This report identifies guiding principles for freedom of expression on the Internet and covers a number of issues including net neutrality, Internet access, cybersecurity, privacy, and Internet governance. It quotes and lists citations to other relevant human rights material. It identifies freedom of expression as a right with particularly strong protection in the Inter-American system (Paragraph 1) and reviews some relevant laws of some Inter-American states.
As a general matter, it says, Internet-specific remedies (Paragraph 12), must take into account “the impact the measure would have on the operation of the Internet as a decentralized and open network” (Paragraph 63) and the possibility of Internet-specific remedies such as rapid correction or response rights. (Paragraphs 64-71) Denial of Internet access radically violates freedom of expression (Paragraph 49). The report considers that the blocking of entire sites and services is “prohibited and exceptionally admissible” only strictly pursuant to human rights constraints, and affirms that blocks and filters should be should be "subjected to a strict balance of proportionality and be carefully designed and clearly limited so as to not affect legitimate speech that deserves protection" (Paragraphs 84-90).
The report deals extensively with Intermediary Liability. It states that intermediaries cannot be strictly liable for third party content, (Paragraph 95) and that intermediaries “must not be required to supervise user-generated content in order to detect and filter unlawful expression.” (Paragraph 96) Strict liability or monitoring requirements would discourage existence of open platforms (Paragraph 97) and incentivize private censorship. (Paragraphs 98-99)
The report cites the “conduit principle” that intermediaries must not be liable for user content, “as long as they do not specifically intervene in that content or refuse to obey a court order to remove” it, (Paragraph 94) and at one point says liability should be imposed “only” on content authors. (Paragraph 102) It notes that, except in “extraordinarily exceptional” cases, requiring intermediaries to remove content based on notice from a private party creates incentives for private censorship. (Paragraphs 104-105) Removal processes should be subject to judicial safeguards: orders for removal should state precise location of content and provide transparency and access to remedies for the affected speakers. (Paragraphs 105-107) Mandatory blocking and filtering is permissible “in exceptional cases for clearly illegal content or speech that is not covered by the right to freedom of expression,” (Paragraphs 85, 90) subject to stringent substantive and procedural tests (Paragraphs 86-88).
Notice and takedown systems “need to have certain requirements to be legitimate from the point of view of protection of freedom of expression.” (Paragraph 97) The report also reviews other models such as notice-and-notice, (Paragraph 109) and notes that OSPs should always have opportunity to review and reject legal notices. (Paragraph 110) It also suggests that national law should enable transparency reporting. (Paragraph 113)
Addressing voluntary removals carried out under OSPs’ discretionary policies, the report states that such measures must not arbitrarily limit free expression, and must be transparent and consistent with human rights principles. (Paragraphs 28, 110-112) and provide dispute resolution procedures (Paragraph 116).
The report provides more detailed focus on a few specific topics, including copyright (Paragraphs 75-83), jurisdiction (Paragraphs 66-88), and data localization (Paragraphs 173-74).
The summary of this document is part of the report produced on the Stanford Law School Intermediary Liability and Human Rights Policy Practicum. The full report “The ‘Right to Be Forgotten’ and Blocking Orders under the American Convention: Emerging Issues in Intermediary Liability and Human Rights”, can be accessed here.