Freedom of Expression on the Internet � International Provisions and Macedonian Specifics

18 November 2005

Europe and the US already adopted the documents that guarantee the freedom of expression on the Internet. Macedonia, on the other hand, has yet to deal with the problem of weak internet penetration in the country
Before I proceed to the basic elements and questions related to the issue of freedom of expression in the digital environment and, above all, on the internet, I would like to say something about the general system for protection of this basic human right within the European system for protection of human rights.

Article 10 of the European Convention on Human Rights is the backbone of the European system for protection of freedom of expression. In terms of technology, Article 10 is neutral and guarantees the freedom of expression regardless of the media which is used to pursue this universal human right. This Article, unlike the First Amendment of the U.S. Constitution, does allow for several restrictions, of the so-called legitimacy character, to the general freedom of expression. Article 10 declares:

�Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary�.

As we can see, Article 10 contains two paragraphs, which may appear contradictory at the first sight. The first paragraph is often emphasized by the activists of the non-governmental organizations and the media in the region, having in mind that it provides for the general freedoms. On the other hand, I have seen many a situation in which the representatives of the state institutions from our country, but also from the neighbouring countries, would start their presentations in events similar to this one with the words: �Paragraph two of Article 10...", or "However, Article 10 has a second paragraph, which states...", in an effort to prove that Paragraph 2 of Article 10 does provide the state authorities to violate or restrict this human right. What is amiss here is the position of the single institution deemed competent to give judgement on the basis of the Convention, the European Court of Human Rights in Strasbourg. For quite some time now, the Court has integrated in its judicial practice several rules arising from the years of application of Article 10, of which the most important rule is: �Article 10 has two paragraphs, which are part of one whole and shall be viewed only as a whole and in no other manner or fashion. Nobody has the right to choose one of the two paragraph and apply only the provisions of that paragraph". The second important rule states that: �The restriction of these freedoms can be only an exception, and not a general rule, and only if deemed necessary in a democratic society, in order to protect other legitimate aims and causes".

Ergo, nevermind if we talk about the internet or an ordinary conversation on the street, the same rules apply for the Court of Human Rights.

However, the remaining formal demands, such as the protection of reputation and honour, protection of privacy or incitement to religious or racial hatred (which is included in the Convention on Cyber-Crime of the Council of Europe), copyrights violations, disclosure of military or state secret in our laws, protection of children and minors, crimes related to children pornography, are all deeds with general scope, regardless of the media. All of the above present legitimate restrictions to the freedom of expression. I.e., freedom ends where doing wrong to others begins!
From the viewpoint of the internet, the freedom of expression is developing into two totally opposed tendencies. The first tendency is based on the maximum availability of an interactive means of communication of planetary proportions, available to the ordinary man and its emergence as communicator, which is the ultimate ideal to the fighters for freedom of expression and, on the other hand, the inability of a huge number of people to access this communication tool, based on their lacking the capacities to afford the necessary means (computer, internet access prices, infrastructure, etc.). This phenomenon, aptly named digital division, has become the basic problem for the global development of information societies.

From that point of view, a debate has opened on European level over the past several years, over the question of possible solutions to this problem, and to take care to protect all the elements of a democratic society.
With that goal in mind, two key documents have been adopted on European level: The first is the Convention on Cyber-Crime, which defines precisely which acts committed through the new technology represent criminal offences, and the Declaration on Freedom of Communication over the Internet of the Council of Europe.

The first document is important for the freedom of speech, for it clearly defines child pornography, copyright violations and violations of the privacy through computer systems as criminal offences, thus putting the perpertrators in a position in which they can�t defend their actions as exercise of the right to receive and impart information. Additionally, the Protocol to the Convention also denotes racism and xenophobia as criminal offences. These new trends indicate that the Convention may, in the foreseeable future, criminalize the use of new technologies to coordinate trafficking in human beings.

The European experiences with violations of privacy by the two totalitarian systems that existed on European soil, as well as the heritage of the Holocaust and the World War II, has had an effect on the European norms, making them more formal and more complex than the First Amendment of the U.S. Constitution (The Congress shall make no law that limits...).

The second document, the Declaration of the Ministerial Committee of the Council of Europe, presents seven general principles for realization of the freedom of information over the internet.

At this moment, it is important for Macedonia to emphasize that the so-called digital divide is much greater obstacle to the full realization of the right to freedom of expression on the internet than the formal legal obstacles or the meddling by the state.

Namely, the fiendish prices of the broadband connections, the lack of infrastructure in rural areas, the conservative mindset of the population and technophobia are far greater obstacles to the use of internet than the problems posed by the legislation.

From that point of view, and in the spirit of the CoE Declaration, Macedonia needs to take urgent, concrete steps to reduce the digital divide through the educational system, but also through the regulatory bodies in the telecommunications market.