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.
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.
Nations Universal Declaration of Human Rights1
has the right to freedom of thought, conscience
and religion; this right includes freedom to change
his religion or belief, and freedom, either alone
or in community with others and in public or private,
to manifest his religion or belief in teaching,
practice, worship and observance.
has the right to freedom of opinion and expression;
this right includes freedom to hold opinions without
interference and to seek, receive and impart information
and ideas through any media and regardless of frontiers.
Everyone has the right to freedom of peaceful assembly
in this Declaration may be interpreted as implying
for any State, group or person any right to engage
in any activity or to perform any act aimed at
the destruction of any of the rights and freedoms
set forth herein.
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.
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
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,
abuse, harass, stalk, threaten or otherwise violate the legal
rights (such as rights of privacy and publicity) of others.
post, upload, distribute or disseminate any inappropriate,
profane, defamatory, obscene, indecent or unlawful topic,
name, material or information.
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:
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
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:
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
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
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;
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
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:
Finance Reform Talking Points.
ECM Publishers. (not pornographic
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.
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
Rules of Criminal Procedure.
Government and Politics, a class
taught at St. John's University by Dr. Brian
Information and Research Pages,
an activist and research site which contains
no nudity and has won the "Select Parenting
Site" award from ParenthoodWeb.
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
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
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.
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
20.3. Defamation actions as a means of silencing criticism
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.