Lost in the web – How to navigate the legal maze and protect free speech online

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Lost in the web – How to navigate the legal maze and protect free speech online
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177
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177
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CC Attribution - ShareAlike 3.0 Germany:
You are free to use, adapt and copy, distribute and transmit the work or content in adapted or unchanged form for any legal purpose as long as the work is attributed to the author in the manner specified by the author or licensor and the work or content is shared also in adapted form only under the conditions of this license.
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2015
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English
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Berlin

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Abstract
Online content is being restricted in various ways: content is simply blocked at government level, individuals sue bloggers on copyright grounds or their "right to be forgotten" and online publishers are held liable for comments users place on their website. What are the main pitfalls for freedom of expression online and how can this legal minefield be navigated?
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a long time but this is the thanks a
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no thank you all for joining the here as at this point in a program I know
it's never very easy to draw a crowd where you announce you be talking about legal stuff and but I'll try to to make this interesting for you as was just mentioned and the legal director of the Media Legal Defense Initiative as short MOD I we are a London-based NGO that works worldwide to help journalists and bloggers defend their rights we have about a hundred old cases going on at any 1 time in between 40 and 50 different jurisdictions so this is the basic a good overview of what's happening globally and in the field of journalism and also on line and we'll not a lot of speeches is moving online these days either by choice because it's a cheap and accessible way of publishing or by necessity which is something that we see a lot in practice I think of countries such as Vietnam in Ethiopia were people basically can only express dissenting views online
as it's not possible to do so in traditional media and at the same time we see an increase in attempts to control free speech of online in what should actually be a space in which information can flow freely and that is what I'll be talking about today and
said cost some of these restrictions on online speech and I want you to keep in mind the 2009 Internet manifesto which consists of a 17 decorations on how journalism works today and and I will read this out because I know some people will be listening to the audio stream and some may have forgotten their reading glasses so and and principal number 4 of the 17 declarations says that the freedom of the Internet is inviolable and it says that the Internet Open architecture constitutes the basic IT law of a society which communicates digitally and consequently of journalism it may not be modified for the sake of protecting the special commercial or political interests but are often hidden behind the pretense of public interest regardless of how it is done blocking access to the internet endangers the free flow of information and corrupts are fundamental rights to self-determined level of information a it so think of this
idea of a free flow of information as I discuss a number of restrictions that we find and on online to online speech and afforded I will be discussing art the
blocking of online platforms copyright other legislative loopholes that are used to and curtail free speech liability for user comments and the right to be forgotten
yeah yeah the so the 1st example of the blocking of online platforms and comes from India which has an IT article 69 a of that IT Act allows the Indian government or any of its agents to order the blocking of a websites within 72 hours and if it's considered to be necessary in the view of the government for the protection
of of friendly relations with foreign States national security the defense
of the states and all sorts of other kind of vaguely defined criteria if this is not this order is not complied winter and this basically leads to a set of the
potentially and a 7 year of the prison sentence or a fine for the intermediary there's no appeal possible to
such a decision of such an order to block a website there's only some sort of internal review process by a government panel and that review process basically consists of checking whether or not article 69 a has been applied so it's kind of an interesting circular and reasoning the language of article 69 AD is overly broad it's
very vague it speaks of necessity without actually explaining what's necessary means it it and it lists a number of general terms under which is looking can be ordered and therefore it's very prone to abuse it can be interpreted in many different ways in December 2014 over 60 websites have been blocked on article 69 and as I mentioned there's no appeal possible so people can actually challenge it's and and sites that in that that were built under this um a provision are some of them are listed here Dailymotion Vimeo sourceforge I get up a great number of of sites that are used for a citizen journalism also and even though I just said that the provisions are over he brought and
therefore prone to abuse the Supreme Court of India very recently decided that there's nothing wrong with this provision there was a and a challenge brought at the Constitutional Court there which challenge the number of physicians provisions from the IT acts including the notorious Article 66 a which is the article under which the 2 girls who uh makes suppose on Facebook were prosecuted them I'm sure some of you would have heard of that case
and but said the Indian Supreme Court in its decision a cold article articles 69 a and narrowly defined and a constitutionally sound article so I'm afraid I will have to do with it for a little while
to come the the imperfect at the situation in India maybe it is there is some sort of legal framework there which is not the situation in Pakistan and where you 2 has been blocked since September
2012 and even if the video that led to its looking at the instance of Muslims is no longer available on its but YouTube is not the only website gets blocked by the Pakistan Telecommunications
Authority what basically happens is that's and government ministries can contact the PTA saying that they are unhappy with certain online content and the PTA just pulls the plug on those
websites there's no law there's no degree there's no legal framework and there's also no regulatory framework by which people can actually challenge those looking decisions the
Pakistani NGO bytes for all has challenged as the blocking of tilt but has not only 10 is looking of you 2 but it is also ask for the court for the High Court of reward to order that a proper and regulatory mechanism is established so they're actually will become that and a proper form of due process will be actually to be created for that's and the case has been ongoing for quite some time at the last hearing in this matter was in November last year when a high cost in the war said that they were very much inclined to add to unblock you too but it was impossible for them at this point as there is a supreme court order which several years
ago ordered the blocking of a site called you tube so that YOU but you to at the request of a government official who had a letter to the court basically and court then ordered the blocking of the websites so and In order for the high court's to ordered unblocking 1st clarification is be requested from the Supreme court so that is a pending matter at the moment before moving on to that to
the next so but I just want to mention 2 examples are it's a bit closer to home and the 1st 1 is is Turkey whereas we all know a lot of grouping of online platforms is taking place as an example there was a and the blocking of Google sites a number of years ago and this is actually the blocking of the entire platform because 1 particular sites and 1 the government to take 1 particular site offline and as a as a preventative measure at this case was actually appealed all the way up to the European Court of Human Rights was very here said that this was a disproportionate measure it could have just focus on this 1 specific site but instead decided to block the entire platform and that's the legal framework in Turkey to challenge these things actually also very much like so this was a win at the international level but and at there are still many more instances in which uh the websites get blocked and Kidder bans on grounds of of national security a frequent occurrence and so this is a remaining problem in Turkey 2nd example I wanted to
mention here is France after the charter hadto attacks as a decree was adopted there that allows the interior minister to order the blocking of content online within 24 hours if it's uh consider to be terrorists over protein hardest we don't really have any of numbers of how many sites have been blocked under this degree at this point in time but it's an anecdotal evidence suggests that the blocking is that that the basically the the decree is being used in a rather heavy-handed way also parts of websites that actually have nothing no links to terrorism whatsoever are being blocked and the the review process there is some sort of way in which uh Ives please can actually appeal of these decisions but the burden lies very much with
them so it's it's not exactly in a situation in which you have equality of arms the and it's it's sadly as part of a wider pattern in the country uh which which you reflects a crackdown on free speech after charter herptile attacks so moving on to
to copyrights and and other legislative false of copyright is a double edged sword has a pro and it has a contract for the expression of components is intended as an incentive to bring up good
ideas and images etc. into the market at the same time it restricts the circulation and the example that I listed here from the USA and I'm sure you're all familiar
with this image this is from the video of a sort of this shooting of squats and on arms a black man was shot in the back by policemen reasoning this was a videotape by a passer-by on the on the phone and then circulated widely in the media and in April uh letter started to emerge uh at that's over sends out by a publicity company to news outlets worldwide basically asking people to seize the system to stop using these and this footage in these images as an
the person who shot the video claim to have copyright of this but always a loophole their rights as for for news outlets as fair use if something has news value should be able to kind of and not have to comply with these copyrights and obligations and it's interesting that there's actually a discussion on this point and in the US as to whether or not something that was news at some point could no longer be new beginning news after a certain time frame meaning that copyright laws would kick in and I would say that this is news now and will remain use 7 but have to see how that the beta unfolds the we then returned to India
and the documentary India's daughter is a nice example of the various creative ways that can be used to make sure that a certain ideas and uh that don't get into circulation as we'll have heard in the news the Indian government wasn't very much in favor of this documentary and being broadcast ends and the tried several things and the 1st and attempt was by accusing the director of
breach of contract because they are set that actually was in agreement with the director that's and the could that the film should be produced for commercial purposes that didn't work so then they proceeded to a claim of contempt of court and the grounds for that were that the death penalty that's and that the people portrayed in the film and had been committed to was still under appeal at a higher courts then the search and attempts to suppress the film I was on the grounds of hate speech they used and a provision in the Indian Penal Code uh which actually is aimed at preventing hate speech between different religious groups so as to apply it to some of the things that the lawyers of the defendants in a film establishing really misogynist comments so the kind of gave David twist as as hate speech to words women this also then work the BBC in the end uh has has broadcast a documentary and that in turn led to the copyright disputes and they are ordered in you to to take film them so this documentary has had almost every single and possible legal
action aimed at its it city is another really good example of copyright being used very effectively and uh removing content from the Internet as of May and 2014 450 sites were blocked in
Italy due to copyright reasons uh age income which is uh the telecom regulator has an internal administrative panel that out of its own initiative can decide at certain websites and violate copyright rules
and then order and the hosting provider to take the website down within 72 hours and that if they don't do that so they can ordered I speed to do so
without a court orders so there's no actual judicial review for any of these decisions and the legislative basis for this has been referred to the Italian Constitutional Court and this will actually be the 1st constitutional case in Europe and course in Europe to consider the impact of administrative measures on the right to freedom of expression the uh by copyright infringement grounds and the case is a moving very quickly it will be heard in october 2015 and it's expected to take a little bit longer for the Constitutional Court to reach a decision but will be very interesting to watch out for so keep that in mind if you like so the 3rd points a liability for user comments the
Delphi is an Estonian and news portal and at some point it published in an article about the ferry company that had changed its very roots apparently this was a very sensitive issue in Estonian community
because is elicited an enormous storm of Coleman's a lot of which were very insulting and unpleasant to words the major shareholder of the ferry company and the loss of the shareholder then notified Delphi saying that look there all these comments online were not happy with them the they them often also please pay damages your clients and Delphi complied with the request to remove the comments but refused to pay damages because they said that they were in light of liable for Gomes ever made by 3rd parties on the websites and this is taken to courts by the by shareholders lawyers and the national cause basically said well well you actually can control the contents you see you could take a to take it offline so therefore you are liable and you cannot hide behind the e-commerce directive which is the directive within the EU that provides a safe harbor for sites that act as a as as a as a mere conduit so they are passive in passing on the news and information that is published on those websites the European courts and I would say foolishly and upheld and this decision by national course in but I would say a rather short-sighted decision they completely fail to
take into account the framework that has been developed very carefully by the Court of Justice of the European Union regarding the e-commerce directive and and look at any other jurisdictions and how they regulates and liability and all of and of of websites for user comments the and fortunately the matter was referred to the Grand Chamber so it's basically in on appeal within
the european court system that our Organization intervene and that actually together in with the coalition of 28 and press freedom and media organizations arguing this point that the court should take into account what's in the case that was developed in accordance with the equal misdirected also and presenting the court with comparatively low example from the US which is a much more liberal and system for liability basically leaving it to self regulation in the markets and also showing best practices of meaning it but for a lot of news websites is very common practice to kind of make sure that readers get engaged right with news stories it's it's something that you want but people comment unused unused the pieces and other websites each have their own way to kind of encourage good comment so to speak then and filter out the ones that are less and and the former less positive contribution to to the circulation of news as a decision areas pending a hearing was held earlier this year and so we'll have to wait and see what the European court us without the the final point I want to flag is is the right to be forgotten and even we don't know and I think we've all heard of the Court of Justice of the European Union said
judgments any case of Google Spain versus the Spanish data protection authorities and the
court found that search engine activity amounted to the processing of personal that's not and that the activity of a search engine in that case had to be equated with that of a controller the and the most interesting feature from of fering of expression point of view of this case is the fact that the that the courts did not really mentioned the right to free expression at all and in its judgment
and the core does say explicitly that fundamental rights should be taken into account when interpreting the Directive on the on on data protection but the only writes it
actually mentions are the right to privacy and the right to protection of personal that's the course kind of hints at an aspect of the right to free expression and which is the right to actually access information but of course is an interest and not even a rights and that as well there is a very explicit article in the European Charter which court is supposed to apply was this article 11 which deals with the right to free speech so this is kind of the puzzling and based on this decision information does not get removed from the Internet it just gets the next and and then the question is a little bit the contents that exists it's still online so what's the what's the problem then basically the 2 main 2 main factors here are that and a very fundamental element of the right to free speech is not only the the rights to disseminate and share ideas and and and and and and use but also to access them and this is the part that gets taken away from you if you cannot access information online is easily because it's been removed by by certain search engines and other issues transparency and Google is of course the main search engine that we that we all know and as since the March 2014 decision and 307 thousand links will be indexed by the latest out that I have this number will have increased since then and the question is like what how did this happen what are the criteria that are being applied global always indicates that the number of of general factors and that that they take into account these decisions but they're pretty broad and so we don't exactly know what happens in these decisions and on an individual basis so that leaves and a lot to to guess there is some lights at the
horizon ball and national courts have been pretty good and actually following up on this decision from the from the cause of just from the European Union 1 example is from the Netherlands where a recent ruling basically
said that this could not be applied to anything that was could should be considered news and and also the Spanish courts have handed down some more restrictive interpretations of this ruling so that is a positive development in and of itself it the when you look at all of this
on the situation may look pretty and and also the pressing you may also wonder why and I'm telling you all this and then I want to go back to to the manifest so that I that I mentioned earlier at the beginning of this talk and I want to combine it with the old saying that that knowledge is power right and if you want the internet to remain what it what it is sought to become what we wanted to be and you're referring back to words uh even Zuckerman also mentioned in in his opening talk today you know that with the Web we want and then if you want to make sure it's a place where information can flow freely we also need to know what the possible impediments are for this 1 of the pitfalls that you need to
navigate and also requires you to be a bit flexible and a bit creative so it if your website gets blocked in certain jurisdiction near 1 of the things that you could do is that you set up an IP proxy order high get someone else to host a mirror site for you if you get a copyright claim 1st of all I would advise you as in order to make sure that you and provide proper accreditation when you someone else's images both and there are also other ways you can you can change the work so that kind of falls outside the region of copyright protection if your content gets
the index because someone claims that they have a right to be forgotten and make sure that it gets known as tweets about it right about and make sure that the information that you want to
share gets out there and people know that people have prevented you from actually trying to publish on these issues to be that things that I am I would wish for those who publish on the Internet think of beforehand and if you have something to say it's good to have a plan B it's also good to kind of be prepared to be bit flexible and how you share your information and when it's so when it comes down to it and if you're you're challenged and if everything goes wrong you can always get in touch with us and I'm very happy to to take questions from the floor if we have time for that let us of acid if you feel free to come and talk to me whenever of any questions to his thing of the moment so
think of others is given a confession place if the
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