COMM3715

ESSAY 2
STUDENT ID: 200727571
WORD COUNT: 3717
(excluding titles, headings, references and bibliography)
Some organisations argue in favour of internet rights. Describe what is meant by the term
internet rights. Choose a number of the issues raised in this module (at least three) and
consider how rights with regard to these issues might be applied to the internet. Consider
not only whether such internet rights should exist but also whether they can be realised or
enforced.

It is widely agreed that the atrocities brought upon humankind by WWII, served as a catalyst
for the implementation of the Universal Declaration of Human Rights (UDHR) in 1948
(Jrgensen, 2006; Campbell 2008). In order to rebuild a post war world that promoted
freedom and democracy for all states, the UDHR was enacted by the United Nations to serve
as a universal framework to uphold the inalienable and universal rights all men are entitled
to simply by virtue of their personhood (Jrgensen, 2006; 7). Human rights are normative
ideals that are embedded in the dignity, integrity, and vulnerability of the individual (Ibid;
viii), but are also linked to the state. Depending on the particular right in question, states are
obligated to refrain from interference or are required to create the conditions in which
individuals can enjoy a certain quality of life, or to provide certain goods or services to that
end (op cit; 12). In this way, rights can be understood as being negative or positive. In total,
there are thirty articles which are comprised of either civil and political rights or economic,
social and cultural rights. These two categories are maintained through separate treaty
instruments; the International Covenant on Civil and Political rights (CCPR) and the
International Covenant on Economic, Social and Cultural Rights (CESCR). Some countries
may adhere to the UDHR less stringently than others. Often matters of national security are
put before human rights and other states are simply guilty of a total violation to its citizens
rights. Nonetheless, the UDHR is largely now a globally accepted framework in which the
core concept has been enshrined in international law and policy, and is now effectively
uncontested (Jrgensen, 2006; 7). However, the development of Information

Communication Technologies (ICT) like the internet, which was absent at the creation of the
UDHR, introduce a number of complex and contested issues that arise when human rights
discourse is applied to internet regulatory and policy debates.

According to Jrgensen (2006), the World Summit on the Information Society (WSIS) held in
2003 and followed up in 2005, constituted the first real drive towards putting human rights
standards on the Global Information Society (GIS) agenda. Since then, increasing industry,
governments and civil society organizations have begun to maintain and govern the internet
environment from the human rights perspective. For example, the right to privacy (Article
12) of the UDHR has been applied to the internet to include, freedom from surveillance and
the right to anonymity and to use encryption, which was included in the Internet Rights and
Principles Coalitions charter of Human Rights and Principles for the Internet (IRPC) 2014.
Another charter, the Association for Progressive Communications (APC) Internet Rights
charter 2010 reiterates much of the same. Both are designed to be used as authoritative
documents to aid policy makers, governments, businesses and other actors to help frame
policy decisions with a rights-based focus in mind. However, as this paper will attempt to
demonstrate, there is considerable difficulty in applying human rights to the internet on the
basis that meanings of specific rights are often contested. But also, they must be balanced
against other rights which can complicate whether a right can be respected, protected or
fulfilled in order to be truly actualized. Thus, in this paper I address three current internet

policy issues with respect to rights; freedom of speech/expression, copyright, and access and
the digital divide. I then intend to evaluate not only whether such rights should exist, but if
they can also be realized or enforced.

Freedom of speech/expression
Since 1948, freedom of expression has been endorsed by the UDHR under Article 19.
According to the APC Internet Rights Charter, the right to freedom of expression translates to
the digital realm in which the internet serves as a medium for both public and private
exchange of views and information across a variety of frontiers individuals must be able to
express opinions and ideas, and share information freely when using the internet. Included in
this is also the right to freedom from censorship where the internet must be protected from
all attempts to silence critical voices and to censor social and political content or debate
(APC, 2010). These principles call for a negative obligation on governments to respect
freedom of expression by refraining from restricting speech online. The necessity in
upholding the right to freedom of expression is rooted to the notion that in allowing a free
flow of information or, free trade in ideas, will advance the search for truth (Vick, 2005;
47). It is thus central to democracy and a required condition for citizens to make informed
decisions that govern how they live through electing political leaders, to public policy that
shapes their lives. Even where ideas or acts of expression considered contrary to public
opinion, have the right to exist; if only to be vigorously rebutted through reasoned debate and

public scrutiny (Vick, 2005). Freedom of expression is also inherently tied to the individual
as a tool for self-fulfillment, to be autonomous and for what it means to human. (Barendt,
2005).

As the internet functions as a network of networks that facilitate the spread of information
across boarders, it is imperative that efforts are placed on the governance of an internet that
does not seek to undermine expression online. Yet there is no centralized or overarching
global framework of top-down intergovernmental control or oversight (Murray, 2007; 56).
This sees greater national efforts placed on regulating the internet which by effect, may
directly or indirectly restrict freedom of expression online. On the one hand, there is reason to
assume that the use of filtering as one mechanism for both governmental and industry actors
to regulate content online is justified. Most would agree the necessity of filtering out harmful
material for the protection of minors is a justifiable intention along with particularly sensitive
material that could have implications for national security. Often these measures are over
zealous and counter claims suggest that filter systems such as that of the Cleanfeed system
deployed in the UK, is guilty of over-blocking and lacking in transparency (McIntrye and
Scott, 2008). Blocking of entire websites due to the automaticity and incapability of filtering
technologies to differentiate between one piece of indecent content against an entire URL
runs the risk of silencing speech. For example, the unintential blocking of non-pornographic
gay and lesbian websites in Saudi Arabia. While quickly reversed, it demonstrates the nature
of filtering systems and their poor ability to identify legitimate material (Villeneuve, 2006

cited in McIntrye and Scott, 2008). This is accentuated by the view that ISPs fail to provide
opportunities for feedback mechanisms for users to identify where flaws in the system exist
(McIntrye and Scott, 2008). Whats more, the lack of knowledge that a blocking has even
took place raises alarming questions over the extent that censorship is taking place; this is
often characterized by pages stating 404 file unknown error. Concerns have also been
focused on the intentions of ISPs for filtering content. Some claim that intermediaries do not
share the ideological view of upholding speech online, favoring financial incentives or fears
of costly litigations for the failure to comply with government policy. (McIntrye and Scott,
2008; Dutton et al, 2010). Where ISPs self-regulate, increasing concerns are centered on the
fact that they are effectively insulated from judicial review (McIntrye and Scott, 2008;
122), effectively silencing speech. Nonetheless, it is held that ISPs must be not be held
accountable for speech considered punishable, providing they act as mere conduits. This is set
out in European E-Commerce Directive. Penalizing ISPs for the dispersion of content is seen
as a threat to the vitality of the internet itself and sustained attack may result in the increase of
content blocking and a subsequent loss for freedom of expression. As such, if we are to
ensure that freedom of expression is to be realized and enforced in a manner that complies
with the balancing of pressing concerns, the use of filtering as a particular focus in this
instance, must include greater transparency over what is to be blocked. We should also refrain
from holding ISPs accountable and we must question the legitimacy over where speech that
constitutes a threat to that of another fundamental right. Pushing the human rights focus onto

the the agendas of intermediaries is also likely to yield more favorable outcomes for freedom
of expression.

Copyright
Since the digital revolution, increasing efforts by policy makers have been placed on the
importance of ensuring that intellectual property rights are safeguarded on the internet; this
has perhaps most notably seen within the cultural industries (Hesmondhalgh, 2013). Such
efforts are pursued on the basis that the architecture and very nature of the internet itself
affords a space where the replication and dissemination of copyrighted works, as well as the
illegal downloading of copyrighted material is only too easy achieve and fast becoming an
adopted cultural norm (Edwards et al, 2014). Thus, it is seen that regulatory measures must
be taken in order to protect the rights of owners. As set out by Article 27(2) of the UDHR,
everyone has the right to the protection of the moral and material interests resulting from any
scientific, literary or artistic production of which he is the author. This therefore requires a
positive obligation of the state to protect the interests of the rights holder. In the UK, an
attempt to realize this right in practice can be seen in the enforcement of the law under the
Copyright, Designs and patents Act 1988. Following this, the World Intellectual Property
Organisation (WIPO) conference of 1996, led to an agreement of signatories to update
national laws on the copyright which saw the transference of rights of holders to the internet,
subsequently resulting in the Digital Millennium Copyright Act (DMCA) in the USA in

1998 and the EU Copyright Directive of 2001 (Hesmondhalgh, 2013; 16; Drahos and
Braithwaite; 2002).

Although the outcome of such resulting acts work to protect and promote the fixed expression
of digital materials to uphold the instrumental justification of incentivizing authors to create
- the rise of a permissive culture online threatens to undermine their authority. Current
discourse frames the behavior of extensive p2p file sharing and the illegal downloading of of
videos, music and other forms of media as an act of piracy and a direct violation of current
copyright law. This is the long adopted view of the proprietary author perspective, of which
supporters have for the most part, been successful in shaping policy and regulatory trends on
copyright enforcement. It is thus argued that the law, as it is currently constituted, works to
the advantage of wealthy copyright owners (McLeod, 2001; 25-26). Yet, there is now rising
debate as to whether current methods of enforcing copyright legislation through alternate and
often interrelated modalities of regulation is successful (Hargreaves, 2011; Edwards et al,
2012). This challenge arises from the stand point that copyright enforcement as it is, is
increasingly misaligned with current consumer practice and expectation and
fundamentally fails to acknowledge the public perspective or serve the public interest
(Edwards et al, 2012; 12, 20). Indeed, since the function of copyright itself is required to seek
the balance between the rights of creators and availability to the wider public (Edwards et

al, 2012; 10), it is clear to see how the ongoing behavior of users in digital sharing would
suggest a balance that favors the rights of the owners over a poorly served public.

If current legislative attempts to enforce copyright online fail to account for a broader more
user focused regime, it is important to demonstrate how these attempts fail. According to
Lessigs (2006) four modalities of internet regulation, the use of law, social norms, the market
and code play a role in enforcing and regulating copyright in which regulation is the sum of
how these constraints act upon the individuals to conduct behavior in a particular way
(Lessig, 2006; 126). Regulation through law is the constraining of behavior through sanctions
or threat of punishment. Certainly, the full extent of the law has been felt on multiple
occasions in examples being made out of individuals who repeatedly infringe and
intermediaries that have failed to respond to notice and take requests on time; resulting in
heavy fines or court-cases, such as the action taken against the website, Newzbin (Edwards et
al, 2012). Although such cases might be used as deterrents for engaging in unlawful behavior,
ongoing and extensive copyright infringement continues; thereby undermining the relative
power of states to protect intellectual property rights using the law. Not only this, but the
effectiveness of the law to enforce copyrights has been challenged on the claim that the law
penalizes internet users who lack the understanding that they are even engaging in something
criminal; stressing that user practices that oppose copyright are circumstantial and passive
rather than intentional (Edwards et al, 2012; 15). The failure then, is placed on the emphasis

that governments present a flawed system that both punishes users who are in all other
respects, considered law abiding citizens; as well as a disregard for the inherently social
nature- or network community- of online activity (Murray, 2010 cited in Edwards et al,
2012; 15).

Often cultural commodities that are shared online act as public goods, where continued and
multiple usage of them does not diminish their value. It is however, that through stringent
regulation and under current law, grant extensions to copyrights for up to 70 years following
the death of the author. This can see such goods not enter into the public domain for a
considerable length of time and with it, the hindering creative potential and the shrinkage in
potential for creative recontextualisation (Hesmondhalgh, 2013). Because of this, it can be
considered that when speaking in terms of other human rights, this directly comes at a cost to
the right to freedom of expression. As already noted, this must involve the free exchange of
information and ideas across frontiers without restriction. Copyright in effect then, may
outweigh expression. Given the structural inequalities in the policy making process
(Freedman, 2008), where the might and dominance of the creative industry trumps those who
lack the resources to successfully lobby policy, chances are that the rights of the everyday
amateur internet user are silenced by the noise of powerful industry actors. Another way to
interpret this might be the limits placed on the free exchange of scientific research due to
inflexible intellectual property rights. Whats further, under the UK Digital Economy Act

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(DEA) 2010, ISPs are required to block or suspend websites that might seek to promote
copyrighted content. Often, ISPs are guilty of removing removing content on their own
accord via self-regulation over fears of being liable; thus making copyright protection a
censorship issue (Jrgensen, 2006; 58). As put by Flew et al, a primary goal for copyright
owners of most entertainment content is widespread distribution and exposure, primarily to
acquire greater recognition and therefore revenue earning potential (2005; 96). It seems
ironic then, that rights holders would choose to support the enactment of legislation that in
practice, works toward suspending access for users to discover the works that rights owners
seek to be recognized for in the first place.

The use of enforcing code as another mode of regulating copyright online has been seen in
the adoption of Digital Rights Management (DRM) technologies. Broadly defined, DRM
refer to the set of technical and legal mechanisms applied to help control access to, and
distribution of, copyrighted and other protected material in the digital environment (Flew et
al, 2005; 88). Examples of these might include the use of encryption and watermarking which
by design, limit and control the way in which digital files can be used after sale (Murray,
2010; 70). Users have expressed their dissatisfaction with these on the grounds that even after
legitimate purchase of goods, are restricted in their freedoms to enjoy them as they see fit
(Edwards et al, 2012). Take for example, a user who has paid to download the Microsoft
Office package to their computer. Say the computer then breaks, and needs to buy a new

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computer. The package that they downloaded is restricted to that one particular laptop and
cannot be transferred to the usage of another. The same might apply for a user who faces
restrictions on how a they can use music files once they have been downloaded from a
supplier. Subsequently, code can be designed and (re)programmed to serve different
purposes and values (Edwards et al, 2012; 13). Attempts such as these may only work
toward the promotion of existing lucrative creative industry business models (Flew et al,
2005; 90) and fail to account for fair usage or fair dealing exceptions. Although the notion
of fair usage is put in place to grant users greater access to materials for things such as
educational use or parody, the issue with DRM systems is that they cannot be designed
algorithmically to evaluate individual cases of fair usage and therefore tip the delicate
balance of copyright against the users to a regime that favors an industry elite (Flew et al,
2005; Burk and Cohen, 2001).

In order to achieve a more harmonious balance between ensuring the intellectual property
rights of owners are enforced online but not at the cost of restricting of other internet rights
like freedom of speech, a number of initiatives might be deployed and promoted. The use of
levies, such as the one proposed by Fisher (2004), would employ the use of a compensation
system that would see content owners are paid their proportional share of collected tax
revenues based on the relative popularity of their work, ascertained by estimating the
frequency of consumption (Flew et al, 2005; 90). This would in turn see a greater flow of

12

material deemed as public goods for users to enjoy and expand on. Similarly, greater
emphasis placed on the Creative Commons (CC) project might see more flexible licenses on
goods and with it, opportunity for more creative work (Jrgensen, 2006; 59).

Access and the digital divide

Perhaps one of the most challenging issues faced by internet policy makers today is tackling
the digital divide. The digital divide refers to the inequality of access to the internet
(Castells, 2002; 248, cited in Fuchs and Horak, 2008; 100). At present, current focus on
bridging the digital divide is centred on reducing the physical access citizens have to the
internet. In truth, this is an important component of the digital divide and governments have
been seen to making important steps bridging the divide both between nations and within
nations (Couldry, 2007) given that inequality exists as a result of social issues as much as
an economic set back (Helsper, 2011). In the UK for example, the Broadband Delivery UK
(BDUK) programme intends to provide 95% of the UK with superfast broadband by 2017.
This is mirrored by the European 2020 strategy with efforts placed to see up 50% households
with subscriptions above 100Mbps by 2020.Yet mere physical access to a computer and
sufficient broadband infrastructure only scratches the surface to the complexity of the digital
divide, moving beyond only the haves and the have-nots. Instead, if access is to become a
global reality, governments must fulfil legislative, budgetary and judicial measures that
address the deeper levels of the digital divide lack of digital skills, usable content and

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motivational issues.

The rolling out of high speed broadband is futile to those who do not possess the skills to use
the internet effectively and scholars have gone on to note that failure to provide citizens with
the necessary skills runs the risk of a digital underclass (Helsper; 2011). For Murdoch and
Golding, these skills represent the complex of symbolic resources required to exercise full
command over the meaning and knowledge-producing potentials offered by the internet
(2004; 252). Without the skills to navigate the internet in meaningful ways to form social
connections, to engage in civic participation and making economic contributions in online
spending - access will remain entrenched amongst the advantaged few where the
information rich will get richer [and] the digital poor become, relatively, poorer (Helsper,
2011; 6). Logically, the next step for governments is to educate. Research has shown that
among other minority groups, the elderly stands out as an underserved group with selfefficacy and computer anxiety as factors for limited internet usage (Czaja et al, 2006; cited in
Hargittai and Hsieh, 2013). Assistance should be paid to these groups with particular
emphasis paid to internet education at an early age, where learning starting in a school
environment facilitates the likelihood of continued and extensive access to and use of the web
in later life (Freese et al, 2006; Hargittai and Hsieh, 2013).
In many cases, the challenge comes not at obtaining skills but the platforms and services that
people make use of, do not function in the native language of the user. The APC Internet
Rights Charter asserts that, interfaces, content and applications must be designed to ensure

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accessibility for all, including people with physical, sensory or cognitive disabilities, people
who are not literate and people who speak minority languages (APC, 2010). To this end,
policy makers have a duty to provide content that is applicable to the user (Couldry, 2007). It
is held that content derived from those currently underrepresented in the networked realm
helps to bridge the language divide (Warschauer, 2004). Policy makers should thus encourage
the development of software and programs in native languages to see greater inclusion,
coupled with added pressure on established organizations to provide usable services to the
targeted groups.

As a final area for consideration, it is not enough to disregard users who choose not to access
the internet as voluntary nonparticipation (Compaine, 2001b) but rather as a signal that
they have been written out of technological change, both materially and symbolically
(Murdoch and Golding, 2004; 249). Studies have pointed out that people choose not to access
the internet because they feel they have no need for a computer (Murdoch and Golding,
2004). Yet the landscape of internet usage is fast evolving and motivating users who have
reserves about using the internet is an important and much needed requirement for
governments to address. Indeed, circles of friends and acquaintances can play a major role in
encouraging people to try the internet for the first time and in sustaining their commitment
and development their capacity to become creative and contributory users (Ibid; 251).
Where governments fall short in identifying these motivations, providing usable content
across boarders and the tools to acquire digital skills - it can be regarded that they also failing

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to uphold other internet rights in the process. As the IRPC (2014) declares, access is
indispensable for the full enjoyment of human rights including the right to freedom of
expression, the right to education, the right to freedom of peaceful assembly and association
and so on.

This paper has demonstrated that the importance in tackling issues attached to the digital
environment through the human rights framework is problematic. Often, the pursuit of
different policy goals by multiple actors push the need for internet rights further down the
agenda and for legitimate reasons, like mitigating risks associated with the internet as a
communicative medium. Yet in doing so they may directly or (sometimes) unintentionally
undermine fundamental human rights. For Jrgensen, respect for human rights is an absolute
for achieving international peace and security and the promotion of economic and social
development (2006; IX). It is only through sustained, interdisciplinary analysis of globally
inclusive, multistakeholder dialogue on, the interpretation and application of these standards
to the full array of issues raised by the GIS (Ibid; 43) can internet rights be upheld and more
harmoniously balanced between each other.

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