20. Freedom of expression and censorship

- 20.1. The rights of expression, communication and association
- 20.2. Censorship and technical restrictions on network access
- 20.3. Defamation actions as a means of silencing criticism

Under international human rights conventions, all people are guaranteed the rights to free expression and association. As we shift from communicating using 'physical' formats such as letters, newspapers and public meetings, to electronic communications and on-line networking, we must consider how these rights apply to these new realities. There is no simple and obvious way of extending our existing rights to cover issues that emerge with the use of new technologies. To do that effectively we need to address the specific context within which our rights are to exercised and defended.

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20.1. The rights of expression, communication and association

Various international agreements on human rights were drafted immediately after the Second World War. In the context of that time, guaranteeing the fundamental right an individual in society to live, work and participate in the democratic process, according to the rule of law, was appropriate and necessary. Today, the situation within which these rights operate has changed. New information and communication technologies, the Internet in particular, present a challenge, since they allow open communication outside of state regulated and licensed media channels, and beyond national borders. Exactly how Human Rights must be interpreted in this new context has to be established.

The UN Universal Declaration of Human Rights guarantees freedom of thought, expression, association and communication. These have been replicated within regional treaties, such as the European Convention on Human Rights, and many national constitutions. Exercising these rights on the Internet is a complex matter, as it operates beyond national boundaries with no clear legal jurisdiction, in a medium that presents specific technological challenges. For example, although the UN Universal Declaration on Human Rights protects the right to privacy and private correspondence, the monitoring of Internet communications (by employers and service providers) is commonplace. The means of preventing such intrusion (through encryption, for example), are often restricted by governments.

Although Article 19 of the UN Declaration gives rights of communication 'regardless of frontiers', in some states, such as China, it is difficult to exercise this right. China attempts to filter all communications going in and out of the country as part of a system that has been described as 'The Great Firewall of China'. The purpose of this system is to restrict the flow of information out of and into the Chinese Internet. This system also forms part of an effort by the Chinese state to restrict Internet content within China, by tracking the use of the Internet for communication, in order to limit dissent on-line.². For example, this system has been effective in repressing the spread of information related to the Falun Gong movement.³. A recent study found that up to 200,000 international web sites may be blocked in China,⁴ and China-related matters figure high on the list of 'Internet dissidents' maintained by Human Rights Watch.⁵.

Vietnam imprisons dissident for using Internet Pham Hong Son was arrested in March 2002, and charged with spying under article 80 of Vietnam's Penal Code because he communicated by telephone and email with "political opportunists" in Vietnam and abroad.According to the indictment: "Son willingly supported the view of these mentioned political opportunists and became a follower of the action plan to take advantage of freedom and democracy to advocate pluralism and a multiparty system in order to oppose the government of the Socialist Republic of Vietnam." He is also accused of receiving emails from dissidents abroad who said that "the way to change the nature of the current regime was to remove the restrictions imposed by the Party leadership and Government, and to unify and organize the forces of democracy and pluralism." After a half-day closed trial in Hanoi on June 18, 2003 Pham Hong Son was sentenced to thirteen years' imprisonment and three years of house arrest on espionage charges under article 80 of Vietnam's penal code. Source: http://www.hrw.org/advocacy/internet/

In less obvious form, restrictions on the content of on-line information, anIn less obvious form, restrictions on the content of on-line information, and requirements for the registration or licensing of web sites, also limit the ability of people to express opinions and to communicate freely. This transfers the onus for regulation from the state – which may be challenged in the courts – to the private companies that run Internet and communications services. In order to maintain their licensing, or to prevent crippling lawsuits, these companies ‘self-regulate’, deciding what is or is not acceptable. Challenges to such decisions are often not feasible, and are ultimately controlled by carefully crafted ‘terms of use’ that users must agree to before they are allowed to use the service.

Perhaps the greatest obstacle to free expression of views (even views that do not violate laws on hate speech or the promotion of violent or unlawful acts) is the standard contract that users must agree to when signing up for an Internet service. Often we must give up our rights in order to have access to electronic networks. Most standard contracts include conditions related to defamation and the ‘misuse’ of electronic networks. For example Microsoft Network’s (MSN’s) contract⁶ states that users should not,

• Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.

• Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information.

• Upload, or otherwise make available, files that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consents to do the same.

These terms represent conditions that interpret the standard laws on defamation, privacy and intellectual property that exist in most states. However, the contract gives the operator the right to limit or discontinue access to the service without requiring evidence that the user has committed any unlawful act, or has actually transmitted material that could be deemed defamatory by a court of law. It is Microsoft's interpretation of the facts of the case, which is applied without consideration of the specific details and requirements of each. The contract that users must agree to also ensures that any challenges to the terms of the contract must take place in Microsoft's local court:

Microsoft reserves the right, in its sole discretion, to terminate your access to any or all MSN Sites/Services and the related services or any portion thereof at any time, without notice... Claims for enforcement, breach or violation of duties or rights under this agreement shall be adjudicated under the laws of the State of Washington, without reference to conflict of laws principles... You hereby irrevocably consent to the exclusive jurisdiction and venue of courts in King County, Washington, U.S.A. in all disputes arising out of or relating to the use of the MSN Sites/Services.

The ability of a service provider to use its discretion to remove access to services (and hence limit expression), without bothering with legal procedure, is a violation of rights. It allows service providers, whether on their own initiative or following pressure from government or industry organisations, to violate the rights of individuals who wish express their views on the internet, even when there is no lawfully based reason to curtail their use of that service. This places the control and interpretation of human rights in private hands, outside legislative regulation.

For organisations using Internet services it is important to evaluate the conditions of the service contract, and their potential to restrict rights of expression, before taking up any service. The conditions placed on email or web services vary from provider to provider. Other factors, such as the level of data protection in the country where the service operator is based, are also important. Gaining Internet access, in order to upload information over the ‘Net to a service, is fairly straightforward, and does not usually create problems. It is the conditions on hosting that most affect groups and individuals. For this reason those who wish to run on-line services that support or provide information on contentious issues should seek out service providers, perhaps in more than one country, in order to ensure that the information they host cannot be easily taken down.

Privacy policies are another issue. Most commercial sites have a privacy policy, but liberally interpret it in certain circumstances. For example ebay, the online auction site, has been happy to hand over private information to law enforcement agencies without any official court order.⁷. According to one ebay executive:

"When someone uses our site and clicks on the 'I Agree' button, it is as if he agrees to let us submit all of his data to the legal authorities. Which means that if you are a law-enforcement officer, all you have to do is send us a fax with a request for information...”

ebay also owns the 'PayPal' online payment system, and have reputedly been willing to disclose to the authorities credit card data from user accounts on that site. This can be seen as part of a wider agenda to develop standard procedures that would give the state access to information kept by Internet service providers. Moves to formalise this relationship have been made in various International forums, in particular via the G8 conference.⁸.

For those who have the resources, challenging the restrictions on access to on-line material may prove a useful way of protecting rights to expression and communication. To date, some of the leading challenges to new forms of on-line censorship have been launched by groups in the USA such as the American Civil Liberties Union (ACLU) and the Electronic Frontiers Foundation (EFF – which also has similar organisations based in other states). Other organisations, such as the Association for Progressive Communications (APC), have also instituted projects to track and report cases involving censorship and restrictions of rights on-line⁹. For those wishing to campaign on rights of access, these organisations provide a good model for planning similar actions¹⁰.

20.2. Censorship and technical restrictions on network access

Censorship is the means by which states have sought to restrict the transmission of information. Information is blocked either by legal restrictions on content, or by requiring the licensing of service providers. Unlike other media, such as radio, TV and newspapers, the Internet is far harder to license. This is because if threatened the operator can move to another state where licensing restrictions are less severe, though some states seek to control not the source or transmission route of the information, but its reception by the user. This is achieved by requiring the fitting of software systems to computers or access terminals that restrict the information a person may receive.

The technical systems that can be used in computers, or by internet service providers, provide a simpler and more effective means for controlling access to material. These software systems become an indirect form of state censorship. Two main types of system are currently available:¹¹:

• Filtering – sifting the packets of data or messages as they move across computer networks and eliminating those containing 'undesirable' material; and

• Blocking – preventing access to whole areas of the Internet based upon a 'blacklist' of certain Internet address, locations or email addresses.

Tests on Commercial Filtering Software Jamie McCarthy tested commercial filtering software that, according to the manufacturer, is used in 17,000 schools (more than 40% of schools in the USA). The researchers found that the software filtered educational, cultural, historical and political information on many web sites which did not contain sexually explicit material, including the following: Campaign Finance Reform Talking Points. ECM Publishers. (not pornographic publishers) How a Bill Becomes a Law. A brief lesson plan for teachers, to help them explain the legislative process to their students. Includes links to valuable net resources. The Traditional Values Coalition, "the largest non-denominational, grassroots church lobby in America." Ironically, their homepage currently has a strong statement supporting the use of blocking software in our schools and libraries. Pennsylvania Rules of Criminal Procedure. American Government and Politics, a class taught at St. John's University by Dr. Brian L. Werner. The Circumcision Information and Research Pages, an activist and research site which contains no nudity and has won the "Select Parenting Site" award from ParenthoodWeb. Source: http://www.epic.org/censorware/mandated_mediocrity.html

Filtering operates on the basis of ‘rules’ that target certain words, phrases or colour combinations in pictures. When the conditions of a rule are met some type of action is triggered. The rules are usually applied as part of the computer program accessing the information, either at the ‘socket’ where the computer accesses the network, or at the server that routes the information across the Internet. This type of filtering tends to be very crude, be-cause the rules operate without taking account of the context in which the offending term is being used. Many filtering programs, which are often used in public libraries, schools and other public terminals, can obstruct requests for completely inoffensive material.

Blocking usually uses a database of restricted web addresses or email servers. When an attempt is made to access a blocked site the request is refused by the browser, or the packets or messages are blocked at the network socket or server. A request will also be denied if material is requested from a blocked site as part of another web page.

There are technical differences in how rules for filtering or lists of blocked sites are determined. Rules based systems (filters) can usually be manipulated by the user, who can make choices as to which words or conditions to filter and can turn filters off or on, although many systems have a default set of words that are configured automatically. Most blocking systems do not allow the user control over the content of the database itself (although addresses may be added to the database). Instead the user must accept the selection criteria used by those who control the system. Finding out which sites are blocked can also be problematic. The database of a blocking system is usually encrypted to prevent access to its contents; this makes it an ‘intellectual construct’ under intellectual property law, and any attempt to decrypt its content, in order to obtain a list of blocked sites can result in prosecution by the creators of the software involved.

Concerns have been raised about the use of blocking and filtering software and their impact on freedom of expression. In the USA, where blocking and filtering systems are widely used, investigators have found that a wide range of sites are blocked, not merely those deemed ‘offensive’ because of their sexual or violent content.¹². For example, some sites with a sexual, but not pornographic, content, such as gay and lesbian rights websites, may also be blocked. Increasingly sites are blocked on the basis of their political content. Some studies have found that whilst certain ‘offensive’ hate sites are blocked, sites (including some belonging to religious groups) which contain other forms of hate speech, are not blocked.

Note also that most of the current ‘spam filters’, that seek to restrict spam emails a user receives, can also use blacklisting systems in addition. These blacklists are maintained by certain companies who study recent spam incidents, and the filter programs update their blacklist database over the ‘Net at regular intervals. This means that when an email relay is hijacked by spammers, the users of that email service may find their emails are blocked. It is also possible that rules-based anti-spam systems may specifically restrict emails from certain named sources.

A new form of censorship has emerged recently with allegations that Internet search engines are being manipulated to block the inclusion of certain web sites. If the search engines can be configured not to include references to certain sites then access to those sites is effectively blocked off because ‘Net users will be unaware of their existence. A recent example of this was the allegation by the Bilderberg.org site¹³that its entry in Google had been removed in order to prevent information about the Bilderberg Conference (a private conferences of politicians and leading corporations) being distributed.

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For those concerned about the impact of filtering or blocking software, the easiest option is to demand from the software developer details of the criteria for the rules set or blacklist. However, most developers of these systems refuse such requests on the basis of ‘commercial confidentiality’. Some groups have proposed the development of an ‘open source’ content filtering system, so that all the rules and blacklists used by the system would be open to scrutiny. But as yet there is no specific project by the open source community to develop a system for used by ordinary computer users.

Those worried that their services may be blocked by software systems, should obtain copies of recent versions of blocking or filtering systems and attempt to access their services on-line. Likewise, to ensure that their sites are appropriately listed in search engines, they should regularly search for information on their web sites using a number of the leading search engines.

Finally, there is one critical factor about the use of electronic networks and censorship. Because the operation of the network is largely beyond the control of the users, the network may be censored, technologically or manually, by those who design, install or operate the system. Likewise, any technological system is open to abuse by those who are able to exploit flaws in the network. A good example of this is the hacking or blocking of sites. This may be done unofficially – for example the blocking of access to the Al Jazeera TV network web site during the Gulf War1 – or officially – for example, the Presidential Order signed by George W. Bush that allows the US to conduct ‘cyberwar’ against another state.¹⁵.

20.3. Defamation actions as a means of silencing criticism

‘Defamation’ involves the publication of a statement damaging a person’s reputation. A company or individual may use the threat of a defamation action to silence their critics or campaigners. There have been many examples of this, even before the Internet was a popular communications medium for civil society campaigns.¹⁶. Internet service providers, like other publishers, will not normally defend against a claim of defamation. Rather than risk the costs involved in a legal action, many will simply remove the offensive material and undertake not to allow its future publication. Where a claim of defamation is made against the originators of the information or statements they must decide whether to fight the action, because they believe their claims are correct, or to apologise and risk a claim for damages.

The most famous example of such a case, which saw ground-breaking use of the internet, was the McLibel Trial.¹⁷.In a defamation action by McDonald’s against Greenpeace London, two of the defendants used the court case as a campaign opportunity. How the McLibel two took on the McDonald’s corporations is a good example of how to handle threats of legal action.