By EDRi

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Deutsch: [Freiwillige Sperrabkommen beeinträchtigen die Menschenrechte | http://www.unwatched.org/EDRigram_9.15_Freiwillige_Sperrabkommen_beeintraechtigen_die_Menschenrechte?pk_campaign=edri&pk_kwd=20110801]

Following the agreement of the EU institutions on a web blocking compromise
text which fails to adequately address the lawless blocking which is
undertaken in several EU countries, a careful reading of recent research on
the legality of this approach is called for.

Last month, Professor Yaman Akdeniz (Istanbul Bilgi University, Turkey)
prepared a report on Freedom of Expression on the Internet for the
Organisation for Security and Cooperation in Europe (OSCE). The report
contained an investigation on legal provisions and practices related to
freedom of expression, the free flow of information and media pluralism on
the Internet in OSCE participating States.

In his study, Professor Yaman Akdeniz observed that blocking measures in the
OSCE region are not always provided for by law nor were they always subject
to due process principles. In particular, he noted that blocking decisions
were not necessarily taken by the courts of law, but by administrative
bodies or Internet hotlines run by the private sector. They decided which
content, website or platform should be blocked. In many cases, such
“voluntary” blocking procedures lacked transparency and accountability. In
addition, the appeal in such procedures were either not in place or, where
they were in place, they were often not efficient. That is why the
compatibility of blocking with the fundamental right of freedom of
expression must be questioned.

In particular, in the absence of a legal basis for blocking access to online
content, the compatibility of “voluntary” blocking agreements and systems
with OSCE commitments, Article 19 of the Universal Declaration and Article
10 of the European Convention on Human Rights was problematic. Also, such a
“voluntary interference” might be contradictory to the conclusions of the
Final Document of the Moscow Meeting of the Conference on the Human
Dimension of the CSCE.

With regard to the compatibility of blocking with the fundamental right of
freedom of expression, Professor Akdeniz also pointed out that both the
1994 Budapest OSCE Summit Document and the European Court of Human Rights
reiterated the importance of freedom of expression as one of the
preconditions for a functioning democracy. In Budapest, “(t)he participating
States reaffirm(ed) that freedom of expression is a fundamental human right
and a basic component of a democratic society. In this respect, independent
and pluralistic media were essential to a free and open society and
accountable systems of government.” According to Akdeniz, an “effective”
exercise of this freedom does not depend merely on the state’s duty not to
interfere, but might require positive measures to protect this fundamental
freedom. Consequently, a blocking system relying exclusively on
self-regulation or “voluntary agreements” could be in a non-legitimate
interference with fundamental rights.

Yaman A.: Report on Freedom of Expression on the Internet
http://www.osce.org/fom/80723

The Final Document of the Moscow Meeting of the Conference on the Human
Dimension of the CSCE
http://www.osce.org/odihr/elections/14310

1994 Budapest OSCE Summit Document
http://www.osce.org/mc/39554

The Universal Declaration of Human Rights
http://www.un.org/en/documents/udhr/

The European Convention on Human Rights
http://www.hri.org/docs/ECHR50.html

EDRi-gram: OSCE: Access to the Internet should be a human right (13.07.2011)
http://www.edri.org/edrigram/number9.14/oecd-study-internet-freedom

(Contribution by Daniel Dimov – EDRi)