This article is also available in:
Deutsch: Freiwillige Sperrabkommen beeinträchtigen die Menschenrechte

Following the agreement of the EU institutions on a web blocking compromise text which fails to adequately address the lawless blocking which is undertaken in several EU countries, a careful reading of recent research on the legality of this approach is called for.

Last month, Professor Yaman Akdeniz (Istanbul Bilgi University, Turkey) prepared a report on Freedom of Expression on the Internet for the Organisation for Security and Cooperation in Europe (OSCE). The report contained an investigation on legal provisions and practices related to freedom of expression, the free flow of information and media pluralism on the Internet in OSCE participating States.

In his study, Professor Yaman Akdeniz observed that blocking measures in the OSCE region are not always provided for by law nor were they always subject to due process principles. In particular, he noted that blocking decisions were not necessarily taken by the courts of law, but by administrative bodies or Internet hotlines run by the private sector. They decided which content, website or platform should be blocked. In many cases, such "voluntary" blocking procedures lacked transparency and accountability. In addition, the appeal in such procedures were either not in place or, where they were in place, they were often not efficient. That is why the compatibility of blocking with the fundamental right of freedom of expression must be questioned.

In particular, in the absence of a legal basis for blocking access to online content, the compatibility of "voluntary" blocking agreements and systems with OSCE commitments, Article 19 of the Universal Declaration and Article 10 of the European Convention on Human Rights was problematic. Also, such a "voluntary interference" might be contradictory to the conclusions of the Final Document of the Moscow Meeting of the Conference on the Human Dimension of the CSCE.

With regard to the compatibility of blocking with the fundamental right of freedom of expression, Professor Akdeniz also pointed out that both the 1994 Budapest OSCE Summit Document and the European Court of Human Rights reiterated the importance of freedom of expression as one of the preconditions for a functioning democracy. In Budapest, "(t)he participating States reaffirm(ed) that freedom of expression is a fundamental human right and a basic component of a democratic society. In this respect, independent and pluralistic media were essential to a free and open society and accountable systems of government." According to Akdeniz, an "effective" exercise of this freedom does not depend merely on the state's duty not to interfere, but might require positive measures to protect this fundamental freedom. Consequently, a blocking system relying exclusively on self-regulation or "voluntary agreements" could be in a non-legitimate interference with fundamental rights.

Yaman A.: Report on Freedom of Expression on the Internet
http://www.osce.org/fom/80723

The Final Document of the Moscow Meeting of the Conference on the Human Dimension of the CSCE
http://www.osce.org/odihr/elections/14310

1994 Budapest OSCE Summit Document
http://www.osce.org/mc/39554

The Universal Declaration of Human Rights
http://www.un.org/en/documents/udhr/

The European Convention on Human Rights
http://www.hri.org/docs/ECHR50.html

EDRi-gram: OSCE: Access to the Internet should be a human right (13.07.2011)
http://www.edri.org/edrigram/number9.14/oecd-study-internet-freedom

(Contribution by Daniel Dimov - EDRi)