MOOC FOE1x | 5.2.1 Freedom of Expression Online | FOE in the Digital Age – Part I


– Welcome to week five. This week we are focusing
on the impact of Internet and the information technology on the realization and protection
of freedom of expression. In this first segment, I will introduce some of the challenges
that Internet has created for the protection of free speech. I will particularly
highlight four of them. The first one will be the tension between the borderless nature of Internet and national sovereignty. The second is the impact
of media convergence on medium specific regulation. The third is the
responsibility or reliability of all the actors involved
with the production and circulation of information. And, finally, we will turn our attention to the global governance of Internet. So, let’s begin. This is June 2016. There are currently about
3.5 billion people online. That’s about 40% of the
world population, four zero. In 1995, 20 years ago, it was just 1% of the world population that was online. The graph on your screen
highlight the speed of the development over the last 20 years and its global spread. Internet may be said to have founded a radically different
information ecosystem unprecedented in human history. This revolution stems from
the number of people involved, the borderless nature of the medium and of the information
that may be accessed, and the speed at which it travels. But the revolutionary nature
and impact of Internet also come from the fact that
these 3.5 billion people are not just consumers of information, but they are also, potentially,
producers of information, including videos, movies,
radio programs, opinions, news. I have already laid out, here, both an incredible number of opportunities for the realization of freedom of expression and information, as well as a daunting number of challenges for its regulation. But, you may ask, “Why? Why does it need to be regulated? After all, this is the
most formidable technology through which the vision of the Universal Declaration of
Human Rights Article 19 may be truly implemented.” Well, there is one
evident answer with this. The fact that this freedom, that this information and
expression are exercised online does not imply or does not mean that international standards
are no longer applicable. So, Article 19 of the
Universal Declaration or of the International Covenant and, indeed, its equivalent
under regional convention, all of them apply equally
to online expression. The application of
international human rights law to the online world has
many positive effects. So, it’s not just about regulation, but it’s also about protection. It means that the online
space may be regulated but also protected as per the conditions laid out by international
human rights law. In particular, in a restriction to freedom of expression
and information online, must meet the three-part test of legality, valid grounds, and necessity. This is, however, not so straightforward. The opportunities created by Internet have literally scared many government. And then came the 2011
Arab Spring Revolutions and many saw them, many
government saw those revolution as the expression of the
liberating power of Internet. By the way, social media
did play a major role in supporting the call
for those revolution, but I think that this has
been largely overstated. This was not the Twitter Revolution, but that’s a different topic. Still, the fact that some
degree of organization took place online has
given further arguments to those in power fearing the
technology and information they simply could not control. And so, the online world has
become, over the last decade, the object of a plethora of many specific laws, policies, and practices. Many of which fail to meet the international standard
related to freedom of expression. This problem is compounded by the fact that international norms of policies on freedom of expression and information, built over the last 50 years or so, have not easily been
transferred, been exported, into the online space. Indeed, a range of challenges has emerged, which I will highlight
now at least four of them. The first one is a trans-boundary and geography-defying
equality of online expression. It has founded a global
communication and information system that does not respect much national sovereignty or jurisdictions. Information travels across borders in ways that has never been seen before. So far, throughout this lesson, we have highlighted the obligations
placed upon the state to protect and respect freedom of expression. But what if the states cannot do it? What if the information
travel in such a fashion that states no longer
control all jurisdictions over that information? This is exactly what is happening
right now with Internet. Scholars and cyberactivists
have repeatedly emphasized that the state was not directly central to the development and growth of Internet. Indeed, it was not even very much present over the first 20 years
of Internet existence. Other actors founded what
has been described as a Post-Westphalian Internet world. These include technology developers, innovators, the corporate sectors, and, indeed, Internet choosers themselves, who have played a fairly central role in the growth of Internet. The transborder nature of
almost all information flows, along with a central role played by non-state actors in its
creation and circulation raise large problem for
an international system that is based on the
central role of the state that is based on national sovereignty, national jurisdiction. So, from our standpoint, which is that of freedom of expression, the first challenge is really how do we preserve the
global nature of cyber space while operating in a system still characterized by
national sovereignty and as embodied by national laws? Indeed, is it possible to
preserve that global nature? This challenge is further
complicated by the fact that many national laws regulating actors, content, and activities online fail to meet international standard. There are laws criminalizing
legitimate expression, laws requesting online registration of bloggers, of website, of journalist. There are laws, policies, and technologies to filter or block access to
legitimate content online, including entire website or IP addresses. And so on and so forth. These are coming on top of
the practice of surveillance, whose legality is still the object of huge legal debates
and judicial challenges. In 2013, Edward Snowden’s revelation of massive NSA surveillance
of Internet transactions pointed to the state
expanding its covert operation to the Internet and to the
collection of big data. Practices, which for many of us, fail to meet international
human rights standard. The result of all those
processes are twofold. First, the multiplication of human rights violations
in the digital space. An outcome which we are
discussing throughout this course. Second, what we are also witnessing, according to the World Economic Forum, are trends towards Internet fragmentation and the re-nationalization of cyber space. I think the two concept of fragmentation and
re-nationalization are pretty clear and pretty indicative of what it means. Others have spoken of states engaging in hyper-territoriality. So it’s not just about state conquering back the cyber space, but it’s also about space,
extending their control over spaces that are way beyond the national jurisdictions
and national borders. So, what we have is the reconstruction of cyber space through state actions. And that reconstructions
is very much challenging what had been at the heart
of the creation of Internet, which was the establishment
of a global community, of a global flow of information. No borders, borderless
flows of information. These are currently highly challenged by the reconquering of the
space by the nation-state. I will now turn to a second challenge that we are witnessing at the moment. A challenge that Internet has placed to freedom of expression. The internet technology
has deeply challenged the medium-specific
approach to regulation. We discussed last week
how, around the world, the regulation of broadcasting tend to be much stricter
than that of print media because of the necessity to allocate airways that are in short supply. So, that’s what is meant by
medium-specific regulation. Under the prevalent global norms, print media should not
be regulated at all, because there is nothing in short supply. In the 1990s, it was hoped that the same medium-specific
approach could apply to Internet. In 1997, the US Supreme Court delivered one of the first rulings over freedom of expression online. A ruling which has been cited globally. That’s Reno v. ACLU. And, in that ruling, which is
in your reading for the week, the court ruled that the Internet was more like the print
media than broadcasting because there is no history of lesser protection on Internet, there is no bandwidth limitation, and users have control
over what they can access, including, for instance,
indecent expression. Therefore, in the opinion of the Supreme Court of the United States, Internet is deserving of the strongest First Amendment Protection. That means that the state should not regulate online content. Over the last two decades or so, though, technological development have challenged the medium-specific approach
to content regulation. Indeed, information technology has allowed for a process that has been referred to as convergence across media platform. And, as a result, the strict boundaries between medium of
communication have disappeared and, thus, the rationale,
the raison d’etre, for the different forms of
regulations have also evaporated. So, for instance, newspaper
have online content, which may include videos
and radio programs. In such cases, what applies? Is it broadcasting? Is it print? Is it Internet? Television or radio may be broadcasted through Internet and not airways. So what kind of regulation
do we then apply? Under such conditions,
medium-specific regulations become increasingly difficult to justify. Can there be one type of regulation only for Internet-derived content? And, if newspapers have online version which includes video and audio programs, how are they to be regulated? As we will see, with
the possible exception of the United States, countries have moved towards imposing a range of obligations and much stronger regulations upon Internet content and Internet actors, including the so-called intermediaries. A third challenge, which I
wish to highlight to you, is that related to the actors involved in the production, distribution, and control of online content. These actors are very different from the previous information system and the previous information generation. They do not quite compare very well with what the information
system looked like, let’s say, 20 years ago. Let alone 50 years ago. And Internet service provider is not quite the same as the phone company or, indeed, as a printing press. Indeed, Internet service providers are deeply different among each other in terms of their role, with regard to the production and control
over content information. Facebook and Twitter are
certainly not the New York Times, but then what are they? Search engines have never
existed like they do now. Google is not a dictionary. Wikipedia is not the
Britannica Encyclopedia. But what are they? And so, many questions are raised from a freedom of expression standpoint, because the protection and the regulation of freedom of expression
depends heavily on how we define the medium through which information is being produced,
controlled, distributed. In the offline world of media, publishers are responsible
for what they publish. But is there such a thing as a publisher in the online world, beside the original creator of content? If yes, is it the server
that stores the content, the search engine that find the content, or the Internet service providers
that delivers the content? Is it one of the three, two
of the three, or all three? What are the specific
roles and responsibilities of these various actors as far as the protection and regulation of freedom of expression is concerned? Let me put it in even simpler term. Is Facebook legally responsible for something you may post on your profile in the same way the New York Time may be responsible for the articles its journalists and
editors are publishing? The interactivity,
immediacy, and accessibility of online content with limited editorial control of features, the multiplication of content producers, all of that create many challenges in terms of the regulation
of journalism and media and protection of freedom of
expression and press freedom. Who is a journalist in the digital era? What constitute the medias? All of those questions,
all of those challenges are at the heart of
some of the difficulties that both governments, corporate actors, users, civil society are facing when looking at the protection of online freedom of expression. Who is responsible for what? Let me end with the fourth challenge, which is a challenge of global governance. This is, of course,
not unique to Internet. For instance, phone lines
have demanded global protocols and commitment to enforce them so that people could call
each other across borders and, indeed, across oceans. So did satellite broadcasting. What is unique to Internet and makes for the complexity of its governance is, firstly, the nature
of the technology itself plus hardware and software
required to make it work. For each of those critical components, and there are many of them, there must be some common global understanding, governance,
and institutions to carry and implement possible agreement. And then, there must also be an overall and integrated approach, not just a piecemeal approach to this governance and oversight of
those critical component. For instance, think about the complexity behind the global domain name system. It is not just a question
of complex technology, but also a question of
complex global governance, which must sustain the interactive and exponential growth of
the DNS, domain name system. Otherwise, the system will collapse under the weight of its growth with multiplication of names competitions and overlap and security breach. Directly or indirectly, the governance over each of the critical
components of Internet, hardware and software, may impact on the realization of
freedom of expression. The governance of Internet,
as followed to date, a multi-stakeholder approach. It means a model of governance involving equal participation,
in theory at least, of a number of stakeholders. It also means some form of
consensus-based decision making and then open and transparent policies. Those stakeholders are
those that have been involved in the development,
growth, and use of Internet. The multi-stakeholder approach is not just a general gesture
on the part of government. It is a necessity. The corporate sector, the
users, the innovators, the technologist, the civil society all play a crucial role which cannot be ignored or fully tamed by government. Their being and contribution
to the regulation of Internet are necessary conditions to the success of this third regulatory generation. This multi-stakeholder approach, though, is not without its detractors,
beginning with China, which has been advocating
for a governance system based on and involving state only. This is a concept of Internet sovereignty or cyber sovereignty. The result is that the global
governance of Internet, the principles that should guide it, the actors that should get involved, and the institution
that should support it, all of these are are far from settled. On the contrary, there,
too, we are witnessing normative policy and political conflict. China is championing an extreme
form of cyber sovereignty in keeping with its model of centralized state-driven
system in the offline world. But even those governments advocating for a multi-stakeholder approach to global governance of
Internet have taken step towards establishing state-based control over the cyber space. Already in 2006, the historical
transformation of Internet towards greater state control had been well captured by one of the most important theorists and thinker behind
Internet, Lawrence Lessig, who wrote, “The first
generation of the architectures was built by a non-commercial sector, researchers and hackers focused
upon building a network. The second generation has
been built by commerce. And the third, not yet
off the drawing board, could well be the product of government.” He was writing that 10 years ago in 2006. 10 years later, there is indeed no doubt. Governments have largely taken over the regulation of Internet. That the third generation
of Internet regulation. This is an understandable development given the ubiquitous nature of Internet and information technology. It’s not just about communication. The economy has digitalized globally. Crimes have digitalized. War can be waged through cyber means. And so, as I have highlighted at the beginning of the segment, the governance of the cyber world is the object of a plethora
of laws and policies at national level and many
debates at global level to try to take stock of
the exponential growth of Internet in all aspect of our life, in all aspect of economic life, of social life, of financial
life, of culture, and so on. To sum up, in this introduction, I have presented very briefly what makes Internet a
unique and unprecedented medium of communication. And I have highlighted
only some of the challenges that the nature of this
technology is generating for the protection and regulation of freedom of expression online. In the next segment, we will consider one of these challenges in greater detail. The role of the commercial sector and, in particular, of the intermediaries. The service providers,
the social platform, and other who are involved in generating, regulating,
controlling, and circulating information and, therefore,
have a role to play with regard to the protection of freedom of expression online. Thank you.

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