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Internet & Freedom of Expression

An expression is an act of conveying our own feelings, opinions, and thoughts using words and actions. Article 19 under Indian Constitution protects these rights and says that all citizens shall have the right to freedom of speech and expression, to form unions or associations, move freely throughout the territory of India, or even to settle and reside in any part which falls under the territory of India, or to practice any profession, trade or business, or to assemble peaceably and without arms.

The freedom of expression has been universally accepted as both a fundamental and foundational human right and is considered as not only the cornerstone of democracy but a kind of act indispensable to a thriving civil society.[1] And so, the freedom of expression is considered as the “foundational human right of the greatest importance.”[2] Freedom of expression is not an absolute right since the open debate and personal autonomy can cause conflict in between the values and rights respected by the system. Therefore, it can be said that rights of expression can be limited by the system.

Internet is a system that globally connects the network and used TCP/IP to transfer and transmit data through various types of media. The Internet has become a network of global exchanges that is, private, business, public, government networks. It is the most cost-effective and easy communications method in the world like through email, audio/video conferences, online gaming/movies, data transfer/file sharing, instant messaging, internet forums, social networking, etc and this makes it most easy for their expression.

In this way, the Internet challenges the right to freedom of expression but at the same time, the Internet empowers the freedom of expression also by providing new means of expressions. Attempts are being made to regulate content as well as raise questions as to how the internet can be defined in terms of “public sphere” and according should even protect online rights of expression. Now, the time has come to take on these responsibilities and strengthen the protection of freedom of expression on the Internet by the states.

International organisations have made rather strong statements related to the Internet and freedom of expression. CoE stress the absence of any arbitrary controls or constrains on participants in the information process and argues for a free flow of information, thus broadening the scope of the freedom of expression. The Special Rapporteur wishes to give online expressions the same protection as is given to other forms of expression, and UNESCO underlines the issue of general access to the Internet at the community level. UNESCO also stress that states should preserve and expand the public domain in cyberspace, which, according to the framework of Habermas, can be seen as an encouragement to protect the lifeworld-oriented communicative sphere in cyberspace. UNESCO further proposes the development of ethical guidelines for participation in cyberspace, which could imply common codes of conduct implemented by private parties, as I shall return to in chapter six. Even though neither the CoE Declaration nor the UNESCO draft on Cyberspace Law or the annual 45 reports by the Special Rapporteur has legal standing, they all point to the international political focus and awareness on cyberspace, not least in the field of freedom of expression.[3]

We will now examine some recent cases, which deal with the dilemma of online content regulation. Since there have not been any cases concerning the Internet and freedom of expression before the European Court, I will employ some of the most well-known US judgments in the field of Internet communication. The cases concern the two main types of content regulation. The first type is state regulation on individuals’ right to express opinions and receive information. The second type is the private parties’ self-regulation. Here follows a brief introduction to the cases concerning state regulation.

The cases, which most explicitly discuss the Internet’s nature as a public, private and commercial sphere, are the District and Supreme Courts’ judgment on CDA. When examining the proposed content restriction on online speech in CDA, the Court takes as a precondition that Internet communication is entitled to First Amendment protection, thus First Amendment protection applies with the same force on Internet as it does in the print media or in the physical public sphere. The Court acknowledges that the Internet is both a means of public, private and commercial communication, that encompasses both system and lifeworld. The courts further stressed that:

  • The Internet contains private, public and commercial communication, thus encompasses both system and lifeworld.
  • Internet especially empowers individuals and NGOs by providing them with easy and inexpensive means of communication.
  • The Internet lacks the physical world’s characteristics of geography and identity, thus making it difficult to zone cyberspace according to place or identity. Accordingly, it is difficult to protect minors’ access to “indecent” expressions, without unduly restricting adults’ freedom of expression.

The Internet has largely incorporated the concept of freedom of expression from its inception; the need for such protection has become increasingly evident. States around the world have progressively cracked down on Internet speech, a trend highlighted by recent events occurring during the Arab Spring. The Internet has become a central and indispensable means of exercising the right to freedom of expression and opinion.[4]

It can be seen as a mostly positive development for Internet governance came in the form of the “Global Multistakeholder Meeting on the Future of Internet Governance,” also known as the NET Mundial conference, held in April 2014.

More than forty countries around the globe limit what Internet users are able to access online.[5] Overall, restrictions on Internet freedom have increased, although the methods of control are slowly becoming less visible.[6] Some states have enacted laws that limit freedom of expression over the Internet and prompt the arrests of Internet users.[7] It may come as no surprise then that freedom on the Internet has also been strongly correlated with democracy—of the seventeen nations found to experience a decline in freedom over the past year, only four were electoral democracies.[8] This suggests civil society is essential to keeping states in check.

References :-

[1] In its very first session, the UN General Assembly declared that the Freedom of Information [which inheres in the Freedom of Expression] is a fundamental human right and…the touchstone of all the freedoms to which the United Nations is consecrated.” See Resolution 59(1), 14 December 1946. According to Article 19, an organization devoted to defending the freedom of expression, freedom of expression “is not only important in its own right but is also essential if other human rights are to be achieved.” See http://www.article19.org/pages/en/freedom-of-expression.html.

[2] Centre for Law and Democracy, Restricting Freedom of Expression: Standards and Principles, Background Paper for Meetings Hosted by the UN Special Rapporteur on Freedom of Opinion and Expression, available at http://www.law-democracy.org/wp-content/uploads/2010/07/10.03.Paper-on-Restrictionson-FOE.pdf.

[3] Rikke Frank Jørgensen, Internet and Freedom of expression, european master degree in human rights and democratisation 2000-2001 raoul wallenberg institute pg-44; https://www.ifla.org/files/assets/faife/publications/ife03.pdf

[4] Sears, Alan (2015) “Protecting Freedom of Expression over the Internet: An International Approach,” Notre Dame Journal of International & Comparative Law: Vol. 5: Issue 1, Article 7. Available at: http://scholarship.law.nd.edu/ndjicl/vol5/iss1/7

[5] York, supra note 56.

[6] Freedom House, supra note 77, at 1. Not only have technological advances made repressive practices harder to detect, but a less malicious form of oppression, the spreading of disinformation, has rapidly increased in usage among states. Before, this practice was primarily used only by Russia and China.

[7] See Internet Censorship Law Raises Freedom of Speech Concerns, New Eur. (Nov. 3, 2012, 10:28 AM), http://www.neurope.eu/article/internet-censorship-law-raises-freedomspeech-concerns.

[8] Freedom House, supra note 77, at 2.