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Re: [gtld-council] Update on new TLDs discussion: small group work on "morality and public order"
- To: robin@xxxxxxxxxxxxx
- Subject: Re: [gtld-council] Update on new TLDs discussion: small group work on "morality and public order"
- From: Liz Williams <liz.williams@xxxxxxxxx>
- Date: Mon, 9 Jul 2007 20:35:11 +0200
Robin
Just to be clear about "prior censorship".
If one reads all the way through the provisions there is specific
provision for "prior censorship" particularly as it relates to
childhood and adolescence.
"4.Notwithstanding the provisions of paragraph 2 above, public
entertainments may be subject by law to prior censorship for the sole
purpose of regulating access to them for the moral protection of
childhood and adolescence."
In the Australian context, this would be very similar to the
regulation of content which prohibits the screening of content
(including advertising) which is deemed inappropriate for children
during prime viewing hours.
Kind regards.
Liz
.....................................................
Liz Williams
Senior Policy Counselor
ICANN - Brussels
+32 2 234 7874 tel
+32 2 234 7848 fax
+32 497 07 4243 mob
On 09 Jul 2007, at 16:01, Robin Gross wrote:
I sent the email below very quickly during a fast flight connection
and I'd like to explain what I meant - since its not entirely
clear below.
Article 13 of the convention explicitly forbids prior restraints on
speech - even in cases of immoral or disorderly expression (as
defined in the convention).
A "prior restraint on speech" is legalese for when a public
authority prevents expression from happening because it believes
harm will result. Banning a domain name is a prior restraint on
speech.
In other words, under this convention, a public authority can't
just assume that limiting speech will prevent harm and censor
accordingly.
According to this convention, the allowable path under law is to
allow the domain name to be registered but let someone take it to
court if they have suffered real harm that can be shown and then
let the independent courts decide if there can be liability imposed.
So while I sympathize with the desire to find definitions for
"moral" and "public order" in international conventions, I am
concerned that we will use these definitions to do precisely what
the convention says we cannot do - create a prior restraint on
speech based on these terms.
I hope that is more clear.
Thanks,
Robin
Robin Gross wrote:
I understand the desire to find definitions for these terms.
But we need to keep in mind their context.
We may be using these terms to define what expression can be
prevented.
/Sub-para 2 says that expression "shall not be subject to prior
censorship/".
Article 13 (cited) expressly forbids prior censorship -- so we
could using the definitions, in order to achieve what the Article
explicitly prohibits: prior restraints on speech.
Robin
Liz Williams wrote:
Colleagues
In light of yesterday's discussion about the inclusion of the
phrases "morality and public order" in the text, I have excerpted
below a footnote from Wolfgang Sakhalin's paper (submitted by the
NCUC as expert advice) which is available at http://
www.ipjustice.org/ICANN/Sakulin_Legal_Briefing.pdf.
You'll see in Section 2 Paragraph 2 that the wording about public
order and morals is included (as a limiting test on how to apply
the Convention). /American Convention on Human Rights, 1144
U.N.T.S. 123, Article 13 states:/
/“Freedom of Thought and Expression/
/1.Everyone has the right to freedom of thought and expression.
This right includes freedom to seek, receive, and impart
information and ideas of all/
/kinds, regardless of frontiers, either orally, in writing, in
print, in the form of art, or through any other medium of one's
choice./
/2.The exercise of the right provided for in the foregoing
paragraph shall not be subject to prior censorship but shall be
subject to subsequent/
/imposition of liability, which shall be expressly established by
law to the extent necessary to ensure:/
/1.respect for the rights or reputations of others; or/
/2.the protection of national security, public order, or public
health or morals./
/3.The right of expression may not be restricted by indirect
methods or means, such as the abuse of government or private
controls over newsprint,/
/radio broadcasting frequencies, or equipment used in the
dissemination of information, or by any other means tending to
impede the/
/communication and circulation of ideas and opinions./
/4.Notwithstanding the provisions of paragraph 2 above, public
entertainments may be subject by law to prior censorship for the
sole purpose of/
/regulating access to them for the moral protection of childhood
and adolescence./
/5.Any propaganda for war and any advocacy of national, racial,
or religious hatred that constitute incitements to lawless
violence or to any other/
/similar action against any person or group of persons on any
grounds including those of race, color, religion, language, or
national origin shall be/
/considered as offenses punishable by law.”/
/
/
If the small group that is discussing this particular issue could
refer to this as an example and to other examples in different
jurisdictions it would be very helpful.
Kind regards.
Liz
.....................................................
Liz Williams
Senior Policy Counselor
ICANN - Brussels
+32 2 234 7874 tel
+32 2 234 7848 fax
+32 497 07 4243 mob
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