be excluded that occasionally the representation of answers may not correspond to the intention of the respondent States. In these cases, the author did his utmost to interpret the provided response in the best interest of the responding State. 17 18 19 20 Where relevant the author conducted independent research and made use of publicly available and verifiable information in addition to making use of the information obtained from the OSCE participating States. Albania, Armenia, Austria, Azerbaijan, Belarus, Bosnia and Herzegovina, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Italy, Kazakhstan, Kyrgyzstan, Latvia, Liechtenstein, Lithuania, Luxembourg, the former Yugoslav Republic of Macedonia, Moldova, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Turkmenistan, Ukraine, United Kingdom. http://www.osce.org/fom/73725 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: Preliminary Report, OSCE Representative on Freedom of the Media, FOM.GAL/4/10, November 2010, at . 9 PART I FINDINGS, CONCLUSIONS AND RECOMMENDATIONS The preparation of this report showed that despite the responsiveness of the participating States to take part in the survey, many governments expressed major difficulties in collecting the requested data be it for the reason that reliable or recorded information was not available, particularly pertaining to questions on prosecution and blocking statistics or the fact that several governmental institutions and ministries are responsible for the different aspects of the Internet. Hence, replying to the survey would have required great logistical efforts to coordinate the answers. Almost no participating State has in place an institutional focal point for Internet-related legal and policy matters. The study includes four sections based on the questions 21 and assessments related to: A. B. C. D. Internet access Internet content regulation Blocking, filtering and content removal Licensing and liability and Internet hotlines Part I of the study provides the summary of main findings, conclusions for each of the above sections and includes overall recommendations. Part II consists of a detailed and in-depth overview of each issue addressed in the questionnaire. Information and data received from the participating States, as well as independent research conducted for this study, are provided for each question. A detailed assessment for each of the sections is also included. A. Internet Access The Internet is increasingly becoming indispensable for people to take part in cultural, social and political discourse and life. The number of Internet users is expected to more than double in 10 years and will reach five billion worldwide. While more than 60% of the citizens of the OSCE area are Internet users, only 30% of the participating States stated that they recognize access to the Internet as a basic human right or as implied in the fundamental right to freedom of expression. At the same time, in more than 12% of the participating States access to the Internet can legally be restricted, primarily to protect national security, public health or in times of state emergencies. As will be seen below, some OSCE states that do not have provisions on general access restrictions may nevertheless restrict users’ access in certain cases, such as repeated copyright infringements or when criminal content, such as child pornography, is evident. 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. Furthermore, Internet access policies, defined by governments, should be in line with the requirements of Article 19 of the Universal Declaration of Human Rights as well as Article 19 of the International Covenant on Civil and Political Rights 22 and (where applicable) with Article 10 of the 21 22 See Appendix I. Note the new General Comment No.34 on Article 19 which was adopted during the 102nd session of the UN Human Rights Committee, Geneva, 11-29 July 2011, at . The modified General Comment 10