Graduated Response and the UN

I have written about the many negative downsides to Graduated Response programs in the past but one that hasn't arisen until recently is that they are also a breach of the International Covenant on Civil and Political Rights.

It started with a UN Report in which a Special Rapporteur Frank La Rue stated:

While blocking and filtering measures deny access to certain content on the Internet, States have also taken measures to cut off access to the Internet entirely. The Special Rapporteur is deeply concerned by discussions regarding a centralized on/off control over Internet traffic. In addition, he is 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 Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.

Article 19 states:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

The report states that everyone has the right to freedom of expression through any type of medium :

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice...

This has been a particular problem in New Zealand where public libraries are even worried that they may have to stop providing free internet access to their patrons because of the threat of disconnections. There was some early suggestion that this UN Report could lead to a review of the disconnection policy in New Zealand but this no longer appears to be likely to happen.

Since that time a statement was prepared and presented by Sweden at the UN Human Rights Council that was subsequently signed by 40 nations in which disconnections were condemned as being a disproportionate response to intellectual property violations. New Zealand signed this statement along with countries such as Brazil, Turkey, India, Japan and Poland.

In Australia recent reports indicate that MIPI no longer support disconnections as part of a Graduated Response program. While this has been met with some skepticism, AFACT still support disconnections as part of the wider measures to curb illegal file trading.

Further Reading
TechDirt, UN Report On Human Rights Condemns Three Strikes As Civil Rights Violation (3 June 2011) < http://www.techdirt.com/articles/20110603/04225614545/un-report-human-rights-condemns-three-strikes-as-civil-rights-violation.shtml > at 15 June 2011

ZeroPaid, UN Report: 3-Strikes is a “Violation of Human Rights” (3 June 2011) < http://www.zeropaid.com/news/93617/un-report-3-strikes-is-a-violation-of-human-rights/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+zeropaid+%28Zeropaid+File+Sharing+P2P+News%29 > at 15 June 2011

ZeroPaid, New Zealand Libraries Worry “3-Strikes” Could End Free Internet (25 May 2011) < http://www.zeropaid.com/news/93548/new-zealand-libraries-worr-3-strikes-will-end-public-wifi/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+zeropaid+%28Zeropaid+File+Sharing+P2P+News%29 > at 26 May 2011

TechDirt, New Zealand Libraries Considering Shutting Off Public Internet Access To Avoid Three Strikes Law (19 May 2011) < http://www.techdirt.com/blog/wireless/articles/20110518/01343314311/new-zealand-libraries-considering-shutting-off-public-internet-access-to-avoid-three-strikes-law.shtml > at 23 May 2011

ZeroPaid, Disconnecting File-Sharers Divides Australian MPAA, RIAA (7 June 2011) < http://www.zeropaid.com/news/93643/disconnecting-file-sharers-divides-australian-mpaa-riaa/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+zeropaid+%28Zeropaid+File+Sharing+P2P+News%29 > at 15 June 2011

ZeroPaid, New Zealand to Review Internet Disconnection After UN Criticism (6 June 2011) < http://www.zeropaid.com/news/93639/new-zealand-to-review-internet-disconnection-after-un-criticism/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+zeropaid+%28Zeropaid+File+Sharing+P2P+News%29 > at 15 June 2011

ZeroPaid, Kiwi Justice Minister: Govt “Will Not Reconsider” Internet Disconnection (8 June 2011) < http://www.zeropaid.com/news/93667/kiwi-justice-minister-govt-will-not-reconsider-internet-disconnection/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+zeropaid+%28Zeropaid+File+Sharing+P2P+News%29 > at 15 June 2011

TechDirt, Did The Recording Industry Really Step Back From Three Strikes? Or Is It Playing Word Games? (10 June 2011) < http://www.techdirt.com/articles/20110607/14543914594/did-recording-industry-really-step-back-three-strikes-is-it-playing-word-games.shtml > at 15 June 2011

TechDirt, New Zealand Politicians Who Supported Three Strikes Law Two Months Ago Now Worried It Violates Civil Rights (8 June 2011) < http://www.techdirt.com/articles/20110607/09032314591/new-zealand-politicians-who-supported-three-strikes-law-two-months-ago-now-worried-it-violates-civil-rights.shtml > at 15 June 2011

ArsTechnica, US, NZ, Sweden, others condemn "three strikes" Internet laws (14 June 2011) < http://arstechnica.com/tech-policy/news/2011/06/us-nz-sweden-others-condemn-three-strikes-internet-laws.ars > at 15 June 2011

ArsTechnica, UN report: "three strikes" Internet laws violate human rights (3 June 2011) < http://arstechnica.com/tech-policy/news/2011/06/un-free-speech-watchdog-blasts-three-strikes-rules.ars > at 15 June 2011

International Covenant on Civil and Political Rights (New York, 16 December 1966) < http://www.austlii.edu.au/au/other/dfat/treaties/1980/23.html > at 16 June 2011