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Last year, in their decision regarding the controversial LOPPSI bill, French constitutional judges held that Article 4 of the bill, which allows the French government to censor the Internet under the pretext of fighting child pornography, is not contrary to the Constitution. In doing so, the French constitutional court failed to protect fundamental freedoms on the Internet, and in particular freedom of expression. Hope now lies with European institutions, the only ones with the power to prohibit such administrative website blocking and its inherent risks of abuse.
The following analysis is based on a legal study on the filtering measures published in 2009 by a team of European lawyers{[(|fnote_stt|)]}Callanan, C., Gercke, M., De Marco, E. and Dries-Ziekenheiner, H. (2009) Internet Blocking: Balancing Cybercrime Responses in Democratic Societies, Aconite Internet Solutions.{[(|fnote_end|)]}. It attempts to identify – given the European Convention on Human Rights (ECHR) and related case law – a number of safeguards that must govern any restriction of freedom of communication on the Internet. This review shows that the administrative filtering of the Internet violates some basic principles of the rule of law.
International law and the protection of freedom of expression and communication
Respect for fundamental freedoms is the legal basis of democratic societies and the rule of law. The highest legal protections are granted to fundamental freedoms. These protections are enshrined in law but also in national constitutions and international instruments, and it is traditional for judges to protect each of these levels. The foundation of this protection is the idea that people who enjoy these freedoms must be protected, especially from any interference by the executive and the parliament {[(|fnote_stt|)]}Terré, F. (2005) Sur la notion de libertés et droits fondamentaux, in Cabrillac, R. et al. (eds) Libertés et droits fondamentaux, Dalloz, Paris, p. 195.{[(|fnote_end|)]}.
Measures to regulate online communications may, depending on the various cases, violate one or more fundamental freedoms protected by constitutions and conventions:
- The first of these is, of course, freedom of expression and communication, as these measures prevent the transmission of information and access to this information by the public.
- The second is the right to private life. Whatever the techniques employed to intercept and block the offending content, private communications will be screened and intercepted as well as criminal communications.
In the ECHR, freedom of communication is protected by Article 10, with the second paragraph identifying cases where this freedom may be restricted if it were to undermine “national security, territorial integrity or public safety.” Measures are also provided “for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”. Article 8 of the ECHR, which asserts the right to respect for one’s private and family life, also provides a framework if this freedom comes under question.
Conditions on challenges to freedom of communication in European law
As evidenced by Article 10’s second paragraph, any questioning of fundamental freedoms protected by the ECHR must meet a number of conditions to be acceptable. With regard to freedom of communication and the right to respect for one’s private life, such interference must, in addition to being required by law, pursue a goal considered “legitimate” under the Convention{[(|fnote_stt|)]}Article 10 refers in particular to the protection of morals, the protection of the reputation and the rights of others, the guarantee of the authority and impartiality of the judiciary, and the prevention of disorder and crime.{[(|fnote_end|)]} and be “necessary in a democratic society”. This last condition, which appears rather vague, seems to be the most important in terms of interference with freedom of communication, including blocking communications or removing content.
As judges of the European Court of Human Rights (ECtHR){[(|fnote_stt|)]}The European Court of Human Rights is a supra-national court, established by the European Convention on Human Rights, which provides legal recourse of last resort for individuals who feel that their human rights have been violated by a contracting party to the Convention.{[(|fnote_end|)]} had the opportunity to point out in their jurisprudence, in a “society that wants to remain democratic”, the notion of “necessity” of the interference implies that interference refers to “a pressing social need”{[(|fnote_stt|)]}See for example ECtHR, 21 January 1999, Fressoz and Roire v. France, Grand Chamber. In this case, the satirical newspaper Canard Enchainé had published the head of an important company’s tax forms. The Court concluded that the culpability of the newspaper for revealing secret information violated freedom of expression and the freedom of the newspaper to disseminate information by publishing a document as proof. It particularly criticised the lack of social need for such restriction: “The need for any restriction on the exercise of freedom of expression must be convincingly established”.{[(|fnote_end|)]} and is proportionate to the legitimate aim pursued{[(|fnote_stt|)]}See for example ECtHR, 26 April 1979, Sunday Times v. UK. “Article 10-2 does not give the states an unlimited power of appreciation. (..) the Court has jurisdiction to rule on whether a ‘restriction’ or ‘penalty’ is reconcilable with freedom of expression as enshrined in Article 10.” The national margin of appreciation goes hand in hand with European supervision. It will be noted that the Constitutional Council employs similar words. See Decision No. 2009-580 DC of 10 June 2009, paragraph 15: “Freedom of expression and communication is all the more precious since its exercise is a prerequisite for democracy and a guarantee of respect for other rights and freedoms, and damage to the exercise of this freedom must be necessary, appropriate and proportionate to the aim pursued.”.{[(|fnote_end|)]}.
Let us examine these two aspects:
- One of the requirements attached to the pressing social need – for which the states have some discretion while remaining dependent on the decisions of the Court – implies that the restriction of liberty ordered must meet this need. So, the measure must be effective.
- Second, the measure must be proportionate to the pursued aim. The Court has distinguished several criteria to assess the proportionality of a restriction. With regard to filtering procedures or removal of content, the Court will check in particular if the purpose of the interference can be satisfactorily achieved by other means less restrictive to rights.
Are filtering measures “necessary in a democratic society”?
Do filtering and blocking measures meet the criteria of efficiency and proportionality? Are they needed in a democratic society? To answer, we must obviously take into account the purpose (child protection or copyright, for example) as well as technical solutions to prevent access to litigious content. In the case where it is sought to prevent access to child abuse content, which is undoubtedly the most pressing need that has been argued to date to justify blocking measures, these measures have very different “legitimate aims” that are included in paragraph 2 of Article 10 of the ECHR. These are the protection of morals and protection of the rights of others – especially children and sensitive people who may find such images extremely traumatic – as well as the prevention of crime and punishment. However, in each of these cases, technical problems with blocking measures suggest that they are neither effective nor proportionate.
- Effectiveness: The availability of technical means allowing one to bypass blocking measures curtails their effectiveness. A well-known method, often used by political dissidents in authoritarian regimes, is, for example, to set up a proxy (or encrypted “tunnel”) to another computer or server connected to the Internet. The criminal networks engaged in the business of child abuse content have long developed distribution channels that are immune to filtering techniques. Whether for prevention or suppression, filtering is totally ineffective in this regard.
- Proportionality: The proportionality of filtering measures is also strongly questioned because of their lack of accuracy in implementation. There is broad consensus among experts who emphasise that no methods to block access to content can eliminate the risk of over-blocking perfectly legal sites. Several cases of over-blocking have been identified. In the United Kingdom, Wikipedia, which is one of the busiest sites in the world, was blocked for almost three days in late 2008 {[(|fnote_stt|)]}Wikinews (December 7th, 2008), “British ISPs restrict access to Wikipedia amid child pornography allegation“.{[(|fnote_end|)]} and blacklisted by the Internet Watch Foundation (IWF), as a result of the publication of the original cover art of the album “Virgin Killer” by the rock band Scorpions, released in 1976. The cover shows a prepubescent girl posing naked. Because of these inevitable collateral effects, filtering is too far-reaching compared to its objectives.
- Alternative measures: When the ECtHR assesses the necessary action, it seeks to determine whether alternative measures that are less restrictive of the fundamental freedoms at stake can meet the pressing social need. From this point of view, there are other measures which are far more satisfying than the blocking measures. First is the removal of content from the hosting servers, which should be improved through international judicial cooperation. {[(|fnote_stt|)]}Before ordering the blocking of the AAARGH site, hosted in the United States, the French judge had asked the US court to remove the offending content from servers, but it refused, citing the protection of the First Amendment to the US Constitution.{[(|fnote_end|)]} (note that a study by two United States researchers shows that filtering has the effect of discouraging the activation of international cooperation policies already in existence{[(|fnote_stt|)]}Moore, T. and Clayton, R. (2008) The procedural framework for restrictions of freedom of communication on the Internet: The role of the judiciary
Despite these factors, France decided to address a pressing social need (the fight against child abuse material) by restricting freedom of online communication through content filtering. Article 4 of LOPPSI grants the executive branch the power to block information circulating on the Internet.
Contrary to its decision on HADOPI, the Constitutional Council approved this legislation authorising the administrative authority to order measures that conflict with the freedom of online communication.
However, the traditional role assigned to the judicial authorities in European law should disqualify the competence of non-judicial entities to impose restrictions of freedom of communication on the Internet, particularly when these measures conflict with other fundamental rights, such as the right to respect for one’s private life.
Three principles justify the exclusion of non-judicial authorities when it comes to deciding on cases concerning the restriction of freedom of expression:- The declaration of illegality: The jurisdiction of judicial courts primarily stems from the fact that a judge alone can declare a situation to be an illegal abuse of freedom. In all liberal democracies, only a judge has jurisdiction to establish the illegality of content, situation or action.
- The guarantees attached to any criminal charge: Restrictions on freedom of online communication should be accompanied by the guarantee of a fair trial (Article 6 of the CEDH){[(|fnote_stt|)]}“{[(|fnote_stt|)]}Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Article 6-1 of the ECHR.{[(|fnote_end|)]}. Indeed, an administrative or judicial injunction of filtering, removing or blocking access to content, if it relates to offences of a criminal nature, implies that the guarantees of a fair trial be respected, including the right to be tried by an independent and impartial court.{[(|fnote_stt|)]}It still can be an administrative authority, but the guarantees of Article 6 will apply. The European Court of Human Rights has accepted the validity of administrative penalty methods under the European Convention of Human Rights and Fundamental Freedoms, but recalled the need to comply with the requirements of Article 6 (ECtHR, 21 February 1984, Oztürk v. FRG). Article 6 applies because the Court will consider administrative sanctions such as criminal charges (ECtHR, 24 September 1997, Garyfallou AEBE v. Greece), or because they feel they relate to rights and obligations of a civil nature (ECtHR, 8 December 1999, Pellegrin v. France).{[(|fnote_end|)]}.
- Proportionality review: In democracies, the proportionality review of measures intended to respond to an abuse of freedom of communication is a function traditionally devolved to judicial courts.
The role of prior judicial authority in monitoring violations of freedom of communication on the Internet
Given these different observations (declaration of illegality, the right to due process and control of proportionality), the judge’s role in monitoring violations of freedom of online communication seems essential. Because of their ineffectiveness and their disproportionate nature, the blocking measures proposed in LOPPSI do not seem able to meet European standards and should be discarded.
Regarding the removal of content, it seems more palatable that the administrative authority may, for very serious offences, order a hosting provider to take down content. However, at this stage, targeted content will only be “potentially” illegal and the alleged offence needs to be prosecuted{[(|fnote_stt|)]}See on this issue the proposal of La Quadrature du net as part of the consultancy on the European e-Commerce Directive: http://www.laquadrature.net/en/la-quadrature-answers-eu-consultation-on-online-services-directive{[(|fnote_end|)]}.
Beyond these considerations, signatories to the ECHR have discretion regarding the definition of serious offences that can be subject to restrictions of freedom on the part of the administrative authority as a precaution. In reality, this is a choice of a political nature. In 2009, during the Telecoms Package review{[(|fnote_stt|)]}A package of five European Directives on the regulation of communications networks and services.{[(|fnote_end|)]} an amendment was made to this law twice (“Amendment 138“) stating that only the judiciary should be able to impose restrictions on freedom of communication on the Internet:
No restrictions may be imposed on fundamental rights and freedoms of end users without a prior ruling by the judicial authorities, notably under Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, except when public safety is threatened.
It is regrettable that this principle has not been enshrined in EU law. It would have allowed a rigorous defence of freedom of expression and communication in France and across the EU.
This English article based on La Quadrature’s memo in French “Le filtrage viole l’État de droit” was originally published by GISWatch. It is reproduced here in an edited version with their permission.