Net Filtering Violates the Rule of Law

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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.