Freedom of expression on the Internet: allowed limits
Yuridicheskaya Gazeta, 27.11.2018
Natalia Lavrenova, attorney-at-law, associated partner at Legal Alliance Company
Nataliia Abramovych, associate at Legal Alliance Company
In the era of social network users do not think about what a regular post on Facebook or Instagram can cause in real life. It may seem that you have just expressed your opinion on a certain event, however, your post have been deleted by social network administration, or worse, you can be prosecuted. What is the reason?
Interpretation of freedom of expression
From the legal standpoint, posts on social networks are immediate realization of freedom of expression – a number of rights and freedoms enshrined in international and domestic regulatory acts.
The European Convention on Human Rights specifies that everyone has the right to freedom of expression. This right includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
Analogous provisions are enshrined in the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights, the Constitution of Ukraine (Article 34) and partly in the Civil Code of Ukraine.
Analyzing the abovementioned documents, one can conclude that freedom of expression covers 3 freedoms:
- freedom to hold opinions;
- freedom of information;
- freedom to express opinions.
The mentioned components are inextricably interrelated and realization of each of them depends directly on availability or absence of other two freedoms.
Freedom to hold opinions is a passive demonstration of freedom to express opinions and means, in particular, that a person shares and holds opinions, beliefs and ideas expressed by other persons. Bearing in mind that we are discussing the Internet and social networks, such support may be demonstrated in comments, likes and reposts.
It should be noted that the International Covenant on Civil and Political Rights (Article 19) does not allow limiting freedom to hold opinions, unlike freedom to express opinions. However, other regulatory acts extend the restriction on any demonstrations and components of freedom of expression.
Freedom of information, in its turn, has two components, namely right to receive and impart information.
The mentioned rights are enshrined in the Civil Code of Ukraine (Article 302), which state that an individual may freely collect, store, use and disseminate information.
Currently, the most spread way of receiving and imparting information is the Internet, the integral part of which is social networks. Therefore, the matter of ensuring access to the Internet is crucial to realize freedom of information.
Importance of accessing the Internet in terms of freedom of information is affirmed by the European Court of Human Rights in case “Times Newspaper Limited v the UK”which stated “due to ability of store and transmit huge amount of information, the Internet is crucial to enhance access of the public to news and to simplfy information transmission at all”.
Ensuring access to the Internet has repeatedly been a subject of discussion for the international community, since some states deliberately limit access to the Internet or its certain resources (not only due to technical impossibility of Internet provision).
In particular, such countries as Syria, China, Iran, Bahrein and Vietnam now are so called “Internet foes”, as they strictly limit access both to some resources on the Internet and the Internet as whole. Furthermore, governments of the mentioned countries actively follow service providers and published content, which quite often leads to infringements of rights to access to information and freedom of expression.
Freedom to express opinions stands for mostly active actions of a user, for example, making a text, photo or video post (or combination thereof) which can make other users understand ideas and opinions of a person who made the post.
Interpreting the term “freedom to express opinions”, the right to anonymity on the Internet should be mentioned as well.
Anonymity is an integral part of freedom to express opinion. Every person has the right to anonymity or pseudonym both in printed media and online sources.
However, the very publication of information on the Internet has made the issue of anonymity topical.
In particular, actions on the Internet remain virtually unregulated by the current legislation of Ukraine, except for internal rules and policies of social network or some resources, as well as general requirements for protection of rights, freedoms and interests of a human enshrined in international and domestic acts. Consequently, it becomes impossible to identify a person who published the information (it such information is contrary to law).
In connection with the abovementioned, social networks in their own terms of use set some requirements to identification. For example, Facebook started to insist on user identification, and also is introducing the real name policy.
Ukrainian law enforcement agencies and courts receive information about a person who owns a corresponding profile on a social network, including in the following ways: authorship examination (decision of the Sviatoshynskyi District Court of Kyiv as of January 16th, 2017 in case No. 759/8138/16-ц); requesting IP address of the device from which information was published (writ of the Dniprovskyi District Court of Kyiv as of July 12th, 2016 in case No. 755/6586/16-ц).
Limiting freedom of expression
When we are talking about limiting freedom of expression on the Internet, the first thing which comes to mind is social networks or website administrators removing the content which is contrary to internal policies of such resources. In case of repeated violations some social networks block or delete the corresponding account (for example, on Instagram).
However, what are legal grounds for removing content, account or even administrative or criminal prosecution for making a post on social networks?
To answer this question first of all we should note that the principle “what applies offline, should apply online to the same extent” is valid at the global level (in particular, it is enshrined in the Resolution of the Human Rights Council “On Protection, Promotion and Exercise of Human Rights on the Internet”.
Therefore, all restrictions on freedom of expression and prohibition to disseminate some information orally or in printed media are valid for information published on the Internet as well.
In particular, the European Convention on Human Rights specifies that exercise of freedom of expression can be subject to such formalities, conditions, restrictions or sanctions which are established by law and are necessary in the democratic society for the benefit of national security, territorial integrity or public security, to prevent riots or crimes, to protect health or morality, reputation or rights or other persons, to prevent disclosure of confidential information or to maintain authority and impartiality of court.
The mentioned norm has been interpreted in decisions of the European Court of Human Rights. Upon analysis of such decisions one can conclude that any restrictions on freedom of expression must be reasonable and meet the following criteria:
- Such a restriction must be established by law (principle of legality);
- Restrictions must pursue one or several legitimate purposes (principle of legitimacy);
- Restrictions are necessary in the democratic society, means they must be proportional to the pursued legitimate goal (principle of proportionality);
- Restrictions must be used reasonably and without discrimination;
- There must be remedies against abuse in case of restricting freedom of expression.
- Publication of pornography;
- Publication of content which threatens national security, territorial integrity and sovereignty of a state;
- Posts which call to commit crimes, including terrorism, genocide, etc.
- Publication of posts which contain images of violence;
- Posts which call for discrimination.
Explicit grounds for limiting freedom of expression are:
The majority of the above grounds for restricting freedom of expression at the same time are administrative or criminal offences and entail prosecution of guilty persons.
In this case restriction of freedom of expression is a necessary measure to ensure public order which does not contradict concept of human rights protection.
The stated is confirmed by the European Court of Human Rights as well. In particular, in case “Perrin v the UK” the court concluded that need in protection of morality and rights of other persons, especially children, justified criminal penalty, namely conviction for publication in free access of the pre-view of a web-page which did not have age restrictions and contained frankly obscene images which could be found by young people without any obstacles.
In Ukraine currently persons who shared on Facebook calls to violate territorial integrity and sovereignty of a state are most frequently brought to criminal liability (sentence of Sosnivskyi District Court of Cherkasy as of August 19th, 2018 in case No. 712\10110\17; sentence of Uzhgorodkyi District Court of Zakarpattia oblast as of August 15th, 2017 in case No. 308/5001/17; sentence of Bagliiskyi District Court of Dniprodzerzhynsk, Dnipropetrovsk oblast as of December 14th, 2016 in case No. 207/3194/16-к).
Separate and quite spread ground for limiting freedom of expression on social networks is infringement of copyright of third parties. Usually terms of use of the corresponding social networks (for example, Facebook, Instagram) provide for content removing (images, video and audio) which can infringe intellectual property rights of third parties. In this case, freedom of expression is subject to justified restriction which is confirmed by position in case “Neij and Sunde Kolmisoppi v Sweden” where the European Court of Human Rights concluded that “protection of defendant’s copyright on materials which were subject of dispute” was a legitimate goal pursued by restriction.
Freedom of expression can be limited by the right to protection of dignity, honour and business reputation of third parties with respect to which a publication was made. In particular, court have repeatedly considered matters on infringement of right to protection of honour, dignity and business reputation on social network (decision of Kyivskyi District Court of Kharkiv as of November 22nd, 2015 in case No. 640/13471/16-ц; case No. 755/7842/16-ц).
We focus our attention on the fact that a line between own opinion or assessment of a person or his activities and abuse or unreliable information is very subtle. Therefore, depending on circumstances, in every case it is necessary to examine content of publications with a view of determining their nature, which is crucial for dispute resolution.
Summing it up, let us remind you a proverb, which is, in particular, suitable for expression opinions on the Internet “Score twice before you cut once”. Therefore before posting, commenting or reposting any information analyse if it will cause adverse effects for you.
Contact the authors: Natalia Lavrenova, associated partner with Legal Alliance Company, lavrenova@l-a.com.ua; Nataliia Abramovych, associate at Legal Alliance Company, abramovych@l-a.com.ua
