This piece is exerpted from the Law, Borders, and Speech Conference Proceedings Volume. The conference, convened by Stanford's Center for Internet and Society, brought together experts from around the world to discuss conflicting national laws governing online speech -- and how courts, Internet platforms, and public interest advocates should respond to increasing demands for these laws to be enforced on the global Internet. For two weeks in January 2018, we will be posting these materials on the CIS Blog. The Proceedings Volume itself contains these and other resources, including reading lists, conference slides, and results of participant surveys. It is Creative Commons licensed for re-use in teaching materials and elsewhere.
Panel Summary by Agustina Del Campo
- Agustina Del Campo - Director, Center for Studies on Freedom of Expression and Access to Information CELE at Universidad de Palermo
- Jason Pielemeier - Special Advisor and Section Lead, Internet Freedom, Business and Human Rights, Bureau of Democracy, Human Rights, and Labor, US Department of State
- Paul Schabas - Partner, Blake, Cassels & Graydon LLP, Toronto
Rights guaranteed under the Universal Declaration of Human Rights are supposed to be just that: universal. Human rights litigators have in some cases sought redress in one country’s courts for harms in another; they are also often on the forefront in opposing national court orders that conflict with free expression and other fundamental rights. How does human rights law affect outcomes when different countries prioritize different rights—such as privacy or free expression? What unique issues are posed by human rights law for cross-border orders regulating online speech?
Without a doubt, human rights law provides an important framework for the discussion of cross-border speech regulation. The International Covenant on Civil and Political Rights (ICCPR) in Article 19 clearly states the right to express opinions and ideas “regardless of frontiers” and the Internet is a particularly relevant tool and platform for the exercise of this right, both in its individual and social dimensions. There was a common underlying basic agreement among the different panelists as to the need to include a human rights perspective in content removal discussions, whether judicial, regulatory or legislative.
The three panelists shared the view that human rights law may and should contribute to determinations of cross-border speech regulation as well as content regulation and Internet regulation more broadly.
Paul Schabas presented first with a call for judicial attention to the principles of comity and proportionality. As an experienced media rights attorney and author to the amicus curiae brief submitted by the organizations Article 19 and Human Rights Watch, among other organizations, in the Equustek case—before the Supreme Court of Canada, he argued for the need to bring Article 19 of the ICCPR as a framework and structure to disputes involving or potentially implicating cross-border content removals.
While comity was first understood as the need to respect and fulfill foreign judgments in other jurisdictions, after the libel tourism cases that put the US and Great Britain at odds in their interpretation of the right to freedom of expression vis a vis the right to reputation, a new understanding of comity arose. The new notion of comity, Schabas argued, is based on respect for different jurisdictions and their different understandings of the law. This new understanding in turn, brought judges, in Canada at least, to refer to judicial restraint in cases of cross border speech regulation. And this is precisely the basis for the argument in the Equustek amicus brief.
In Equustek, like in the French Data Protection Authority’s global de-listing decision on the “Right to Be Forgotten,” Schabas suggested that the Courts in Canada are overreaching their own jurisdiction, extending it beyond their borders. And like the Google Spain “Right to be Forgotten” case, there is no mention of the principle of proportionality to frame the reasoning for the decision-making process. As Schabas, and Article 19 and Human Rights Watch argued, there is a need to look at content removal orders from the standpoint of international human rights law, particularly Article 19 of the ICCPR. And while Article 19 has exceptions, limited and narrowly tailored, it is for the States to interpret and balance them within a range of interpretation consistent with the ICCPR. Where one State interprets a universal right in a manner that is permissible within the “margin of appreciation,” other States should respect that interpretation and not seek to impose their own, different understanding of the right. There is a recognition that we have common values that need to be balanced per the proportionality test, taking into account the impact on free expression, the impact on intermediaries, the efficacy of a decision, etc. And there is also a need to take comity into account, bearing in mind that if Canada adopts an overreaching decision and expects it to be complied with, other States, including those not respectful of human rights, may do the same and expect Canada to execute their decisions.
Next in order, Jason Pielemeier, speaking in his personal capacity, described three fact patterns that frame important challenges for policy makers.
The first fact pattern was that of the Kidane v. Ethiopia case, where a foreign government, using commercially available tools, is alleged to have illegally accessed the personal computers of a US citizen. The attack was allegedly triggered by Mr. Kidane’s vocal and organized opposition to the hacking government, the government of Ethiopia. The case is being appealed after a District of Columbia district court decided the Wiretap Act doesn’t create a right of action against a foreign State in US courts.
The second fact pattern concerned a State-directed cyber-attack against a company physically located in the US in retaliation for an act of expression considered offensive. The facts coincided with the Sony Pictures Entertainment hack, which the US attributes to the government of North Korea.
The third fact pattern related to a sophisticated and novel form of Distributed Denial of Service (DDOS) attack against Github attributed by cybersecurity experts to the Chinese government in April of 2015. The fact pattern involved the planting of malicious code into email traffic to direct it to unwittingly attack websites which hosted content that would otherwise be censored by the attacking government.
Each fact pattern, as explained by Pielemeier, clearly restricts the free flow of information. However, calling them human rights violations, particularly under the ICCPR, would imply that the ICCPR applies extraterritorially (outside of areas under the responsible government’s “territory and jurisdiction”), which runs against the official position of the United States and some other governments. The US government does not recognize the extraterritoriality of the ICCPR and interprets Article 2 narrowly. Article 2.1 states “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The US government understands the ICCPR to apply only to people who are within its territory AND, rather than OR, under their jurisdiction. Some other governments and regional courts apply an “effective control” test to determine where jurisdiction may exist outside of a country’s territory but it is unclear whether “effective control” could be established in any of the illustrative fact patterns.
If human rights law doesn’t attach to the fact patterns described, then it is harder to conceptualize their relationship to existing norms and expectations, as well as to justify appropriate responses. The lack of an appropriate response could in turn create an incentive for the recurrence and multiplicity of such attacks. Pielemeier concluded by explaining that the US government is working with other governments to develop a broader set of norms for state conduct in cyberspace during peace time, and has on occasions called out these attacks as against existing norms but has stopped short of calling them human rights violations per se.
Finally, the third speaker Agustina Del Campo focused on the framework provided by the Inter-American system for the protection of human rights and what that framework may contribute towards the cross-border regulation of speech dilemma. The presentation started by describing the very strong protections that the American Convention and the Inter-American jurisprudence have set forth for the region. In the Inter-American system prior censorship is expressly prohibited and limitations may only be legitimate in the form of subsequent liability and following the three part test: legality, necessity and proportionality. Most of the cases heard by the Inter-American Court arise from violations caused by the judiciary in their interpretation of the balancing test, and pivot around proportionality issues. The Inter-American Court of Human Rights has set particularly strong standards to protect public interest expression, expression related to public officials or candidates, and speech related to human rights violations.
Having set the basic framework for the protection of freedom of expression, Del Campo described the framework for reparations developed by the Court in an effort to assess if and how they may affect content removal and cross-border speech regulation. International law dictates that a breach of international law carries a duty to repair it. The UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law propose four different means to repair human rights violations: restitution, compensation, satisfaction and measures of non-repetition.
The preferred means of reparation for the Inter-American Court is restitution. And it has ordered restitution in a number of freedom of expression cases, ordering both the production, the suppression and the restitution of information to its original format. The case of Ivcher Bronstein vs. Peru, for example, concerned indirect restriction to freedom of expression—whereby Mr. Ivcher was deprived of his nationality in order to strip him of his rights and of shares he owned in a television network as retaliation for his editorial line. The Court ordered that the shares be returned to him. In Herrera vs. Costa Rica and Canese vs. Paraguay, two cases of disproportionate criminal defamation convictions, the Court found violations of freedom of expression and ordered the State to annul the convictions and exclude them from the defendants’ criminal records. In Herrera, the Inter-American Court also reversed the domestic court’s order requiring an online newspaper to link to that court’s judgment. In most of its cases, whether on freedom of expression or not, the Court has also ordered that its decision be published in a government website for at least a year and at least once in a widely distributed national newspaper. And in the cases of Manuel Cepeda Vargas and Gomez Lund, the Court ordered that a documentary be produced to remember the victims and their particular contributions to their respective fields.
Per the jurisprudence cited to, in Del Campo’s terms, there is broad protection of freedom of expression and a duty, once a violation is declared, to repair it effectively. Whenever possible, reparation should be through restitutio in integrum, which in some cases may entail the production and/or suppression of information. In this context, issues that may require further attention include: Under the strict test that the Inter-American system developed to protect free speech, what would a declaration of a violation to this right entail in terms of reparation? If upon a finding of a human rights violation, content is ordered to be produced, reinstated or removed, what should the scope for such an order be to comply with “restitution”?
Upon the panel finalizing their presentations there were a number of questions posed, starting with the conference hostess, Daphne Keller: A panel earlier mentioned a sort of arms race between geoblocking and circumvention and potential legal consequences for those utilizing and producing circumvention tools abroad. The US State Department Bureau of Democracy, Human Rights and Labor (DRL) has been financing the development and dissemination of tools that allow people to circumvent censorship. How is DRL dealing with the issues? And to the rest of the panel, are there human rights-based arguments to support the legality of the tools for circumvention? Particularly how does the “regardless of frontiers” language work?
Pielemeier confirmed that an important part of DRL’s work includes supporting the development of circumvention tools to counter censorship. However, the case has not arisen where an organization that DRL was financing was found liable for that circumvention work. Still, he did agree with prior panelists that it’s an important issue that could need to be addressed in the near future.
Going to the nature of geoblocking, Schabas manifested his concern as to the limitations that geoblocking poses to information seekers and the lack of effectiveness of such tools. He went on to describe, without naming, the case of a famous couple, where one was English and the other Canadian, who litigated in England seeking to geoblock certain content pertaining to them and eventually sought to implement such geoblocking in Canada as well. Per the example, he concluded, it would be very hard for different countries to agree on how to balance rights and there should be room to respect each other’s decisions.
Professor Lea Shaver contributed an interesting question: we keep talking about comity, reciprocity and judicial restraint. However, the fact that we respect other’s decisions doesn’t necessarily mean that they will respect ours and vice-versa, or in the same kinds of cases. So, she asked, is it a zero-sum game, where it’s all or nothing? Should there be rules on when extraterritorial jurisdiction should be acceptable and when it shouldn’t? What lines could be drawn for when content should be removed cross-borders or not?
Among the panelists, some considered that human rights norms were not that clear and human rights conventions have built in flexibility that challenge their universal application for these disputes. The lack of a universal court that could eventually resolve these issues came up as an issue that adds to the argument. However, others considered that the interpretations and guidelines of the different human rights supervisory bodies are not that different and may provide an underlying basis for the discussion. The issue remains, though, as to how to deal with States that are not a party to any human rights treaty?
Ambassador Eileen Donahoe then asked: Among those that have agreed with the ICCPR, could human rights law provide a minimal bottom line? Can/should a regime be created for rights-respectful States, whereby per some basic rules, no extraterritorial application will be allowed if the remedy sought implies a violation of a human right per the understanding of another?
Pielemeier addressed the question and noted that one possible basis for determining when national law should apply extraterritorially could be the distinction in human rights law between “gross” and ordinary violations. He warned that certain decisions and standards, regardless of the jurisdictional reach, posed issues and concerns, like the “Right to Be Forgotten” decisions. These kinds of decisions generate dangerous precedents for countries looking for excuses to censor speech. Still, some norms can be developed among rights-respecting States and there are efforts underway already, like those being produced through the Freedom Online Coalition, that are moving in that direction. With that, the panel ended.
 Brief of Human Rights Watch, Article 19, Open Net (Korea), Software Freedom Law Centre and Center for Technology and Society, Google v. Equustek, available at https://cis-static.law.stanford.edu/cis/downloads/HRW Equustek.pdf.
 European Court of Justice, Google Spain SL v. Agencia Española de Protección de Datos (AEPD), Case C-131/12, May 13, 2014.
 The appeals court later affirmed this ruling. Kidane. V. Ethiopia, 851 F.3d 7 (2017).
 InterAmerican Court H.R., February 6, 2001, Series C No. 74, available at http://www.corteidh.or.cr/docs/casos/articulos/Seriec_74_esp.pdf.
 InterAmerican Court H.R., July 2, 2004, Series C No. 107, available at http://www.corteidh.or.cr/docs/casos/articulos/seriec_107_ing.pdf.
 InterAmerican Court H.R., August 31, 2004, Series C. No. 111, available at http://www.corteidh.or.cr/docs/casos/articulos/seriec_111_ing.pdf.
 InterAmerican Court H.R., May 26, 2010, Series C No. 213, available at http://www.corteidh.or.cr/docs/casos/articulos/seriec_213_ing.pdf.
 InterAmerican Court H.R., November 24, 2010, Series C No. 219, available at http://www.corteidh.or.cr/docs/casos/articulos/seriec_219_ing.pdf.