This week, several video-sharing websites were blocked by the two main internet service providers in India in response to a court order related to movie piracy. The company that had pushed for the court intervention said it hadn’t intended such a blanket block. The internet service providers said they merely did as told. The internet activist group Anonymous said it would shut down the website of the Indian Supreme Court in retaliation.
Meanwhile, over 3 million individuals had their right to exchange information and ideas summarily suspended.
India is not the only modern democracy where government institutions are pushing (and are being pushed) to facilitate blanket restrictions on internet use and flow of information to the detriment of human rights. In January this year, the US Congress considered bills that would have encouraged internet service providers to pre-emptively block sites that may be used by some individuals to share pirated content, the Stop Online Piracy Act (SOPA) and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PIPA). And the European Union is currently debating whether to sign onto an international treaty containing similar provisions: the Anti-Counterfeiting Trade Agreement (ACTA).
These developments are worrying.
From a human rights perspective, blanket restrictions on specific means of communication should always raise red flags. On the most basic level, human rights guarantee the conditions we need to live with dignity. For centuries, philosophers have agreed that this includes the time and space for each and every one of us to develop, express, and share our unique beliefs and thoughts in peace, even if what we believe or think is offensive to others. When human rights were codified into law after the World War II, this notion was captured in very broad protections of the rights to freedom of expression and information.
Human rights law is particularly strict with regard to the limitations a government can legally impose on the exchange of information and opinions. This can only happen for certain specific purposes and only in the least restrictive manner possible. It is hard to imagine a situation where blanket restrictions on the exchange of information would constitute the “least restrictive manner” for the government to fulfil the purpose of the restriction, whatever this might be.
Of course, the purpose of many blanket restrictions on internet sites — including the stated purpose of the blocking of sites in India this week — is the protection of copyright. It is not only reasonable for governments to seek to protect these interests, it is, in fact, their job. Just as we have the right to freedom of expression, we have the right to government protection of our intellectual property.
What we do not have the right to is the protection of our intellectual or other property at the expense of someone else’s right to freedom of expression. We wouldn’t, for example, want a government to impose a general curfew (violating freedom of movement for everyone) in order to prevent drunk driving, street crime, or other criminal behavior rightly or wrongly associated with the night time. Yet this is precisely what blanket interventions of internet activity tend to do. Instead of the government imposing fines and blocking specific pirated content after fair and transparent judicial processes, internet service providers are pushed to pre-emptively block entire websites as soon as individual users of these websites are accused of violating copyrights.
Some governments claim this is the only way to protect copyright where the internet is concerned. And it is certainly true that the more fluid and fast exchange of information that has come with the spread of the internet makes regulation more challenging.
It is also true, however, that while the means of communication have changed over the years, our need, desire, and — yes — right to communicate freely has not. This is why the United Nations expert body charged with translating general human rights standards into concrete guidelines for implementation issued a statement last year spelling out the specifics of the right to freedom of expression in the age of the internet. This document is clear: generic bans on the operation of certain sites and systems are not allowed, whether these bans are imposed directly or through giving internet service providers strong incentives to take sites down.
Sure, it is easier to do what the Indian internet service providers did this week, and what the supporters of the Anti-Counterfeiting Trade Agreement want to facilitate as a global standard: just block everyone from using sites that may or may not peddle pirated content. However, governments are not obliged to do that which is easier. Governments are obliged to protect our human rights. And that means targeting wrongdoers rather than facilitating or indeed imposing censorship in a blanket manner.