A/HRC/17/27
individuals were imprisoned in China alone, followed by Viet Nam and Iran, with 17 and
13 persons respectively.17
36.
Imprisoning individuals for seeking, receiving and imparting information and ideas
can rarely be justified as a proportionate measure to achieve one of the legitimate aims
under article 19, paragraph 3, of the International Covenant on Civil and Political Rights.
The Special Rapporteur would like to reiterate that defamation should be decriminalized,
and that protection of national security or countering terrorism cannot be used to justify
restricting the right to expression unless the Government can demonstrate that: (a) the
expression is intended to incite imminent violence; (b) it is likely to incite such violence;
and (c) there is a direct and immediate connection between the expression and the
likelihood or occurrence of such violence.18
37.
Additionally, the Special Rapporteur reiterates that the right to freedom of
expression includes expression of views and opinions that offend, shock or disturb.
Moreover, as the Human Rights Council has also stated in its resolution 12/16, restrictions
should never be applied, inter alia, to discussion of Government policies and political
debate; reporting on human rights, Government activities and corruption in Government;
engaging in election campaigns, peaceful demonstrations or political activities, including
for peace or democracy; and expression of opinion and dissent, religion or belief, including
by persons belonging to minorities or vulnerable groups.19
C.
Imposition of intermediary liability
38.
One of the unique features of the Internet is that the way in which information is
transmitted largely depends on intermediaries, or private corporations which provide
services and platforms that facilitate online communication or transactions between third
parties, including giving access to, hosting, transmitting and indexing content.20
Intermediaries thus range from Internet service providers (ISPs) to search engines, and from
blogging services to online community platforms. With the advent of Web 2.0 services,
individuals can now publish information without the centralized gateway of editorial review
common in traditional publication formats. The range of services offered by intermediaries
has flourished over the past decade, mainly due to the legal protection that they have
enjoyed from liability for third-party content that Internet users send via their services.
However, the Special Rapporteur notes that in recent years, intermediaries’ protection from
liability has been eroding.
39.
Many States have adopted laws which impose liability upon intermediaries if they
do not filter, remove or block content generated by users which is deemed illegal. For
example, in Turkey, Law 5651 on the Prevention of Crime Committed in the Information
Technology Domain, which was enacted in 2007, imposes new obligations on content
providers, ISPs and website hosts. It also grants authority to an agency to issue
administrative orders to block websites for content hosted outside of Turkey, and to take
down eight broad types of unlawful content,21 including “crimes against Ataturk”, which
17
18
19
20
21
Reporters without Borders, “Enemies of the Internet,” March 2010. Available from:
http://en.rsf.org/IMG/pdf/Internet_enemies.pdf.
Johannesburg Principles on National Security, Freedom of Expression and Access to Information,
Principle 6, as endorsed in E/CN.4/1996/39.
Human Rights Council resolution 12/16, para. 5(p).
Organisation for Economic Cooperation and Development, The Economic and Social Role of Internet
Intermediaries (April 2010).
Law 5651, art. 8.
11
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