Freedom of Expression On-Line: Rights and Responsibilities of Internet Service Providers

Freedom of Expression On-Line: Rights and Responsibilities of Internet Service Providers

Joanna Kulesza (Department of International Law, University of Lodz, Lodz, Poland)
Copyright: © 2014 |Pages: 14
DOI: 10.4018/ijep.2014100103
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This article analyses the contents of the universal right to free expression in the context of its applicability on-line. It starts off with a brief recapitulation of the origin, definition and interpretation of the right to free expression, derived from article 19 UDHR. It then goes on to name the three composite rights (the right to hold, impart and receive information and ideas) and details the limitations that may be put by states upon the individual exercise of those freedoms. States' duty to protect free expression is than identified as their negative obligation to refrain from infringement as well as a positive one, to guarantee that human rights are “protected, respected and remedied” within national legal systems. Then the role of Internet Service Providers is introduced as the gate keepers of free expression in the information society. Different schemes for national ISP liability mechanisms are presented: the notice-and-take down procedure as well as Internet content filtering (preventive censorship). The paper goes on to criticize both mechanisms as enabling ISPs too much freedom in deciding upon the shape and scope of individuals' right to impart and receive information.
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2. Freedom Of Expression: Definition, Meaning And Enforcement

Freedom of expression1 is deeply rooted in the human rights system – it’s one of the fundamental freedoms enshrined in the Universal Declaration of Human Rights (UDHR),2 adopted by the UN General Assembly in Paris in 1948 as a statement of international consensus on the need to protect certain rights and liberties of individuals against unjustified infringement by state authorities and third parties. The wording of its Article 19, phrasing the right to free expression, has been repeated in numerous international treaties and served as a standard of free speech for national courts and international tribunals. Article 19 of the UDHR grants every human the right “freedom of opinion and expression”. The very language of the article specifies the three inclusive freedoms that come with the freedom of expression. The “right to freedom of opinion and expression” includes “freedom to hold opinions”, as well as the liberty to receive information and (last but not least) to impart it, “regardless of frontiers”.3 Confines for exercising these complementary rights are defined in Article 29 para. 2, which subjects their implementation “to such limitations as are determined by law” and introduced “for the purpose of securing due recognition and respect for the rights and freedoms of others”. Restrictions may be set up also in order to meet the “just requirements of morality, public order and the general welfare in a democratic society”. The ambiguous wording of the limitative clause results from the “aggressive” compromise of 19484 and brings numerous interpretative challenges up till today.5

The 1948 compromise was possible primarily due to two factors. First, because of the recent horrid remembrances of World War II, driving the world leaders, debating the scope and shape of the Declaration, to emphasize their disaccord with mass human rights violations. The other crucial factor was the non-binding character of the Declaration. When a binding assertion was required, the international community needed almost twenty more years for a suitable form of its stipulations to be successfully introduced into a treaty. The contents of the corresponding Article 19 of the International Covenant on Civil and Political Rights (ICCPR) derive richly from the UDHR original.6 In para. 1 the Article includes a confirmation of the universality of “the right to hold opinions without interference”, while putting the human right guarantee into more detail in para. 2. It grants each human the right to “freedom of expression” which – again – includes three complementary liberties: to “seek, receive and impart information and ideas”, regardless of frontiers. In the neighboring para. 3 the limitative clauses are repeated, giving state authorities the possibility to set legal boundaries on the exercise of human rights for reasons of national security or public order, to protect public health or morals as well to guarantee the rights of others. Should states decide to introduce such “necessary” limitations, they may do so only through an act of law.7

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