Right to remain online

Legislation designed to combat music piracy by cutting-off illegal downloaders could breach human rights, it is claimed.

The internet is a tool which contributes to the "progress of humankind as a whole" and should be available to all.

That is the view of Frank La Rue, the UN's Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression.

Mr La Rue was tasked with writing a report looking into global access to the internet as a medium for freedom of opinion and expression.

In the final document [PDF] presented to the Human Rights Council this week, he concluded that the removal of an individual's internet access should only take place in "few, exceptional and limited circumstances prescribed by human rights law".

He went as far as to say that removing somebody's internet access is to deprive them of a key component for the basic human right of freedom of expression.

"I don't talk about access as a new right," he told Click from the BBC World Service.

"The right is freedom of expression, which includes access to information and the right to disseminate ideas and information and opinion."

His report considers two distinct areas of internet censorship. Firstly, the freedom to access content online as a means of education, communication or self-expression - a tool used to regime-toppling effect across the Middle East.

"Which means no censorship, no blocking [or] filtering unless in the very qualified and very detailed exceptions - for the protection of children, of national security and others that are legitimate but in a very exceptional way."

The use of criminal laws such as defamation should never be used to stifle fairly held opinions of elected officials, he added.

Secondly, Mr La Rue looked at the measures put in place to prevent people getting onto the internet at all.

"You can not talk about the right to freedom of expression or to access information over internet unless there is a specific policy by all states to guarantee everyone in their territory some form of access," he said.

Condemned measures

The issue of geographical differences is exemplified by the many and varied attempts to crack down on illegal downloading and file sharing.

Mr La Rue's recommendations are at odds with a number of existing and proposed pieces of legislation.

Nicolas Sarkozy laid out his internet agenda at the e-G8 forum in May

In the report, he singled out the UK's Digital Economy Act which focuses heavily on protection of copyrighted material and includes provisions to take "technical measures" to restrict or even remove internet access from those deemed to be breaking copyright laws.

Mr La Rue condemned such practices, writing in his report that he was "deeply concerned by discussions regarding a centralised 'on/off' control over Internet traffic".

In France, the HADOPI Law - an acronym of the department which enforces it - includes a highly controversial "three strikes" rule.

Firmly pushed forward by French president Nicolas Sarkozy despite strong criticism, the law gives a new government agency permission to contact suspected illegal file-sharers with written warnings.

If those warnings are ignored three times, they are brought before a judge.

In addition to fines, anyone found guilty faces possible suspension of their internet access.

Recently, and in the wake of the 'Arab Spring', Mr Sarkozy has made further attempts to take the lead in establishing global "rules" regarding internet use by hosting the recent e-G8 Forum in Paris.

In his opening speech, he told the leaders of internet enterprises that "the world you represent is not a parallel universe where legal and moral rules and more generally all the basic rules that govern society in democratic countries do not apply".

Later in the forum these views were batted back by Google chairman Eric Schmidt, who warned "technology will move faster than governments, so don't legislate before you understand the consequences".

Counter-balancing rights

Jim Killock of the Open Rights Group welcomed Mr La Rue's report, saying it highlighted that cutting people's internet access as a punishment was "stupid".

"Obviously that means that they can't communicate with their elected representatives, their friends.

"It means their jobs are disrupted. And that's just a stupid way of punishing something which is essentially a minor financial misdemeanour."

A key supporter of harsher laws on copyright-dodgers has been record label representative group the BPI.

In the past, it has gone on record as describing a three strikes rule as "appropriate".

However, their spokesman refused to comment on Mr La Rue's report, and would give no indicator over whether the BPI would consider changing its stance.

But Mr Killock believes Mr La Rue's announcements - and the possibility of formal adoption - is already having its desired effect.

Google's Eric Schmidt warned that net controls could stifle innovation

"I think that the discussions that are going on in Europe are going to be framed by this and I would hope it prompts UK parliamentarians, the joint human rights committee and others to really look and see how our legislation is evolving and put pressure on government to change what they're currently pushing," he said.

"Internet access now is like the right to walk down the road.

"Yes, sometimes you take that right away, but it's usually because you've murdered or swindled to such a degree that you're a danger to the public.

"You can't say that just because somebody's misbehaved you can take something as fundamental as communication away from them."

In response to Mr La Rue's report, the Department for Culture, Media and Sport said that "there are counter-balancing rights, including to Intellectual Property, and Government must set the balance in a fair and proportionate way", pointing out that another basic right - the right to own property - is being flouted when copyrights are broken in this way.

The statement continued to say that any "temporary suspensions" of access could not happen for some time, if at all.

"This is not part of our current plans and could not be introduced until at least a year after the initial obligations are in place, and only then on the basis of clear evidence of need and appropriateness and after close consideration by Parliament."

The suggestions in Mr La Rue's report do not require any action on the part of government - or indeed even the UN.

Yet as the internet arguably shifts from being a luxury into a right, governments face the difficult task of achieving a seemingly impossible middle-ground, pleasing both consumer and copyright holder.

Or, as Mr Schmidt made clear, governments may just have to accept that they might never be able to keep up with technology.

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