This speech will be delivered in Strasbourg on Thursday, 08 October, 2009
Intervention Speech for the Cross-Border Internet: Consultation meeting organised by the Council of Europe, Strasbourg, 8-9 October 2009
By Dr. Yaman Akdeniz, Associate Professor in Law, Faculty of Law, Istanbul Bilgi University, Director, Cyber-Rights.Org
It is a great honour to be here today in Strasbourg at the Council of Europe, and to be very close to the European Court of Human Rights. For me, as an academic working in the field of human rights and new media, in particular with regards to legal and policy issues surrounding the Internet since the mid 1990s, the role of both the Council, and the European Court has been crucially important.
I recently attended the 1st Council of Europe Conference of Ministers responsible for Media and New Communication Services A new notion of media? which took place in Reykjavik, Iceland (28-29 May 2009). It was noted by the Reykjavik Political Declaration document that “there is ongoing concern about the effective implementation in practice of Council of Europe standards on freedom of expression and information and freedom of the media.” (paragraph 9) I do strongly share these concerns.
New media historically face suspicion and are liable to excessive regulation as they spark fear of potential detrimental effects on society. For example, this has proved true for the publication and transmission of sexually explicit content through the printing press, the telegraph, telephone, post, cinema, theatre, radio, television, satellite, and video.
Today, many states are reacting negatively to the availability and dissemination of certain types of content through the new media, in particular through the Internet. Today, there remains major concern about the availability of sexually explicit content including child pornography, racist content, hate speech, terrorist propaganda, and documents related to terrorism, as well as pirated content on the Internet. Such threats resulted and continue to result with state intervention (including in the Council of Europe region) through the development of regulatory, self-regulatory, as well as technological solutions.
However, there remains growing concern about the impact of some of the regulatory solutions adopted at state level or actions taken by the Member States of the Council of Europe on fundamental human rights as enshrined by the European Convention on Human Rights.
Based on the limited effectiveness of state laws, a number of states started or starting to introduce policies to block access to websites or other content on the Internet deemed illegal which are outside their jurisdiction. However, blocking policies are not always subject to due process principles, decisions are not necessarily taken by the courts of law, and often administrative bodies or hotlines decide which content or website should be subject to blocking. Often blocking policies lack transparency, and the administrative bodies lack accountability. Therefore, increasingly, the compatibility of blocking action is questioned with regards to the fundamental right of freedom of expression. There could be a breach of Article 10 if blocking measures or filtering tools are used at state level to silence politically motivated speech on the Internet, or the criteria for blocking or filtering is secret, or the decisions of the administrative bodies and hotlines are not publicly made available for legal challenge.
The public’s right to receive information provided by mass media is widely accepted in international law. Indeed the European Court of Human Rights established that “not only does the press have the task of imparting such information and ideas, the public also has a right to receive them,” and to receive and impart information is a precondition of freedom of expression. If as the European Court of Human Rights established, freedom of expression is “one of the basic conditions for the progress of democratic societies and for the development of each individual,” the Internet is probably the best venue to realise democracy and development of each individual.
Bearing in mind that alternative views could find a more open platform on the Internet, freedom to seek and receive information and ideas, should especially be underlined as the burden on the receivers will be higher than ever if States adopt blocking and filtering policies. As was stated by the Reykjavik Political Declaration efforts have to be increased to ensure that fundamental human rights such as freedom of expression as well as privacy of communications, underpinned by the rule of law, do not fall victims to such circumstances.
Finally, I note that increasingly, there is more emphasis on involving all stakeholders (both public and private) and relevant intergovernmental and international organisations within the Internet governance models and debate. Undoubtedly, governments do have authority over public policy, while the private sector (Internet industry + the ISPs) have expertise with regards to technical issues and infrastructure. Societal, community, and human rights issues are addressed by the civil society representatives and organisations. International organisations such as the Council of Europe can co-ordinate and facilitate the development of standards together with all the relevant stakeholders. I am therefore confident that the concerns that I raise today will be addressed through the future work of the Council of Europe.
Dr. Yaman Akdeniz (LLB, MA, PhD), Associate Professor, Faculty of Law, Istanbul Bilgi University; Visiting Senior Research Fellow, School of Law, University of Leeds. Akdeniz is also the founder of Cyber-Rights.Org (http://www.cyber-rights.org) based in the UK, Cyber-Rights.Org.TR (http://www.cyber-rights.org.tr) based in Turkey, and the co-founder of BilgiEdinmeHakki.org (http://www.bilgiedinmehakki.org), a pressure group working in the field of freedom of information law in Turkey. His recent publications include Internet Child Pornography and the Law: National and International Responses (London: Ashgate, 2008: ISBN: 0 7546 2297 5), and Internet: Restricted Access: A Critical Assessment of Internet Content Regulation and Censorship in Turkey (co-authored with Kerem Altiparmak), Ankara: IHOP, 2008, at