Late Thursday evening, European lawmakers agreed on language in the Telecoms Package that is supposed to safeguard the fundamental rights to freedom of expression and access to information online as governments seek harsher penalties to address IP infringement. France recently approved a graduated response (or “three strikes”) law that would cut off Internet access for repeat copyright infringers. The UK is debating a similar proposal.
Civil liberties advocates first introduced “Amendment 138” in 2008 to protect Internet access as an exercise of the right to freedom of expression in the face of these graduated response proposals. In its original conception, the amendment required member states to provide strong legal and procedural safeguards where states or private parties impose Internet access restrictions for alleged repeat offenders. Few are happy with the final negotiated text, which retreats from this position:
3a. Measures taken by Member States regarding end-users’ access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.
Any of these measures regarding end-users’ access to or use of service and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process. Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy. A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with European Convention for the Protection of Human Rights and Fundamental Freedoms. The right to an effective and timely judicial review shall be guaranteed.
See how the language evolved here. Civil rights group European Digital Rights aptly points out that the final language does not require a prior formal adjudication of alleged infringement before access restrictions are imposed, merely a “procedure”. The provision also does not apply to restrictions imposed by private actors (only states), leaving open the danger that ISPs may be pressured into “voluntary” agreements by law enforcement or rights holders to accomplish what governments themselves cannot impose.
Regardless of the specific language, however, the debate highlights the core principle that Internet access has become essential for the exercise of fundamental human rights. The Internet and other new media have become primary sources of news and information, as well as essential platforms for communication, not only between individuals, but also between citizens and their government. As more of our everyday lives are “lived online” (finding a job, finding housing, finding a date, filing taxes, participating in the political process, interacting with any number of government functions), access to the Internet becomes all the more necessary for the exercise of our rights to freedom of expression and access to information.
Of course, recognizing the importance of Internet access to freedom of expression certainly doesn’t give Internet users free rein to break the law. However, government efforts to address bad behavior online must give full recognition to just how fundamental Internet access has become: to cut off access entirely is to drastically curtail the exercise of core human rights. While governments may decide that there are some crimes that are so egregious and harmful to society as to warrant such punishment — and we don’t believe civil violations including unauthorized file sharing comes close — then proportionality, due process, and a full and open debate must be central to the policy analysis, given the potential impact on human rights.