Professor Lorna Woods, Dean for Research at The City Law School speaks at the Institute of Advanced Legal Studies, London (7th Nov).

1. Freedom of Expression and the
Internet
Professor Lorna Woods
Centre for Law Justice and Journalism
City Law School
City University London

2. Access to the Internet: A fundamental Right?
Source: Survey by GlobeScan for the BBC, 2010
Available: http://news.bbc.co.uk/1/hi/technology/8548190.stm

3. Is There a Right?
• No treaty that specifies the existence of a right to
Internet access, whether at international or regional
level.
– IFAP, Code of Ethics for the Internet, 2011, endorsed by
UNESCO
• Human rights are dynamic.
• Freedom of expression within ECHR context
– Jankovskis v. Lithuania (no 21575/08), communicated
– Editorial Board of Pravoye Delo and Shtekel v. Ukraine (no.
33014/05)

4. What Might this Mean?
• Internet?
– Infrastructure or content?
– Conditions of access?
• Negative or positive?
• Is the Internet different?
– NB ‘traditional’ mass media?
• Is freedom of expression different?
– Speakers’ rights; audiences’ rights?
– Right to a forum?
– ‘Meta right’ – see General Comment 34

5. ARTICLE 10
1. Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority
and regardless of frontiers. This article shall not prevent States
from requiring the licensing of broadcasting, television or cinema
enterprises.
2. The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are
necessary in a democratic society, in the interests of national
security, territorial integrity or public safety, for the prevention of
disorder or crime, for the protection of health or morals, for the
protection of the reputation or the rights of others, for preventing
the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary.

6. Basic Principles: Article 10
• Broad approach:
– ‘offend, shock or disturb’ = ‘demands of pluralism, tolerance and
broadmindedness’
– Renaud v. France (no. 13290/07)
• Not unlimited
– Licensing: Informationsverein Lentia (nos 13914/88; 15041/89;
15717/89; 15779/89; 17207/90);Centro Europa 7 (no. 38433/09)
– Hate speech: Feret v Belgium (c.f Jersild)
– ‘Pure’ violation of copyright?
• Article 10(2):
– Legitimate aim
– Necessary in a democratic society = ‘pressing social need’
– Proportionate – note impact of sanctions on court’s assessment

7. Basic Principles: States’ Obligations
• Negative: state actors to refrain from infringing the
right
• Positive: steps to safeguard a right in conjunction with
Article 1, e.g. Tierfabriken No 1
– Horizontal effect
– Removing gaps in protection
• Editorial Board of Pravoye Delo and Shtekel v. Ukraine (no.
33014/05)
– Preventing others from doing something:
• Dink
– Requiring others to do something?
• Boundary between negative and positive?

8. Negative Obligations
• States infringe the right (subject to justification) if:
– Individual punished for “saying” something on the Internet
(without justification)
– “Unplugging” the Internet
– Banning/blocking a site
• Even temporary
• Filters (is this a positive obligation?)
– C.f. (state sponsored) ‘walled gardens’?
• Link to pluralism
– Licensing??

9. Permitted Restrictions
• Perrin v. UK
• KU v. Finland
• Willem v. France
• Sunday Times (no 1 and 2)
– Responsible journalism: archives

10. Positive Obligations
• Recognised in Pravoye Delo and Shtekel
• Scope of obligations?
– Defamation
• Sunday Times
• Delfi v. Estonia (communicated 11/02/11)
– Copyright enforcement
• Akdeniz v. Turkey (communicated 16 February 2011)
• Breadth of internet functions
– Search engines – neutrality?
– Pay walls

11. Right to a Forum
• Right to transmission network
– Autronic
• Private property:
– Appleby v. UK
• C.f Women on waves
– Saliyev v Russia BUT How exceptional are the circumstances?
– Khursid Mustafa and Tarzibachi
• No discussion of property rights, but nb role of cultural rights?
• Choice of means
– Women on Waves
– BUT – other mechanisms available?
– Mouvement Raelien Suisse
• Is there right to particular content?
– Khursid Mustafa and Tarzibachi
– Manole (nb refers also to role of ‘new media’)
• ‘the state must be the ultimate guarantor of pluralism’

12. Appleby
47. That provision, notwithstanding the acknowledged importance of
freedom of expression, does not bestow any freedom of forum for the
exercise of that right. While it is true that demographic, social,
economic and technological developments are changing the ways in
which people move around and come into contact with each other, the
Court is not persuaded that this requires the automatic creation of
rights of entry to private property, or even, necessarily, to all publicly
owned property (government offices and ministries, for instance).
Where, however, the bar on access to property has the effect of
preventing any effective exercise of freedom of expression or it can be
said that the essence of the right has been destroyed, the Court would
not exclude that a positive obligation could arise for the State to
protect the enjoyment of the Convention rights by regulating property
rights. A corporate town where the entire municipality is controlled by
a private body might be an example (see Marsh v. Alabama, cited at
paragraph 26 above).

13. Is the Internet Special?
• Impact on life as we know it
• BUT case law takes this as one factor, making
general points about pluralism
• So, is freedom of expression special?
• Currently, uncertainty as to ‘intensity’ of any
right granted, though these themes are being
elaborated in documents generated by
political institutions.