The United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has released an important new report that examines freedom of expression on the Internet. The report is very critical of rules such as graduated response/three strikes, arguing that such laws may violate the International Covenant on Civil and Political Rights (Canada became a member in 1976). Moreover, the report expresses concerns with notice-and-takedown systems, noting that it is subject to abuse by both governments and private actors.
On the issue of graduated response, the report states:
he is alarmed by proposals to disconnect users from Internet access if they violate intellectual property rights. This also includes legislation based on the concept of â€œgraduated responseâ€, which imposes a series of penalties on copyright infringers that could lead to suspension of Internet service, such as the so-called â€œthree strikes-lawâ€ in France and the Digital Economy Act 2010 of the United Kingdom.
Beyond the national level, the Anti-Counterfeiting Trade Agreement (ACTA) has been proposed as a multilateral agreement to establish international standards on intellectual property rights enforcement. While the provisions to disconnect individuals from Internet access for violating the treaty have been removed from the final text of December 2010, the Special Rapporteur remains watchful about the treaty’s eventual implications for intermediary liability and the right to freedom of expression.
In light of these concerns, the report argues that the Internet disconnection is a disproportionate response, violates international law and such measures should be repealed in countries that have adopted them:
The Special Rapporteur 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. The Special Rapporteur calls upon all States to ensure that Internet access is maintained at all times, including during times of political unrest. In particular, the Special Rapporteur urges 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.
The report also highlights the shortcomings of a notice-and-takedown system, providing further evidence that the Canadian notice-and-notice approach (as found in Bill C-32) is not only effective but also more equitable. The report states:
while a notice-and-takedown system is one way to prevent intermediaries from actively engaging in or encouraging unlawful behaviour on their services, it is subject to abuse by both State and private actors. Users who are notified by the service provider that their content has been flagged as unlawful often have little recourse or few resources to challenge the takedown. Moreover, given that intermediaries may still be held financially or in some cases criminally liable if they do not remove content upon receipt of notification by users regarding unlawful content, they are inclined to err on the side of safety by overcensoring potentially illegal content. Lack of transparency in the intermediaries’ decision making process also often obscures discriminatory practices or political pressure affecting the companies’ decisions. Furthermore, intermediaries, as private entities, are not best placed to make the determination of whether a particular content is illegal, which requires careful balancing of competing interests and consideration of defences.
The report points to a Chilean law that requires a court order for takedown of content as a preferred approach. The Canadian approach also envisions court orders for takedowns.