Dynamic Coalitions: Freedom of Expression

Sixth Annual Meeting of the Internet Governance Forum

27 -30 September 2011

United Nations Office in Nairobi, Nairobi, Kenya

September 28, 2011 - 14:30PM


The following is the output of the real-time captioning taken during the Sixth Meeting of the IGF, in Nairobi, Kenya. Although it is largely accurate, in some cases it may be incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid to understanding the proceedings at the session, but should not be treated as an authoritative record.


>> BEN WAGNER:  So hello.  Welcome to the meeting of the Dynamic Coalition on freedom of expression and freedom of media on the Internet.  I'd like to thank the participants for coming.  I'm grateful there are so many at first here.  I'd like to thank the Secretariat for considering the importance of the Dynamic Coalition so great that they were given the largest room here, and I think that is a very important consideration of status within the IGF.

I'm sure that this practice will be continued in future to the sole benefit of the coalitions.

I'm not sure whether this has been seen by everyone here.  Some people are new, some people are old friends.  Some people have just arrived.  It would be helpful, we prepared a short agenda which can see on the screen over here, hopefully, and that is roughly what we will be following.

But to get started it would be helpful if we could go through, there are some people here who consider themselves members, and other people who are in for the ride, and if you could quickly say your name, who you are, why you are here, that would be great.  If you could just go through the rounds, maybe start over here, and that would be helpful, thanks.

>>  Thank you.  I'm Robert Bodle, with the Dynamic Coalition on Internet Rights and Principles.

>>  Hi, I'm Sam Gregory.  I work at Witness, which helps activists use video for human rights work.

>>  I'm Ellen Blackler at Disney.

>>  I'm Stuart Hamilton from the International Federation of Library Associations.

>>  Lena, Electronic Frontier, Finland.

>>  Rupert from the Austrian Internet foundation.

>>  Blayton Male.

>>  Hi, Elena Ravinovich, from Buenos Aires, Argentina.

>>  Stefan from national organisation, Italy.

>>  This is Carmen from Estonia, in University of Tartu.  And I'm just moderating; not even moderating, something doing with the computer here.  Thanks, Ben.

>>  Hi, my name is Jay with the UN Secretariat, be assisting in the remote participation.

>>  Sebastien Bachollet, member of the board of ICANN.

>>  My name is Chokran, Ministry of Foreign Affairs of China.

>>  Kim Pham, Expression Technologies.

>>  Sorry for arriving late; I'm from Frontier Finland.

>> BEN WAGNER:  We have two in the back.

>>  Michael Rotert from the German Internet Industry Association, and also speaker of European Internet Service Provider Association.

>>  Hi, my name is Henning Lesh, from German Internet Industry Association as well.

>>  Damien Gechco from Brazil from Internet.bR.

>> BEN WAGNER:  Wonderful, thank you very much.  It's nice, even though we have a large room, there is lots, a few people here who will hopefully contribute to having a very interesting discussion.

We have had lots of important and interesting developments over the last few months on freedom of expression.

And I think it would be helpful in this context to develop a few ideas and also to discuss the key statements.  Over the last weeks and months we have been gathering issues which are important for freedom of expression on the Internet.  This is not my work.  It's the work of the coalition, who suggested various different points that should be discussed.

I think I'll start, we have just come out of a workshop from the European Commission on resilience and stability of the Internet.  One of the core things that was mentioned there was related to the Arab Spring, and how cutting off the Internet and filtering the Internet heavily can have significantly detrimental effects to stability and resilience of the Internet, and of course have a massive negative impact for human rights.

I think that is a valuable and important point, but I'd like to open the floor and look for suggestions, ideas, components, and other beliefs what you think might be relevant aspects of freedom of expression related to Arab Spring, and how we can develop the agenda in a future coalition setting.  Thank you.  Extraordinary interest in contributing to this point.

>>  Robert, your mic is open.  I think you want to comment.

>>  Can you clarify again what we are sort of driving at here with the discussion of these points that you are talking about; how our organisations have been involved in any of these issues?  Or how, or what the next steps the coalition can take forward?  I'm sorry.  I didn't quite -- .

>> BEN WAGNER:  Both.  On the one hand, it's interesting to see what organisations have taken steps in relationship to the development of freedom of expression in the Arab Spring, and also to see what conclusions we draw from that for future either our own initiatives or for joint initiatives that can be made here.

>>  I can make comments about what the libraries have been doing, particularly in relation to 2A and then a slight part of 2B. IFLA has been a member of the International Freedom of Expression Monitoring Group for years, and we were involved in visits to the country prior to the WSIS summit in 2005.

What we have been doing most recently is to look at along with the IFX TMG the possibility of revitalizing the publishing industry in Tunisia and Morocco and Algeria, to try and generate more printed publications and to try and rebuild what has been traditionally undersupported, particularly in Tunisia.  And our President was visiting Tunisia just last week to pick up on some of that.  So we are interested there in engaging with the library associations in Tunisia, particularly to make sure as they go forward, they include freedom of expression issues in their work.

As a second point, to note that IFLA was extremely pleased to see in the La Rue report the reference to intermediary liability being a, having major human rights implications.  And this is something which the libraries, particularly in the United Kingdom with the Digital Economy Act, and France, and New Zealand with the Copyright Amendment Act, the libraries as providers of public wi-fi have a lot to worry about, particularly in the UK where the definition of library could have us, or the confusion over the definition of library could have us down as both an Internet service provider and subscriber, which could on the one hand mean we have to monitor our users' activities on line, or on the other, we could have services cut off at, public services cut off because of the results of one user.

I won't go on about that, because you can come to the workshop tomorrow morning on copyright under a magnifying glass, 11:00, to hear more about that.  I can't remember the name, the room off the top of my head.  But I would urge you to come along.  We will outline the library's position a bit more clearly.  Thanks .

>> BEN WAGNER:  Wonderful, thank you very much.  Are there any further questions, please?

>>  Very briefly, once again, due to my incredible organizational skills, I missed the beginning of the session.  So maybe this has been discussed before.  I wanted to signal to the fine folks of the assembly that Jeremy Malcolm and others have drafted a declaration to send to the UN committee about the declaration of China and Russia, and it is supposed to be circulated right now for signatures.  I don't know if you all received it by E-mail or something.

But it should be sent as of today.  So there is very little time to contribute your signature on it.

Also, just very similarly to what has just been said by the representative of IFLA, the question of the conflict between copyright and freedom of expression is something that should be undertaken, and I don't know to which extent the difference of a positive agenda on copyright fits within the framework of defending fundamental freedom of expression online.

But for instance, maybe the angles of access to research information, the exception for libraries, the question of the treaty for the blind and so on, are as many entry points that could be used all together with a common base that is limitations and exception as a way to enforce freedom of information and freedom of expression.

Also, I think that the question of derivative works, remix, is now an extremely important part of freedom of expression, that there is a kind of age divide here.  We are all so shocked when we see a 15 years old writing grammar and all.  But what we may not realise is that the same 15 years old now have too many plays moving in sound and mix to a voice message, so we have to keep in mind that using remix material is now part of expression for a whole generation born with digital technologies.  And once again, I'm a newbie here, so I don't know how this could fit in the coalition's agenda or anything.

>>  Please.

>>  Thank you.  I think when you mentioned relationship between freedom of expression and the Arab Spring, that in a multistakeholder context we need to be clear that the Arab Spring was a good thing.  And I'm relating to the code of conduct statement that Jeremy just mentioned, because we really need to relate freedom of expression issues to the ISP structure, given the example of the kill switch being used in Egypt, so freedom of expression and the structure of the Internet service provision within countries.  Thank you.

>>  I think this relates.  Building on what Jeremy says, one of the things that we have noticed as an organisation focused on visual media is the new challenges around freedom of expression that relates to visual media for human rights work in terms of how people are identified on the basis of visual media, but with underlying data, as well as their presence and images, most currently in Syria.  What I would also note, and this reflects Jeremy's comments, is also the role of remix in human rights directly and human rights activism, if you look at what happened in Egypt and a number of other locations, or in Spain, if you look at public protests there and the use of remix as a way to advocate.

I think it's important for us not to forget if we are looking at the Arab Spring, right to privacy and freedom of expression is as relevant to someone doing that in a U.S. domestic context or European context.  I hope we keep that broad framework across, rather than just specifically in repressive context. 

>> BEN WAGNER:  No, I think I can agree with all of the previous statements, particularly mention to Jeremy this is certainly a space where these sorts of ideas can be developed.  I don't think that we need to unnecessarily restrict it in any direction.

Specifically because we mentioned the infrastructure point that was mentioned several times in the recent comments, we have the special guest who is sitting at the back of the room from industry association, and I'm sure he would be, especially in regards to freedom of expression, interested to make a few points from an industry perspective that might be interesting or important for us to consider in going ahead.

Would you like to come up here?  Or make the point from back there?  It's up to you.  Wonderful.

>>  There are only so little number of people here, so I thought if I'm sitting in the very back and talking from there, it's much better to sit in front, so you can see me better.

I just heard and I have to admit be cautious when calling the ISP industry for things to support or not to support other directions.  This might be very dangerous, because the other side, whatever it is, may use the same mechanism to fight back.  And that's a real problem.

We have from the, together with EURISPA, European Internet Service Provider Association, which is an association of associations based in Brussels, the members are the ISP associations of the various countries, and we have together with the Council of Europe developed the human rights guidelines for Internet service providers quite a while ago.  We are doing some rework on it now, because it has to be restructured reflecting all the social networks coming up, that was before that time.

So, the ISP industry is trying to do what is, what their task is, and very often, the ISPs are called by Governments to block, to filter, and if you call the ISP industry to support them, it's the same as when technologies for blocking and filtering are developed.

That is kind of a dual use technology, so to speak.  Dual use technology, in terms that whatever the authorities in countries like Germany or UK or U.S. developing on software for blocking or filtering the Internet, can be the same technology, can be used in other countries which were mentioned already, Egypt, Tunis, to calm down the civil society in those countries.

It's the same technology.  So I very often talk to Governments and tell them, please be careful whatever you want to have developed on technologies, because that might hurt other countries in the world.

And it happened with the blocking and filtering.  Fortunately, blocking and filtering technologies are easy to circumvent the way they are implemented.  And finally, it worked out to be not as critical as in former times where it could just cut a wire and then there was no communication at all.

But we have even very bad examples in the UK, where the Government was asking for the Blackberry data, that was really a very weird experience, and just before we were discussing industry in itself is cause the ISP industry to support them.  We had the discussion in the session before about the rights holders industry, or about the copyright infringement stuff.

But again, the ISP industry really tries to work actively in the human, with the human rights guidelines, together with the Council of Europe where these guidelines were developed.

The reason why we do this, as ISP industry, is simply because we found out that it's much better to work in this area, and to use these arguments for being against blocking and filtering technologies, than having just pure technical arguments or financial arguments.

Once you talk to Governments, and you can only argue with financial statements or with technical statements, they say, well, can be developed, can be solved is not a problem.  But if you come with human rights arguments, there is very little to say against, because that would be go against their own, in their own country against the civil society.

So this is what the ISP industry does in this area, and of course, that is why I'm sitting here.  We are trying to get involved in all the discussion, even here within the IGF.  We have an IGF in Germany.  As a German IGF, we are active in the Euro Dict which is the European IGF and that all, in order to bring the Internet technology away from the pure technology and back for normal use for normal citizens with normal human rights. 

>> BEN WAGNER:  Wonderful, thank you very much.  Since you discussed that extensively and especially your involvement with the Council of Europe, I believe we have somebody else in the room from the Council of Europe who was, also wanted to say a few words, particularly on the erosion of freedom of expression, which we discussed before, and there has been some wonderful Council of Europe documents and suggestions on principles to be developed over the past few years.

When we discussed this during a coalition, repeatedly we have come to the conclusion that while these principles have been extremely powerful and valuable, they haven't always been implemented to the fullest extent.  If you would like to come forward or from where you are seated, a few points on that would be very valuable.

>>  Thank you very much.  I wasn't going to speak but I'll speak, and steer me, Ben, if you can, in terms of what you want me to say.

But we have, just to say that, and I've mentioned this before this week, is that we do a lot of work in Strassburg on freedom of expression, article 10, convention on human rights, and what that means with regards to the Internet.

Last week, the Member States adopted four new policy documents, soft law documents; one at media, looks at freedoms and responsibilities of online media.  It's taking the traditional parameters that we know, with regards to the regulation of freedom of traditional media, television, etcetera, and we have translated them into what that means for online Internet intermediaries.  So using traditional indicators, criteria, we are trying to look at how that fits with the online world.

There is a new recommendation called a new notion of media which is not black and white, which doesn't give you a magic wand answer regarding, is an online media, does it have the same responsibilities as a television channel, for example.  But it does give you lots of extensive detail regarding a performance criteria and indicators which will allow you to reason yourself, the Member States, what that means in reality.

It is a step.  It is incremental.  It is not a silver bullet.  It is something to think about and to digest.  Last week -- so that is one text -- another text was a very short text which talks about domain names and name strings, and that for the Council of Europe they fall within the scope of freedom of expression.

So domain name string, it is not just a series of letters and perhaps numbers.  It is more than that.  Again, it's just simply a declaring something, but it's very important I think to think about that.

You may know that there was another text which was about Internet Governance principles, ten principles that they were developed and agreed to frame the Internet, parameters for the Internet, and regarding cultural linguist diversity, open Internet with a touch of net neutrality in there and many other things.  And it's the particular approach of the Council of Europe what it believes is being the human rights law, democracy angle of what the Internet is or what it should be.  Of course, there are other principles to be worked out what is common to all of them; lots of work to be done in the future.

On top of that there is the recommendation which in a nutshell is about, do no trans-boundary harm to the Internet, in terms of the fact that in terms of the infrastructure, one country could have an effect on another country's access to the Internet, the chips and pipes, infrastructure is trying to create, if you like, solidarity, and in cooperation between states to make sure that they, there was a free flow of information on the Internet and there was this, this continues to be the case; good neighborliness, preparedness, upstream thinking regarding downstream possible disruptions, so no transboundary harm to the Internet.

Those are four good examples of how the Council of Europe is currently seeing what freedom of expression means on the Internet; different examples, different things.  I think they are quite unique at the moment, some of them at least.  That is some work.

If I go back to the Internet Governance principles briefly, I think there is a climate in the momentum to err on the side of freedom.  We talked about Internet freedom before.  There are several countries in Europe which are talking about Internet freedom and pushing that, particularly with regards to the UN and the work of Frank La Rue, the special Rapporteur.  And so when we think about the issues which are happening in different countries, one would say sometimes a knee jerk reaction to situations regarding online social media, I think there is a need to, personally a need to reflect before you start going into a knee jerk reaction regarding online social media should be locked down or stopped, these sorts of things.

I think the Internet Governance principles, for example, from memory, they have the word, that you refrain from interference, that you think first of all.  I think these texts are a good step towards greater reflection on the importance of Internet, access to the Internet and how important it is for freedom of expression, access to information, enabling other rights, and basically promoting democracy generally.

They are all steps in the right direction.  In terms of your question, Ben, about erosion of freedom of expression, tell me more. 

>> BEN WAGNER:  That was precisely the answer I was hoping for.  Thank you.  That was wonderful.

To move slightly also in the direction, slightly follow-up question, from the documents that you mention now that have been published recently, looking forward slightly, I believe there is a current Council of Europe strategy being developed for the next few years.  I'd be interested to know to what extent and where, in which elements you are involving freedom of expression in that.  That would be valuable for the rest of the coalition to know more about that.

>>  There is a chapter, this is a draft strategy which is open for consultation.  For example, you are all able to make written comments, for example, and they will be taken into consideration.  It's a document which packages together what we are doing already, and what we are planning to do, which is really foreseen over the next few years, over the next four years.  It has elements on children's protection and empowerment, on data protection, on Cybercrime and the role of law and democracy and culture.  There is one on protecting the Internet's universality, integrity and openness.

Some of that work was done or started and adopted last week.  There is also a follow-up work on net neutrality, and so there is a lot of implementation of the work which is already done.  There is already a text on declaration, we have on net neutrality as well, about with regard to elements include, with regard to the greatest possible access to choice of content and services for users, traffic management measures, now already circumscribed to make sure users have the full access to what they need; I'm paraphrasing that from memory.

So those are things which I retain now for the moment.  But there are plenty of things happening.  It is a question of priority really.  There are so many things to be addressed.

I do think there is a, it is important to not just look at the implementation of some of the standards, the policy frames, because when we start talking about unpacking them, elaborating them and talking about them from different viewpoints, perspectives, from the perspective of not just Governments but also the private sector, so, but I think we need to start looking at those texts and moving it forward. 

>> BEN WAGNER:  Wonderful.  Thank you.  There is going to be a third person speaking from the Swedish Foreign Ministry.  Sadly, he got an urgent phone call, but he will be back again in a few minutes.  We can then continue on the agenda.  Whenever he is able to join us again, we can continue on this point.

I think that having all of these points that were mentioned, both from an industry perspective but also from intergovernmental organisation, there is a certain level of clarity on the extent to which we are pulling in a similar direction, and where there are many issues that interrelated where it's not sufficient to have one stakeholder group simply involved, but that we need a true, and by true I don't mean what sometimes is done at the IGF where you have different bits and people preaching to the choir, but it needs to integrate all stakeholders.  This goes for also the stakeholders who we happens typically wouldn't talk to.

So I think there is a danger to leave out perhaps companies and also Governments who we wouldn't typically assume to be the people who we are having in these rooms.

I'm grateful there is such a broad set of people here from different countries, from different companies, and that they have taken the time to come here and to make a few comments.

Moving on to the La Rue declaration, and the report and Bildt declaration, excuse me, which was mentioned several times now as one of the core documents that has happened in freedom of expression this year, and Frank La Rue is here promoting the report, and continuing to extensively discuss the issues involved in it, I'd be grateful if there is any additional points or recommendations, remarks from the floor in regards to the usage of the La Rue report.

I believe there might be remote participants who are involved in this, but I'm not sure.  We have lots of remote participation but I can't see whether there have been any specific comments.  Anybody who wants to get involved in this or speak?

>>  We have one who wants to ask a question, but since his microphone is not working, I'm going to read it to you.  But you can see it from there.  Basically his question is, how can we establish a global network of experts of censorship circumvention, and privacy experts to help activists in the Arab world, particularly in countries having ongoing revolution such as Syria and Yemen.  I ask this because I run advocacy.com and have circumvention software, but do not have resources to answer activists for example from Syria who are asking how to get in touch with activists in the area and perhaps interact with other activists in the country or region .

>> KIM PHAM:  There is work in this direction.  I'd be happy to speak to you, Walid, privately about that.  If anyone else is interested in contributing to the projects, feel free to approach me any time during this conference. 

>> BEN WAGNER:  It is important to suggest there are numerous people who can be found at the conference, not just Kim but many others working on these issues, and not always particularly public about it.  But there is value in cooperation particularly in exchanging ideas and suggestions how the technologies can be developed, because there are different aspects and different things that can go both right and wrong.  It is helpful to integrate common suggestions and solutions both from experts but also from people who are using the technology.

>>  Use the net and you will find experts, maybe on the net and maybe somewhere else.  On the net you will find net experts and they are helpful.  There are lots of them. 

>> BEN WAGNER:  Wonderful.  Thank you very much.  I trust that with your experience on these sorts of issues, that is basically 20 years of Internet experience speaking.  That is something to be trusted.  Are there any further comments, questions or ideas related to the La Rue report that are in the room?

>>  First of all, I think the La Rue report is a very good starting point for many of us in our work.  It's a very good reference document for us to build upon, first of all.

I think there is more to be done.  I think there is more being done.

But the starting point is there.  There is a need to implement that text.  Implementation is a key step now.  I think that needs to be associated with the work of John Roggy and his report on human rights in business, because states protect company, business, encouraged more and more to respect human rights online, and so there is a relative role to play in associating that work and its implementation both through the UN and other organisations I think.

>>  Quick comment once again in the form of a troll.  I'm a big fan of the La Rue report myself, but I couldn't help but notice that there is one element about it that raised my hair.  Don't try to imagine what --   (chuckles).

He says in his report that filtering should be avoided, but could be acceptable in the case of child pornography.  Well, I don't, we shouldn't even use the term child pornography.  It's material related to crime scenes or something like this.

But the fact that it could not get this out of his report shows how strong the think of the children argument can be.

And I think we still have a very hard road to clarify this in the minds, that yes, you can want to protect the children, but no, using the technical solution such as the ones used in China for political censorship will never be a good idea.  And there will be collateral damages.

So looking through this room, actually I picked one of the two split room on the other end of what was conference 2, and one of them had maybe twice or thrice the number of participants, and was I think the coalition, think of the children coalition, so the people who are literally pushing for those filters in the name of protecting the children.  So I think this is really, this is almost an ideological battle which, not exactly, because we all know it is a pretext, an emotional pretext; you will know about the shock doctrine when you use some very shocking and emotional event to make things go through.  I think it is very difficult issue.

>>  I have to second Jeremy here, and pointing out one practical approach for arguing that censorship is not good even against child pornography, mainly that it doesn't work.  There are a number of good reasons why it seems that it actually makes things worse, makes it harder to catch and prosecute the actual child abusers and pornography producers, two main mechanisms.  First, for the police it's an easy way out; they filter instead of going after.  And second, it works as advance warning system for the pornographer, so they notice they have been seen and they move elsewhere.

>>  A follow-up.  I know these arguments.  I've fought against this version of child pornography filtering in France.  Unfortunately, we lost there.  I know that on the EU level and so far early stages of the procedure and mainly influence of Joe Macnamee from Endry, tremendous result was achieved.  But most of the time it's not about the rational arguments.  It is not about whether it works or not, what could work better.  We know what would work better, more resourceful investigators, tracing and cutting down financial streams, which requires political will and things like that.

But the child abuse material debate is framed in a way that rational elements do not even reach your interlocutor's brain because of the emotional layer there is on it.  Some members of the French parliament voiced it in the parliament, and they said we were invited by the police forces, we were invited to come and watch those movies, and images, it's so horrible; indeed we have to vote it because it's so horrible.

This is like after 9/11, 2001, say, yeah, I'm against the patriot act.  Oh, so you are not a patriot?  Cannot work.

>>  I can tell you that blocking and filtering even in the European environment is very heavy under discussion.  The problem will be even for, against blocking in favor of child pornography.  My fear is currently that we have a new discussion for blocking on gambling sites and there is a lot of money involved, and my fear is that with that money and discussion, they may succeed over principles like being against child pornography.

Giving you a very good example how we handled the stuff in Germany, we could manage to talk to the various stakeholders.  Although we had a law for blocking and filtering child pornography, we are now fully moved towards deleting at the source instead of blocking and filtering.  It has shown that within two weeks, we can delete 98 percent, within two weeks.  And who wonders, Russia is supporting this very much.  It uses the hot lines, which are I guess currently in 40 countries worldwide, and those hot lines speak to the hosting providers and to the appropriate service providers for taking the material off line immediately, and it's really a very good experience.

Also, it was introduced in Germany that the German federal police can speak directly to the hot lines, instead of going through Interpol and all the administrative path which would have the material moved immediately to a different server, and nothing would have happened.

So the German federal police can talk to the hot lines directly, and say, please take down this material.  And I can tell you it works.

It's getting, spreading out more and more over Europe, the very good experience we make with deleting at the source.  Unfortunately, this works very well for the child pornography because then you have material.  But it doesn't work, these deleting arguments, with the gambling experience we have, because deleting at the source from gambling sites is not easy.  The gambling site may, in its country where it is located, may be fully legal.  So there is no way to delete it.

I don't think we should start discussing blocking and filtering or censorship mechanisms for stuff like gambling, if we already refuse to discuss these issues with child pornography to find much better ways.

And blocking, you may Google it.  You will find unblocking in ten seconds.  It's the first what appears on a Google site.  Blocking will never be an issue.  I hope we can keep Germany, all the different parts clean from blocking so we never have again any censorship.

>>  We have a remote question, is that correct?  Or several?

>>  I don't have a question for participants, but I have a comment from myself as a member of the coalition.  As we have been discussing this La Rue report, I wanted to explain how happy I was to read this, if it was, after it was published in June, because before that it constantly, the news just came about liability of, for intermediaries, it came from G8, it came from different really really high meetings.

There were states, France, and so forth were stating that actually there is nothing wrong about liability for intermediaries.  And we should actually all do it, not only France and Ireland and UK partly and then so forth.

I think for me, the highest or the most valuable part of La Rue report is the really well-expressed arguments for keeping hosts not liable or keeping them immune, because otherwise the host would be living under constant fear of being liable.  And this also leads to this constant growth in censoring and blocking and so forth.  So if you take away this fear and tell them don't worry, you will be immune unless you do something yourself, this blocking and censoring problem would increase by itself also quite a bit.  Thanks. 

>> BEN WAGNER:  Thank you very much.  Please, an additional point.

>>  A quick comment on Jeremy's notion that brains don't enter into the child porn discussion.  It has a true element of truth in that, but you have to remember logic does not work without rhetoric.  In this case rhetoric is more important.  But logic is needed and arguments are needed.  You have to phrase it in a way, we must protect the children, and the way to go is the way they are doing it in Germany, and DNS filtering makes it harder to prevent it and host the children.  So starting like that, it can work.

>>  Agree.

>>  That is enough.

>>  Since we had several comments related to censorship, control, and also China related to several debates, I'd like to provide the right to respond to Mr. Chukran in the back of the room.  If you have some kind of position on this, or suggestion on this, I don't want to leave it standing in the room without the right to respond to that if you wish.

>>  Actually, I don't expect, didn't expect to speak on this session.  But since some of the speakers have point out the so-called censorship or filtering in China, I have to react.  Everybody knows that ideology called battle between the China and West has never stopped, and everybody need to bear in mind that freedom is not absolute.  It is always relative.  Everything has  two sides.  And the expression of freedom, freedom of expression is the same.

I attended some of the workshops today and yesterday, and people always talked about the filtering and blocking in relation to child pornography.  I think this is the one case of filtering, but what about supervision of Government and inciting for terrorism for brutal acts?  Everybody knows that what happened in UK, some of the youngest were on Facebook who were arrested; is that violation of freedom of expression?  And I have to remind this everybody, when you are talking about freedom of expression, you have to bear in mind that everybody needs to obey the law.  And the law, different countries has different laws.  Thank you. 

>> BEN WAGNER:  Thank you for this interesting statement.  I, just to put that into a little bit of context because we were discussing precisely this issue in London beforehand in regard to the civil unrest there, and Government responses in regard to dealing with social media. 

I can only speak for myself, but perhaps also for other members of the coalition, in saying that I was horrified when the British Prime Minister suggested that these were phony human rights concerns related to these issues, and I think many of the European states shared these concerns and responded appropriately.

I'm not sure that this one example is representative either for British Government policy, or for European position on these issues.  But I believe this is open to debate within this coalition.

As I mentioned beforehand, there is several people who we have invited to mention important issues, and since we have been speaking about the La Rue report, and also the Bildt declaration related to it, we invited Johann Hallenborg from the Swedish Prime Ministry to speak about the progress of the report and the declaration, and how it's developing into a process beyond the initial report itself.  And I'd be grateful for, if you could share that with us.

>>  Thanks very much.  My name is Johann and I work with the foreign ministry and human rights department dealing with questions of freedom of expression among another few things.

I'm not sure what you refer to as the Bildt declaration, the address to the EuroDIG?  Yes, good.  A few years ago, the foreign minister decided Sweden needed to be more active when it came to promotion of freedom of expression on the Internet and in relation to new information technologies.

And looking around to see how to best work on the issue, we found out that, two things essentially.  The Human Rights Council, the prime human rights policy making body in the UN, was not engaged, and it needed somehow to respond to this new emerging issue and to deal with it.

The second thing was that we found that there was a gap between the sort of traditional human rights people, the human rights community, and the Internet, so-called Internet rights community.  There was a gap between the two, the technical community and human rights community.  And that gap needed to be bridged, in order for us to understand how human rights were supposed to be implemented on the Internet.

We set out to try to address this along these two lines of work.  We started to become quite active in the IGF, starting two years ago.  We have been active in a few of the coalitions and also in several workshops, and in main sessions.  We had our minister during our EU presidency talk on human rights in the main session.  And that was a way for us to try to work with other Governments, of course, but to try to raise the human rights as an issue in the IGF.

In this work we also had good collaboration with a few of the intergovernmental bodies, the Council of Europe with Lee Hibbart was important to us and has been in a sense.  Secondly, we found out that the council, Human Rights Council would have to address this issue somehow.

We supported very much the report of Frank La Rue, the special Rapporteur on freedom of expression, Karl Bildt and Frank La Rue invited to Stockholm to expert meetings on the freedom of expression and the Internet, to try to hammer out what the main issues related to, primarily discussing in three different veins, freedom of expression and permissible limitations to that right, access issues, access to information and access to the Internet, and thirdly, the right to privacy, privacy issues.

And you will also find that Mr. La Rue's report to the council very much is structured along these three subjects.

As a response to the report, which obviously was his own product, we took the lead in Geneva to draft a statement in support of the main principles outlined in the report.

That statement was quite short, but we think it covered some of the main aspects of the report, dealing in some detail with the role of intermediaries, dealing in some detail with anonymity on the Internet, and also setting out the limitations to freedom of expression on the Internet.

Now, this statement was merely a statement, nothing more, but it got support from more than 40 countries from around the world.  We were very happy to see that support came from all corners of the world, which meant that this is not, this is to advocate for freedom of expression on the Internet is not a western issue.  It is not a western idea.  This is something that concerns people around the world.

We had support from some of the important countries in the global south.  Brazil, Indonesia, India and South Africa were among those who came on board happily.

To us this was an important continuation of the special Rapporteur's work.  We are proposing to the council that there will be a more formal expert panel debate on the issue at the council's next session in March next year.  And we are very hopeful that that decision will be taken during this week, which is the last week of the council session.

So this is very short what we have been doing so far.  The council is an important but somehow a bit underestimated body, when it comes to human rights protection.  It may be perceived as not very progressive or not very efficient.  But I would say on the contrary, we have seen in the last year or so that the council had been able to act fairly swiftly to, and react to emerging situations that have been very serious, on a number of occasions; Syria, twice, Libya, etcetera.  Decisions have been taken on establishing fact-finding missions, commissions of inquiry, into human rights violations.  And this is important.

The council have shown itself to be able to react in realtime, which is important.

We are hopeful that the council can also deal with the issue of freedom of expression on the Internet.  I think to us, the starting point in all this is that freedom of expression extends to the Internet.  There is no doubt about that.  It's also been clarified by the human rights committee in its latest general comment.  It extends fully to the Internet, including with its limitations.

Because as my friend from China just said, there are limits to freedom of expression, to us it's important to state that these limitations or restrictions are only acceptable if they are grounded in international human rights law.

And again, coming back to the foundations, which is article 19 of the ICC PR, we have the framework for how limitation to this right should be constructed, and when it may be acceptable.

In my country, Sweden, we do have a voluntary system for blocking child pornography.  This is not a secret at all.  But this is an acceptable limitation to freedom of expression, since this is a part of international human rights law.  There is even international treaty on this issue.

So this is the starting point for us, when it comes to freedom of expression.

Maybe I should stop there.  It has been long already.  Thanks. 

>> BEN WAGNER:  Thank you very much.  That was both extremely helpful and extraordinarily interesting, in providing an overall picture on the wonderful work that Sweden and the Swedish Foreign Ministry have done on these issues in the recent years, and there seems to be continuing to doing in the process ahead.

There are several issues still here, but I wanted to focus on one in particular, as we have several people in the room who have specifically worked on protecting intellectual property and thereby restricting freedom of expression.

I think Jeremy mentioned this beforehand and also Jochai from Access that has been involved in these issues as well, so I'd like to if you will for a few minutes give you both the floor and just to discuss specifically this problem, in that there may be in certain circumstances legitimate concerns related to copyright or related to other intellectual property rights, but these have the danger to be chilling and even overly restricting freedom of expression.  Please.

>>  Thank you for that.  Well, I have the impression of being some kind of sales representatives in the last days, because I've been repeating that in a number of workshops.  The global infrastructure that we love and share brings what we get from it on the social cultural economical point of view because of its universality.  I think we really need to get this in mind, and keep that as a centre of our actions.

This universality of the infrastructure is threatened on many different regards today.  The different threats have in common that there are programmable machines at the heart of the infrastructure that could be programmed to attack it.

One example is when ISPs choose unilaterally to block or throttle some contents service or application in order to create new business models.  This is the very difficult debate on net neutrality.  But another way of programming those machines to restrict access is what the entertainment industries are currently pushing through an impressive number of fora.

I enjoy very much being here and meeting fantastic people around, but sometimes have the impression that we are mostly talking, when on the other side, they are taking action.

I'm thinking of the ACTA Forum, an ad hoc Forum that was created to circumvent the fact that WIPO was blocked by countries from the south.  And ACTA says specifically that intermediaries, access providers and service providers should take measures to deter further infringement.  So this would be only declarative if there wasn't on the other hand the threat of broad criminal sanctions, criminal sanctions for aiding and abetting infringement on a commercial scale.

We can discuss in length of how this is a Democratic anomaly and justifies by itself the European parliamentary rejects ACTA, that the trade agreement contains criminal sanctions, but that is another issue.  Let me focus on those measures to deter further infringement.  The ones in the room with a technical mind will instantaneously think that these measures can only be blocking which amounts to censorship of content, or automated removal of content, like Google does on YouTube, which more or less amounts to censorship as well.

Basically those measures cannot be anything else than censorship.  Those measures may be imposed in ACTA.  They were outlined in the initial European Commissioner for internal market IPR strategy document, which lays the strategy for the next years in copyright related issues.  It is described in point 26 of the G8 conclusions.  It is also present in the OECD guidelines where everybody is invited to take measures and so on and so on.

So we are about to witness a radical change in the infrastructure of the Internet, where actors will be pressured to programme machines to take decisions on whether or not content, service and application should go through.  This is a blatant negation of the right to a fair trial.  This is the negation of so many principles of the rule of flow and of democracies and so on, and the impact on freedom of expression don't need to be detailed here.

So, in order to defeat ACTA in the European parliament which I think would be beyond that very strong symbol, the winning the vote of the consent on ACTA would I think open a tiny door for pushing a positive agenda forward.

But winning this battle implies that industrial actors would be in battle with clear opposition we can use to convince liberals and conservatives, so civil society alone cannot make it, but this is a battle we can win and a battle we cannot afford to lose.

>> JOACHAI BEN -AVIE:  I apologize, I came in a few minutes late, if I've missed or going to repeat things that were already said.  Picking up on something Jeremy said in the panel yesterday, I think we need to get ISPs and other online intermediaries involved on the side of civil society in the fight.

What we are seeing with this rapid expansion and move to increase the sort of outsourcing of enforcement of copyright and other intellectual property rights to the intermediaries, and that is not something they want.  Basically what we have in the situation is we are outsourcing a decision that is so important on freedom of expression, and let alone, you know, to not just to a corporation, but as Jeremy was saying, to machines as well, and so we do this at the same time we asked people who are not legally competent authorities to make a determination on the lawfulness or not lawfulness of content, while simultaneously asking them to consider their own liability in the process.

I'm not suggesting that we immunize intermediaries from liability and then say, but you have to determine a robust in-house legal counsel that can determine legality of content.  No.  I'm saying that we need to get our online intermediaries to work with civil societies to push for immunity from liability, and adopt a court-based system that would allow for a determination of legality of content by an authority that will do so.  And I think that this has other benefits as well.

If we look at the Chilean model which is new at the end of 2010, but one of the things my Chilean colleagues say, it requires a court order in order to remove content.  It is not a perfect law, but it's moving in the right direction.  But already this process of, when YouTube or Facebook or pick your favorite online intermediary reviews a complaint about an allegation of copyright infringement, this is not a lawyer usually who is doing this work.

This is also, they do not have the time to review all of the complaints they are getting.  There is sort of very quick shotgun decisions that are made on crucial rights without due process.

But if you have a court-based system, you have to go to your lawyer with anything that you want to push as alleged copyright infringement.  And that step already I think has in Chile already shown to have significantly less frivolous and vexatious claims of copyright infringement.

And then you are still getting, the Chilean model is prejudicial, you get a ruling in three to five days.  If you want to contest it, you can take it to court and have a further judicial process.

But I think that this is an approach that very much maximizes the rights of users, and is also actually fair to the intermediaries as well.

>>  In terms of intermediaries and ISPs, I don't think it's a good idea to have the access providers doing these, doing some blocking, filtering or whatsoever.

Why should ISPs support dying business models between two independent parties who are not in any way in business with the ISP?

The ISP is just transporting the stuff.  I can agree to certain kind of support for hosting providers which are selling these kind of things, because they are hosting it.  And they have a business model, and they are accidentally access providers.  That would be some kind of an exception, because when a content provider sells content, it should be legal content, and not illegal copies or whatsoever as a normal business model.

And in Germany, we have the ability that the ISP has to give on the signature from a judge the IP address, and then the content industry or the music industry or whatsoever can go with the IP address to the ISP, and asking, asking what is the address, the home address belonging to that IP address at the specific time because of dynamic addressing and stuff like that.

And now, they can send letters and whatever they want to do.  They can make them liable, because they copied something illegal.  The problem what I see is, who detects the copying of illegal software?  What kind of software is it to see the IP addresses?  It's written software from the music or content industry.  They have written it on themselves.

And I know that a lot of these software, for instance, in Switzerland, is forbidden, meanwhile, because they say there is no certainty that this was really the address.  And I wonder when IP version 6 comes along with hexadecimal numbers, on how these address then will look like, they are going to trace.

So the German model, we still think that's enough, what the ISPs do in this area.  But the content industry still asks, is still asking that the ISPs should send warning letters out to their customers, and this is something which we definitely do not want to go down.  That's not the task of the ISP.  And it's not, it does not belong to the ISP business model to protect other people's business models. 

>> BEN WAGNER:  Thank you very much, and just to clarify, because Joachi wasn't in the room before.  This is Michael Rotert,  German Internet Industry Association.

>>  I'm pleased to see that the coalition is going to consider the sorts of issues within its brief, because IFLA sees strongly the link between IP enforcement, human rights and access to knowledge.  IFLA is active within the World Intellectual Property Organisation on two fronts at the moment which are relevant and have broader repercussions.

The first thing we are working hard to do is push along with our colleagues in the visually impaired community for a treaty for visually impaired people that would enable, for example, an organisation that produces an accessible format copy for blind people in Spain to share that copy with a blind person in Uruguay or other Latin-American countries speaking Spanish.  At present, under international copyright law, that is illegal.

For many people to enact copyright exceptions and limitations for such a thing would be a bit of no-brainer.  But within the north, within developed countries there is no appetite whatsoever for extending exceptions and limitations, even if it's to increase access to information for the visually impaired community.

That would be my key point.  That goes completely across the board.  Jeremy mentioned it.  It has been mentioned that there is such an appetite for increased enforcement at the moment within particularly the European Union, but you see in the United States with the ICE, all sorts of things.

IFLA is working hard to ensure to do the best we can for public interest by pushing very hard for exceptions and limitations within international copyright law.  We have drafted a treaty of our own for exceptions and limitations for libraries and archives.  We are working hard to present that at WIPO in November.  But I should point out another thing which is interesting from a European perspective, which is that in relation to the visually impaired treaty, the European parliament signed a petition where the majority of the MPs are in favor the treaty, but yet at WIPO the European Commission argues against its.  The new head of copyright at the European Commission is a former lobbyist for the International Federation of Phonogram Industries, and I think there is interesting eyebrows raised when that appointment was made.

The second thing I would say, which is why this is a freedom of expression issue for libraries, is something I mentioned earlier, which is graduated response legislation.  Intermediary liability goes beyond ISPs on the level of our colleague from Germany to the extents that libraries can be caught up in this, hotels can be caught up in this, providers of public access wi-fi could find themselves monitoring the actions of their users in order as you say to preserve other people's business models.

For librarians to look over the shoulders of the people who are looking at information in our institutions is a no-no.  For us this is a crucial issue.  Any help we can get from any other organisations in this area we are grateful for.  Thank you. 

>> BEN WAGNER:  Wonderful.  Thank you.  Cynthia, you had a comment you wanted to make.

>>  Actually I wanted to ask point of clarification on our German colleague's point about hosting intermediaries and their liability.  We have done work on studying the impact of intermediary liability on both freedom of expression and economic issues.

Frankly, we think that protections for host intermediaries are extremely important given the way that most average citizens use the Internet.  They use online service providers and platforms for user generated content.  The two statistics I like to use is that, for example, YouTube alone hosts 48 hours of video every minute, and Facebook hosts 700 new status updates every second.  If either of these companies had to worry about liability for users who might post illegal content, they couldn't exist.  They would not be economically viable.

I wanted to reemphasize that point, protection for range of intermediaries is necessary for both freedom of expression and economic reasons.  I would also urge the coalition to discuss perhaps studying the issue of intermediary liability and making the point that it's important from an economic perspective as well.  I think that enlisting our company colleagues in this effort would be a really useful channel. 

>> BEN WAGNER:  Great, thank you for that point.  I don't think I could agree more.  If Michael would be able to be here -- he has been asked to meet with several other people directly now to discuss these issues precisely -- he can't be here, but I think he would agree with the points made.

From the perspective of the coalition, these are valuable points that can be taken up and discussed and worked on in future, because especially with the help of CDT, but other people also in the room.  They have an interesting document that can be developed both in a more research oriented angle but also in a direct policy angle, to ensure these sorts of intermediary liability issues with specific relation to different parts of the change, shall we say, are important to safeguard freedom of expression.

And on a slightly personal point there, I've been discussing this with several people over the last few months.  And intermediary liability is one small part of a wider what we need to the Internet human rights ecosystem, which extends beyond simply governance aspects and beyond economic aspects as well, because we need to find a way of creating an ecosystem on the Internet that enables both companies in a market based environment to have an environment that provides them incentives to follow human rights, where we have governance structures that are beneficial for human rights, but where we also have an Internet infrastructure that is decentralized, that is open, that is provisioned for human rights.

These different aspects of one ecosystem may be both helpful and in the long run will be useful for safeguarding human rights.  This is particularly important in countries that are currently thinking about changing their various governance models such as in North Africa, where these changes can be made, and it's easy to look quickly at changing laws and changing institutions.  But there is also a wider structural debate that needs to be had to ensure that freedom of expression can be safeguarded in these various different countries and different regions.

We are slowly but carefully coming to a close.  Are there any other points that desperately need to be made?  Or where there is an urgent point that hasn't been mentioned, also from remote participants?  Or anybody else in the room?

>> KIM PHAM:  I'd actually like to ask a question of Sebastien.  I'm curious about ICANN at the moment, particularly with regards to the who is policy review team.  Are there any more, what is it called, any more requests for public comments open?  As well as the UDRP, I believe it's under review, and if you have any knowledge of that.

>>  SEBASTIEN:  I guess the question is addressed to me because I am an ICANN board member, but I am not a specialist of these questions, and I am not the right person to ask.

What I can say is that it seems that review team is finishing a report and it will be open for public comment when they will have finished.

My thinking is that it could be done by Dachau, but the Chairman of the review team, it's years, and he's not in the room and the idea it can be well to ask.

There are a lot of things going on, on the side of GNSO.  We saw some study, and other things at that moment.  It is open for everybody to participate to the work done by the GNSO.  GNSO is in charge of the gTLD, in generally the part in ICANN taking care of that, and it's statistical organisation and really open.  It is difficult to answer more to your question, because really it's not my core competency.  Sorry about that. 

>> KIM PHAM:  No, that is fine.  I only ask because I know the next item on the agenda are the next steps, and I wanted to propose perhaps that the coalition could come together to comment on both these issues.  I will elaborate on that later because I believe Johann has a comment.  No?

>>  Lee was first.

>>  This is a general comment, but it harks back to the work I do in the Council of Europe.  And in Europe there is an enforcement system which is the European Court of Human Rights and European Convention on Human Rights.  Over the years the court has been working, it has ruled and given judgments in 500 cases involving freedom of expression under article 10.

Over the years, the court has narrowly circumscribed the limitations to freedom of expression and access to information.  It is a protection of freedom of expression.  It is trying to limit, limit to a minimum hopefully the ability to restrict freedom of expression.  It is a protection of freedom of expression in Europe at the very least.

On a personal note now, not from the council of Europe point of view, to see that change with regard to the Internet is something I would not like to see.  I'd like to see that protection of freedom of expression there.  I think we are all calling for the same thing.  I want to put that there on the table.

In terms of the future work of the coalition, we talk about the same things.  We are looking at the negative things, the blocking issues, okay, something to be worked at.  But I believe that, I've said this before to some people, that the Internet and freedom on the Internet is atypical freedom.  It is not like freedom we experience off line.  Some people may feel more free and have more freedom of expression online.

I think we have to err on the side of caution and on the side of freedom in general.  When I go to different events and hear others speak, like Johann was talking about earlier, we have meetings together, and when you learn more the Internet is enabling us to exercise rights, to access to information, culture, education in the future for sure, if not already now, it's helping to create assembly, spontaneous assembly, even if that can be criticized or whatever.

And of course, if you compound all of these benefits of the freedom on the Internet, the freedom to expression and to access, I think more work needs to be done on demonstrating the power of the ability to be enabled to exercise so many freedoms at once or in one space.

I think that would be a good case to further the idea that this is an atypical freedom which needs to be protected maybe even more.  I would like to see more work done on the positive elements of all those rights, freedoms online, and some sort of study to counter the negative discussion we are having.

It may help a lot in making people realise, we all play different roles in different stakeholder groups, sometimes for different silos.  It's difficult for us to see we have a role to play, we play that role, governments play a role because they have to protect, the role is to protect their citizens.  They do what they think is right, but it involves exposure, it involves understanding, it's about meeting of minds, about meetings like this.  I've learned things from you.  You learned things from me.  That comes from understanding.  I think that requires that sort of analysis.

I don't know of compounding all the possible elements together, not just those who are oppressed, that is very important, but not just that, for the two billion and two billion plus people, it's important for everybody I think.  Thank you. 

>> BEN WAGNER:  There was some last points from Johann.  And if there is no other points, I'll be wrapping up.

>>  Thanks very much.  Thank you, Lee, for that excellent intervention.  I fully agree.  I think you put it quite wonderfully there.

I'd like to pick up on what Ben said.  I agree that we need to find a human rights architecture to apply to the Internet.  We need to understand more fully how the human rights that we have, what does the implementation mean in the Internet, in the Internet environment.

As Lee said, we have rights.  We even have the enforcement of rights, proper enforcement in parts of the world.  But this enforcement also influences the interpretation and further enforcement in other parts of the world.

We need to be able to use these fundamental rights we have, but to apply them properly in the Internet context.

I think that Lee also mentioned access, which is of course a fundamental precondition to be able to use all these rights.  There needs to be more work done into access.  I'm not suggesting that there should be a human right to access to Internet.  Maybe not yet.  Maybe we will arrive at that at some point.  I don't know.

My government is not there at the moment.  But we do acknowledge that this universal access is an important objective.  We need to strive towards universal access, because accessibility is key to enjoyment of these rights.

By the way, Frank La Rue will submit a second report on the Internet, dealing more closely with access issues to the General Assembly, and that report is already out and can be found on the General Assembly's Web page.  This is rather unique.  We have a special Rapporteur who has written two consecutive reports on the application of human rights standards on the Internet.

This is something we should be grateful for and we should take this work further.  Thank you very much.  Good luck with the work in the coalition. 

>> BEN WAGNER:  Thank you very much.  I'd like to thank everybody else who has taken the time to come here.  It's also quite extraordinary that the room filled up at certain points.  We had 50 people in the room.  But it thinned out towards the end.  It is nice there is lots of space for people to get involved anyway.  Thank you to the special guests who came here, to Kim and Carmen for helping us organise this and moderate this, and make sure we have all of the ideas and suggestions from outside involved as well, and for everybody who took the time to bring their opinion to bear in the coalition meeting.

There is going to be a short organizational meeting afterwards here, around Carmen where she is seated now in the middle, to discuss concretely a few next steps we can take to actually develop some of the things we have discussed here and concrete initiatives.  Everybody is welcome to do that.  It will last 15 or 20 minutes.

Yes.  I'm grateful again that this turned out so wonderfully.  Thank you so much for your time.


   (Session ends at 18:00.)