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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: Wed, 11 Jul 2007 07:40:43 +0200
Robin
Thanks for the clarification. No doubt we'll have further discussion
today on the small group call.
Liz
.....................................................
Liz Williams
Senior Policy Counselor
ICANN - Brussels
+32 2 234 7874 tel
+32 2 234 7848 fax
+32 497 07 4243 mob
On 10 Jul 2007, at 23:32, Robin Gross wrote:
Liz,
It seems you are comparing apples with oranges and risk serious
legal liability for ICANN. There is an entirely different standard
of permissible expression for television than there is for the
Internet.
Based on pressure from the "Religious Right" in the US in 1996, US
Congress passed the Communications Decency Act in an attempt to
regulate morality on the Internet to protect the children. The
Americans for Civil Liberties Union (ACLU), EPIC, and the
Electronic Frontier Foundation (EFF) in addition to 17 other groups
brought an immediate challenge to the act. In the most important
US court decision addressing free expression on the Internet, the
US Supreme Court struck down the CDA as an unconstitutional
violation of Americans' freedom of expression rights.
In the CDA case, the government asserted the same argument that you
make here: "TV is regulated to protect children, so we can regulate
the Internet too". The US Supreme Court explained why the Internet
is different than TV and held that there is no basis for lowering
the level of protection for free expression to the lower standard
applied to television.
In the CDA decision, /ACLU v. Reno/, the US Supreme Court affirmed
the lower court's ruling and held:
"we have made it perfectly clear that "[s]exual expression which is
indecent but not obscene is protected by the First Amendment." /
Sable,/ 492 U. S., at 126. See also /Carey/ v. /Population Services
Int'l,/ 431 U. S. 678, 701 (1977) ("[W]here obscenity is not
involved, we have consistently held that the fact that protected
speech may be offensive to some does not justify its suppression").
Indeed, /Pacifica/ itself admonished that "the fact that society
may find speech offensive is not a sufficient reason for
suppressing it." 438 U. S., at 745. It is true that we have
repeatedly recognized the governmental interest in protecting
children from harmful materials. See /Ginsberg,/ 390 U. S., at
639; /Pacifica,/ 438 U. S., at 749. But that interest does not
justify an unnecessarily broad suppression of speech addressed to
adults. As we have explained, the Government may not "reduc[e] the
adult population . . . to . . . only what is fit for children."
PLEASE read /ACLU v. Reno/, the '97 US Supreme Court decision (THE
law in the US dealing with free expression on the Internet):
http://www2.epic.org/cda/cda_decision.html
If ICANN were to adopt your suggested policy that it can regulate
protected speech on the Internet, no doubt groups like ACLU and EFF
will challenge such an illegal restriction in US courts and US
judges will be obliged to follow the US Supreme Court precedent on
the matter.
No one here is suggesting that obscenity cannot be regulated to
protect children, but the kind of overly-broad "TV standard" of
regulation that you suggest ICANN undertake 'to protect the
children' will also be struck down by US courts upon its attempted
implementation. I don't think that is the kind of 'policy' you
want to make for ICANN. It would be far wiser to follow the US
Supreme Court's clear ruling, obey the law and respect free
expression rights.
There is no getting around the fact that ICANN is a US corporation
and operates under the authority of the US Government and it will
not be allowed to infringe the free expression rights of US
citizens that are guaranteed by the First Amendment to the US
Constitution.
Robin
Liz Williams wrote:
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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