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Policy Document

Joint Declaration by the UN and OAS Rapporteurs on Freedom of Expression (20 January 2012)

Joint Declaration by the UN Special Rapporteur for Freedom of Opinion and Expression and the IACHR-OAS Special Rapporteur on Freedom of Expression, UN and OAS (20 January 2012) (Catalina Botero and Frank LaRue)
The Special Rapporteurs were particularly concerned about then-pending US legislation, the Stop Online Piracy Act (SOPA) and the PROTECT IP Act. Specifically, the creation of extrajudicial notice-and-termination procedures requiring a website to police user-generated content and targeting entire websites for even small portions of its content, that have potential impact on freedom of speech. At that time, the Special Rapporteurs were encouraged to see that Congress and the Obama Administration backed away from SOPA and reaffirmed they would not support legislation that reduces freedom of expression on the Internet. 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...
Policy Document

UN Freedom of Expression Report, Document No. A/HRC/17/27 (May 2011)

Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (Frank La Rue)
This report summarizes the findings of the Special Rapporteur that came from a series of communications, meetings, seminars, and country visits. The report highlights the fact that Article 19 of the Universal Declaration of Human Rights (‘UDHR’) and the International Covenant on Civil and Political Rights (‘ICCPR’) were crafted broadly enough to encompass freedom of opinion and expression on the internet and through other technological means. Categories of information that may be restricted include: child pornography, hate speech, defamation, direct and public incitement to commit genocide, and advocacy of national, racial, or religious hatred that constitutes incitement. Chapter III of the report summarizes the first principles of freedom of expression in general and on the internet. It underlines the applicability of...
Policy Document

Recommendation CM/Rec(2012)3 - Council of Europe

Recommendation of the Committee of Ministers to Member States on the Protection of Human Rights with Regard to Search Engines, Council of Europe
This Recommendation predates the Google Spain "Right to be Forgotten" case, and highlights key concerns regarding free expression on search engines. The Recommendation appears contradictory in many respects, so - while it is an important snapshot for what the Council was thinking prior to Google Spain - it should be treated with caution. The Recommendation acknowledges the significant role search engines play in collating and disseminating content on the internet. It advises states to allow search engines to perform this function. It notes, however, that search engines present risks to human rights by referencing content that is created by others. In particular, copyright and the right to a private life are cited as considerations for States in assessing “suitable regulatory frameworks” for giving protections to these...
Court Decision

European Court of Justice, GS Media BV v Sanoma Media Netherlands BV and Others, Case C-160/15

( 1 ) In GS Media, the ECJ had to decide whether a link to materials that the copyright holder didn’t authorize were infringing communication to the public. In this case, the defendant is a popular Dutch blog that posted links to photos meant for publication in the Dutch version of Playboy magazine, but which were leaked on an Australian server by an unknown uploader. Sonoma noticed GS Media of the infringing nature of the linked material—asking for removal of the link multiple times. ( 2 ) In finding GS Media liable for copyright infringement, the Court noted however that the alleged infringer can only be held responsible for the infringing act if he had sufficient knowledge of the unauthorized publication of the linked work. ( 3 ) Also, the court established a r ebuttable presumption of knowledge in cases of links...
Court Decision

European Court of Justice, Tobias Mc Fadden v Sony Music Entertainment Germany GmbH, Case C-484/14

( 1 ) The ECJ had to consider the potential liability of Mr. Mc Fadden--running a business selling lighting and sound systems--for the use by a third party of the wireless local area network (WLAN) operated by Mc Fadden in order to make a phonogram produced by Sony Music available to the general public without authorisation. Mc Fadden operated his wireless LAN with anonymous access and free of charge in the vicinity of his business. Access was intentionally not protected in order to draw the attention of customers of near-by shops, of passers-by and of neighbours to his company. The referring court wanted to know whether the access provider exemption from liability might preclude from finding Mc Fadden liable, either directly or secondary. ( 2 ) Against this factual background, the ECJ concluded that ( a ) making a...
Proposed Law

European Commission, Proposal for a Directive on Copyright in the Digital Single Market, COM(2016) 593 final, September 14, 2016

The draft directive aims—inter alia—to close the so called “value gap” between Internet platforms and copyright holders. To that end, the proposed reform includes a provision that would impact platform operations. It requires intermediaries “that store and provide access to large amounts of works . . . uploaded by their users” to take appropriate and proportionate “measures to ensure the functioning of agreements concluded with rightholders for the use of their works” or “to prevent the availability on their services of such works,” including through “the use of effective content identification technologies.”