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Challenges and opportunities for freedom of expression in the networked environment

5. Content Layer

info: Submitted by Lisa Horner on Tue, 2008-06-03 17:18.

The principles

a) The right to freedom of expression should be protected. The expansive definition of Article 19 of the ICCPR should be used which includes positive rights and associated responsibilities.

b) The range of content available should be diverse, representing the whole spectrum of cultures, interests and knowledge.

c) The objective of intellectual property and licensing agreements should be to balance respect for the rights of creators with the need for maximal creativity and innovation.

Rationale and detail

a) The right to freedom of expression should be protected. The expansive definition of Article 19 of the ICCPR should be used which includes positive rights and associated responsibilities.

The right to freedom of expression is protected by Article 19 of ICCPR which states that:

1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

We believe that this definition of freedom of expression calls for an expansive interpretation of the right, not only including rights to be free from censorship but also incorporating positive rights to access and impart information and ideas23. As such, freedom of expression is a foundation right, essential for the realisation of other fundamental rights and freedoms including those to culture and participation in government.

Censorship of communication is rife across the world in contravention of the right to freedom of expression. This includes direct censorship and indirect or self-censorship by governments and private actors. In many countries, the internet is less heavily censored and controlled than offline communication, at least in part because fewer people have physical access to the internet and even fewer to its predominantly English content. However, this may change as the internet becomes more accessible and online censorship techniques become more advanced. Control of expression online is not a problem limited to authoritarian countries; debates are ongoing in democratic countries about whether it is acceptable to filter material not deemed in the public interest, such as content relating to terrorism or paedophilia. At the global level, a closed, heavily filtered model of the internet threatens to replace the free and open model that has dominated thus far.

In the networked environment, protection of the right to freedom of expression would mean that content would never be censored because of its content or source, and individuals should not be punished for accessing or publishing content. Allocation of licences should never be used as a means of censorship, and on the internet, service providers, websites, blogs and broadcasters should not be required to register with, or obtain permission to operate from, a public body. An expansive definition of freedom of expression also calls for states to take the necessary positive steps to ensure that citizens are free to seek, receive and impart information through any media.

The right to freedom of expression is not absolute (see provision 3 of Article 19, ICCPR). Individuals have responsibility to ensure that their expression does not violate the rights and reputation of other individuals. This is a pertinent issue in the networked environment where people have more opportunities to engage in debate in the public domain. Communication tools like message boards and blogs are democratising information flows, but the expression of heated and ill-considered opinion in public spaces does not make for a healthy public sphere, particularly when conversations degenerate into hate speech and personal attack.

International law permits states to take steps to place restrictions on damaging expression such as hate speech and incitement to violence (Articles 19 and 20 of the ICCPR). History shows that this can be necessary to uphold the dignity and rights of individuals and groups, for example with hate speech disseminated by Radio Mille Collines in Rwanda playing a major role in the instigation of genocide in 1994. However, any restrictions placed on expression must meet a strict three-part test as recognised by the Human Rights Committee, designed to prevent the abuse of legislation by governments seeking to restrict legitimate speech. Restrictions must always be specific and construed narrowly so as to limit their abuse, must protect a specific interest that is recognised in international law and must never go beyond what is necessarily required24.

Freedom of expression underpins all of the public interest values defined in this document. Networked communications offer new opportunities for the realisation of free expression and, considering the central role the right plays in social, economic, political and cultural life, it is essential that these are harnessed.

b) The range of content available should be diverse, representing the whole spectrum of cultures, interests and knowledge.

Access to a diverse range of information and ideas in the communications environment is a central component of a healthy public sphere and is supported by the rights to free expression and culture. Recent studies show that the liberalisation of media markets and associated relaxation of media ownership restrictions are resulting in the production of ‘dumbed down’ media content across the world25. With online and offline media companies driven by imperatives to increase market share, media content is often dominated by that which generates the most sales or the largest audience, reducing the scope for public and niche-interest programming and the airing of controversial opinion. A related trend in the networked environment is the bundling of hardware and applications with certain types of content as companies strive to increase market share and win consumer loyalty. This ‘vertical integration’ across the layers of the communications environment threatens to exacerbate trends of decreasing diversity and pluralism, increasing the power of large corporate gate keepers and reducing spaces for important content such as international news and minority cultural expression.

In sum, steps need to be taken to ensure that minority languages, knowledge, cultures and identities have equal opportunity to flourish in the communications environment, fostering a diverse and open range of expression and content.

c) The objective of intellectual property and licensing agreements should be to balance respect for the rights of creators with the need for maximal creativity and innovation.

Article 27 of the Universal Declaration of Human Rights (UDHR) states that:

1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Policy and legislation needs to strike a careful balance between these two rights. Overly restrictive protection of property rights can undermine creativity and innovation through limiting the material available to the public to use and build on for artistic and scientific advancement. Inadequate protection can undermine innovation and creativity through removing moral and material incentives and support for the work of creators.

Strengthened protection and expansion of intellectual property (IP) rights is a discernable trend in national and international policy arenas, evident for example in policies such as the WIPO ‘Internet Treaties’ that aim to update property rights law for the digital age. This appears to be occurring with little regard for the potential impact on creativity and innovation, seemingly protecting intellectual property for intellectual property’s sake and its anti-competitive use by big business. This trend threatens to undermine the new opportunities that networked communications present for sharing and creating new forms of expression and knowledge.

Policy and activity in the communications environment must respect both elements of article 27 of the UDHR. A number of initiatives are currently trying to achieve this. For example, the Creative Commons and GNU General Public License initiatives offer creators alternative and flexible licensing schemes, and the WIPO Development Agenda promises to give special consideration to the needs of developing countries in international IP agreements. Examples also come from indigenous communities that are harnessing technology to protect their cultural and moral rights over knowledge and artefacts26. Positive initiatives like these need to be strengthened and advanced, with the aim of advancing innovation and creativity in the public interest whilst respecting the rights of creators.


23 An expansive interpretation of rights is supported by Article 2.2 of the ICCPR which states that, “Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant”.

24 See Article 19 [NGO] (2003) for further discussion.

25 See for example Cooper et al (2006) and Deane (2003).

26 See Chang, 2008 for further discussion.