Governments should refrain from restricting the flow of information on the internet, and the private sector should not be in charge of policing it, a United Nations advisor on freedom of opinion and expression said last week in a report. He also criticised disconnection of users on intellectual property rights grounds.

Frank La Rue of Guatemala, the UN special rapporteur on the promotion and protection of the right to freedom of opinion and expression, warned against the attempts by some governments to muzzle information on internet. In his report [pdf], La Rue stressed that “the full guarantee of the right to freedom of expression must be the norm, and any limitation considered as an exception, and that this principle should never be
reversed.”

La Rue presented his report during the 17th session of the Human Rights Council, from 30 May – 17 June. In his report, he said he was “deeply concerned by increasingly sophisticated blocking or filtering mechanisms used by States for censorship.”

He also asked that states give up criminalisation of defamation, and said that intermediaries should not be held liable for refusing to take action that “infringes individuals’ human rights.” Request to prevent access to certain content or disclosure of private information should be done through a legal procedure and a court order, he said.

IP Rights No Reason to Disconnect

On actions to disconnect users from internet access, for reasons such as intellectual property rights infringements, La Rue said he “considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.”

La Rue called for states to ”repeal or amend existing intellectual copyright laws which permit users to be disconnected from Internet access, and to refrain from adopting such laws.”

Governments Agree: Free Flow of Information is Primary

Governments seemed unanimous that the free flow of information is fundamental during the Human Rights Council’s interactive dialogue with the Special Rapporteur on Freedom of opinion and expression. During that dialogue the European Union representative said the EU ”agreed that restrictions to the free flow of information on the Internet must be in accordance with international law and in accordance with article 27 of the Universal Declaration on Human Rights,” and that policy and governance “must be consistent with international human right law.”

The French representative said “Because the Internet had become such as integral part of societies today, France had made it an agenda item of the G8 Summit in Deauville, where a consensus had emerged on a number of fundamental principles such as liberty, the right to privacy, cyber security, protection against crime and others.”

“Governments needed to respond to legitimate aspirations with reform not repression,” said the United Kingdom representative, and added “states should only interfere in exceptional situations, only if in appropriate proportion, in accordance with international legal obligations.”

Sweden said, “the Special Rapporteur established important principles in the report, including that cutting off users from the Internet was never a proportionate sanction, and Governments should not hold intermediaries liable for content they transmitted or disseminated.”

Clash with G8 View, France’s Hadopi

According to non-governmental organisation La Quadrature du Net, La Rue’s report clashes “radically with the course set by governments of the G8,” the group said in a release, referring to the Group of Eight industrialised countries.

La Quadrature du Net said the report ”will help citizens hold their governments accountable for policies undermining online freedoms.” In particular, it said, the recent G8′s conclusions ran contrary to the rapporteur’s report on intermediaries.

The most recent G8, whose member countries represent 15 percent of the world population. 65 percent of the world gross domestic product, and two-thirds of international trade, according to their website, took place in Deauville, France, from 26-27 May.

The G8 issued a declaration on a renewed commitment to freedom and democracy on 27 May in which they said, in a paragraph on internet, that, “With regard to the protection of intellectual property, in particular copyright, trademarks, trade secrets and patents, we recognize the need to have national laws and frameworks for improved enforcement.” To that effect, the G8 proposed to resort to “suitable international cooperation of relevant stakeholders, including with the private sector.”

The rapporteur’s conclusions are also contradictory to the new EU Copyright Policy and the Anti-Counterfeiting Trade Agreement (ACTA), said La Quadrature du Net. Those agreements, once enacted would “force internet companies to police their networks and their services’ users,” they said.

The Quadrature du Net also said that La Rue’s report requests that the French government withdraws Hadopi, the so-called “three strikes” legislation, and that the UK government cancel its Digital Economy Act.

The French law aimed at protecting literary and artistic intellectual property rights online, nicknamed Hadopi for the government agency created to administer the law (Haute Autorité pour la Diffusion des Œuvres et la Protection des Droits sur Internet), was adopted in October 2009 (IPW, IP-Watch Briefs, 23 October 2009) and was a target of criticism from civil society and some artists.

During the G8 in Deauville, French Minister of Culture Frédéric Mitterand said the controversy around copyright protection had calmed down, and the agency in charge, Hadopi, had not yet relied on repression, only on education (IPW, Enforcement, 27 May 2011).

“The UN report on Freedom of Expression online is a blow to the G8 governments, the European Commissioner Michel Barnier, and the governments involved in negotiating the ACTA agreement, as they all plan to turn Internet companies into a private copyright police,” said Jérémie Zimmermann, spokesperson for La Quadrature du Net.