Freedom of Expression Part 2: Blocking, Filtering and Removing Online Content

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The Internet is a catalyst for what has revolutionised and transformed human societies in giving extraordinary access to information that has catapulted development and economic growth. It also comes with threats of exploitation by those who wish to do harm. In Part 1 of these series, we looked at how Twitter banned Graham Linehan for his tweet where we saw that to an extent, it was justifiable under Californian law but that a Judge in the Fiji courts would disagree with. For advocates of an open and free Internet, there are challenges in perceiving the varying degrees of openness and freedom, as we can see from different contexts and jurisdictions.

The issue of removing online content, blocking and filtering is a core part of critical infrastructure as it influences people’s ability to access content. In the last blog, we explored how, under Article 19 of the ICCPR, Freedom of Expression had exceptions. With this blog, we explore certain rulings that have been made and discuss how the issue of objectionable content is as old as time itself and human societies and civilisations. Somebody makes the decision about what is offensive and what can be acceptable content, we see different forms of censorship happening all around us, whether in the curriculum, the books that are available in the library or content online. We see this in how “black history” is also captured where “colonial propaganda has also determined scholarship, foreign policy and acceptable content” as Dr Kingsley James McLean Daley also known as Akala espoused in his address to Oxford Union (see here). Akala is an advocate for a more globalised education where he feels global history should be taught.

Within Europe, the European Court of Human Rights has ruled on cases surrounding blocking and filtering content. The United States and others have also ruled differently on occasion where it comes to Freedom of Expression. Some examples are as follows:

Example 1: Ahmet Yildrim v Turkey (3111/10)

Interim Court Order blocking access to host and third party website concerned by proceedings which was ruled as a violation of Article 10 of the Convention. The legal summary below:

“The applicant owns and runs a website on which he publishes material including his academic work. It was set up using the Google Sites website creation and hosting service. Following the blocking of another website as a preventive measure, a domestic court had subsequently, further to a request by the Telecommunications Directorate, ordered the blocking of all access to Google Sites, which also hosted the applicant’s site. This had entailed a restriction amounting to interference with the applicant’s right to freedom of expression.

The European Court of Human Rights held that such prior restraints were not, in principle, incompatible with the Convention, but they had to be part of a legal framework ensuring both tight control over the scope of bans and effective judicial review to prevent possible abuses. However, in ordering the blocking of all access to Google Sites, the Criminal Court of First Instance had simply referred to the Telecommunications Directorate’s opinion that this was the only possible way of blocking the offending site, without ascertaining whether a less severe measure could be taken. In addition, one of the applicant’s main arguments in his application of 1 July 2009 to set the blocking order aside was that to prevent other sites from being affected by the measure in question, a method should have been chosen whereby only the offending site became inaccessible. However, there was no indication that the judges considering his application had sought to weigh up the various interests at stake. This shortcoming was merely a consequence of the wording of the law itself, which did not lay down any obligation for the domestic courts to examine whether the wholesale blocking of Google Sites was necessary, having regard to the criteria established and applied by the Court under Article 10 of the Convention.

Such wholesale blocking had rendered large amounts of information inaccessible, thus substantially restricting the rights of Internet users and having a significant collateral effect. The interference had therefore not been foreseeable and had not afforded the applicant the degree of protection to which he was entitled by the rule of law in a democratic society. The measure in issue had had arbitrary effects and could not be said to have been designed solely to block access to the offending site. Furthermore, the judicial-review procedures concerning the blocking of Internet sites were insufficient to meet the criteria for avoiding abuses; domestic law did not provide for any safeguards to ensure that a blocking order concerning a specified site was not used as a means of blocking access in general.”

Example 2: Perrin v the United Kingdom (5446/03)

A French national based in the United Kingdom who had been convicted and sentenced to 30 months imprisonment and operating a United States based Internet company with sexually explicit content and publishing obscene content. The European Court of Human Rights rejected the applicant’s complaint under Article 10 of the Convention as inadmissible on the grounds that it was manifestly ill-founded. It was satisfied that a criminal conviction was necessary in a democratic society and the protection of morals and/or the rights of others was not disproportionate.

Example 3: Sina and Ai Weiwei

In 2005, China’s biggest Internet platform, Sina had invited Ai Weiwei to blog, which he engaged in social commentary, criticism of government policy, thoughts on art and architecture and autobiographical writings. The blog was shut down by Sina on May 28, 2009. He then turned to twitter posting from @aiww where he ceased from December 31, 2013. Ai Weiwei is known in China to have championed “Citizen’s Investigation” when he led a team to survey post-quake conditions in 2008 after the 8.0 magnitude earthquake in Sichuan. The blog was subsequently shut down by Chinese authorities in 2009. The Financial Times reported that an attack on Google in China dubbed Operation Aurora where the content of his account was read, his bank accounts investigated and state security agents claimed that they were investigating him for “unspecified suspected crimes.” Ai Weiwei suffered internal bleeding from the impact of police brutality in China and had to have emergency brain surgery in China for cerebral hemorrhage.

Example 4: Cengiz and Others v Turkey (38870/02)

This case dealt with the issue of blocking access to YouTube, a website enabling users to send, view and share videos. The Applicants complained about the infringement of their rights to receive and impart information and ideas. The European Court of Human Rights held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding in particular that the applicants, all academics in different universities, had been prevented from accessing YouTube for a lengthy period of time and that, as active users, and having regard to the circumstances of the case, they could legitimately claim that the blocking order in question had affected their right to receive and impart information and ideas. The Court also observed that YouTube was a single platform that enabled information of specific interest, particularly on political and social matters, to be broadcast and citizen journalism to emerge. The Court further found that there was no provision in the law allowing the domestic courts to impose a blanket blocking order on access to the Internet, and in the present case, to YouTube on account of one of its contents.

The Issue of Objectionable Content is as old as time itself and has stretched for civilisations influenced by notions of public order, public morality, and so forth. Finland, on July 2, 2020 removed the “blue swastika” as an emblem within their Air Force which has largely been seen to be linked to xenophobia via its ties to Nazi Germany and being Anti Semitic in nature.

We have seen how the death of George Floyd enraged global protests and desecration of statues that were either defaced or removed, such as the J.E.B Stuart monument in Virginia, Christopher Columbus, King Leopold and several others. I thought it would be useful to show how a person’s exercise of one’s freedom of expression, whether through art or literary work, can provoke and invite individuals, communities and nation-states to action.

Following on from Part 1, below are snapshots of certain things that have been perceived as “objectionable content.” Another thing to view is the person(s) who feel aggrieved or offended by the content or form of expression. There is nothing new under the sun. What may be acceptable to a certain context would be seen as obscene to another. The challenge then is how far does one go when we live in a global borderless world. What is art to some is perceived as offensive to another. Whilst we see courts making rulings, they can only do to the extent provided by law, as we have seen in some of the European rulings. Below are examples of content over the ages that have been perceived as offensive to some whilst being acceptable to those that subscribe to it.

1501-1504 Michaelangelo, an artist was commissioned by the Florence City government to create the statue of a naked David, which was to adorn the rooftop of their cathedral.
On October 31, 1517, Martin Luther, a thirty-four-year-old priest, and professor of theology at Wittenberg University, posted his Ninety-five Theses against papal indulgences, or the atonement of sins through monetary payment, on the door of the church at Wittenberg, Germany. Within less than four years, the Catholic Church would brand Luther a heretic, and the Holy Roman Empire would condemn him as an outlaw (see here).
In 1989, thirty one years ago, British author Salman Rushdie wrote “Satanic Verses,” which provoked Iran’s Ayatollah Ruhollah Khomeini to issue a Fatwa and a £3 million bounty where two translators were assassinated.
In 2003, together with a few other students, we visited South Pentecost, an island in Vanuatu and witnessed the Nagol Land Diving ceremony which was a means to initiate boys into manhood and it is the origin of bungee jumping. The men wore next to nothing but that was part of their tribal attire. To see the jump (see here).
In 2005, the Jyllands-Posten Muhammad cartoons were first published by Jyllands-Posten that caused 3500 people to riot in Denmark and certain countries to withdraw their Embassies.
In 2009, Ai Weiwei, a prominent artist created artwork to remember the victims of the Sichuan Earthquake which provoked the Chinese government at the time, see here.
In 2019, Myanmar, formerly known as Burma, was criticised for worsening state of freedom of expression in a Human Rights Watch report as journalists who reported on the army’s atrocities labeled war crimes on Rakhine village where Buddhist priests and followers were slaughtered, were jailed. See here.
On March 15 2019, the video of the attacks on a Mosque in Christchurch that killed Muslims as they were praying was published by the shooter. The content was deemed objectionable and taken down on Facebook. The massacre and the video content provoked New Zealand’s government to initiate reforms to its gun laws.
In 2020 following George Floyd’s murder, which sparked riots and defacing of statues of former leaders such as Winston Churchill in the UK etc.
Even in India, an ancient multiplural society continues to struggle between the Freedom of Expression and Freedom of Religion and Amit Singh has researched and written extensively on this, see: Conflict between Freedom of Expression and Religion in India — A Case Study, see here.