“인터넷 자유에 대한 단상” – PCSS 강의자료(2019.12.04.)

2019. 12. 4. 오픈넷 김가연 변호사는 독일 가르미슈 파르텐키르헨(Garmisch-Partenkirchen)에 위치한 마셜센터(George C. Marshall European Center for Security Studies)에서 운영하는 PCSS(Program on Cyber Security Studies)에 강사로 초대받아 ‘인터넷 자유에 대한 단상(Perspectives on Internet Freedom)’이란 주제로 강의를 진행했습니다. PCSS는 사이버 보안과 관련된 거버넌스 교육 프로그램으로 세계 각국의 고위 정부 관료들에게 사이버 영역의 복잡성에 대한 이해 및 사이버 전략과 정책 문제를 해결할 수 있는 기술을 제공하는 과정입니다.

1. What is Internet Freedom?

• Today, the internet has become a crucial medium through which people express themselves, share ideas and information, and communicate without borders. the global and open nature of the Internet and the rapid advancement in technologies are a driving force in accelerating progress towards development in its various forms.
• And the Internet became an indispensable tool through which democracy and human rights activists mobilize and advocate for political, social, and economic reform. At the same time, the Internet is a tool like any other; it can be used by both the good and the bad. Authoritarian states have devised subtle and not-so-subtle ways to filter, monitor, and otherwise obstruct or manipulate the openness of the internet. Even a number of democratic states have considered or implemented various restrictions in response to the potential political, economic, and security challenges raised by new media. Sadly, we are currently witnessing a general decline in Internet freedom.
• Then what is internet freedom?
  • They are basically the human rights and fundamental freedoms recognized by international human rights standards. One international and distinctive authority setting the standards is the UN.
  • UN General Assembly in its resolution said that “the same rights that people have OFFLINE must also be protected ONLINE,” which are the human rights and fundamental freedoms enshrined in the human rights laws.
• Those human rights more closely related to the Internet would be:
  • Freedom of expression and association
  • Right to access information
  • Right to privacy
  • Also, the right to Internet access, which undoubtedly became a fundamental right in the digital age.

2. Freedom of Expression Online

• “Freedom of opinion and freedom of expression are indispensable conditions for the full development of the person. They constitute the foundation stone for every free and democratic society.”
• So, States have a duty to promote and protect the free exercise of the freedom of opinion and expression. States should refrain from imposing restrictions on:
  • discussions on government policies and political debate;
  • reporting on human rights, government activities, and corruption;
  • engaging in election campaigns, peaceful demonstrations or political activities; and
  • expression of opinion and dissent, religion or belief, including by persons belonging to minorities or vulnerable groups

2.1. Core International Standards

Art.19 of the Universal Declaration of Human Rights of 1948

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Art.19 of the ICCPR (International Covenant on Civil and Political Rights)

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. Therefore, it may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

• States may restrict the right to freedom of expression under very limited circumstances. According to Article 19 (3), any restriction must be:
  • provided by law;
  • undertaken for the respect of the rights or reputations of others; protection of national security or of public order, or of public health or morals; and
  • necessary and proportionate to achieve a legitimate objective
• National security and counter-terrorism measures, including cybersecurity measures, must comply with the conditions if the measures restrict Freedom of Expression.
• According to the standards, criminal defamation and blasphemy laws are unlawful restrictions.
• “fake news”, hate speech, extremist contents? – coming soon

2.2. Internet Censorship

• Internet censorship is the control or suppression of what can be accessed, published, or viewed on the Internet enacted by regulators, or on their own initiative. Often called content restriction or moderation, somewhat narrower terms.
• The extent of Internet censorship varies on a country-to-country basis. While most democratic countries have moderate Internet censorship, other countries go as far as to limit the access to information such as news and suppress discussion among citizens.
• Internet censorship also occurs in response to or in anticipation of events such as elections, protests, and riots. Other types of censorship include the use of copyrights, defamation, harassment, and obscene material claims as a way to suppress content.
• Techniques
  • technical blocking: IP blocking, DNS tampering, and URL blocking using a proxy
  • filtering: keyword filtering, AI filtering on the rise
  • take-down order: court / government
  • search result removals

  Recent Challenges

• Restrictions on online expression are on the rise
  • States are introducing a range of measures to both directly censor online expression and to increase pressure on companies to restrict content on their platforms.
• Commercial rules on content moderation are too vague
  • Company policies on hate speech, extremist contents and other complex areas of expression remain vague and inconsistently enforced.

  A Human Rights Approach

• All kinds of restrictions on online speech are Internet censorship, and under international human rights standards, states are obliged to ensure that the censorship is lawful, necessary and proportionate.
• International human rights standards also gives companies the tools to develop policies and processes that respect democratic norms and counter unlawful demands from States.
  • e.g. The Guiding Principles on Business and Human Rights

 2.3. Intermediary Liability

   What is an Intermediary?

• This is an important issue regarding freedom of expression online, as most online expression today takes place over communications networks on platforms owned by private companies that are internet intermediaries.
• What is an intermediary? “any entity that enables the communication of information from one party to another.”

  What is Intermediary Liability?

• Intermediary liability refers to the “legal liability of Internet intermediaries for content contributed by, or activities carried out by, third parties.”
• Whether and when platforms like Google, Twitter and Facebook are liable for their users’ online activities is one of the key factors that affect innovation and free speech.
• All communication over the Internet is facilitated by intermediaries such as Internet access providers, social networks, and search engines. The policies governing the legal liability of intermediaries for the content of these communications have an impact on users’ rights, including freedom of expression, freedom of association and the right to privacy.
• As we are witnessing, governments around the world increasingly press intermediaries to block their users’ undesirable online content in order to suppress dissent, hate speech, privacy violations and the like. One form of pressure is to make communications intermediaries legally responsible for what their users do and say. This kind of liability regime that put platforms at legal risk for users’ online activity are a form of censorship-by-proxy, and thereby imperil both free expression and innovation, even as governments seek to resolve very real policy problems. 

  Manila Principles (2015. 3. 발표)

• With the aim of protecting freedom of expression and creating an enabling environment for innovation, which balances the needs of governments and other stakeholders, civil society groups from around the world have come together to propose this framework of baseline safeguards and best practices. These are based on international human rights instruments and other international legal frameworks.

2.4. Emerging Issues

  Disinformation

• Like all other restrictions on online expression, restriction on disinformation should comply with the international human rights standards.
• International standards on “spreading false information or rumor” is well established.
  • “public interest” or “social disturbance” are too vague objectives, incompatible with international standards.
  • Recently, Malaysia parliament scraps law criminalizing fake news that passed last year.
• States’ obligation:
  • should not make, sponsor, encourage or further disseminate statements which they know or reasonably should know to be false.
  • have a positive obligation to promote a free, independent and diverse communications environment, including media diversity.
• What about Russia? North Korea?
  • Existing laws capable of punishing the actors.
  • Need to focus on the actors and actions, not expressions 

  Hate Speech & Extremist Contents

• No universally accepted definition of “hate speech”
• Art.20 (2) of ICCPR states, “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”
• Three key elements:
  • only advocacy of hatred is covered;
  • hatred must amount to advocacy which constitutes incitement, rather than incitement alone; and
  • such incitement must lead to one of the listed results, namely discrimination, hostility or violence.

3. Right to Anonymity

  UN Special Rapporteur on Freedom of Expression:

• encryption and anonymity, and the security concepts behind them, provide the privacy and security necessary for the exercise of the right to freedom of opinion and expression in the digital age.
• It is also essential for the exercise of other rights, including economic rights, privacy, due process, freedom of peaceful assembly and association, and the right to life and bodily integrity.
• Because of their importance to the rights to freedom of opinion and expression, restrictions on encryption and anonymity must be strictly limited according to principles of legality, necessity, proportionality and legitimacy in objective.
• Blanket prohibitions fail to be necessary and proportionate. – Internet Real-name system
• States should refrain from making the identification of users a condition for access to digital communications and online services and requiring SIM card registration for mobile users. – Mandatory SIM card registration system

3.1. Internet Real-name System

  South Korea

• The first country to introduce the real-name system
  • In 2004, for online news media during the election period
  • In 2007, for all gov’t websites and large private websites
• Real-name system for private websites abolished by the Constitutional Court in 2012.

  China

• The Chinese government in 2011 promulgated its Regulations on the Development and Management of micro-blogging, which stated that micro-blogging sites should ensure users were registered under their real names. Major micro-blogging sites like Sina Weibo, 163 and Sohu agreed to put real name systems into practice by 16 March 2012. Users who had not provided their real information would be barred from posting and transmitting messages thereafter.
• On 1 June 2017, the Cyber Security Law of China took effect. The Cyber Security Law of the People’s Republic of China, commonly referred to as the China Internet Security Law, was enacted to increase data protection, data localization, and cyber security in the interest of national security.
  • The law explicitly requires most online services operating in China to collect and verify the identity of their users, and, when required to, surrender such information to law enforcement.

3.2. SIM Card Registration System

• South Korea introduced mobile phone real-name system, commonly called “SIM card registration system” in 2014.
• SIM card registration might occur through using an official ID, passport, or proof of address; in some countries, biometrics are also collected.
• Mandatory SIM card registration eradicates the potential for anonymity of communications, enables location-tracking, and simplifies communications surveillance and interception.
• The common justification is crime prevention, but the system proven ineffective in curbing crimes and instead fuelled crime such as identity theft, and created black markets. 

4. Access to the Internet

• Unlike any other medium, the Internet enables individuals to seek, receive and impart information and ideas of all kinds instantaneously and inexpensively across national borders. By vastly expanding the capacity of individuals to enjoy their right to freedom of opinion and expression, which is an “enabler” of other human rights, the Internet boosts economic, social and political development, and contributes to the progress of humankind as a whole. Therefore, Internet access itself is or should become a fundamental human right. Internet shutdowns are a restriction on the right to Internet Access.

  Internet Shutdowns

• Can be defined as an “intentional disruption of internet or electronic communications, rendering them inaccessible or effectively unusable, for a specific population or within a location, often to exert control over the flow of information.”
  • include blocks of social media platforms
• Usually perpetrated by states, in response to governance challenges ranging from elections and public protests to cheating on school exams.
• Internet shutdowns violate human rights, put people in danger, and harm the economy.
  • Internet shutdowns curtail freedom of expression, cut access to information, and can inhibit people from assembling and associating peacefully, online and off. In addition, during shutdowns, many victims are unable to reach their families, get accurate information to stay safe, or reach emergency services. Shutdowns disrupt businesses, schools, and ordinary lives, often exacting a significant financial cost.
• Therefore, the UN and other intergovernmental bodies have passed a series of important resolutions to condemn shutdowns and caution states against imposing them.