There are 56 members of the OSCE out of which 46 participated in this survey. The survey contained questions that would help ascertain existing legislative provisions for regulation of internet content and also related government practices. The study tried to ascertain the effect of the practices and regulations on freedom of expression. The four corners of the study are: internet access; internet content regulation; blocking, filtering, and content removals; and licensing and liability related issues, and hotlines to report illegal content (Page 14).
In relation to blocking, the study attempts to create a comparative analysis that contemplates:
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- legal provisions which require closing down and/or blocking access to websites or any other types of Internet content
- legal provisions which require blocking access to web 0 based applications and services such as YouTube, Facebook, or Blogger
- legal provisions requiring schools, libraries and Internet cafes to use filtering and blocking systems and software
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Extraterritorial nature of the internet content is a major problem for regulation because: a. in many cases the content is hosted outside the territorial jurisdiction, and; b. The content may not be illegal in such outside territory given the cultural/political differences (Page 32). Due to this lack of harmonization of laws at an international level and the ineffectiveness of the local laws, governments have started to block content hosted outside the territorial jurisdiction- which is an easier and convenient “solution” (Page 33). Often, the blocking decisions are made by administrative bodies which are not transparent and sometimes without appeal procedure.
The study recognizes the importance Web 2.0 based platforms that contain legal content and the crucial role they play in enabling the public to participate in political discourse. It recognizes that the blocking/banning of access to entire website may have severe implications for political and social expression (Page 39). Further the study points out then-pending litigation referred to the CJEU from Belgium (Scarlet Extended v Société belge des auteurs compositeurs et éditeurs (Sabam), No 37/11) in relation to ISP level blocking/filtering which may impact fundamental human rights. Similarly, ECtHR was also considering two applications in the same area of contention (regarding the blocking of Google sites and Last.fm) which were expected to have a lasting impact on the European countries (Page 40).
While there are no requirements of using blocking software for certain type of content in most countries, Belarus, Croatia, Lithuania, Poland and Turkey, require filtering software to be used in academic institutions, libraries and Internet cafes. In other states, such as Canada, the Czech Republic, Hungary and Norway, the use of filters is voluntary and not subject to any laws or legal provisions (Page 41).
Amongst other, the study recommends in relation to blocking internet content that:
1. OSCE participating States should refrain from mandatory blocking of content or websites.
2. Voluntary blocking and content removal arrangements should be transparent and open to appeal.
3. Filtering should only be encouraged as an end-user voluntary measure.
4. Termination of Internet access based on “‘three-strikes’ measures to protect copyright is incompatible with the right to information.
5. Reliable information on applicable legislation and blocking statistics needs to be made available: The study specifically pointed out that the States should increase efforts to provide information.
The summary of this document is part of the report produced on the Stanford Law School Intermediary Liability and Human Rights Policy Practicum and is based on the work of Subhajit Banerji. 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.