11R 2011 HE UNIVERSAL F EXPRESSION COURT...

i

11R

2011

THE UNIVERSAL FREEDOM OF EXPRESSION COURT

IN

THE UNIVERSAL COURT OF HUMAN RIGHTS

THE 2011 OXFORD-INDIA MEDIA LAW MOOT COURT COMPETITION

OPENBEMIDIA & ORS.

(APPLICANTS)

V.

STATE OF BEMIDIA

(RESPONDENT)

MEMORIAL FOR RESPONDENT

4603 WORDS

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS iv

INDEX OF AUTHORITIES v

STATEMENT OF FACTS xvii

STATEMENT OF JURISDICTION

xxi

QUESTIONS PRESENTED

xxii

SUMMARY OF ARGUMENT

xxiii

ARGUMENTS 1

A THE REQUIREMENT OF COLLECTION AND VERIFICATION OF USER INFORMATION IS

CONSONANT WITH THE PROVISIONS OF THE UDHR 1

I. The Impugned Requirement is in Consonance with Articles 19 and 20 UDHR 1

a. The Requirement Does Not Restrict Article 19, UDHR ______________________ 1

b. The Requirement Does Not Restrict Article 20 UDHR ______________________ 6

c. In Any Event, the Restriction is Permissible under Article 29(2) UDHR _________ 7

II. The Impugned Requirement Does Not Violate the Right of Privacy Enshrined in

Article 12 UDHR 13

a. The Requirement to Collect and Verify the Name and Contact Information Does

Not Restrict the Right of Privacy of Users _________________________________ 13

b. In Any Event, the Restriction is Permissible under Article 29(2) ______________ 14

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B. THE REQUIREMENT TO DISCLOSE THE IDENTITY, ‘FOLLOWING’ AND HISTORICAL

LOCATION INFORMATION IS CONSONANT WITH THE PROVISIONS OF UDHR 16

I. The Impugned Requirement Does Not Contravene Articles 19 and 20 UDHR 16

a. The Requirement Does Not Impose a Restriction on Articles 19 and 20 UDHR __ 16

b. In Any Event, the Restriction is Permissible under Article 29(2) UDHR ________ 17

II. The Impugned Requirement Does Not Violate Article 12 UDHR 17

a. The Impugned Requirement Does Not Restrict Article 12 UDHR _____________ 18

b. In Any Event, the Restriction is Permissible under Article 29(2) UDHR ________ 19

III. The Impugned Requirement is Consonant with Article 8 UDHR 20

C. THE REQUIREMENT TO DISCLOSE REAL-TIME LOCATION INFORMATION IS IN

CONSONANCE WITH PROVISIONS OF UDHR 21

I. The Impugned Requirement Does Not Restrict Article 12 UDHR 21

II. The Impugned Requirement Does Not Restrict Article 13 UDHR 22

III. The Impugned Requirement is Consonant with Article 8 UDHR 23

IV. In Any Event, the Restriction is Permissible under Article 29(2) UDHR 24

D. THE REQUIREMENT TO DELETE THE CONTENTS OF THE CARLA TRACKER, TALIA TRACKER

AND DARIA TRACKER FORUMS DOES NOT CONTRAVENE ARTICLE 19 UDHR 26

PRAYER 30

iv

LIST OF ABBREVIATIONS

AfCHR African Convention on Human and Peoples’ Rights

AfCtHR African Court of Human and Peoples’ Rights

AIR All India Reporter

ACHR American Convention on Human Rights

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

EU European Union

HRC Human Rights Committee

ICCPR International Covenant on Civil and Political Rights

IRA Internet Responsibility Act

UDHR Universal Declaration of Human Rights

UK United Kingdom

US United States of America

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INDEX OF AUTHORITIES

CASES

AFRICAN COURT OF HUMAN AND PEOPLES' RIGHTS

Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) ________________ 4, 8

INTER-AMERICAN COURT OF HUMAN RIGHTS

Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism,

Advisory Opinion OC-5/85, Inter-American Court of Human Rights Series A No 5 (13

November 2003) _________________________________________________________ 16

Herrera-Ulloa v Costa Rica Petition no 12367 (IACtHR, 2 July 2004) _________________ 10

EUROPEAN COURT OF HUMAN RIGHTS

A v B and Anr [2002] EWCA Civ 337 (UK) ____________________________________ 30

Burghartz v Switzerland (1994) 18 EHRR 101 ___________________________________ 30

Campmany y Diez de Revenga and Lopez Galiacho Perona v Spain App no 54224/00

(ECtHR, 12 December 2000) _______________________________________________ 32

Ceylan v Turkey App no 23556/94 (ECtHR, 8 July 1999) ___________________________ 14

Chorherr v Austria (1994) 17 EHRR 358 ________________________________________ 22

Evans v United Kingdom (2006) 43 EHRR 21 ________________________________ 18, 19

Friedl v Austria (1995) Series A no 305 B _______________________________________ 31

Funke v France (1993) Series A no 256 A _______________________________________ 32

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Gaweda v Poland App no 26229/95 (ECtHR, 14 March 2002) _____________________ 5, 10

Handyside v United Kingdom (1986) Series A no 24 ___________________________ 15, 16

Herczegfalvy v Austria (1993) 15 EHRR 437 ____________________________________ 22

Hinczewski v Poland App no 34907/05 (ECtHR, 5 October 2010). ___________________ 10

HRH Princess of Wales v MGN Newspapers App no 39069/97 (ECtHR, 11 December 2003)

_______________________________________________________________________ 31

Huvig v France (1990) Series A no 176 B ____________________________________ 10, 23

Julio BouGibert and El Hogar Y La Moda J.A. v Spain App no 14929/02 (ECtHR, 13 May

2003) __________________________________________________________________ 32

Keegan v Ireland (1994) 18 EHRR 342 _________________________________________ 32

Klass v Germany (1978) 2 EHRR 214 _______________________________________ 13, 24

Kruslin v France (1990) Series A no 176 A ___________________________________ 10, 23

KU v Finland (2009) 48 EHRR 52 _____________________________________________ 19

Leander v Sweden (1987) 9 EHRR 433 ______________________________________ 15, 24

Lingens v Austria App no 9815/82 (ECtHR, 8 July 1986) ___________________________ 30

Mirror Group Newspapers v United Kingdom App no 39401/04 (ECtHR, 18 January 2011)32

Mosley v United Kingdom App no 48009/08 (ECtHR, 10 May 2011) _________________ 32

P.G. and J.H. v United Kingdom App no 44787/98 (ECtHR, 25 September 2001) _____ 30, 31

Peck v United Kingdom (2003) 36 EHRR 41 ______________________________ 30, 31, 32

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Rekvényi v Hungary ECHR 1999-III 34 ________________________________________ 10

S and Marper v UK (2008) 48 EHRR 50 ________________________________________ 18

Schüssel v Austria App no 42409/98 (ECtHR, 21 February 2002) ____________________ 30

SH and Others v Austria App no 57813/00 (ECtHR, 1 April 2010) ________________ 18, 19

Silver and Others v The United Kingdom (1983) Series A no 61 _____________________ 10

Surek v Turkey App no 24122/94 (ECtHR, 8 July 1999) ____________________________ 10

The Observer and The Guardian v The United Kingdom (1991) Series A no 216 ____ 13, 15

The Sunday Times v The United Kingdom App no 13166/87 (ECtHR, 26 November 1991) 9,

10, 15

Uzun v Germany App no 35623/05 (ECtHR, 2 September 2010) _______________ 25, 27, 28

Von Hannover v Germany (2005) 40 EHRR 1 ______________________________ 30, 31, 32

Von Hannover v Germany (2005) 40 EHRR 1. ________________________________ 30, 31

X and Y v Netherlands (1985) Series A no 91 ____________________________________ 31

Zana v Turkey (1997) 27 EHRR 667 _____________________________________ 14, 15, 16

AMERICAN CASES

Alexander v US 509 US 544 (1993) _____________________________________________ 5

Bartnicki v Vopper 532 US 514 (2001) __________________________________________ 6

Buckley v Valeo 424 US 1 (1976). ______________________________________________ 4

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California v Ciraolo 476 US 207 (1986) _________________________________________ 26

Chaplinsky v New Hampshire _________________________________________________ 9

Clark v Community for Creative Non-Violence 468 US 288 (1984) ____________________ 6

Commonwealth v Copenhefer 526 Pa 555, 587 A 2d 1353 (Penn 1991) ________________ 27

Couch v United States 409 US 322 (1973) _______________________________________ 22

Florida v Riley 488 US 445 (1989) _____________________________________________ 26

Freedman v Maryland 380 US 51 (1965) _________________________________________ 6

Frisby v Schultz 487 US 474 (1988)_____________________________________________ 5

Katz v United States 389 US 347 (1967) ________________________________________ 17

Laird v Tatum 408 US 1 (1972) ________________________________________________ 7

Los Angeles v Lyons 461 US 95 (1983) _________________________________________ 7

Madsen v Women’s Health Center Inc et al 512 US 753 (1994) _____________________ 6, 7

McIntyre v Ohio Elections Commission 514 US 334 (1995). _________________________ 4

Meese v Keene 481 US 465 (1987) _____________________________________________ 7

Near v Minnesota 283 US 697 (1931) _______________________________________ 13, 14

Nebraska Press Association v Stuart 427 US 539 (1976) ____________________________ 16

New York Times Co v Sullivan 376 US 254 (1964) _______________________________ 33

New York Times Co v United States 403 US 713 (1971) ___________________________ 13

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Niemotko v Maryland 340 US 268 (1951) ________________________________________ 5

Oliver v US 466 US 170 (1984) _______________________________________________ 26

O'Shea v Littleton 414 US 488 (1974) ___________________________________________ 7

Pearce v State 45 P 3d 679 (2002) _____________________________________________ 17

Renton v Playtime Theatres Inc 475 US 41 (1986). _________________________________ 6

Shelton v Tucker 364 US 479 (1960) ___________________________________________ 16

Shuttleworth v Birmingham 394 US 147 (1969) ___________________________________ 5

Smith v Maryland 442 US 735 (1979) ____________________________________ 22, 23, 28

Turner Broadcasting System Inc v FCC 512 US 622 (1994) __________________________ 6

United States v American Library Association 539 US 194 (2003) _____________________ 8

United States v D‘Andrea 497 F Supp 2d 117, 120 (D. Mass. 2007) ___________________ 23

United States v Forrester 512 F 3d 500 (2007) _________________________________ 23, 28

United States v Hambrick 299 F 3d 911 _________________________________________ 22

United States v Kennedy 81 F Supp 2d 1103, 1110 (D. Kan. 2000) ___________________ 22

United States v Miller 425 US 435 (1976) _______________________________________ 22

United States v Payner 447 US 727 (1980) ______________________________________ 22

United States v. O'Brien 391 US 367 (1968) ______________________________________ 6

United States v Garcia 474 F 3d 994 ________________________________________ 26, 27

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United States v Knotts 460 US 276 (1983) ____________________________________ 26, 27

Viacom International Inc. v YouTube, Inc. 718 F Supp 2d 514 (2010). _________________ 2

Ward v Rock Against Racism 491 US 781 (1989) __________________________________ 6

Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150

(2002) __________________________________________________________________ 6

Worm v Austria 83/1996/702/894 (ECtHR, 29 August 1997) _________________________ 8

ENGLISH CASES

ETK v News Group Newspapers [2011] EWCA Civ 439 ___________________________ 35

McKennitt v Ash [2007] 3 WLR 194 ___________________________________________ 35

Murray v Express Newspapers [2007] EWHC 1908 (Ch) ___________________________ 34

R. v Broadcasting Standards Commission, ex parte British Broadcasting Corporation (Liberty

intervening) [2000] 3 All ER 989 ____________________________________________ 34

R. v Loveridge [2001] EWCA Crim 973 ________________________________________ 34

INDIAN CASES

Ajai Hasia v Khalid Mujib AIR 1981 SC 487 (India) ______________________________ 10

AK Gopalan v State of Madras AIR 1950 SC 27 (India) ____________________________ 28

Avnish Bajaj v State (NCT) of Delhi 116 (2005) DLT 427 ___________________________ 2

Brij Bhushan v Delhi AIR 1950 SC 129 (India) ________________________________ 12, 13

Consumer Action Group v State of Tamil Nadu (2000) 7 SCC 425 (India) _____________ 32

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District Registrar and Collector, Hyderabad v Canara Bank AIR 2005 SC 186 (India) _ 16, 19

E.P. Royappa v State of Tamil Nadu AIR 1974 SC 555 (India) ______________________ 10

Gobind v State of MP AIR 1975 SC 1378 (India) ______________________________ 15, 19

Indu Jain v Forbes Inc. IA 12993/2006 in CS(OS) 2172/2006 (India) _______________ 32, 33

Jyoti Pershad v Administrator for the Union Territory of Delhi AIR 1961 SC 1602 (India) 30,

32

K.A. Abbas v Union of India AIR 1971 SC 481 (India) _____________________________ 6

Maneka Gandhi v Union of India AIR 1978 SC 597 (India) _________________________ 28

O.K. Ghosh v E.X. Joseph AIR 1962 SC 812 (India) ______________________________ 12

Ramjilal Modi v State of Uttar Pradesh AIR 1957 SC 620 (India) ____________________ 12

The Superintendent, Central Prison, Fatehgarh v Ram Manohar Lohia AIR 1960 SC 644

(India) _________________________________________________________________ 12

Union of India v Association for Democratic Reforms (2002) 5 SCC 294 (India) ________ 33

DECISIONS OF THE HUMAN RIGHTS COMMITTEE

Albert Womah Mukong v. Cameroon, Communication No. 458/1991, U.N. Doc.

CCPR/C/51/D/458/1991 (1994) (HRC) _____________________________________ 9, 21

Toonen v Australia [1994] PLPR 33 (HRC) ______________________________________ 16

Zeljko Bodrozic v. Serbia and Montenegro, Communication No. 1180/2003, U.N. Doc.

CCPR/C/85/D/1180/2003 (2006) (UN Human Rights Committee) __________________ 33

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HUNGARIAN CONSTITUTIONAL COURT

Decision 60/1994 (XII. 24) AB (Hungary) _______________________________________ 32

STATUTES

Anti-Terrorism, Crime and Security Act 2001 (UK) ____________________________ 21, 22

Data Protection Act 1998 (UK) ____________________________________________ 18, 22

Information Technology (Guidelines for Cybercafe) Rules 2011 (India). _____________ 5, 16

Information Technology Act 2000 (India) ___________________________________ passim

Italian Decree Law on Anti-Terror Measures 2005 (Italy); Processing of Personal Data

(Electronic Communications Sector) (Amendment) Regulations 2008 (Malta) ________ 16

Italian Personal Data Protection Code 2003 (Italy) __________________________ 17, 24, 27

Principle 11, Information Privacy Principles under the Privacy Act 1988 (Australia) _____ 22

Principle 3, Model Code for the Protection of Personal Information (Canada) ___________ 22

Processing of Personal Data (Electronic Communications Sector) (Amendment) Regulations

2008 (Malta). _____________________________________________________________ 5

Regulation of Investigatory Powers Act 2000 (UK) _____________________________ 21, 22

Telecommunications Information Privacy Code 2003 (New Zealand) ___________ 17, 21, 24

USA PATRIOT Act 2001 (US) _____________________________________________ 2, 21

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REGIONAL AND INTERNATIONAL INSTRUMENTS

African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21

October 1986) (1982) 21 ILM 58 (AfCHR) .................................................................. 2, 4, 9

American Convention on Human Rights (adopted 22 November 1969, entered into force 18

July 1978) (ACHR) ....................................................................................................... passim

Committee of Ministers Declaration on Freedom of Political Debate in the Media, 12

February 2004 CM/Del/OJ(2004)872E ............................................................................... 32

Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention on Human Rights, as amended) (ECHR) ........................................................... 9

Directive 2002/58/EC of the European Parliament and the Council of 12 July 2002

concerning the processing of personal data and the protection of privacy in the electronic

communications sector [2002] OJ L201/37 ......................................................................... 20

Directive 2006/24/EC of 15 March 2006 laying down specific provisions on the retention of

data generated or processed in connection with the provision of publicly available

electronic communications services or of public communications networks and amending

Directive 2002/58/EC [2006] OJ L105/54 ..................................................... 4, 17, 19, 20, 25

Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the

protection of individuals with regard to the processing of personal data and on the free

movement of such data [1995] OJ L281/31 ................................................................... 20, 25

European Convention on Human Rights (adopted 4 November 1950, entered into force 3

September 1953) (ECHR) ............................................................................................. passim

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International Covenant on Civil and Political Rights (adopted 16 December 1966, entered

into force 23 March 1976) 999 UNTS 171 (ICCPR) ............................................... 1, 4, 9, 13

Siracusa Principles on the Limitation and Derogation Provisions in the International

Covenant on Civil and Political Rights, U.N. Doc. E/CN.4/1985/4 .................. 12, 13, 15, 16

UNCHR ‘General Comment 10’ in ‘Article 19 (Freedom of Opinion)’ (1983) UN Doc.

CCPR/C/GC/10 ...................................................................................................................... 9

UNCHR ‘General Comment 34’ in ‘Article 19 (Freedom of Opinion and Expression)’ (2011)

UN Doc. CCPR/C/GC/34 ...................................................................................................... 9

Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)

(UDHR) ........................................................................................................................ 1, 9, 11

CONSTITUTIONS

Constitution of Brazil 1988 (Brazil) ____________________________________________ 32

Constitution of India 1950 (India) _____________________________________________ 11

United States Constitution 1788 _______________________________________________ 28

ARTICLES

Allegra Knopf, ‘Privacy and the Internet: Welcome to the Orwellian World’ [1999-2000] 11

U. Fla. J.L. & Pub. Pol’y 79 ________________________________________________ 17

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Catherine Crump, ‘Data Retention: Privacy, Anonymity and Accountability Online’ [2003]

56 Stanford Law Review 191 _______________________________________________ 17

Christopher S. Yoo, ‘Free Speech and the Myth of the Internet as an Unintermediated

Experience’ (2009) Scholarship at Penn Law Paper 697, 724

<http://lsr.nellco.org/upenn_wps/289> _________________________________________ 3

Lilian Edwards and Charlotte Waelde, ‘Online Intermediaries and Liability for Copyright

Infringement’ (2005) WIPO Workshop Keynote Paper, 19

<http://www.era.lib.ed.ac.uk/bitstream/1842/2305/1/wipo-onlineintermediaries.pdf> ____ 3

S.J. Edgett, ‘Double-Clicking on Fourth Amendment Protection: Encryption Creates

Reasonable Expectation of Privacy’ [2002] 30 Pepp. L. Rev. 339 ___________________ 27

Sarah Jameson, ‘Cyberharassment: Striking a Balance Between Free Speech and Privacy’

[2008-2009] 17 CommLaw Conspectus 231, 249 ________________________________ 3

Seth F. Kreimer, ‘Censorship by Proxy: The First Amendment, Internet Intermediaries and

the Problem of the Weakest Link’ [2006-07] 155 (11) U. Pa. L. Rev. _________________ 2

Stephen G. Gilles, ‘Negligence, Strict Liability and the Cheapest Cost-Avoider’ (1992) 78

Va. L. Rev. 1291, 1306. ____________________________________________________ 2

BOOKS AND TREATISES

Clare Ovey and Robin C.A. White, The European Convention on Human Rights (4th edn.,

OUP 2006) ______________________________________________________________ 8

Eric Barendt, Freedom of Speech (2nd edn., OUP 2005) _____________________________ 8

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Sarah Joseph and others, The International Covenant on Civil and Political Rights: Cases,

Materials and Commentary (2nd edn., OUP 2005) ____________________________ 8, 16

MISCELLANEOUS

Brief of Amicus Curiae Center on the Administration of Criminal Law in Support of

Petitioner in United States v Antoine Jones No. 10-1259 (US) _____________________ 25

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STATEMENT OF RELEVANT FACTS

1. The Republic of Bemidia is populated by two major ethnic groups – the Diryen (70%)

who reside in the north and enjoy significant political representation and the Mondahi (25%)

who live in the southern region and have focused on reaping the benefits of economic

development. Such ethnic and economic disparity has resulted in long-standing tension

between the two groups.

2. The Bemidian government made modifications to the national taxation system two years

ago, such that the new mechanism effectively redistributed resources from the more

prosperous south to the languishing north. Dissatisfaction erupted in the form of protests from

Mondahis, culminating in talk of complete independence for the south. This led to the

formation of a separatist militant Mondahi group, called the Mondahi Liberation Movement

(MLM).

3. In the months that followed, the MLM claimed responsibility for a number of bombings

carried out in public areas known to be Diryen hot-spots, resulting in a number of deaths

including that of a Nationalist leader. However, mainstream Mondahi leadership, largely

represented by the Federalist Party, has been quick to distance itself from the activities of the

MLM.

4. In response to such attacks, the government has mobilized military forces; however, the

small and inexperienced Bemidian army has proved largely ineffective in combating the

guerilla warfare employed by the MLM. There have been allegations of mistreatment by the

Government and the military of the Mondahis.

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5. In the midst of this unrest and civil strife, a group of Mondahis built a website called

OpenBemidia, on the Ushahidi platform. The website requires registration of users (by

mandatorily providing an email address, though other identifying information such as name

and address are optional) to post to ‘Tracker’ forums which are designed to collect specific

posts on a topic of interest. Such posts, which may include images as well as text, may be

made via SMS, email or the web.

6. Each post is tagged with a geographic location which is determined through the use of

GPS tracking technology where available or mobile phone tracking technology (which is

well-developed in Bemidia) in other cases. Thus, forum posts may be viewed in the regular

reverse chronological order or as plotted on a map.

7. The username is the only means of identification of a user of the website. Users may

‘follow’ other users or forums, and are hence entitled to receive real time notifications of new

posts by ‘followed’ users or on ‘followed’ forums. Moreover, users may make their posts

private to their followers, in which case, such posts will be invisible to the general public.

8. Started by a user known only as FreeBemidia, Military Tracker is one such ‘Tracker’

forum, which gives real time locational information about the military. With the passage of

time, Military Tracker has developed into a very good source of information about the real

time location of military forces, so much so that in light of two bombings that took place in

areas from where military forces had just exited. The government strongly suspects that the

MLM may be using Military Tracker to aid these bombings and other disruptive activities.

Moreover, Bemidia’s military secrets law was recently amended so as to protect the location

information of military personnel on duty.

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9. The Bemidian government recently enacted the Internet Responsibility Act (IRA) that

imposes the following regulations on websites:

a. Name and contact information of users of a website should be collected and

verified prior to allowing such user to register for an account and/or post to a

forum.

b. At any time, the website may be called upon to disclose such name and contact

information, geographic location information, and any other information about

any user of the website.

c. The existence of any request and/or fulfillment thereof may be kept secret for

upto 180 days.

d. Any knowing violation of any provision of this law will invite criminal sanctions.

10. Under the authority of the IRA, the Bemidian government has imposed a secret

requirement on OpenBemidia to obtain and report the identities as well as ‘following’

information of several users whose names figure on a secret state watch list – including

FreeBemidia and other regular participants on Military Tracker.

11. The Prime Minister of Bemidia, Vislio Luscon, a member of the Nationalist Party that

purports to represent Diryen interests, and his family – wife Carla and children Talia and

Daria – tend to attract significant media coverage, nationally and internationally. Each

member of the First Family, including the Prime Minister himself, has a separate ‘Tracker’

forum dedicated to detailing their every movement and action. Each post on the Carla and

Talia Tracker forums in particular contained a photograph of the subject along with a

geolocation tag and details about the subjects activities at that time.

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12. Keeping in mind the security of the First Family, the Bemidian government recently

enacted the First Family Privacy Act, which provides for civil and criminal sanctions for

violation of the privacy of any member of the First Family – by posting photographs and

location information – without prior written consent. Under the authority of this Act, the

Bemidian government has demanded that OpenBemidia to take down every post in the Carla,

Talia and Daria Tracker forums as they contain prohibited information.

13. OpenBemidia, on behalf of itself and its users, has challenged all of the above

requirements under, but not limited to, Articles 12, 19 and 20 of the UDHR. So far, the

websites claims have been rejected on merits, and all domestic legal remedies have been

exhausted. Further, OpenBemidia’s standing to bring the instant suit is not barred by any law.

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STATEMENT OF JURISDICTION

OpenBemidia (hereinafter “Applicant”) and the State of Bemidia (hereinafter “Respondent”)

have approached the Universal Freedom of Expression Court, the special chamber of the

Universal Court of Human Rights hearing issues relating to provisions of the UDHR, under

the enabling Preamble of the UN Charter.

On the basis of the foregoing, the Court is hereby requested to adjudge the dispute in

accordance with the rules and principles of international law, including any applicable

declarations and treaties.

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QUESTIONS PRESENTED

I. Whether the requirement to collect and verify name and contact information before

allowing a user to register for an account and post to a forum contravenes

provisions of the UDHR?

II. Whether the requirement to disclose to the government identity information,

“following” information, and historical location information about

OpenBemidia’s users contravenes provisions of the UDHR?

III. Whether the requirement to report location information about the users of the MLM

forum in real time contravenes provisions of the UDHR?

IV. Whether the requirement to delete the contents of the Carla Tracker, Talia Tracker,

and Daria Tracker forums contravenes provisions of the UDHR?

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SUMMARY OF ARGUMENT

A. The Requirement of Collection and Verification of User Information is Consonant

with Provisions of UDHR

• The requirement of collection and verification of name and contact information before

allowing a user to register for an account and post to a forum does not contravene the

freedom of speech and expression enshrined in Article 19 of the UDHR. The freedom

of expression of OpenBemidia is not violated as the intermediary is the most effective

and convenient form of control. In any event, the requirement is a necessary risk.

Furthermore, it does not freedom of expression of the users as: first, Article 19 does

not include the right to anonymity; secondly, there is no prior restraint on speech; and

thirdly, there is no chilling effect.

• The right to assembly under Article 20 of the UDHR is not violated. The users of

OpemBemidia do not constitute an assembly as they lack a common purpose. The

users on Tracker Forums are not assemblies as they lack access control and a

determinate decision making body. In any event, the users do not enjoy a right to

anonymity.

• The requirement does not contravene the right to privacy guaranteed under Article 12

of the UDHR as the users do not possess a reasonable expectation of privacy in their

name and contact information.

Further, the restrictions on the aforesaid rights are permissible under Article 29(2) of

the UDHR, as they satisfy the test for valid limitations (legality of prescription by

law, pursuit of legitimate aims and necessity).

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B. The Requirement to Disclose Identity, ‘Following’, and Historical Location

Information is Consonant with UDHR

• The requirement to disclose identity, ‘following’ and historical location information

does not contravene the freedom of expression and association enshrined in Articles

19 and 20 of the UDHR. It does not create a chilling effect as there is no real injury.

Further, the users do not form an assembly or association under Article 20.

• The requirement does not contravene the right to privacy guaranteed under Article 12

of the UDHR. The users do not enjoy a reasonable expectation of privacy in

information disclosed to a third party. The requirement to disclose the list of users in

the MLM forum does not infringe their right to privacy of correspondence, as

transactional non-content records are not protected.

• The requirement also does not contravene the right to remedy enshrined in Article 8

of the UDHR. A notification regarding disclosure of information is not necessary in

cases involving issues of national security or public order.




C. The Requirement to Report Location Information about Users of the MLM Forum

in Real Time is Consonant with the UDHR

• The requirement does not contravene the right to privacy enshrined in Article 12 of

the UDHR. This is because users do not possess a reasonable expectation of privacy

in information accessible by others. Real-time location tracking is a technological

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substitute for visual surveillance. Moreover, the act of choosing a ‘private’ setting

does not protect location information under Article 12.

• The right to movement guaranteed under Article 13 of the UDHR is not violated as

the chilling effect doctrine is exclusive to First Amendment Right. In any event, there

is no scope for self-censorship as the users are not aware that their real-time location

is being tracked.

• The requirement also does not contravene the right to remedy enshrined in Article 8

of the UDHR. A notification regarding disclosure of information is not necessary in

cases involving issues of national security or public order.




D. The Requirement to Delete the Contents of the Carla Tracker, Talia Tracker and

Daria Tracker Forums is Consonant with the UDHR

• The requirement does not contravene the freedom of speech and expression enshrined

in Article 19 of the UDHR as the restriction is compliant with the test of valid

limitations under Article 29(2). The restriction is in accordance with law as it is made

under the authority of the First Family Privacy Act. It is pursuant to the legitimate aim

of protection of rights of others, as the First Family possesses a reasonable

expectation of privacy in the published contents. Further, the restriction is necessary

in a democratic society, as the publication does not contribute to a debate of general

interest.

1

ARGUMENTS

A. THE REQUIREMENT TO COLLECT AND VERIFY USER INFORMATION IS CONSONANT

WITH THE PROVISIONS OF THE UDHR

1. Respondent submits that the requirement to collect and verify user information is in

consonance with the freedom of speech and expression under Article 19 of the UDHR; and

the right to peaceful assembly and association under Article 20 [I]. Further, it does not

contravene the right to privacy under Article 12 [II].

I. The Impugned Requirement is in Consonance with Articles 19 and 20 UDHR

2. Respondent submits that the impugned requirement does not restrict rights guaranteed

under Article 19 [a], and Article 20 [b]. In any event, the restriction is valid under Article

29(2) [c].

a. The Requirement Does Not Restrict Article 19, UDHR

3. Article 19 guarantees “… the right to freedom of opinion and expression…without

interference…through any media ...”1 A similar right is recognised by other international

legal instruments.2 Respondent submits that the impugned requirement does not restrict the

1 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19.

2 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19; African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9; American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) (ACHR) art 13; European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) (ECHR) art 10.

2

freedom of expression of the Applicant website [i]. Further, it does not infringe the freedom

of expression of the users [ii].

i. The Requirement Does Not Restrict the Freedom of Expression of the Applicant Website

4. While Applicant may contend that the requirement of collection and verification of user

evidence places an onerous burden, Respondent submits that the intermediary is the most

convenient and effective “point of control,” in light of the anonymous nature of the Internet.3

Indeed, Coase’ “least cost avoider principle” transfers the burden to reduce on the party

which can do so at the lowest cost.4 Similarly, the Court in Viacom5 held that the

responsibility lay on the party which was better equipped to identify the infringement. Here,

the Applicant website is an intermediary and thus, in a better position to collect and verify the

user information. Further, the alternative would require the government to trace the electronic

communication itself. This is likely to necessitate significant modifications of methods of

surveillance and investigation in law enforcement.6 In any event, the impugned requirement is

a necessary legal risk and ought to be accepted as part of the operating costs.7 Moreover, its

3 Seth F. Kreimer, ‘Censorship by Proxy: The First Amendment, Internet Intermediaries and the Problem of the Weakest Link’ [2006-07] 155 (11) U. Pa. L. Rev. 11, 17; USA PATRIOT Act 2001 (US); Avnish Bajaj v State (NCT) of Delhi 116 (2005) DLT 427

4 Stephen G. Gilles, ‘Negligence, Strict Liability and the Cheapest Cost-Avoider’ (1992) 78 Va. L. Rev. 1291, 1306.

5 Viacom International Inc. v YouTube, Inc. 718 F Supp 2d 514 (2010).

6 Sarah Jameson, ‘Cyberharassment: Striking a Balance Between Free Speech and Privacy’ [2008-2009] 17 CommLaw Conspectus 231, 249.

7 Lilian Edwards and Charlotte Waelde, ‘Online Intermediaries and Liability for Copyright Infringement’ (2005) WIPO Workshop Keynote Paper, 19 <http://www.era.lib.ed.ac.uk/bitstream/1842/2305/1/wipo-onlineintermediaries.pdf> accessed 9 November 2011.

3

implementation will not give rise to such costs which may drive internet intermediaries out of

business.8

ii. The Requirement Does Not Infringe the Freedom of Expression of the Users

5. Respondent submits that the impugned requirement does not infringe the freedom of

expression of users as: first, Article 19 does not include the right to anonymity [1], secondly,

the requirement does not constitute prior restraint [2], and finally, the requirement does not

cause a ‘chilling effect’ [3].

1. Article 19 Does Not Include the Right to Anonymity

6. It is submitted that the right to anonymity is not recognised under international human

rights instruments.9 Admittedly, such a right is recognised in the United States.10 However,

even there, it is not considered absolute. Indeed, the Court in Buckley11 upheld the validity of

certain legislations which sought to disclose campaign finance details in “informational

8 Christopher S. Yoo, ‘Free Speech and the Myth of the Internet as an Unintermediated Experience’ (2009) Scholarship at Penn Law Paper 697, 724 <http://lsr.nellco.org/upenn_wps/289> accessed 9 November 2011.

9 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19; African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9; American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) (ACHR) art 13; European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) (ECHR) art 10.

10 Justice Scalia, dissenting opinion in McIntyre v Ohio Elections Commission 514 US 334 (1995).

11 .Buckley v Valeo 424 US 1 (1976).

4

interest.”12 Moreover, anonymity has been the subject of severe criticism as it “facilitates

wrong by eliminating accountability.”13

7. Legislative practice across jurisdictions is in support, as laws which regulate the internet

and its users by compromising on anonymity have been enacted in several jurisdictions. For

instance, the EU Data Retention directive14 and subsequent legislations15 impose an

obligation on ISPs to retain data that is necessary to identify the subscriber or user. In India,

similar requirements of collection and verification of user identities have been imposed on

cybercafés.16

2. The Impugned Requirement Does Not Constitute Prior Restraint

8. Respondent submits that the impugned requirement is not a prior restraint, which

“forbid[s] certain communications when issued in advance of the time that such

communications are to occur”17 Indeed, a requirement constitutes a prior restraint if the right

to free speech is entirely blocked.18 Here, the impugned requirement does not forbid, but

12 Buckley v Valeo 424 US 1 (1976).

13 Justice Scalia, dissenting opinion in McIntyre v Ohio Elections Commission 514 US 334 (1995).

14 Council Directive 2006/24/EC of 15 March 2006 laying down specific provisions on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC [2006] OJ L105/54.

15 Processing of Personal Data (Electronic Communications Sector) (Amendment) Regulations 2008 (Malta).

16 Information Technology (Guidelines for Cybercafe) Rules 2011 (India).

17 Alexander v US 509 US 544 (1993).

18 Niemotko v Maryland 340 US 268 (1951); Shuttleworth v Birmingham 394 US 147 (1969); Frisby v Schultz 487 US 474 (1988); Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998); Gaweda v Poland App no 26229/95 (ECtHR, 14 March 2002).

5

rather, regulates, free speech. Specifically, users are not prohibited from posting on the

website, but only required to disclose their identity and contact information.

9. Further, Respondent submits that the requirement is merely a content neutral regulatory

measure,19 as it applies to all those who intend to use the websites. Consequently, the

standard of intermediate scrutiny ought to be applied,20 instead of strict scrutiny which is

applicable to prior restraints. As per the intermediate scrutiny standard, a content-neutral

regulation is lawful if it furthers a substantial governmental interest. Furthermore, any

determination as to the legality of a restriction must inform itself of other channels of

communication.21 Moreover, the restriction should be incidental, and not of an excessive

degree.22 It is submitted that the impugned requirement satisfies the aforesaid conditions. In

fact, similar content neutral requirements prior to actual expression have been upheld in

several cases.23

3. The Impugned Requirement Does Not Cause a ‘Chilling Effect’

10. Respondent submits that the impugned requirement does not cause a ‘chilling effect’ on

the freedom of expression of the users. The existence of a chilling effect requires a distinct

19 United States v. O'Brien 391 US 367 (1968); Renton v Playtime Theatres Inc 475 US 41 (1986).

20 United States v. O'Brien 391 US 367 (1968); Turner Broadcasting System Inc v FCC 512 US 622 (1994); Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002).

21 Clark v Community for Creative Non-Violence 468 US 288 (1984); Ward v Rock Against Racism 491 US 781 (1989).

22 United States v. O'Brien 391 US 367 (1968); Ward v Rock Against Racism 491 US 781 (1989); Madsen v Women’s Health Center Inc et al 512 US 753 (1994); Bartnicki v Vopper 532 US 514 (2001).

23 Freedman v Maryland 380 US 51 (1965); K.A. Abbas v Union of India AIR 1971 SC 481 (India); Madsen v Women’s Health Center Inc et al 512 US 753 (1994).

6

and palpable injury,24 and not merely a hypothetical one.25 Indeed, the Court in Laird26

rejected the possibility of a chilling effect “merely from the individual’s concomitant fears

that, armed with the fruits of those activities, the agency might in the future take some other

and additional action detrimental to that individual.”27 Here, no evidence of real injury is

available. Therefore, it is submitted that mere apprehension that the information collected by

the website may be used against the users in future is insufficient to discharge the burden.28

b. The Requirement Does Not Restrict Article 20, UDHR

11. It is submitted that the users on the Applicant website do not constitute an assembly or

association within the ambit of Article 20. Specifically, these users not bound by any

common thread of purpose or affiliation, a sine qua non under Article 20.29 Whilst Applicant

may contend that an analogy between real and virtual assemblies ought to be made, Courts

have previously rejected this argument as the internet is not a public place.30

12. Further, it may be argued that users of individual forums constitute assemblies or

associations under Article 20. However, it is submitted that the absence of access control and

24 O'Shea v Littleton 414 US 488 (1974); Meese v Keene 481 US 465 (1987).

25 O'Shea v Littleton 414 US 488 (1974); Los Angeles v Lyons 461 US 95 (1983).

26 Laird v Tatum 408 US 1 (1972).

27 Laird v Tatum 408 US 1 (1972).

28 Laird v Tatum 408 US 1 (1972); Meese v Keene 481 US 465 (1987)

29 Sarah Joseph and others, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2nd edn., OUP 2005) 568.

30 United States v American Library Association 539 US 194 (2003); Eric Barendt, Freedom of Speech (2nd edn., OUP 2005) 457.

7

a determinate decision-making body negates such a claim.31 Therefore, the Applicant website

and its individual forums are not assemblies or associations. In any event, the users do not

enjoy a right to anonymity.32 Therefore, the impugned requirement does not contravene

Article 20.

c. In Any Event, the Restriction is Permissible under Article 29(2), UDHR

13. Respondent submits that the rights guaranteed under Articles 19 and 20 are not

absolute,33 and may be subjected to restrictions.34 The three-fold test to determine legality

under Article 29(2) is met in this case,35 as first, the restriction is prescribed by law [i],

secondly, it pursues a legitimate aim [ii], and finally, the restriction is necessary to achieve

such aims [iii].

31 Clare Ovey and Robin C.A. White, The European Convention on Human Rights (4th edn., OUP 2006) 337.

32 ¶¶6-7, Memorial for the Respondent.

33 Worm v Austria 83/1996/702/894 (ECtHR, 29 August 1997).

34 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2); International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3); African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9; American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) (ACHR) art 11; Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 10(2); International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22; African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11; American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) (ACHR) arts 15 and 16; European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) (ECHR) art 11; Chaplinsky v New Hampshire 315 US 567 (1941).

35 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2); International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19; European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) (ECHR) art 10(2); UNCHR ‘General Comment 34’ in ‘Article 19 (Freedom of Opinion and Expression)’ (2011) UN Doc. CCPR/C/GC/34; UNCHR ‘General Comment 10’ in ‘Article 19 (Freedom of Opinion)’ (1983) UN Doc. CCPR/C/GC/10.The Sunday Times v The United Kingdom App no 13166/87 (ECtHR, 26 November 1991); Albert Womah Mukong v. Cameroon, Communication No. 458/1991, U.N. Doc. CCPR/C/51/D/458/1991 (1994) (HRC); Surek v Turkey App no 24122/94 (ECtHR, 8 July 1999); Herrera-Ulloa v Costa Rica Petition no 12367 (IACtHR, 2 July 2004).

8

i. The Restriction is Prescribed by Law

14. A restriction is prescribed by law if it has a basis in domestic law,36 and is “accessible,

foreseeable and precise.37 A law is accessible if it gives the citizens an adequate indication of

the legal rules applicable to a given case.38 Further, it is foreseeable if it is precise enough to

enable citizens to regulate their conduct39 and predict the consequences of non-compliance.40

Alternatively, it should not vest arbitrary powers for interference with the government.41

15. In this case, the impugned restriction, imposed by the Internet Responsibility Act,42

possesses a basis in domestic law. Further, restriction is clearly accessible, comprehensible

and foreseeable. Indeed, the consequences of non-compliance are expressly prescribed.43

Moreover, it is not arbitrary as the authorities are not vested with any scope of discretion in

the requirement mandating collection of user information.

36Hinczewski v Poland App no 34907/05 (ECtHR, 5 October 2010).

37The Sunday Times v The United Kingdom App no 13166/87 (ECtHR, 26 November 1991); Silver and Others v The United Kingdom (1983) Series A no 61;Rekvényi v Hungary ECHR 1999-III 34; Gaweda v Poland App no 26229/95 (ECtHR, 14 March 2002).

38 The Sunday Times v The United Kingdom App no 13166/87 (ECtHR, 26 November 1991).

39 The Sunday Times v The United Kingdom App no 13166/87 (ECtHR, 26 November 1991); Rekvényi v Hungary ECHR 1999-III 34.

40 Kruslin v France (1990) Series A no 176 A; Huvig v France (1990) Series A no 176 B.

41 E.P. Royappa v State of Tamil Nadu AIR 1974 SC 555 (India); Ajai Hasia v Khalid Mujib AIR 1981 SC 487 (India); Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998).

42 ¶14, Statement of Facts.


9

ii. The Restriction is in Pursuance of Legitimate Aims

16. The Respondent submits that the impugned restriction pursues the legitimate aims of

public order [1], and national security [2].

[1] The Restriction Is In The Interests Of Public Order

17. Public order is a legitimate aim for restricting the rights guaranteed under Articles 19

and 20.44 Broadly, it includes the “sum of rules which ensure the functioning of society or the

set of fundamental principles on which society is founded.”45 Specifically, it encompasses

public peace, safety and tranquility.46 Respondent submits that the information exchanged on

the Applicant website included sensitive information about military location.47 Further, it

included allegations against the military48 at a time when the ethnic tensions were running

high and creating separatist movements.49 Clearly, exchange of such information and views

on a public forum has the potential to endanger public order and safety. Indeed, failure of the

attempts to prevent bombings despite acting on credible intelligence information warrants a

reasonable suspicion of the link between the posts and the prevailing disorder.

44 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2); American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) (ACHR) art 13(2)(b); European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) (ECHR) art 10(2); Constitution of India 1950 (India) art 19(2).

45 Clause I(B)(iii)(22), Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, U.N. Doc. E/CN.4/1985/4.

46The Superintendent, Central Prison, Fatehgarh v Ram Manohar Lohia AIR 1960 SC 644 (India); Ramjilal Modi v State of Uttar Pradesh AIR 1957 SC 620 (India); O.K. Ghosh v E.X. Joseph AIR 1962 SC 812 (India); Brij Bhushan v Delhi AIR 1950 SC 129 (India).




10

[2] The Restriction Follows is in the interests of National Security

18. Respondent submits that national security considerations justify imposition of

restrictions on free speech50 including prior restraints.51 The Siracusa Principles, reflecting

customary international law, define national security to include a threat to the existence of a

nation, its territorial integrity or political independence.52 Alternatively, it requires the

existence of imminent dangers threatening the free democratic constitutional order and the

security of the armed forces.53

19. Respondent submits that national security constitutes a legitimate aim to restrict the

expression of sensitive details pertaining to military matters.54 Indeed, the U.S. Supreme

Court in Near55 held that “no one would question ... [the restriction on] … the publication of

the sailing dates of transports or the number and location of troops.”56 Further, the

50 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(b); American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) (ACHR) art 13(2)(b); European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) (ECHR) art 10(2); Near v Minnesota 283 US 697 (1931); Brij Bhushan v Delhi AIR 1950 SC 129 (India); The Observer and The Guardian v The United Kingdom (1991) Series A no 216.

51 Near v Minnesota 283 US 697 (1931); New York Times Co v United States 403 US 713 (1971).

52 Clause I(B)(vi)(29), Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, U.N. Doc. E/CN.4/1985/4.

53 Klass v Germany (1978) 2 EHRR 214.

54 Inter-American Commission on Human Rights, ‘Fourth Report on the Situation of Human Rights in Guatemala’ (1993); Near v Minnesota 283 US 697 (1931).

55 Near v Minnesota 283 US 697 (1931).

56 Near v Minnesota 283 US 697 (1931).

11

expressions ought to be assessed with respect to their content and context.57 This approach

has been upheld in cases of separatist movements, similar to this case.58

20. Case in fact, the separatist movement in Bemidia59 has fuelled multiple serial

bombings,60 resulting in the killing of several individuals.61 Further, the threat to the

existence of the nation is evident from the attacks on power centres by separatist

organizations.62 In this context, it is submitted that the government ought to be alert to

expressions capable of inciting greater violence.63 The popular Military Tracker forum on the

Applicant website comprises sensitive posts containing military.64 Such content has the

ability to further violence, and thus fulfils the threshold of national security. Therefore, it is

submitted that national security may be invoked as a legitimate aim.

57 Zana v Turkey (1997) 27 EHRR 667.

58 Zana v Turkey (1997) 27 EHRR 667; Ceylan v Turkey App no 23556/94 (ECtHR, 8 July 1999).







12

iii. The Restriction is Necessary in a Democratic Society.

21. Respondent submits that the restriction is necessary in a democratic society as: firstly,

there exists a pressing social need; and secondly, the measure is not proportionate to the

legitimate aim.65

22. First, there exists a pressing social need for the impugned restriction. Here, the Court’s

analysis must inform itself of whether the “State interest is of such paramount importance as

would justify an infringement of the right.”66 Respondent submits that severe ethnic tension

suffered by Bemidia, resulting in violence in public areas, qualifies as a pressing social need.

Moreover, it is well-established that the State enjoys a wide margin of appreciation in

determining necessity in cases of a threat to national security and public order.67

23. Secondly, the restriction is proportionate to the aims.68 The test of proportionality, or

reasonableness69, is satisfied when the least onerous restriction is imposed.70 It is submitted

65 Handyside v United Kingdom (1986) Series A no 24; The Observer and The Guardian v The United Kingdom (1991) Series A no 216; The Sunday Times v The United Kingdom App no 13166/87 (ECtHR, 26 November 1991); Clause I(A)(10)(b) and (d), Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, U.N. Doc. E/CN.4/1985/4.


66 Gobind v State of MP AIR 1975 SC 1378 (India).

67 Handyside v United Kingdom (1986) Series A no 24; Leander v Sweden (1987) 9 EHRR 433; Zana v Turkey (1997) 27 EHRR 667.

68 Handyside v United Kingdom (1986) Series A no 24; Clause I(A)(10)(d), Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, U.N. Doc. E/CN.4/1985/4.

69 Toonen v Australia [1994] PLPR 33 (HRC); District Registrar & Collector, Hyderabad v Canara Bank AIR 2005 SC 186 (India); Sarah Joseph and others, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2nd edn., OUP 2005) 483.

13

that the impugned requirement satisfies this standard, as it does not impose a blanket

restriction, but only a condition to submit name and contact details.

II. The Impugned Requirement Does Not Violate the Right of Privacy Enshrined in

Article 12 UDHR

24. Respondent submits that the requirement to collect and verify the name and contact

information of users does not restrict the right to privacy under Article 12 [a]. In any event,

the restriction is a reasonable limitation under Article 29(2) [b].

a. The Requirement to Collect and Verify the Name and Contact Information Does Not

Restrict the Right of Privacy of Users

25. Respondent submits that the right to privacy exists when there is ‘an actual subjective

expectation of privacy’ which is ‘objectively reasonable’.71 Accordingly, there exists no

reasonable expectation of privacy in information which has been voluntarily disclosed,72 as in

the case of OpenBemidia. Moreover, reasonable expectation of privacy does not extend to

information which is already in the public domain.73 The name and contact information are

details generally available in public records. Indeed, the disclosure of email address was

70 Shelton v Tucker 364 US 479 (1960); Nebraska Press Association v Stuart 427 US 539 (1976); Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-American Court of Human Rights Series A No 5 (13 November 2003).

71 Katz v United States 389 US 347 (1967).

72 Allegra Knopf, ‘Privacy and the Internet: Welcome to the Orwellian World’ [1999-2000] 11 U. Fla. J.L. & Pub. Pol’y 79, 82; Catherine Crump, ‘Data Retention: Privacy, Anonymity and Accountability Online’ [2003] 56 Stanford Law Review 191.

73 Katz v United States 389 US 347 (1967); Pearce v State 45 P 3d 679 (2002).

14

already required to join OpenBemidia before the enactment of IRA.74 Moreover, similar

mandatory data retention legislations have been implemented in several nations.75

b. In Any Event, the Restriction is Permissible under Article 29(2)

26. Respondent submits that the restriction satisfies the test of validity of limitations under

Article 29(2).76. First, the restriction is prescribed by law as it has a valid basis in domestic

law.77 It is foreseeable as it defines the precise acts which constitute the ‘use’ of a website.78

Moreover, it is not arbitrary, as is evident by its equal application to all users.

27. Secondly, the restriction is in pursuance of the legitimate aims of national security79 and

public order.80 In this case, Bemidia was the focal point of severe violence.81 Further, reports

of several incidents of atrocities by armed militias, aggravated ethnic tension.82 Indeed, the

military was also inexperienced in controlling the public disorder.83 Moreover, the reporting


75 Directive 2006/24/EC of 15 March 2006 laying down specific provisions on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC [2006] OJ L105/54; Information Technology (Guidelines for Cyber Cafe) Final Rules 2011 (India); Italian Decree Law on Anti-Terror Measures 2005 (Italy); Processing of Personal Data (Electronic Communications Sector) (Amendment) Regulations 2008 (Malta).

76 ¶13, Memorial for the Respondent.








15

of military location by several users on OpenBemidia constituted a crime under existing

military secrets law.84 Accordingly, it is submitted that the collection of user information is

necessary to identify the anonymous offenders and restore public order.85 Hence, the

restriction is in pursuit of legitimate aims.

28. Thirdly, the interference was necessary in a democratic society.86 It is submitted that the

state possesses a wide margin of appreciation in determining threats of public interests and

developing an adequate response. 87 Indeed, this margin extends not only to the decision to

intervene, but also to the rules prescribed to achieve a balance between the competing

interests and human rights.88 In view of the prevailing violence in Bemidia, the measure

corresponds to a pressing social need of preventing further attacks. Moreover, the restriction

is proportionate to the aims. In fact, similar mandatory data retention policies have been

implemented by States.89 Further, these aims are recognised as exceptions to the general rules

of data protection, such as specification of purpose and time period.90 Indeed the ECtHR in


85 S and Marper v UK (2008) 48 EHRR 50.


87 Gobind v State of MP AIR 1975 SC 1378 (India); District Registrar and Collector, Hyderabad v Canara Bank AIR 2005 SC 186 (India); Evans v United Kingdom (2006) 43 EHRR 21; SH and Others v Austria App no 57813/00 (ECtHR, 1 April 2010).

88 Evans v United Kingdom (2006) 43 EHRR 21; SH and Others v Austria App no 57813/00 (ECtHR, 1 April 2010).

89 Council Directive 2006/24/EC of 15 March 2006 laying down specific provisions on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC [2006] OJ L105/54; Information Technology Act 2000 (India) s 69B; Italian Personal Data Protection Code 2003 (Italy) art 132; Telecommunications Information Privacy Code 2003 (New Zealand).

90 Council Directive 2006/24/EC of 15 March 2006 laying down specific provisions on the retention of data generated or processed in connection with the provision of publicly available electronic communications

16

K.U. v. Finland91 approved the collection of information relating to one’s identity for the

purpose of prevention of crime. Therefore, it is submitted that the restriction is proportionate.

B. THE REQUIREMENT TO DISCLOSE THE IDENTITY, ‘FOLLOWING’ AND HISTORICAL

LOCATION INFORMATION IS CONSONANT WITH THE PROVISIONS OF UDHR

29. The Respondent submits that the impugned requirement does not contravene the rights

guaranteed under Articles 19 and 20 [I]. Further, it does not violate the right of privacy

enshrined in Article 12 [II]; and the right to remedy guaranteed under Article 8 [III].

I. The Impugned Requirement Does Not Contravene Articles 19 and 20 UDHR

a. The Requirement Does Not Impose a Restriction on Articles 19 and 20 UDHR

30. It is submitted that the requirement to disclose identity, ‘following’ and historical

location information of users does not create a ‘chilling effect’ as the users have not suffered

a real injury.92 Further, the users do not possess a right to anonymity.93 Moreover, the users of

services or of public communications networks and amending Directive 2002/58/EC [2006] OJ L105/54; Directive 2002/58/EC of the European Parliament and the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector [2002] OJ L201/37; Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281/31; Data Protection Act 1998 (UK).

91 KU v Finland (2009) 48 EHRR 52.



17

the Tracker forums do not constitute an association, as the necessary conditions are not

satisfied.94

b. In Any Event, the Restriction is Permissible under Article 29(2) UDHR

31. Respondent submits that the impugned restriction satisfies the test of validity of

limitations.95 Here, the requirement to disclose is authorised by the IRA, and is validly

prescribed by law.96 Secondly, the legitimate aims of public order and national security are

clear from the object of the enactment.97 Further, the restriction is necessary to pursue the

aims, as disclosure of identities sought is the only way to identify the anonymous offenders.98

II. The Impugned Requirement Does Not Violate Article 12 UDHR

32. It is submitted that the requirement to disclose identity, ‘following’ and historical

location information does not restrict the right to privacy of the users [a]. In any event, the

restriction is permissible under Article 29(2) [b].

94 ¶¶11-12, Memorial for the Applicant.

95 Albert Womah Mukong v. Cameroon, Communication No. 458/1991, U.N. Doc. CCPR/C/51/D/458/1991 (1994) (HRC).


97 ¶¶16 - 20, Memorial for the Respondent.


18

a. The Impugned Requirement Does Not Restrict Article 12 UDHR

33. It is submitted that a reasonable expectation of privacy does not exist in information

which is voluntarily disclosed to a third party.99 In such cases, Respondent submits that an

individual undertakes a risk of subsequent disclosure.100 Indeed, in Hambrick101, the Court

affirmed the application of the third party doctrine to the disclosure of subscriber information

which identified an anonymous screen name. Here, the impugned requirement concerns

disclosure of personal information which has been voluntarily submitted to OpenBemidia by

the users. Further, location information of every post was publicly displayed.102

34. Whilst Applicant may argue that the disclosure of ‘following’ and historical location

information by the users to OpenBemidia was not voluntary in itself, it is contended that the

information was voluntarily disclosed by the users while exercising the choice of using

OpenBemidia. In similar circumstances, the United States Supreme Court in Smith103

recognised that no reasonable expectation of privacy in dialled telephone numbers, as users

“‘exposed’ that information to its equipment in the ordinary course of business.”104

35. Moreover, Respondent submits that the requirement to disclose the identity of users on

the MLM forum does not restrict their right to privacy of correspondence. While it may be

99 Couch v United States 409 US 322 (1973); United States v Miller 425 US 435 (1976); Smith v Maryland 442 US 735 (1979); United States v Payner 447 US 727 (1980).

100 United States v Miller 425 US 435 (1976); United States v Payner 447 US 727 (1980); United States v Kennedy 81 F Supp 2d 1103, 1110 (D. Kan. 2000).

101 United States v Hambrick 299 F 3d 911.

102 ¶9, Statement of Facts

103 Smith v Maryland 442 US 735 (1979).

104 Smith v Maryland 442 US 735 (1979).

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argued that the identities of these users are analogous to email addresses, the right to privacy

in correspondence does not extend to non-content transactional information which is

accessible by third-party service providers.105 Indeed, the decision in Forrester106 expressly

supports this reading.

b. In Any Event, the Restriction is Permissible under Article 29(2) UDHR

36. Respondent submits that the restriction satisfies the three-tiered test of legality,

legitimacy and necessity. First, the restriction is prescribed by law.107 The degree of precision

in laying down the scope of discretion conferred on a public authority is contingent on the

subject matter.108 In this case, the IRA prescribes the precise categories of information to be

disclosed.109 Further, the Respondent contends that the law need not specify circumstances in

which information disclosure may be required, when enacted in the interest of national

security and public order.110 Indeed, legislative practice across jurisdictions is in support.111

105 Smith v Maryland 442 US 735 (1979); United States v Forrester 512 F 3d 500 (2007); United States v D‘Andrea 497 F Supp 2d 117, 120 (D. Mass. 2007).

106 United States v Forrester 512 F 3d 500 (2007).


108 Herczegfalvy v Austria (1993) 15 EHRR 437; Chorherr v Austria (1994) 17 EHRR 358.


110 Kruslin v France (1990) Series A no 176 A; Huvig v France (1990) Series A no 176 B.

111 Information Technology Act 2000 (India) s 69B; Regulation of Investigatory Powers Act 2000 (UK); Anti-Terrorism, Crime and Security Act 2001 (UK); USA PATRIOT Act 2001 (US); Telecommunications Information Privacy Code 2003 (NZ).

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37. Further, the impugned requirement is in pursuance of legitimate aims.112 Moreover, the

restriction is necessary in a democratic society.113 The restriction corresponds to a pressing

social need,114 as it is necessary for apprehending the persons disclosing military secrets,

critical to the maintenance of national security and public order. These aims provide for the

relaxation of the strict data protection regimes universally.115 Therefore, the restriction is

proportionate to the aims sought to be achieved.

III. The Impugned Requirement is Consonant with Article 8 UDHR

38. Applicant may argue the gag order mandating maintenance of secrecy violates Article 8.

However, a notification regarding disclosure of information is not necessary in cases

involving issues of national security or public order.116 Moreover, it is submitted that the IRA

does not prohibit notification, but merely delays it for a period upto 180 days.117




115 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281/31; Directive 2006/24/EC of 15 March 2006 laying down specific provisions on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC [2006] OJ L105/54; Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281/31; Information Technology Act 2000 (India); Principle 11, Information Privacy Principles under the Privacy Act 1988 (Australia); Principle 3, Model Code for the Protection of Personal Information (Canada); Data Protection Act 1998 (UK) s 28; Regulation of Investigatory Powers Act 2000 (UK); Anti-Terrorism, Crime and Security Act 2001 (UK).

116 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281/31; Klass v Germany (1978) 2 EHRR 214; Leander v Sweden (1987) 9 EHRR 433.


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C. THE REQUIREMENT TO DISCLOSE REAL-TIME LOCATION INFORMATION IS IN

CONSONANCE WITH PROVISIONS OF UDHR

39. It is submitted that the impugned requirement does not restrict the right to privacy of the

users of MLM forum under Article 12 [I]. Further, it does not restrict their freedom of

movement under Article 13 [II], and their right to remedy under Article 8 [III]. In any event,

the restrictions are permissible under Article 29(2) [IV].

I. The Impugned Requirement Does Not Restrict Article 12 UDHR

40. Respondent submits that a reasonable expectation of privacy does not exist in

information accessible by others.118 As noted in Knotts, a person travelling in an automobile

on public thoroughfares “has no reasonable expectation of privacy in his movements.”119

Similarly, here, real-time location tracking is analogous to visual surveillance, which does not

infringe the reasonable expectations of privacy of the subject.120 Further, such disclosure does

not reveal any information about the individual’s activities in his private space, which cannot

be otherwise observed.121

41. Although Applicant may be argue that norms applicable to real-time location tracking

cannot be utilized in cases of visual surveillance, Respondent contends that this is a mere

118 Oliver v US 466 US 170 (1984); California v Ciraolo 476 US 207 (1986); Florida v Riley 488 US 445 (1989).

119 US v Knotts 460 US 276 (1983).

120 US v Garcia 474 F 3d 994.

121 US v Knotts 460 US 276 (1983).

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technological substitute for the same activity.122 Indeed, the enhancement of sensory facilities

for the purpose of efficient investigation does not infringe reasonable expectations of

privacy.123 In fact, the ECtHR, has held GPS enabled location tracking is less intrusive than

visual and acoustical surveillance.124

42. Moreover, Respondent contends that the act of choosing a ‘private’ setting for posts does

not protect location information under Article 12. In Copehefer,125 the Court reasoned that a

mere hope of privacy or secrecy does not give rise to a reasonable expectation of privacy.126

Although the choice of ‘private’ posting was exercised, the location data was nonetheless

exposed to OpenBemidia, a third party. Consequently, the users did not possess a reasonable

expectation of privacy in that transaction data.127 In fact, this is evidenced by the lack of an

absolute right to privacy in location data across regimes.128

II. The Impugned Requirement Does Not Restrict Article 13 UDHR

43. Respondent submits that the requirement to disclose real-time location of posts made on

MLM forum does not restrict the freedom of movement of users. Applicant may rely on the

122 US v Garcia 474 F 3d 994.

123 US v Knotts 460 US 276 (1983); Brief of Amicus Curiae Center on the Administration of Criminal Law in Support of Petitioner in United States v Antoine Jones No. 10-1259 (US).

124 Uzun v Germany App no 35623/05 (ECtHR, 2 September 2010).

125 Commonwealth v Copenhefer 526 Pa 555, 587 A 2d 1353 (Penn 1991).

126 S.J. Edgett, ‘Double-Clicking on Fourth Amendment Protection: Encryption Creates Reasonable Expectation of Privacy’ [2002] 30 Pepp. L. Rev. 339, 360.

127 Smith v Maryland 442 US 735 (1979); United States v Forrester 512 F 3d 500 (2007).

128 Telecommunications Information Privacy Code 2003 (New Zealand); Information Technology Act 2000 (India) s 69B; Italian Personal Data Protection Code 2003 (Italy) art 132.

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‘chilling effect’ doctrine. However, it has no application in the present case, on three grounds.

First, the concept of ‘chilling effect’ is exclusive to First Amendment rights,129 and has not

been applied elsewhere. Secondly, freedom of movement has traditionally been invoked in

cases which involved a direct restriction on the individual’s physical movement, such as

unwarranted detention130 and impounding of passport.131 Thus, the application of the chilling

effect doctrine to Article 13 has not been recognised in international human rights

jurisprudence. In any event, the users of the MLM forum are not aware of the real-time

location tracking of their posts, negating any subjective or objective perception of

restriction.132 Consequently, there is no scope for self-censorship to inhibit their movement

through a chilling effect.

III. The Impugned Requirement is Consonant with Article 8 UDHR

44. It is submitted that the gag order accompanying the impugned requirement does not

contravene Article 8 as notification is not necessary in cases involving interests of national

security and public order.133

129 First Amendment, United States Constitution 1788.

130 AK Gopalan v State of Madras AIR 1950 SC 27 (India).

131 Maneka Gandhi v Union of India AIR 1978 SC 597 (India).



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IV. In Any Event, the Restriction is Permissible under Article 29(2) UDHR

45. Respondent submits that the restrictions on Article 12 and Article 13 satisfy the three-

pronged test of legality, legitimacy and necessity under Article 29(2).134 First, the restriction

is in accordance with law.135 It is submitted that the strict standard of foreseeability evolved

in the context of surveillance of telecommunications does not apply to surveillance of

movement, which is less intrusive.136 Instead, general principles of adequate protection

against arbitrary interference are to be applied.137 Admittedly, IRA does not expressly

prescribe safeguards regarding nature, scope and duration of the measures. However, the

Indian Supreme Court in Jyoti Pershad138 held that guidance may be taken from the “policy

and purpose of the enactment” inferred from other “operative provisions” applicable to

“analogous or comparable situations.”139 Therefore, it is submitted that sufficient guidelines

against arbitrary interference may be inferred from the object of IRA, which relates to

criminal investigation.





138 Jyoti Pershad v Administrator for the Union Territory of Delhi AIR 1961 SC 1602 (India).

139 Jyoti Pershad v Administrator for the Union Territory of Delhi AIR 1961 SC 1602 (India).

25

46. Further, the restrictions are in pursuance of legitimate aims140 as the existence of an

empty forum titled ‘MLM’ warrants reasonable suspicion of a link to the violent activities of

MLM in Bemidia.

47. Moreover, it is submitted that the restriction is necessary in a democratic society,141 as it

corresponds to a pressing social need.142 Further, the nature of surveillance is relevant in

adjudicating upon the proportionality of the measure.143 In this case, the surveillance affected

users only when they posted on OpenBemidia, unlike continuous visual monitoring.

Furthermore, Courts have held that discretion regarding the duration of the measure vests

with the state, in light of its wide margin of appreciation.144 Finally, disclosure of location

information by service providers is permissible in cases of threat to public order and national

security.145






145 Information Technology Act 2000 (India); Italian Personal Data Protection Code 2003 (Italy) art 132.

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D. THE REQUIREMENT TO DELETE THE CONTENTS OF THE CARLA TRACKER, TALIA

TRACKER AND DARIA TRACKER FORUMS DOES NOT CONTRAVENE ARTICLE 19 UDHR

48. Respondent submits that the restriction imposed by the requirement on Article 19 is

permissible under Article 29(2) as it satisfies the three-tiered test of legality, legitimacy and

necessity.146

49. First, the restriction is in accordance with law.147 Applicant may argue that the

impugned restriction is imposed by a government order, whereas the First Family Privacy Act

does not prescribe the exercise of such executive discretion. However, Respondent contends

that in the absence of express provisions, guidance may be obtained from other operative

provisions, in light of the object of such legislation.148 Here, each post on the three forums

contains photographs or location information prohibited by the Act. Therefore, it is submitted

that the government order imposing the requirement to delete, arises out of the operative

provisions of the Act.

50. Secondly, the restriction pursues a legitimate aim: the ‘protection of rights of others’.

Respondent submits that the impugned posts infringe the right to privacy of the First Family,

established under Article 12 of the UDHR. Indeed, the protection of private life extends to a

person’s identity, such as his name149 or picture150, even in a public context.151



148 Jyoti Pershad v Administrator for the Union Territory of Delhi AIR 1961 SC 1602 (India); Consumer Action Group v State of Tamil Nadu (2000) 7 SCC 425 (India).

149 Burghartz v Switzerland (1994) 18 EHRR 101; Von Hannover v Germany (2005) 40 EHRR 1.

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51. Admittedly, public figures possess a lesser expectation of privacy than ordinary

persons.152 However, the First Family is not a public figure. Respondent submits that public

figures are persons holding public office including those who play a role in public life. In this

case, the First Family does not exercise any public function, or play any role in public life.153

Indeed, the ECtHR in Von Hannover154 held that reporting details of private lives of persons

who do not exercise official functions violates Article 8 of the ECHR. Indeed, even if the

First Family is deemed a public personality, they possess a reasonable expectation of privacy

in their private life, such as their whereabouts.155

52. While Applicant may contend that the photographs were obtained from public places,156

it is submitted that secret filming without the knowledge of the subject infringes the right to

150 Schüssel v Austria App no 42409/98 (ECtHR, 21 February 2002); Von Hannover v Germany (2005) 40 EHRR 1; Indu Jain v Forbes Inc. IA 12993/2006 in CS(OS) 2172/2006 (India); Constitution of Brazil 1988 (Brazil) art 5.

151 P.G. and J.H. v United Kingdom App no 44787/98 (ECtHR, 25 September 2001); Peck v United Kingdom (2003) 36 EHRR 41; Von Hannover v Germany (2005) 40 EHRR 1.

152 New York Times Co v Sullivan 376 US 254 (1964); Lingens v Austria App no 9815/82 (ECtHR, 8 July 1986); Decision 60/1994 (XII. 24) AB (Hungary); A v B and Anr [2002] EWCA Civ 337 (UK); Union of India v Association for Democratic Reforms (2002) 5 SCC 294 (India); Zeljko Bodrozic v. Serbia and Montenegro, Communication No. 1180/2003, U.N. Doc. CCPR/C/85/D/1180/2003 (2006) (UN Human Rights Committee); Indu Jain v Forbes Inc. IA 12993/2006 in CS(OS) 2172/2006 (India); Committee of Ministers Declaration on Freedom of Political Debate in the Media, 12 February 2004 CM/Del/OJ(2004)872E.

153 Committee of Ministers Declaration on Freedom of Political Debate in the Media, 12 February 2004 CM/Del/OJ(2004)872E.

154 Von Hannover v Germany (2005) 40 EHRR 1.



28

privacy, as its prevention is beyond the control of the subject.157 Indeed, in Murray,158 the

Court expressly protected the right to privacy of children being photographed in public

places. Further, the photographs in this case were not envisaged for limited use, but were

made available to the public.159 Moreover, the state may undertake positive obligations to

secure the private life of individuals in the sphere of relations of individuals among

themselves.160 Therefore, the impugned restriction is in pursuit of legitimate aims.

53. Thirdly, the restriction is necessity in a democratic society.161 Respondent submits that

the test for determining the necessity of a restriction is whether the publication contributes to

a debate of general interest.162 Here, the content of the posts relates exclusively to the private

lives of the First Family, which warrant no legitimate public interest.163 The impugned

measure does not impose a complete restriction on the freedom of speech, but merely

requires the procurement of prior written consent before publication of private information.

In addition, this restriction is applicable only for information which is less than 90 days old.

Indeed, the rule of prior consent finds place in several regimes,164 as the state enjoys a wide

157 R. v Broadcasting Standards Commission, ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989; R. v Loveridge [2001] EWCA Crim 973; HRH Princess of Wales v MGN Newspapers App no 39069/97 (ECtHR, 11 December 2003).

158 Murray v Express Newspapers [2007] EWHC 1908 (Ch).

159 Friedl v Austria (1995) Series A no 305 B; P.G. and J.H. v United Kingdom App no 44787/98 (ECtHR, 25 September 2001); Peck v United Kingdom (2003) 36 EHRR 41.

160 X and Y v Netherlands (1985) Series A no 91.


162 Von Hannover v Germany (2005) 40 EHRR 1; McKennitt v Ash [2007] 3 WLR 194.

163 Von Hannover v Germany (2005) 40 EHRR 1; ETK v News Group Newspapers [2011] EWCA Civ 439.

164 Mosley v United Kingdom App no 48009/08 (ECtHR, 10 May 2011).

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margin of appreciation in matters involving competing private and public interests.165 In any

event, the right to privacy is not overridden by public curiosity regarding private matters.166

Therefore, it is submitted that the restriction is proportionate to the aim.

165 Funke v France (1993) Series A no 256 A; Keegan v Ireland (1994) 18 EHRR 342; Peck v United Kingdom (2003) 36 EHRR 41.

166 Campmany y Diez de Revenga and Lopez Galiacho Perona v Spain App no 54224/00 (ECtHR, 12 December 2000); Julio BouGibert and El Hogar Y La Moda J.A. v Spain App no 14929/02 (ECtHR, 13 May 2003); Von Hannover v Germany (2005) 40 EHRR 1; Mirror Group Newspapers v United Kingdom App no 39401/04 (ECtHR, 18 January 2011); Mosley v United Kingdom App no 48009/08 (ECtHR, 10 May 2011).

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PRAYER

In light of the arguments advanced and authorities cited, the State of Bemidia respectfully

requests this Court to adjudge and declare that:

I. The requirement to collect and verify name and contact information is in consonance

with the UDHR

II. The requirement to disclose to the government identity information, “following”

information, and historical location information about OpenBemidia’s users is in

consonance with the UDHR

III. The requirement to report location information about the users of the MLM forum in

real time is in consonance with the UDHR

IV. The requirement to delete the contents of the Carla Tracker, Talia Tracker, and Daria

Tracker forums is in consonance with the UDHR

On behalf of the State of Bemidia,

11R

Counsels for the Respondent

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