Participating organizations: The United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information (herein referred to as the “Organizations”).
This document summarizes the main guiding principles and rules for promoting the freedom of expression agreed by and between the Organizations via the Joint Declaration on Freedom of Expression and the Internet (the “Declaration”).
The Declaration is adopted by taking into consideration that: (a) freedom of expression is of significant importance for preserving democracy; (b) access to Internet is substantially growing, which gives access to information to billions of people and allocates power to the Internet to promote other rights and facilitate access to a variety of goods and services; (c) some governments restrict access to Internet; (d) restrictions to the freedom of expression shall be limited as envisaged by law for specific and limited reasons; (e) governments are not taking into account the specific nature of the Internet, which leads to restrictions of the freedom of expression, and last but not least; (f) there is a significant number of intermediaries (e.g. enabling access to materials posted by others, to financial and/or communication services), which are sometimes kept responsible for illegal content.
The Declaration outlines the general principles related to freedom of expression, and points out a variety of issues including Intermediary liability, criminal and civil liability, filtering and blocking, network neutrality and Internet access. The document uses the principles of the ‘three-part test’, impact assessments, internet literacy and the use of a tailored approach for regulation of the internet.
Intermediary liability: With respect to Intermediary Liability, the Declaration affirms the “Mere Conduit Principle” pursuant to which the intermediaries that provide technical Internet services such as providing access, or searching for, or transmission or caching of information shall not be deemed liable for content generated by others, if the intermediaries do not “intervene in that content” and comply with court orders to remove the content to the extent possible. Further, the intermediaries are not obliged to monitor content posted by others and “should not be subject to extrajudicial content takedown rules, which fail to provide sufficient protection for freedom of expression.”
Mandatory blocking & filtering: Mandatory blocking shall be used only in extraordinary circumstances (e.g. for protection of children against sexual abuse.) Content filtering, which is not end-user controlled, shall not be used for restricting the freedom of expression, and the end-users shall be properly informed if end-user filtering option is available.
Criminal & Civil liability: Jurisdiction for cases related to Internet is determined on the basis of connection of the case with the States. The Declaration introduces: 1) the “Libel Tourism” rule, which envisages that private parties can only bring a case to the jurisdiction where they are able to “establish that they have suffered substantial harm in that jurisdiction”, and 2) the “Single Publication” rule, which envisages “damages suffered in all jurisdictions to be recovered at one time.”
Network Neutrality: the intermediaries shall provide access to their traffic or information management practices to all stakeholders. There shall be no discrimination of traffic based on source, destination or type of data transmitted.
Access to Internet: The Declaration envisages an obligation for the States to “promote universal access to Internet,” prohibit shutting down or slowing down of the Internet service, allow restriction to Internet for individuals only in exceptional circumstances and by court order. It proposes a positive obligation on States to adopt action plans for promoting Internet access, which shall include regulatory mechanisms, bringing awareness, envisaging special measures for disabled and disadvantaged people etc.
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 Mirena Taskova. 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.