Category: Internet Laws


Protecting the Rights of Christians and Religious Minorities in the Muslim World.

Remarks by the Special Envoy to the Organization of Islamic Cooperation, Mr. Rashad Hussain on November 30, 2012 at the Second National Baptist-Muslim Dialogue, Newton, MA.

Mr. Rashad Hussain expresses the debate between the United States’ position on Freedom of speech protected by the First Amendment and the international community’s approach of combatting hate speech, thus restricting “defamation of religions.”

To promote interfaith dialogue, should we restrict freedom of expression?

“After the release of an anti-Islamic film earlier this year, some have called for governments around the world to implement legal restrictions on speech. We disagree with this approach. In the United States, when something offensive is published, rather than asking the government to ban it and then considering their job done, religious communities – including Muslim communities – have instead decided to peacefully raise awareness about misrepresentations of their faith and educate society about their beliefs and to address the underlying cause of intolerance. That is why Muslim Americans have hosted dozens of forums on Islam and the life of the Prophet Muhammad, and why they have come together with people of all faiths to condemn the anti-Islamic sentiment.”

Which approach do you think is best?

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China’s Great Firewall on Internet is one of the most frightening freedom of speech violation in the world. More than sixty Internet laws have been implemented by the People’s Republic of China to repress freedom of speech on the Internet thus restricting access to information, to education and freedom of thought.

China uses censorship to supress and silence dissent and any opposition to the regime. China is, according to Amnesty International, the world’s leading jailer of journalists, today 30 journalists and 50 internet users are know to be in jail in China.

If you look up “democracy movements” on Internet in China, the page will “not be found.”

But how does it work?

The Chinese government created sophisticated ways to allow a limited access to the Internet to Chinese users, it created bottlenecks (Internet traffic to China is channelled through computers centers), checks Internet traffic for subversive material (then uses censure), and even goes as far as to ask the Chinese population itself to “self-censure” (commercial websites are responsible for the content, if Chinese authorities do not like it, the company will be held accountable.)

Authorities created “cartoon cybercops” that pop up on controversial websites “to remind Internet users they’re being watched.”

Feels like Orwell’s 1989? Wait, it gets worse.

China is also getting outside help to censure its population. China is being assisted by American firms such as for example Cisco Systems to restrict internet freedom. Even google created a censored search engine for China. According to ABC news “Outside China, users who search Google Images for “Tiananmen Square” get pictures from the 1989 pro-democracy protests that ended in crackdown that left hundreds dead and included the iconic photograph of a lone man staring down a line of Chinese tanks. Inside China, users get only tourist images of Tiananmen Square and the Forbidden City across the street.”

Check out this NGO website: Great Firewall of China which allows you to check which websites are blocked in China.

The NGO Freedom House published on September 24, 2012 a special report on Freedom on the Net. This report is the third part of a review of developments related to Internet Freedom, International Privacy and Censorship in 47 countries: Argentina, Australia, Azerbaijan, Bahrain, Belarus, Brazil, Burma, China, Cuba, Egypt, Estonia, Ethiopia, Georgia, Germany, Hungary, India, Indonesia, Iran, Italy, Jordan, Kazakhstan, Kenya, Kyrgyzstan, Libya, Malaysia, Mexico, Nigeria, Pakistan, Philippines, Russia, Rwanda, Saudi Arabia, South Africa, South Korea, Sri Lanka, Syria, Thailand, Tunisia, Turkey, Uganda, Ukraine, United Kingdom, United States, Uzbekistan, Venezuela, Vietnam, and Zimbabwe. It reviews the countries’ achievements from January 2011 to May 2012. The report praises the new methods to protect Internet Freedom developed by many countries, however it also highlights the still existent internet censorship and internet laws restricting freedom of speech.

The report is entitled Internet Freedom on the Net 2012: A Global Assessment of Internet and Digital Media. Please find attached the full report in PDF and a Summury of its Findings.

Freedom House Report on Internet Freedom

 

Two weeks ago, the French newspaper Metro reported that private messages from 2009 had been publicly available to everyone to see on Facebook Timelines in France. A Facebook spokesman declared ”A small number of users raised concerns after what they mistakenly believed to be private messages appeared on their Timeline. Our engineers investigated these reports and found that the messages were older wall posts that had always been visible on the users’ profile pages. Facebook is satisfied that there has been no breach of user privacy.” However, this statem there ent is false as many users remembered posting these messages as private inboxes. Let’s just hope you did not post anything embarrassing in a private inbox message or any personal information. What is important to know about Facebook inbox messages is that is no law protecting internet privacy on Facebook. Facebook is legally allowed to read your inbox messages. This bug is the biggest Facebook scandal related to internet privacy yet not a lot of information or press releases have been issued on this matter. It is being looked into in France, but for now hide your timeline posts completely, watch what you write on Facebook or delete your Facebook account completely if you want to be safe from internet privacy infringements.

See what the Guardian wrote on this issue

Anti-Semitism is, according to the Webster definition, the “hostility toward a discrimination against Jews as a religious or racial group.” In France, anti-Semitism is rooted in Medieval Judeophobia, which we must however differentiate from today’s sentiments. Judeophobia and anti-Semitism are often expressed as synonyms. Even though Judeophobia is described by many as the ancestor of anti-Semitism, these two notions are dissimilar as they refer to different feelings. Both terms refer to the hatred of the Jewish people. However, it was anti-Semitism pushed to its extremes which opened the road towards the Final Solution.The anti-Semitic movement which developed during the late 19th century in France acquired new characteristics: a political dimension and a pseudo-scientific dimension. You would think that after France’s Vichy past, anti-Semitism would have completely been erased from French mentalities. However, the 2002 rise of the French far-right xenophobic and anti-Semitic movement (le Front National) and more recently a wave of anti-Semitic attacks and sentiments, proves us wrong. In March 2012, a French Islamist shot Jewish civilians including children in Toulouse. Today, Twitter is at the heart of the debate. A competition of anti-Semitic jokes were posted under the Hashtag “UnBonJuif” (A Good Jew). Some tweets went as far as: “A Good Jew is a Dead Jew”/ “A Good Jew obeys when he has to go take a shower.”

This competition opens the debate on what should be allowed on the Internet. Should hate speech be considered Internet freedom of expression? French laws condemn hate speech both under civil and criminal laws. Furthermore, the ICCPR (International Covenant on Civil and Political Rights), the Universal Declaration of Human Rights, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) all condemn the advocacy of hate speech based on nationality, race, religion or color. Internet freedom of expression is therefore controversial. Should we publish everything on the Internet? Can Twitter be held accountable for what has been published?

Under Article 4 of the International Convention on the Elimitation of All Forms of Racial Discrimination (ICERD) “parties should criminalize the dissemination of ideas based on racial superiority or hatred, declare illegal and prohibit organizations that promote or incite racial discrimination (…) and prohibit public authorities and public institutions from promoting or inciting racial discrimination.” As a result of the ICERD, all Europeans nations condemn hate speech and have adopted legislation aimed at repressing hate speech. In addition, on November 7, 2002, the Committee of Ministers of the Council of Europe adopted the “Additional Protocol to the Convention to the Convention on Cybercrime, concerning the criminalization of acts of a racist and xenophobic nature committed through computer systems.” The debate which arises from this is then: how much “freedom of expression” should we have on the Internet? What kind of “hate speech” must be censored? And how much of “freedom of expression” as a Human Right should we allow on the Internet?

For more information please go to France 24: http://www.france24.com/en/20121015-french-jews-denounce-anti-semitic-flood-twitter

The First Amendment to the US Constitution is enshrined in American values and culture. The Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The First Amendment remains even though the international community is moving forward to abolish “hate speech,” discrimination and blasphemy. One can then ask the question, why are the United States an exception regarding the protection of freedom of expression?

The American understansing is that freedom of expression and freedom of speech do not permit government to dstinguish protected from unprotected speech. But how far should this freedom of speech go? The United States has a different definition of free speech than the international community. This explains its reservations regarding the ratification of the ICCPR (International Covenant on Civil and Political Rights), a Convenant which is part of the International Bill of Human Rights. The United States was founded on the values of freedom and liberty. It is not in the American mentality to limit a person’s right to free speech. Consequently, it is only in 1992 (it had been adopted by the United Nations in 1966), that the United States of America ratified the ICCPR with reservations. A reservation was made on Article 20 (1.Any propaganda for war shall be prohibited by law and 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law). The United States differ from the rest of the world on freedom of expression in that they do not permit the government to distinguish between protected and unprotected speech. The First Amendment protects the right of free speech and association by all means.

This definition issue is crucial today, when a movie “the Innocence of Muslims” which ridicules Islam and the Prophet Mohammed can lead to the killing of an American Ambassador, Chris Stevens. In a world recently shaken by the Arab Spring and where American diplomatic relations are tensed with the Arab world, it is not “good timing” to insult the fundamental values, culture and religion of an entire people.

This echoes the 2005 publication in a Danish newspaper of cartoons depicting the Prophet Mohammed wearing a turban with the shape of a bomb among other mocking and offensive drawings.

The First Amendment and freedom of speech must be protected. But at what cost? Why provoking hatred and violence in a world that is already unstable?

Gareth Price, in the Huffington Post “Do they hate us for our freedom of hate speech?” expressed the hypocrisy of Americans stating that hate speech must by all means be constitutionally protected. “It is a stunning piece of tautology: by definition, anyone who feels insulted by free speech is un-American, especially if they happen to be foreign.”

Internet freedom and privacy are major issues in the emerging Internet law. “Cyber law” is grounded in international law which makes its development harder. What is important to understand is that because the Internet has become such an important part of our daily lives, it should regulate itself instead of obeying domestic laws. The Internet has to have its own law. The European community, through the “Telecoms Package Act” started this process at the European scale. We should understand that in order to protect “Netizens (citizens of the net)” there should be a universal Internet law. The Universal Declaration of Human Rights, Article 19 claims that freedom of speech on any media should be protected at all means. Our goal is therefore to make sure this fundamental human right is protected on the Internet. Internet censorship, as seen in China and Iran for example, has to be abolished and Internet privacy laws as well as freedom of expression on the Internet, protected.

The EU passed the “Telecoms Reform Package” in May 2011. It limits Internet censorship and guarantees Internet Freedom and privacy. “Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy. A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with European Convention for the Protection of Human Rights and Fundamental Freedoms. The right to an effective and timely judicial review shall be guaranteed.”

“The conciliation process that led to the agreement was shepherded by the European Commission.” The Telecoms Reform Package as a whole has for objective to “substantially enhance consumer rights and consumer choice in Europe’s telecoms markets, and add new guarantees to ensure the openness and neutrality of the internet”.

In the article, member states take any measures to limit internet access or use must “respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law”.

It also says any access or use limitations must be “appropriate, proportionate and necessary within a democratic society”, and their implementation must include “effective judicial review and due process”.

“Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy,” the text adds. “A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned… The right to an effective and timely judicial review shall be guaranteed.”

Sources:

http://ec.europa.eu/information_society/policy/ecomm/tomorrow/index_en.htm

http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/09/491

The Council of Europe, organized on the 18th and 19th April 2011 in Strasbourg the conference “Internet Freedom: From principles to global treaty law?” The goal of the conference was to answer the question: what kind of responsibility should states have to preserve the Internet?

Recent events in Northern Africa and developments related to the Wikileaks case have clearly shown how access to the Internet content and services can be easily disrupted. The Internet can be switched off, snatching from millions of people the possibility to communicate or access information. The fundamental right to freedom of expression may be jeopardized and values of democracy may be put in question.

The conference’s agenda was to examine possible ways to protect and promote Internet’s universality, intergrity and openness. It discusses whether there is scope for further international law action to preserve the Internet as a means of safeguarding freedom of expression and access to information. The outcome of the conference was a success: Draft Program Conference Internet Freedom Council of Europe. The representatives of Council of Europe member states, the US Department of State, International Telecommunications Union (private sector), civil society and experts on cross-border Internet were present.

Read the opening Speech by Ms Maud de Boer-Buquicchio, Deputy Secretary General of the Council of Europe


Over the last decade, states have enacted legislation purporting to regulate almost every conceivable form of Internet activity. However, questions have arisen regarding the legitimacy of jurisdiction on the Internet. Activities in cyberspace cannot be governed by territorially based sovereigns.

“The global reach of the Internet raises the possibility that online activities can subject businesses to the jurisdiction of courts in far-flung places. The rules for Internet-based jurisdiction are still being spelled out by U.S. courts. The general rule emerging is that operation of an active Web site, where one actually transacts business through the Web site, is sufficient to confer “general jurisdiction” over the site’s owner; that is, to subject the site’s owner to all lawsuits of any sort, whether or not related to the Web site’s activities. The theory of general jurisdiction is that the defendant is constructively present in the state by reason of doing business with that state’s citizens, albeit from a distant locale.

At the other end of the continuum are passive Web sites, which only advertise or provide information to online visitors. Most courts have held that passive Web sites do not provide a basis for jurisdiction. But what about Web sites that provide some limited level of interactivity, such as allowing email exchanges or allowing or requiring visitors to submit personal information?

A court recently answered this question and held that such limited interactivity is not sufficient to confer jurisdiction. In Hurley v. Cancun Playa Oasis International Hotels, No. Civ.A. 99-574, 1999 WL 718556 (E.D. Pa. Aug. 31, 1999), the plaintiff, a Pennsylvania resident, was injured while staying at a hotel in Cancun, Mexico. He sued the U.S. agent for the hotel, a Georgia corporation, in the plaintiff’s home state of Pennsylvania.

The defendant moved to dismiss based on lack of personal jurisdiction. In the ruling on the motion to dismiss, the court said that Web sites fall under three categories: (1) those that actually conduct business over the Internet, (2) those that allow exchange of information with the Web site, and (3) those that merely post information or advertisements. The court held that jurisdiction generally exists in the first category and does not exist in the third. However, in the second category, whether jurisdiction exists “is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.”

The court examined the particular site’s level of interactivity and the extent of its contacts with Pennsylvania residents and held that these contacts were not sufficient to confer general jurisdiction. The site accepted and confirmed reservations online, advertised a toll-free number for telephone reservations, and allowed email exchanges with the site’s owner. The court found no evidence in the record that these interactive contacts with Pennsylvania residents were sufficiently “continuous, systematic, and substantial” to support general jurisdiction.

Note that this case might have come out differently had the plaintiff’s claim arisen out of his contacts with the Web site, but the court was not called upon to reach this issue, because the plaintiff had never visited the defendant’s site. What if the plaintiff had booked his reservation on the site? What if he had read the on-site ads and then called the toll-free number to book his room? Answers to questions such as these will have to await future cases.

For two other cases involving limited-interactivity Web sites, see Molnlycke Health Care AB v. Dumex Medical Surgical Products Ltd., 64 F. Supp. 2d 448 (E.D. Pa. 1999) (no jurisdiction in patent infringement case where defendant advertised his products on site and allowed purchases directly from site, but no evidence of significant sales in Pennsylvania), and Mink v. AAAA Development LLC, 190 F.3d 333 (5th Cir. 1999) (no jurisdiction over copyright infringement case where defendant’s site advertised allegedly infringing software code but had made no sales into Texas).

The application of Internet jurisdictional rules to defamation cases is equally interesting and equally controversial. In Alternate Energy Corp. v. Redstone, 328 F. Supp. 1379 (S.D. Fla. 2004), the court held that the sale of online subscriptions was not a sufficient basis to create personal jurisdiction in online libel cases.

The court applied the Internet jurisdiction test set forth in Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997), which held that engaging in commercial activity over the Internet constitutes sufficient minimum contacts to satisfy due-process requirements, but that posting information on the Internet does not. In Alternate Energy, the court noted that “the Fifth Circuit has held that selling subscriptions to view an informational website does not constitute sufficient commercial activity to invoke jurisdiction under Zippo for a defamation action, when the cause of action arises out of the information posted on the site. Revell v. Lidov, 317 F.3d 467 (5th Cir. 2002).

The court held that because the cause of action did not arise out of the solicitation of subscriptions, the defendant’s solicitation activity could not give rise to jurisdiction.” 328 F. Supp. 2d at 1382. The court held that “selling subscriptions to an internet site to an unknown, relatively small number of Florida residents, without more, does not constitute carrying on a business in Florida. . .and does not constitute the commission of a tortious act in Florida . . . .”

The case law is split on the proper test for jurisdiction in Internet-based defamation cases. This issue is of considerable importance, because if simply publishing on the Internet triggers jurisdiction in any country where content is read, Web site owners and Internet publishers will need to “dumb down” their content in order to satisfy the laws of the most stringent jurisdictions or else face lawsuits that could lead to judgments that would put them out of business. For now, the lesson is this: If you operate an interactive Web site, you are submitting yourself to the possibility of having to defend lawsuits in distant jurisdictions, both in the United States and abroad.”

Source Article “Doing Business on the Web: Jurisdiction Over Interactive Websites by Jere M. Webb.