[governance] Religiously objectionable material on the internet
Salanieta T. Tamanikaiwaimaro
salanieta.tamanikaiwaimaro at gmail.com
Sat Jan 14 21:26:45 EST 2012
On Sat, Jan 14, 2012 at 4:51 PM, Aldo Matteucci <aldo.matteucci at gmail.com>wrote:
>
>
> The intersting question here is whether this is an instance under (2.i) -
> protect the rights or reputation of others.
>
The second limb or test that you were referring to in La Rue’s Report
refers to Article 19 of the International Covenant on Civil and Political
Rights (ICCPR) which reads:-
*Article 19*
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:
1. For respect of the rights or reputations of others;
2. For the protection of national security or of public order (ordre
public), or of public health or morals.
(Underling and highlighting for emphasis are mine). Inherent within this
Article is the notion that rights are not absolute. What is clear from this
is that there is a sense or an express insinuation of "duties and
responsibilities". I am of course thinking of what the drafters had in mind
as they put these together and I can think of a number of illustrations
some fiction and others hypotheticals:-
- Consider Iran which holds the Satanic Verses by Salman Rushdie to be
banned from entering Iran because it is their belief that it is offensive
and an assault to their religious freedoms;
- Consider Dan Brown's book the Da Vinci Code and the subsequent movie
created from the book;
There are many ways to perceive this situation. One is that Salman Rushdie
and Da Vinci have the freedom and right to freely express himself in any
shape or form. However there are those who may subscribe to views (usually
religious views) who may feel offended from the type of material that is
disseminated. For some the material may be too offensive and as such
consider it their mission to speak out or to address the matter through
protests, reforms etc. This is probably why you have laws that prohibit
"obscene publications". The laws against obscene publications exist out of
concern of the rights and respect for others. To use an "extreme"
illustration, imagine a first tiered law firm where the Partners were
interviewing people to hire as Associates, they would all be properly
dressed in suits or formal wear and not in bikinis and slippers etc. In
other words there is always a context - there is a place where you are free
to dress as you please and in other environments social consciousness and
unwritten codes demand that people act, dress or behave in a certain manner.
There are some airports around the world that will not let you in if your
shorts are above your knee. The point I am trying to illustrate is that
rights are not void of responsibilities especially where these affects
others. Determining the limitations of these is something that societies
consciously (through Judgments in court or laws) or subconsciously
constantly engage in. In Article 19 of the ICCPR highlights the limitations
as those that are provided by law. In this instance, that is Vinay Rai's
Petition as per the article, it appears that India has laws against obscene
publications. So the crux of the matter would be whether the material is
"obscene" in the eyes of the Courts in Delhi.
> The line apparently taken by Mr Raj is that the mere *existence* or
> presence of offensive material on the net affects his "rights". He can
> cruise the net as long as he wants whitout these pictures imposing
> themselves on him - unless he deliberately clicks the offensive site.
>
I am not taking Vinay Rai's side but am trying to understand where his
petition is coming from. I am guessing that he holds the view that just as
nation states can control products and services that enter India through
Customs and Excise Authorities through international trade instruments, in
the form of border control, that likewise India can determine the degree
and nature of content that is accessible to the masses in India. Countries
decide all the time what is allowed in and out of their country and in some
instances there are contrabands where systems are stringent.
Of course in the discussions on internet governance there are all kinds of
debates and discussions from diverse perspectives. What are the various
lenses within regulation of the internet should be viewed:-
1. Is it self-regulating?
2. Should it be regulated nationally?
3. Should it be regulated internationally?
>
> I tend to disagree on your definition of "open site". "Open" is only
> something that I cannot avoid, or which is collateral to my going about my
> normal life. I'd have a right, it seems to me, not to have explicit adverts
> for sexuals favours appear on the right side of my eMail as I go about my
> correspondence. These adverts are thrust upon me irrespective of my will.
> Everything else is merely "accessible" and subject to my willful choice. I
> can exercise my choice in ways that avoid contact with material that is
> offensive to me.
>
I see where you are coming from. I don't hold strong views on the same
just enjoy deconstructing and reconsructing ideas and seeing the rationale
behind positions.
>
> Best regards to Fiji
> last time I was there I saw Comm. Bainimarama play touch football across
> the street of Holiday Inn - it was his first day in power...
>
Assuming this was the 6th December 2006 I was in Court during the State v
Rabuka matter and remember witnessing the Judges committment to affirming
the rule of law. Much has happened since and regards to your country as
well.
>
> Best Regards from Fiji,
>
Sala
>
> On 13 January 2012 21:21, Salanieta T. Tamanikaiwaimaro <
> salanieta.tamanikaiwaimaro at gmail.com> wrote:
>
>> Frank La Rue in his Report as Special Rapporteur is on record for stating
>> that "any restriction to freedom of expression must meet the *strict
>> criteria* under international human rights law". He went on to discuss
>> at great lengths the restrictions of content on the internet in Part IV of
>> the Report which can be found here:
>> http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf
>>
>>
>> La Rue was very careful to say the following:-
>>
>> *"As with offline content, when a restriction is imposed as an
>> exceptional measure on online content, it must pass a three-part,
>> cumulative test: *
>> *
>> *
>> *(1) it must be provided by law, which is clear and accessible to
>> everyone (principles of predictability and transparency); *
>> *(2) it must pursue one of the purposes set out in article 19, paragraph
>> 3, of the International Covenant on Civil and Political Rights , namely:
>> (i) to protect the rights or reputations of others; (ii) to protect
>> national security or public order, or public health or morals (principle of
>> legitimacy); and*
>> * (3) it must be proven as necessary and the least restrictive means
>> required to achieve the purported aim (principles of necessity
>> and proportionality). In addition, 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. There should also be adequate
>> safeguards against abuse,including the possibility of challenge and remedy
>> against its abusive application."*
>> *
>> *
>> Having tried to access New Delhi's Legal Database, I noted that nothing
>> has been published on the site as yet. However, presuming that what is
>> reported in the article is true that there was a Private Criminal Matter in
>> the District Court of New Delhi and in light of the reported unsuccessful
>> stay in the High Court and brief mention of India's Penal Code on on
>> "obscene publications".
>>
>> In India's case Vinay Rai's Petition (caveat: I have not read the
>> Petition but based on the presumption that what was sparsely reported is
>> true) fulfills the first test. It will be interesting though to see how
>> Courts all over the world have defined "publication".
>>
>> The difference between postal traffic and emails are that they have an
>> intended audience as opposed to having open sites etc. I am not taking
>> sides in this matter but am interested in seeing the rationale and various
>> philosophies that lie behind any decision making process.
>>
>> It may be worthwhile to organise a Webinar or Debate on the matter if
>> someone is willing to lend their facilities for free to enable this, we can
>> try and get La Rue to participate and have a few volunteers etc
>>
>> Sala
>>
>> On Sat, Jan 14, 2012 at 12:41 AM, Aldo Matteucci <
>> aldo.matteucci at gmail.com> wrote:
>>
>>> Religiously objectionable material on the internet
>>>
>>> *Posted on January 13, 2012* by *Aldo Matteucci<http://deepdip.wordpress.com/author/aldomat/>
>>> *
>>>
>>>
>>>
>>>
>>> The following report from India[1]<http://deepdip.wordpress.com/2012/01/13/religiously-objectionable-material-on-the-internet/#_ftn1>has reached me: “
>>> *The Delhi High Court on Thursday warned social networking site
>>> Facebook India and search engine Google India that websites can be
>>> “blocked” like in China if they fail to devise a mechanism to check and
>>> remove objectionable material from their web pages*.” (…) “*The case
>>> centres on a petition filed in December by a man named Vinay Rai, who
>>> referred to obscene depictions online of Jesus Christ, the Prophet
>>> Mohammed, and various Hindu deities. In response, a Delhi magistrate
>>> summoned the executives of 21 companies and suggested they face trial for
>>> criminal conspiracy*.”
>>>
>>> If the issue as described above is the whole story, what is now before
>>> the Delhi High Court (DHC) adds a twist to the age old issue of the *responsibility
>>> of the provider* (of the transmission support) for the content that is
>>> transmitted. Take two equivalent cases:
>>>
>>> - Assume “objectionable” material is sent through the *mail*. Is the
>>> Post Office bound to vet the content of every letter? Would the DHC block
>>> postal traffic if the Post Office fails to devise mechanisms to check and
>>> remove objectionable material? I doubt the DHC would act in this way.
>>> - Assume “objectionable” material is put in an “advertisement
>>> section” of a paper. Is the newspaper bound to vet the content of each
>>> *advertisement*? I suspect jurisprudence says it does.
>>>
>>> Different standards are upheld – depending on the judicially perceived
>>> feasibility of “vetting”, and, I’d say, the prejudice of the court. If the
>>> Postal Office belongs to my country’s friendly Crown, it will get off
>>> easily when it declares itself unable to do the vetting. Internet providers
>>> are all-powerful “foreign devils”.
>>>
>>> But the core issue before the DHC seems to me actually to be another
>>> one. In the olden days the main issue was one of (political and morals)
>>> censorship – the state vs. the individual. The DHC case and other similar
>>> cases, however, appear to refer to *Government involvement on behalf of
>>> privacy rights of third parties*.
>>>
>>> - “Objectionable” material about real places and people is put into
>>> a *novel* – e.g. the novel is set in sea resort, which is described
>>> as “dreary”. Or a hideous crime is described as taking place in a named
>>> neighborhood. Is the publisher bound to vet the content of the novel, lest
>>> such “collateral” comments be judged defamatory? It is, apparently: in
>>> France a host of lawyers go through a novel to purge it of any derogatory
>>> material it may contain regarding real persons and places. I suspect that
>>> Baudelaire’s quip: “*pauvre* *Belgique*” or Zola’s social novels
>>> would no longer be permitted to see the printer’s ink, nowadays.
>>> - A gyration of this is taking place in Switzerland, where GoogleMap
>>> has been enjoined to blank out faces and number plates of cars in front of
>>> buildings it has photographed.
>>>
>>> A similar scenario appears now to be before the DHC. The DHC is not
>>> asked to protect the interests of the state (India is a secular state) but
>>> ostensibly to protect the rights of private persons – those of Mr Vinay Rai
>>> and religious people like him – in this case to have his religious feelings
>>> untrammeled by offensive images.
>>>
>>> Please note the extensive interpretation of the right. Protection
>>> extends, beyond immediate exposure to offensive material, to the very
>>> notion that this material exists and is available. Mr. Vinay Rai need not
>>> see the offensive pictures, while he surfs the net, and he will not, unless
>>> he actively seeks them. He objects to the very fact that they be there,
>>> protected by just a click from unwary eyes. Formulated in another way, the
>>> enforcement of morals – no longer much of a public issue – remerges as
>>> conflict over private rights.
>>>
>>> The DHC seems to argue that there is a privately held right to have the
>>> state censor religiously offensive material – which is available *on
>>> demand* – in order to protect “personal feelings”. If this is the case,
>>> then holding such material in the privacy of the home would also fall under
>>> the right.
>>>
>>> The Swiss Hugh Court has ruled that assisted suicide – which is legal in
>>> the country – could not be carried out in the privacy of a specified
>>> building because this activity infringed on the right of the plaintiff to
>>> pass undisturbed. Mere awareness the act might be carried out inside
>>> justifies judicial intervention (would this right also extend to orgies?).
>>> A subsequent referendum validated the right to assisted suicide, so
>>> Isuspect the judgment will hardly be enforced – but it sets a precedent.
>>>
>>> The battle over the “freedom of access” no longer is bilateral: between
>>> the individual and the (politically) oppressive state, but a triangular
>>> relation where the state is asked to intervene as a “protector of a private
>>> right”. It has a subsidiary interest in the matter to the extent that the
>>> circulation of religiously offensive images may be inflammatory.
>>>
>>> Cynically, once provider “vetting” is introduced to protect privacy, it
>>> will be extended by the back door to serve politics. Darkness parading as
>>> white knight – an irony fully worth of George Orwell. Note further that the
>>> “self-censorship” by a provider is unregulated, subject to neither judicial
>>> nor political review, and thus likely to be much more sweeping than the
>>> official one, which is bound by the Constitution as well as its need to
>>> sustain broad legitimacy. The provider will apply the “precautionary
>>> principle” quite broadly, given that he has no interest whatever in the
>>> content, and he may even provide the service for free. The state threat to
>>> shut the provider down is disproportionate and effective.
>>>
>>> *
>>>
>>> PS: In astronomy a “three body problem” was proven by Poincaré not to
>>> have a unique or absolute solution, but to be inherently chaotic.
>>> ------------------------------
>>>
>>> [1]<http://deepdip.wordpress.com/2012/01/13/religiously-objectionable-material-on-the-internet/#_ftnref1>
>>> http://www.ndtv.com/article/india/google-facebook-case-govt-to-serve-summons-to-foreign-sites-166543
>>>
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>>>
>>
>>
>> --
>> Salanieta Tamanikaiwaimaro aka Sala
>>
>> Tweeter: @SalanietaT
>> Skype:Salanieta.Tamanikaiwaimaro
>> Cell: +679 998 2851
>>
>>
>>
>>
>
>
> --
> Aldo Matteucci
> 65, Pourtalèsstr.
> CH 3074 MURI b. Bern
> Switzerland
> aldo.matteucci at gmail.com
>
>
--
Salanieta Tamanikaiwaimaro aka Sala
Tweeter: @SalanietaT
Skype:Salanieta.Tamanikaiwaimaro
Cell: +679 998 2851
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