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Content Controls, Freedom of Expression and ISP Liability on the

Internet

Advanced Network Workshop

StockholmJune 2001

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Government Regulation, Self-

Regulation

or User ControlNumerous countries: seek to control Internet

content/access through variety of meansEuropean approach: self regulation through industrycodes of conductUS approach: relatively high degree of freedom - user control

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Government Control Model

Limited effectiveness - methods for evasion:SafeWeb.com

Raises costs of doing business Stifles innovation Human rights concerns

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European Action Planpromotion of industry self-regulation and content-monitoring schemes (for example, dealing with content such as child pornography or content whichincites hatred on grounds of race, sex, religion, nationality or ethnic origin);encouraging industry to provide filtering tools and rating systems, which allowparents or teachers to select content appropriate for children in their care while

allowing adults to decide what legal content they wish to access, and whichtake account of linguistic and cultural diversity;increasing awareness among users, in particular parents, teachers andchildren, so that they can better understand and take advantage of theopportunities of the Internet;

activities fostering international cooperation in the areas enumerated above

http://europa.eu.int/ISPO/iap/decision/en.html

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European Model

Does self-regulation mean that service providersregulate the content that their customers access?

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User Empowerment

Filtering and blocking softwareGetNetWise.org

Protection of children in schools and libraries:Every school and library receiving federal funding must have in placea policy of Internet safety for minors that includes the operation of atechnology protection measure with respect to any of its computers withInternet access that protects against access through such computers to

visual depictions that are (I) obscene; (II) child pornography; or (III)harmful to minors;

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ISP Liability

No provider or user of an interactive computer service shall betreated as a publisher or speaker of any information provided byanother information content provider. Sec. 230,

Communications Act, USA.

Providers shall not be responsible for any third-party content towhich they only provide access. Sec. 5(3), Information and

Communication Services Act,G

ermany.

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Universal Declaration of Human Rights--

Article 19Everyone has the right to freedom of opinion andexpression; this right includes freedom to hold

opinions without interference and to seek,receive, and impart information and ideasthrough any media andregardless of frontiers.

http://www.un.org/Overview/rights.htmlhttp://www.unhchr.ch/udhr/index.htm (300 lang.)

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European Convention of Human

Rights, Article 10Everyone has the right to freedom of expression. This right shall include freedom to

hold opinions and receive and impartinformation and ideas without interference bypublic authority andregardless of frontiers.

http://conventions.coe.int/treaty/EN/cadreprincipal.htm

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Article 10: Permitted Restrictions

these freedomsmay be subject to such ... restrictions or penalties as areprescribed by law and are necessary in a democratic society --in the interest of national security, territorial integrity or public safety,for the prevention of disorder or crime,

for the protection of health or morals,for the protection of the reputation or right of others,for preventing the disclosure of information received in confidence or for maintaining authority & impartiality of judiciary.

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European Convention: Article 25

The Commission may receive petitions from any person,non-governmental organisation or group of individuals claimingto be the victim of a violation by one of the High ContractingParties of the rights set forth in this Convention, provided thatthe High Contracting Party ... has declared that it recognisesthe competence of the Commission to receive such petitions.

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ECHR Three Part Test

prescribed by lawaimed at an interest permitted under paragraph

(2)necessary in a democratic society

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ECHR Principles for

Judicial ReviewExceptions must be narrowly interpreted

The necessity for any restrictions must be convincinglyestablishedThe state must claim a pressing social needBUT states are granted a margin of appreciation

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International Covenant on Civil and PoliticalRights, Article 19

Everyone shall have the right to freedom of expression;this right shall include freedom to seek, receive andimpart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

http://www.unhchr.ch/html/menu3/b/a_ccpr.htm (Eng)http://www.unhchr.ch/french/html/menu3/b/a_ccpr_fr.htm(Fr)

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ICCPR: Permitted Restrictions

For respect of the rights or reputations of others;For the protection of national security

public order (ordre public), or public health or morals.

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African Charter on Human Rights

"Every individual shall have the right to receiveinformation. Every individual shall have the right toexpress and disseminate his opinions within the law."Article 9.

Individuals should exercise their freedoms "with dueregard to the rights of others, collective security,morality and common interest." Article 27

http://www1.umn.edu/humanrts/instree/z1afchar.htm (English)http://www1.umn.edu/humanrts/instree/french/fz1afchar.html (Franais)