Below are the three main issues raised in the 2010 Oxford-India Media Law Moot Court Competition. The full Resources & Summaries that have been prepared for each issue are available in the attachments at the bottom of the page. These documents are only indicative of the debates surrounding these issues and are by no means exhaustive.
1. Internet Licensing and Prior Restraint
In order to curtail the potentially absolute freedom of speech that can be enjoyed on the internet, governments in several countries have introduced the system of regulating speech on the internet through a licensing regime. Internet content providers, or internet service providers, or both, may be required to obtain an official permit before either communicating or receiving information on the internet. Since this can potentially (and in some instances has already) amount to governments precluding individuals from effectively communicating on the internet, such a licensing regime has considered to amount to a prior restraint on speech in some jurisdictions. On the one extreme is the position of law under the American Convention of Human Rights which specifically prohibits any form of prior restraint on speech, and the presumption of their unconstitutionality under First Amendment jurisprudence in the United States. On the other hand is the more nuanced approach of the other regional courts of human rights which recognise prior restraints as long as they fulfill the three part test of legality, legitimacy and necessity. The requirement of licensing is in fact recognised under the European Convention of Human Rights for broadcasting, television or cinema enterprises. Do present threats and global realities warrant licenses on the internet or does the structure of internet imply that governments will inevitably restrict far more speech than is required?
2. Filtering of Content and Intermediary Liability
Filtering is the mechanism by which specific information, or a class of information, becomes inaccessible on the internet from a certain space – whether inside a university, an office, or even a country. While traditionally it has been done by blocking/blacklisting certain URLs or even by key-word filtering, new generation filtering is done by more sophisticated methods such as denial-of-service-attacks and take down notices, among others. Two significant questions of law have emerged vis-à-vis filtering – (1) the restriction on the right to speech and expression and (2) intermediary liability.
The right to opinion and expression is protected under Article 19 of both the UDHR and the ICCPR, while provisions in regional charters on human rights and national constitutions protect the freedom of speech in different ways and to varying extents. Freedom of expression includes the right to not only speak but also the right to be heard and the right to receive information. Although not an absolute right, any restriction on this right must generally fulfill the three-fold test of legality, legitimacy and necessity. Filtering is a restriction on the right to expression as it chills speech and prevents access to information. However, whether this restriction is within the bounds of the law or not is the question that must be answered depending on the manner in which it is imposed. More often than not, governments do not formulate clear and foreseeable laws that allow for filtering. While some governments justify filtering as a means of protecting national security, public order, friendly relations, etc., others use it as a means of curtailing speech and controlling the dynamic medium of communication that the internet is. Disproportionate filtering on the internet has led to censorship in various countries.
The connected issue of intermediary liability has been the subject of considerable debate. Governments have been unclear about fixing responsibility for violation of filtering requirements.. Since the internet allows for considerable degree of anonymity, it is next to impossible to identify the speaker, so to say. This then has meant that governments have picked on easy targets in the form of Internet Service Providers, or ISPs who are the intermediaries between the users and the internet, to impose liability. This is problematic at two levels – on the one hand, ISPs are held responsible for controlling content whose creation they are not responsible for and on the other ISPs, which are private bodies, are entrusted with the responsibility of controlling content flow on the internet. Furthermore, owing to liability imposed on ISPs, they tend to err on the side of caution and thereby filter more content than originally intended.
3. State Access and Regulation of Encryption Codes
Encryption is a method used to encipher speech where the message (termed plaintext) is converted into code (ciphertext) by a process called scrambling, using a cryptographic key (or a pair of them). The receiver of the ciphertext necessarily needs a decryption key to unscramble the code into plaintext to understand the message. The key required to decrypt the information may or may not be the same as the encryption key, depending on the method of encryption used (for example: symmetric-key cryptography uses keys are closely related to each other, while asymmetric-key cryptography relies on dissimilar keys, and is much the stronger method). With the rapid development and proliferation of technology (encryption technology has grown from easily breakable codes into over 256-bit codes, which are virtually unbreakable), governmental concerns over the same have increased – especially given terrorism, crime and other security-related concerns. Regulation and monitoring of encryption is thus strictly followed.
However, restrictions on encryption-use raise pressing questions concerning freedom of expression, association and trade, and of privacy. Compulsory key-disclosure laws have been under attack for violating the rights of freedom of expression (by chilling speech and effacing anonymity) and privacy (the possibility of government monitoring, interception and wiretap of individuals, often without the need for judicial warrants or executive sanctions, is perturbing). Equally disquieting is the role of intermediaries such as Internet Service Providers and other telecommunication providers, in the form on government-mandated data retention and information-disclosure. Concerns about journalistic privacy, source protection and the protection against self-incrimination (as was elaborately discussed in the recent case of United States v. Boucher) are rife. These, however, currently stand pitted against arguably compelling interests such as national security and public order, given the dramatic increase in terrorism and governmental instability all over the world. The concerns of India and the U.A.E. over Research in Motion’s Blackberry Messenger, which utilises a strong encryption method, are a recent example. The effort is to find a regulation model that balances both sets of interests in this complex and vociferous debate.
The following sources delve specifically into the free speech implications of encryption regulation, and provide some sound theoretical, legal and technical basis for a balanced approach.