UN report on internet disconnection flawed and contrary to jurisprudence

June 13th, 2011 by Barry Sookman Leave a reply »

Recently, the UN Special Rapporteur on the promotion and protection of the right to freedom  of opinion and expression released a controversial report in which he stated he was

“alarmed by proposals to disconnect users from Internet  access if they violate intellectual property rights. This also includes legislation based on the  concept of “graduated response”, which imposes a series of penalties on copyright  infringers that could lead to suspension of Internet service, such as the so-called “three strikes-law” in France  and the Digital Economy Act 2010 of the United Kingdom.”

The report has since been subject to widespread comment and considerable criticism. Some of my views about the report were published in an article in The Wire Report last week. (My comments in brackets)

Barry Sookman, a copyright lawyer with McCarthy Tetrault in Toronto who represents the content industries [among others], said in an interview that the report expresses the view of one human rights advocate.

He said it is not the official position of the UN or the human rights council and that it is not binding on UN member states.

Sookman added that the report lacks analysis of the regimes and the legislation it criticizes, and it ignores the balance between reconciling competing values.

“The right to be able to protect your property, including your intellectual property, is actually a fundamental right under the Universal Declaration of Human Rights,” he said.

“The right to protect your copyright has actually been considered to be a constitutional right in a number of countries.”

France’s three-strikes system relies on a series of steps and a tribunal ruling, and the U.K.’s digital economy legislation  doesn’t [currently] empower ISPs to disconnect users, he said.

Sookman pointed to four court decisions—one each in Australia and the U.K., and two in Ireland—that deemed graduated response initiatives a reasonable and proportionate response to file sharing. [See, Roadshow Films Pty Limited v iiNet Limited,[2011] FCAFC 23, EMI Records & Ors -v- Eircom Ltd, [2010] IEHC 108, EMI Records [Ireland] Ltd & Ors -v- UPC Communications Ireland Ltd [2010] IEHC 377, and British Telecommunications Plc & Anor  v The Secretary of State for Business, Innovation and Skills [2011] EWHC 1021]

“One would have thought that somebody who was going to express an opinion would perhaps not only know about these regimes but also know about the case law that has looked at these regimes and found them to be proportionate. I think it didn’t fully consider all of the jurisprudence on this topic,” he said.

Sookman added that while he and most ISPs consider the right to Internet access “fundamentally important,” he doesn’t believe it trumps other rights such as not paying service bills or using Internet service to spam [or transmit pornography, commit criminal or civil offenses, or otherwise violate laws].

“I don’t think it will change Canadian public policy because I think in Canada we recognize that there’s a requirement to do a balancing. Under the Canadian Charter of Rights, individuals have certain Charter rights, but the Supreme Court has made it clear that, even if you have a Charter right, the next question is whether or not legislation that might impinge on it is justified for a good public policy reason,” he said.

Other commentators made these and other observations.  Jakomi Mathews in an article for The Music Void asked the question:

If disconnecting repeat offenders from an Internet connection who are stealing content is a breach of Human Rights where does the right of content owners stand in relation to their human rights? So is the UN stating that breaking the law and stealing rights owner’s content whether that be; music, films, games or software is a Human Right? So this must now mean by default that the UN has legalised stealing content via file sharing and other similar technologies? No? Well then how can sanctions for repeat file-sharing offenders be a breach of human rights?…

The key point I’m trying to get across here is that if content owners cannot sanction people who are repeatedly infringing on their copyrighted works then what rights of protection for their assets do they have in the eyes of the UN? What are the rights of artists to earn a fair and equitable income from their art? Is the UN stating there can be no sanctions for breaking the law? Because that is how their report reads…

James Gannon, a colleague of mine, in a post also questioned the analysis in the report.

IPKat, in a recent post also provided a critical assessment of the report:

The report makes bold statements on the protection of fundamental rights in the digital age, including in the context of cybercrime, data protection, personal privacy and the ‘digital divide’ between the developing and developed world. In those countries where online freedom of speech is restricted on political grounds, the UN’s concerns may be valid. However, on the issue of Internet disconnection for violations of IP rights, sweeping generalisations are made, without any further analysis or evidence, that this legislation is necessarily bad because it may lead to Internet users’ disconnection from the Internet. There is no acknowledgment that

(i)  violations of IP rights are against the law, and therefore that appropriate punishments are warranted;

(ii)  measures leading to temporary suspension from the Internet may be a proportionate attempt to stymie the widespread online piracy that has led to severe job losses and created barriers to innovation;

(iii) the DEA only proposes to cut off a user’s Internet access as a last resort after that person has repeatedly flouted copyright law despite multiple warnings; or

(iv) under international law, rightsholders have a human right to property and a right to an effective legal remedy following infringement of the law.

The UN makes recommendations without attempting to balance the competing rights of the various stakeholders (copyright owners, intermediary service providers and end users). As such, the UN’s approach runs contrary to recent jurisprudence [C-275/06 Promusicae v Telefonica], literature from the US [Obama’sInternational Strategy for Cyberspace] and the European Commission [Strategy on a Single Market for Intellectual Property Rights]. Finally, the report fails to suggest any alternative approaches to tackling online infringement of IP rights. It seems a shame that a document that is clearly intended to identify genuine global concerns about freedom of expression and related human rights in the online environment has taken such a one-sided approach, arbitrarily drawing a connection between unjustifiable State censorship on the Internet and the legitimate protection of intellectual property in the face of prolific online piracy.

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