[governance] Indian court orders Internet sites to remove content

Mon Dec 26 16:47:29 EST 2011

>
>
>>
> One way to examine the situation is to try to work out which is the
> greater "right": for someone to freely insult or distress me, or for me to
> protected from those who would insult or distress me.
>
> It doesn't help when different cultures have different values when it
> comes to defining what an "insult" or "causing distress" might be. To that
> extent, sometimes people will look to their government to apply some
> broad-brush rules on their behalf.
>

For example Dan Brown's book on the Da Vinci Code and Salman Rushdie's book
on the Satanic Verses come to mind. Both incited ill feeling (putting it
mildly) in communities around the world who felt that their religious views
were trampled upon.  As such Freedom of Expression is something that people
in this day and age cannot take for granted. We continue to see threats
against Freedom of Expression from Congo as Alain Ilunga showed us in his
email to the list highlighting threats :
http://www.eurasiareview.com/23122011-dr-congo-sms-messaging-suspended-until-further-notice/
 .

>
>

> This was debated in the early seventies in the United States in * Cohen v
> California *469 U.S. 879; 105 S. Ct. 243;83 L. Ed. 2d 182; 1984 U.S.  I
> am not certain whether this has been overturned. It's about Freedom of
> expression and involved a guy wearing a Jacket saying, "Fuck the Draft" in
> the Court corridors in a time where they were sending young men off to way
> ("Draft"). The entire judgment or brief is available on the website. It is
> possible that the judgment has been overturned am not certain but it is
> useful to see the kind of debate that occurs.
>

Frank La Rue (Special Rapporteur) in his Report to the Human Rights Council
(accessible via
http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf)

states in page 8 of the Report that any limitation to the right of freedom
of expression must pass a *three-part cumulative test* (excerpt from Report
are highlighted below):-

*(a) It must be provided by law, which is clear and accessible to everyone
(principles of predictability and transparency); and*

*(b) It must pursue one of the purposes set out in article 19, paragraph 3,
of the Covenant, namely (i) to protect the rights or reputations of others,
or (ii) to protect national security or of public order, or of public
health or morals (principle of legitimacy); and*

*(c) It must be proven as necessary and the least restrictive means
required to achieve the purported aim (principles of necessity and
proportionality).*

*Moreover, any legislation restricting the right to freedom of expression
must be applied by a body which is independent of any political,
commercial, or other unwarranted influences in a manner that is neither
arbitrary nor discriminatory, and with adequate safeguards against abuse,
including the possibility of challenge and remedy against its abusive
application.*

*25. As such, legitimate types of information which may be restricted
include child pornography (to protect the rights of children),8 hate speech
(to protect the rights of affected communities),9 defamation (to protect
the rights and reputation of others against unwarranted attacks), direct
and public incitement to commit genocide (to protect the rights of
others),10 and advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence (to protect
the rights of others, such as the right to life).*

 Rui Correia had also suggested a book for reading to the IGC list some
time ago on the list which was published by UNESCO called
Freedom of Connection Freedom of Expression: The Changing Legal and
Regulatory Ecology Shaping the Internet (http://www.amazon.com/Freedom
-Connection-Expression
-Changing-Regulatory/dp/9231041886/ref=sr_1_1?ie=UTF8&qid=1319404985&sr=8-1)

This should make excellent reading, I am sure although I have not read it
yet. :(
-- 
Salanieta Tamanikaiwaimaro aka Sala

Tweeter: @SalanietaT
Skype:Salanieta.Tamanikaiwaimaro
Cell: +679 998 2851
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