“국제인권법과 인터넷 접근권” – NDI 강의자료 (2022.10.5.)

글 | 박경신(오픈넷 이사, 고려대 교수)

2022.10.5. 오픈넷 박경신 이사는 국제민주연구소(National Democratic Institute)의 초청으로 “국제인권법과 인터넷 접근권(International Human Rights Law on Internet Shutdown)”이라는 주제의 강의를 진행했습니다. 강의 내용은 아래에서 자세히 보실 수 있습니다. 

International Human Rights Law on Internet Shutdown

Kyung Sin Park
Director, Open Net Association; Professor, Korea University
www.opennetkorea.org

Internet

• Why Internet? – give powerless individuals power of mass communication cf. telephone, postage (free $, unbounded)
• Political equality/democracy
• Economic equality/growth
• What laws protect internet?
• intermediary liability safe harbor
• network neutrality
• privacy
• How about internet shutdown?

International law

• Treaties
• International customary law – state practice + opinio juris (cf. IO practice)
• Jus cogens

International human rights law

• Treaties – International Covenant on Civil and Political Rights, ICESR
• International customary law – Universal Declaration of Human Rights
• Jus cogens – prohibitions against crimes against humanity, genocide, and human trafficking.

ICCPR

• 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. It may therefore 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.

There are other regional human rights treaties: Europe, Americas, and Africa

IO practice on international human rights law

• UN Human Rights Committee
• UN Human Rights Council
• UN Special Rapporteur on Freedom of Expression
• European Court of Human Rights
• African Commission on Human and People’s Rights
• Inter-American Court of Human Rights
• FOX Special Rapporteurs of Europe, Americas and Africa

Internet shutdowns

• Civilizational significance of internet
• Types
• Network shutdown (IS)
• Platform access ban (PB)
• General standard on evaluating state actions

(i) it must be provided by law, which is clear and accessible to everyone (principle of legality);

(ii) it must pursue a legitimate aim (principle of legitimacy); and (iii) it must be proven as strictly necessary and the least restrictive means required to achieve the purported aim (principles of necessity and proportionality)

Global trends

• Most in India 121/213 in 2019; none in OECD
• Most shutdowns in Asia and Africa (ex. Russia, Venezuela, Brazil, Turkey)
• Lack of transparency on reason why
• 91 “public safety cases” à 1/3 to limit demonstration (2018)|24, ½(2019)
• 33 “fake news/hate speech” à 12 to stunt political discourse (2018)|33, many (2019)
• China’s “technical problem” shutdown
• To cover up 33 incidents of state violence (2018)
• Exam shutdown à dulls sensitivity
• Targeted shutdown sometimes worse 
• geographically targeted shutdowns à exclusion and discrimination against minorities: Myanmar

Substantive standard

• 2011 UN HRCee’s GC 34, para 34 – “must be content-specific”, “generic bans not allowed on certain sites and systems”
• UNHRC “online=offline” (2012, 4, 6, 8) – what does it mean? Existence of online ”as a precondition”? Watertight censorship not possible offline, possible only online. Internet as a dangerous space
• UNHRC 2012 “facilitate access” à 2016 “should not prevent or disrupt access to info dissemination in violation of int’l law”

Cases

• Yildirim (ECtHR) : court order blocking all Google Sites for insulting Ataturk
• “significant collateral effect”
• Internet – “one of the means”?
• Akdeniz (ECtHR): court order blocking myspace.com(music site) for copyright protection
• Copyright protection not raising “matters of general interest”
• Site? Or reason?
• Telekabel (ECtHR) – court order blocking for copyright – conditioned on non-interference with access
• Cartier(ECtHR) – court order blocking for trademark – appeals process
• Cengiz (ECtHR) – court order blocking of Youtube for Ataturk
• UN & regional FOX Special Rapporteurs – mainly condemning from N/P angle and protecting access to knowledge
  • IACHR no case but IA Commission of HR: “prior censorship”
• Prior censorship : pre
• Brazil domestic court : retaliatory blocking undone

IHL Standard

• Given the absolute languages used by international human rights bodies and regional and domestic courts, shutting down the entire Internet in any region is a clearly excessive measure — even if it is done for innocuous purposes of preventing cheating at examinations —  since it shuts down the full variety of communications enabled by the Internet that are not related to the purpose of the shutdown, and is therefore deemed a violation of human rights. 
• Likewise, blocking an entire social media platform also can never be a measure proportionate to the purpose desired.  Blocking of a social media platform, the topic of this research effort, is especially more disproportionate than blocking of an ordinary website since the social media platform has much more diversity of authors and contents that are not related to the purpose of the blocking. The only exception, out of Europe, is blocking of a special purpose platform such as music sharing executed for the purpose of protecting intellectual property rights but it may not be an exception after all because the breadth of communications on the music-only platform is not so wide as to make its blocking automatically excessive. 
• Even when social media platforms are shut down to respond to the fake news causing hate crimes against minorities, research indicates that shutdown only makes the situation more volatile and takes away information that can save lives.  As AccessNow states, “Whether they are justified as a measure to fight “fake news” and hate speech or to stop cheating during exams, the facts remain the same: internet shutdowns violate human rights.”
• Furthermore, as pointed out by European and American human rights bodies, Internet shutdown or social media platform works as a “prior censorship” as to the contents that have not yet appeared online or on that blocked website.  The prior censorship argument has been effective in invalidating shutdowns and blockings in major court cases.

Challenges of drafting a “Model (soft international) Law” on Internet shutdowns

• Definitional: internet shutdown vs platform blockings
• What are we fighting for? PB can be damaging as IS but PB bleeds into blocking-type content moderation which we cannot completely ban
• Legal: ITU Constitution Ch. IV-4, Article 34(2) – States reserve the right to cut off private telecommunications dangerous to national security
• Structural: ISPs receiving grant of public goods – bandwidth and easement on underground conduits and electric poles à “public interest obligations” à who decides what is in public interest à open up legal room for govt to engage in internet shutdown

Recommendations

• Shutdown &  general purpose platform blocking  – not allowed at all times even regionally unless consented to by users
• Special purpose platform blocking (Akdeniz) & non-platform blocking (& takedown)– judicially ordered – if urgent, administrative appeal (Germany)
• Judicial standard must N/P and must include ‘prior censorship’ analysis (Inter-American Com HR)and ‘retaliatory ban’ analysis (Brazil Whatsapp ban)
• ISPs disciplined only civilly, should not involve shutdown of service à if license taken away, public “taking”

Cases of internet shutdown(?) in South Korea that Open Net was involved in

• Northkoreatech.org
• Womad.life
• Womenonweb