Team 24A

THE 2012 MONROE E. PRICE

INTERNATIONAL MEDIA LAW MOOT COURT COMPETITION

CASE CONCERNING FREEDOM OF EXPRESSION AND PRIVACY CONCERNING

OPENBEMIDIA USERS AND THE BEMIDIAN FIRST FAMILY

OpenBemidia

Applicant

v

The Republic of Bemidia

Respondent

MEMORIAL OF APPLICANT

4,981 Words in Argument Section

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TABLE OF CONTENTS

Table of Contents ............................................................................................................................ ii

List of Abbreviations ..................................................................................................................... iv

List of Sources/Authorities ............................................................................................................. v

Statement of Relevant Facts ........................................................................................................... ix

Statement of Jurisdiction .............................................................................................................. xiv

Questions Presented ...................................................................................................................... xv

Summary of Argument ................................................................................................................ xvi

Argument ........................................................................................................................................ 1

I. ROBs use of the Internet Responsibility Act to require Open to collect and verify name and contact information of users before allowing them to register for an account or make posts on any of the forums as it violates the freedom of expression. .......................... 1

A. The right to receive and disseminate information is protected under international law. ... 1

B. Any restrictions placed upon the freedom of expression must pass a three-part test. ........ 3

II. ROB cannot demand disclosure of the identity, following information and historical location information of Open users under the Internet Responsibility Act without violating the freedoms of expression, assembly and privacy. ................................................ 7

A. Disclosure of following and historical location information would violate the freedom of expression. ........................................................................................................................... 8

B. Disclosure will violate the freedom of assembly. ................................................................ 9

C. Disclosure will violate the right of privacy. ...................................................................... 11

III. The Internet Responsibility Act violates individuals right to privacy due to its lack of safeguards which render it not in accordance with the law and therefore unlawful. ................................................................................................................................... 12

A. The right to privacy in electronic communications is protected under international law. 12

B. Requisite safeguards are required for a law to be deemed in accordance with the law and must be satisfied before necessity is considered. ............................................................ 13

IV. The First Family Privacy Act is not necessary because it is more extensive than necessary and ineffective for its objective, and therefore impermissibly violates freedom of expression. ............................................................................................................................ 19

A. The First Family Privacy Act is more extensive than necessary and therefore unlawful. 20

B. The FFPA is unlawful because it cannot be effective to fulfill its objective once information has already been published. .............................................................................. 23

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Prayer For Relief ........................................................................................................................... 26

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LIST OF ABBREVIATIONS

ACHPR African Charter on Human and Peoples Rights

ACHR American Convention on Human Rights

ACtHPR African Court on Human and Peoples Rights

ADRDM American Declaration of the Rights and Duties of Man

Association Association for European Integration and Human Rights and Ekimdzhiev

DPFEA Resolution on the Adoption of the Declaration of Principles on Freedom of

Expression in Africa

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

FFPA First Family Privacy Act

ICCPR International Covenant on Civil and Political Rights

IRA Internet Responsibility Act

Open OpenBemidia

ROB Republic of Bemidia

UK United Kingdom

UNDR Universal Declaration of Human Rights

UNESCO United Nations Educational, Scientific, and Cultural Organization

UNHRC United Nations Human Rights Committee

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LIST OF SOURCES/AUTHORITIES

Treaties and Declarations African Charter on Human and Peoples Rights (adopted 27 July 1981, entered into force 21 October 1986) 1520 UNTS 217 (ACHPR). ..............1, 3, 6, 7, 9, 13, 19, 20 American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 143(ACHR). .... 1, 6, 7, 8, 9, 12, 13, 19, 20 American Declaration of the Rights and Duties of Man (adopted April 1948) OAS Res XXX OEA/Ser L V/II.82 Doc 6 Rev 1 (ADRDM). ........................................................................ 19, 20 European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 1932 (ECHR). ... 1, 6, 7, 11, 12, 13, 19, 20, 21, 22 Frank LaRue, Dunja Mijatovic, Catalina Botero Marino, and Faith Pansy Tlakula, Joint Declaration on Freedom of Expression and the Internet (1 June 2011) accessed 2 November 2011). 6, 11, 19, 21, 22 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR). ................................................. 12, 13, 19, 20, 21 Resolution on the Adoption of the Declaration of Principles of Freedom of Expression in Africa, African Commission on Human and Peoples Rights (adopted 23 October 2002) African Commission on Human and Peoples Rights (DPFEA). ....................................................... 19, 22 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR). ........................................................................................................................... 12, 19, 20 European Court of Human Rights Amann v Switzerland (2000) 30 EHRR 843. ....................................................... 12, 13, 14, 16, 17 Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria App no 62549.00 (ECtHR, 28 June 2007). ................................................................. 12, 13, 14, 15, 16, 17 Countryside Alliance v UK (2010) 50 EHRR SE6. ..................................................................... 13 Goranova-Karaeneva v. Bulgaria App no 12739.05 (ECtHR, 8 March 2011). .................... 16, 17 Huvig v France (1990) 12 EHRR 528. ............................................................................ 12, 13, 17 Kennedy v UK (2010) 52 EHRR 4. ...................................................................... 12, 13, 14, 15, 17

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Khurshid Mustafa v Sweden (2011) 52 EHRR 24. ...................................................................... 22 Klass and Others v Germany (1978) 2 EHRR 214. ............................................................... 12, 13 Krone Verlag GmbH & Co KG v Austria (2003) 36 EHRR 57. ...................................... 19, 21, 22 Kruslin v France (1990) 12 EHRR 547. .............................................................. 12, 13, 14, 16, 17 Liberty v UK (2009) 48 EHRR 1. ........................................................................ 12, 13, 14, 16, 17 Malone v United Kingdom (1984) 7 EHRR 14. .............................................................. 12, 13, 14 MGN Ltd v UK (2011) 53 EHRR 5. ............................................................................................. 13 Observer and the Guardian v UK (1992) 14 EHRR 153. .............................. 19, 20, 21, 22, 23, 24 Pinto Coelho v Portugal (2011) App no 28439/08 (ECtHR, 28 June 2011). .... 8, 9 S v UK (2009) 48 EHRR 50. ................................................................................................. ....... 16 Sunday Times v UK (1979) 2 EHRR 245. ........................................................................ 19, 21, 22 Valenzuela Contreras v Spain (1999) 28 EHRR 483. ........................................................... 12, 13 Vereniging Weekblad Bluf! v The Netherlands (1995) 20 EHRR 189. ............................ 20, 23-24 Von Hannover v Germany (2005) 40 EHRR 1. ...................................................................... 20-21 Weber and Saravia v Germany (2008) 46 EHRR SE5. ............................................. 12, 13, 14, 16 United States of America Supreme Court Berger v New York, 388 US 41 (1967). .......................................................................... 12, 13, 17 California v Ciarolo, 476 US 207 (1986). .................................................................................... 13 Katz v United States, 389 US 347 (1967). ....................................................................................14 NAACP v Alabama, 357 US 449 (1958). ........ 10 Smith v Daily Mail, 443 US 97 (1979). ..................................................................... 20, 23, 24-25 United States v Karo, 468 US 705 (1984). ........................................................... 12, 13, 14, 15-16

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African Court on Human and Peoples Rights Constitutional Rights Project and Others v Nigeria (2000) AHRLR 227 (ACHPR 1999). ...... 2, 6 Nigeria Media Rights Agenda v Nigeria (2000) AHRLR 262 (ACHPR 2000). ..... 11 Inter-American Court of Human Rights Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5, Inter-American Court of Human Rights Series A No 5 (13 November, 1985). ......................................................................................................................... 19, 20, 21, 22 United Nations Human Rights Committee Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, Human Rights Committee CCPR/C/USA/CO/3/Rev 1 (18 December 2006). ............................. 12, 13, 14 Human Rights Committee, Report of the Human Rights Committee to the General Assembly, 38th Sess. Supp. no. 40, 1983 (UN doc A/38/40, 1983). ............................................................. 22 Miscellaneous European Court of Human Rights (2011) UNESCO accessed 22 November 2011. ................................................................................................ 20, 22 European Court of Human Rights Research Division, Internet: Case-Law of the European Court of Human Rights (2011) accessed 2 January 2012. ....................................................................................................... 12, 14 Martin Marietta Materials (2011) NYSE Euronext accessed 22 November 2011. ......................................................... 18 Memorandum on 1995 Press Law of the Palestinian National Authority (June 1999) Article 19 accessed 6 November 2011. ... 3 Note on Kazakhstans Regulations for the Allocation of Domain Space (October 2005) Article 19 accessed 10 November 2011. .......5 Sandra Coliver, The Article 19 Freedom of Expression Handbook (1993). .................... 19, 21, 22

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The Impact of UK Anti-Terror Laws on Freedom of Expression (April 2006) Article 19 accessed 2 January 2012. ............................................................................................................. 19 The Johannesburg Principles on National Security, Freedom of Expression and Access to Information (1996) Article 19 accessed 1 November 2011. ............... 1, 2, 4 What Does MLM Stand For? (2011) Acronym Finder accessed 22 November 2011. ................................................................................. 18

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STATEMENT OF RELEVANT FACTS

The Republic of Bemidia (ROB) is a democratic nation which has recently encountered

strife and violence.1 The nation is predominantly comprised of two ethnic groups divided along

political and geographic lines.2 Diryens represent approximately 70 percent of the population and

live principally in the north.3 Mondahis comprise approximately 25 percent of the population,

and live mostly in the south.4

Ethnic division has emerged due to political and economic inequalities.5 Although the

nation is largely agricultural,6 the southern region is developing into a thriving commercial

center due to its superior natural resources while the north has struggled economically.7 This

inequality has resulted in Diryen jealousy that Mondahis are hoarding the nations wealth.8

As a result of this jealousy, the Diryen parliamentary majority utilized their numerical

advantage to overhaul the tax system two years ago to favor Diryens.9 The new tax policy

centralized government spending and has resulted in a substantial transfer of wealth from the

Mondahi minority to the Diryen majority.10 This policy has led to widespread Mondahi anger

and a growing sentiment from prominent Mondahis to seek succession from the north.11

1 Compromis, paras 3, 6. 2 Compromis, paras 2, 3. 3ibid. 4ibid 2, 3. 5 Compromis, paras 4, 5. 6 Compromis, para 1. 7Compromis, para 4. 8ibid. 9 Compromis, para 5. 10 ibid.

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A small militant group, the Mondahi Liberation Movement, emerged from this anger and

has orchestrated a series of bombings.12 Their attacks have targeted public markets frequented by

Diryens and Diryen political offices and have killed dozens of people including a member of

parliament.13 As a result, tensions have escalated and resulted in the rise of armed militias killing

Mondahis and accusations of military misconduct towards Mondahis.14 In response to the unrest,

ROB mobilized the military for security purposes,15 but has not declared a state of emergency.16

In the midst of this strife, a group of Mondahis launched a website called OpenBemidia

(Open).17 Individuals must register to use Opens services.18 Registration requires an email

address, although other optional information such as name and address are requested.19

Tracker forums allow users to upload pictures and text regarding any topic via SMS, email, or

the internet.20 The users username accompanies each post, but no other identifying information

is visible.21 Users can choose to make their posts private which makes them visible only to that

users followers.22 Users can follow other users or forums and be notified when posts are

11ibid. 12 Compromis, para 6. 13 ibid. 14 Compromis, para 7. 15 Compromis, para 6. 16 Clarifications, question 18. 17 Compromis, para 8. 18 Compromis, para 10. 19 ibid. 20 Compromis, para 8. 21 Compromis, para 10. 22 ibid.

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made.23 Location information accompanies each post and is obtained through GPS, geolocation,

or other location-based technologies.24 Most posts are made with mobile devices.25

An Open user known as FreeBemidia started a popular and active forum called

Military Tracker.26 Military Tracker posts encompass information on various topics including

instances of physical abuse of Mondahi detainees, inappropriate public conduct of military

personnel, and the location of military forces.27 Over time, this forum has evolved so as to

provide accurate and almost real-time location data concerning military deployment.28

ROB suspects that the Mondahi Liberation Movement has been utilizing Military Tracker

location information to plan bombings.29 This belief is based on two bombings that occurred

shortly after military forces left particular locations.30 However, ROB has no direct causal

evidence that Military Tracker is being used in this manner.31

As a result, ROB has responded with new and amended laws.32 The military secrets

law now forbids publication regarding the location of any military personnel acting in an official

capacity.33 In addition, the recently enacted Internet Responsibility Act (IRA) allows ROB to

23 ibid. 24 Compromis, para 9. 25 ibid. 26 Compromis, para 11. 27 ibid. 28 Compromis, para 12. 29 ibid. 30 ibid. 31 ibid. 32 Compromis, para 13. 33 ibid.

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regulate websites and private internet use.34 The IRA requires website operators to collect and

verify name and contact information of everyone who desires to register, post content, or access

non-public information.35 Furthermore, it requires that website operators disclose name and

contact information of users, their past or present physical locations and any other information

upon request except for private communications.36 It does not require warrants37 nor restrict use

of this data,38 though IRA disclosures can be challenged in court by websites or users.39 The IRA

forbids disclosure of any information requests for up to 180 days.40 Finally, the law provides

criminal penalties for deliberate violations of the law.41 ROB has issued an IRA demand to Open

to obtain the identity and historical location information of all Military Tracker followers.42

ROB is also demanding information regarding a forum titled MLM which displays no

visible posts.43 ROB suspects that Mondahi Liberation Movement members are using the forum

and marking posts as private.44 ROB has invoked the IRA to require that Open disclose a

complete user list of followers and the date, time and location of each post.45 In addition, ROB

34 Compromis, para 14. 35 ibid. 36 ibid. 37Clarifications, question 15. 38Clarifications, question 14. 39 Clarifications, question 6. 40 Compromis, para 14. 41 ibid. 42 Compromis, para 16. 43 ibid. 44 ibid. 45 ibid.

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has demanded that Open immediately report location data for any post by any user of the

MLM forum regardless of which forum a user posts in.46 ROB has also demanded these

requests remain secret for an unspecified period.47

Tracker forums also exist for all four members of the Prime Ministers family.48 Vislio

Tracker, Carla Tracker, Talia Tracker and Daria Tracker provide low-resolution photographs and

accurate location information regarding the daily lives of the First Family.49 These posts have

been made by a variety of users, and all the photos were taken in public locations.50 While most

posts on Talia and Daria Tracker concern daily events like going to school, some posts on Carla

Tracker provide information on her meetings with Mondahi political and business officials.51

ROB has enacted the First Family Privacy Act (herein FFPA) to censor publication of

private information about members of the Prime Ministers family, except the Prime Minister,

without prior written consent.52 This law forbids publishing any photographs or of family

members location information newer than ninety days and more specific a city.53 ROB is using

the law to demand that all posts on Carla Tracker, Talia Tracker and Daria Tracker be deleted.54

46 ibid. 47 Compromis, para 17. 48 Compromis, paras 3, 17, 18. 49 Compromis, para 17. 50 Compromis, paras 18, 19. 51 ibid. 52 Compromis, para 20. 53 ibid. 54 Compromis, para 21.

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STATEMENT OF JURISDICTION

OpenBemidia (the Applicant) and the Republic of Bemidia (the Respondent), have

submitted their differences to the Universal Freedom of Expression Court special chamber of the

Universal Court of Human Rights. These differences concern the rights of freedom of expression

and privacy in accordance with Articles 19 and 12 of the Universal Declaration of Human

Rights. The Universal Freedom of Expression Court has jurisdiction in place of all other regional

courts and is the final adjudicator when all national remedies have been exhausted. Due to the

failure to resolve the matter with all available Bemidian means, the Universal Freedom of

Expression Court has jurisdiction in this matter.

Open and the Republic of Bemidia hereby request this Honorable Court to issue a

judgment in accordance with all relevant international law including the Universal Declaration of

Human Rights, conventions, jurisprudence of relevant courts, and principles of international law.

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QUESTIONS PRESENTED

The Applicant, OpenBemidia, submits that the issues to be resolved constitute violations of

freedom of the rights of privacy and freedom of expression guaranteed under Articles 12 and 19

of the Universal Declaration of Human Rights and other international law:

I. Does ROBs requirement of collecting and verifying name and contact information

before allowing users to register an account or post to a forum under the Internet

Responsibility Act violate the freedom of expression guaranteed under international law?

II. Does ROBs demand for disclosure of identity, following and historical location

information of all users under the Internet Responsibility Act violate the freedoms of

expression, assembly and privacy?

III. Does ROBs demand requiring Open to report real-time location information about

users of the MLM forum violate the right to privacy due to a lack of safeguards

rendering it contrary to the law?

IV. Does ROBs demand to delete the contents of the Carla Tracker, Talia Tracker, and

Daria Tracker issued under the First Family Privacy Act violate the freedom of

expression through an impermissibly broad and ineffective restriction on freedom of

expression?

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SUMMARY OF ARGUMENT

I. The IRAs requirement that Open must collect and verify name and contact information for all

users before allowing them access to the website is in direct violation of freedom of expression.

This right is universally recognized in international documents including the Universal

Declaration of Human Rights, the European Convention of Human Rights, the African Charter

on Human and Peoples Rights and the American Convention on Human Rights. This law

infringes on an individuals right to receive and disseminate information. It is not in accordance

with the three-part test applied to these types of restraints which requires all restrictions to be (1)

provided by law, (2) for the purpose of safeguarding a legitimate public interest and (3)

necessary to achieve the interest. The implementation of this law could unnecessarily burden

speakers by chilling speech in order to avoid legal penalties.

II. The freedoms of expression, assembly and privacy are violated by the requirement that all

identity, following information and historical location information of Open users be released to

ROB. These freedoms are recognized by numerous international bodies and can only be

infringed upon if the governments interest in the information outweighs the publics rights.

Restricting posts that involve matters of public concern will implicate the freedom of expression.

The freedom of assembly is violated by placing certain users on a watch list based solely on the

forums that they merely follow or participate actively in. This targets Open users based solely

upon the content of their posts and violates the right to privacy.

III. ROBs IRA demand for real-time location information violates the privacy rights of Opens

users in violation of the Universal Declaration of Human Rights, numerous conventions and

other international law. Individuals have an internationally protected right to privacy in

electronic communications. Although this right is not absolute and can sometimes yield for

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national security purposes, any restrictions on privacy must be (1) in accordance with the law

and (2) necessary. In order to be in accordance with the law, a secret surveillance statute must

contain requisite safeguards even if the asserted interest is national security. Safeguards are the

only decisive factor for the legality of a secret surveillance program, and an absence of

safeguards will render surveillance contrary to law without further need to consider necessity.

Numerous safeguards have been enumerated and stringently required by the European Court of

Human Rights and United States Supreme Court, but the IRA lacks any meaningful safeguards.

This is illustrated by demanding real-time location information regarding followers of the

MLM forum despite an absence of evidence. As such, the IRA and ROBs demand for real-

time location information is in violation of privacy under international law.

IV. ROBs demand to delete all previously published content on Carla Tracker, Talia Tracker,

and Daria Tracker violates the Freedom of Expression. Although individuals possess rights to

privacy under international law, any use of privacy rights to squash free expression must satisfy a

three-part test of (1) being provided for by law, (2) serving a specifically enumerated legitimate

purpose and (3) be necessary. The FFPA cannot satisfy necessity because it is not the least

restrictive way to fulfill ROBs objectives and it cannot be successful in its objectives. Any

restriction on freedom of expression must utilize the least restrictive method to fulfill the

governments legitimate objectives. However, the IRA is disproportionately restrictive in

blocking out a large amount of unnecessary harmless content. Secondly, the FFPA cannot be

successful in its objectives of privacy and security once the information has already been

published because any potential damage has already been done. Due to these two reasons, either

of which would be sufficient on its own, the FFPA is in violation of the freedom of expression

regardless of the privacy interests the First Family may have possessed.

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ARGUMENT

I. ROBs use of the Internet Responsibility Act to require Open to collect and verify name

and contact information of users before allowing them to register for an account or make

posts on any of the forums as it violates the freedom of expression.

The freedom of expression is commonly recognized under international and domestic

law.55 This freedom includes the right to hold opinions and to receive and impart information

and ideas without interference by public authority and encompasses all different forms of

media.56

The Internet Responsibility Act provides that any entity that operates a website must

collect and verify the name and contact information of a user of the website before allowing

that person to use the website. It further defines use as registering for an account, posting

content to the website, or otherwise making content available to one or more persons other than

the website itself or accessing information that is not generally available to the public. This law

clearly violates the freedom of expression and will likely have the effect of chilling expression

and limiting the amount of information that is available to the public.

A. The right to receive and disseminate information is protected under international law.

55European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 1932 (ECHR) art 10(1); American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 143 (ACHR) art 13; African Charter on Human and Peoples Rights (adopted 27 July 1981, entered into force 21 October 1986) 1520 UNTS 217 (ACHPR) art 9; The Johannesburg Principles on National Security, Freedom of Expression and Access to Information (1996) Article 19 accessed 1 Nov 2011.56ECHR art 10(1); ACHR art 13; ACHPR art 9.

2

The freedom of expression includes the ability 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 other choice.57

In Constitutional Rights Project and Others v Nigeria, the ACtHPR ruled that this right

and Article 9 of the ACHPR had been violated.58 Nigerias military government actively stopped

several newspapers, The Guardian, Punch and The Concord, from publishing and distributing.59

The militia occupied the premises even after being court ordered to vacate.60 While the situation

was pending in the courts, thirteen newspapers and magazines failed to be produced for a period

of six months.61 Restricting the press and the actions taken by the military government poses an

immediate risk that journalists and newspapers not yet affected by any of the decrees will subject

themselves to self-censorship in order to be allowed to carry on their work62 which would

inhibit the publics ability to receive information and its right to know.63

Similarly, governmentally mandated requirements on users registering for accounts and

posting to forums would violate Article 9 of the ACHPR as well as international law concerning

the freedom of expression.64 The military government was actively involved in controlling the

57 Johannesburg Principles (n 55) para 1(b). 58 Constitutional Rights Project and Others v Nigeria (2000) AHRLR 227 (ACHPR 1999) [55].

59 ibid [1].

60 ibid.

61 ibid [12].

62 ibid [37].

63 ibid [38].

64 ibid [55].

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actions taken by the media in prohibiting the newspapers from printing.65 These actions inhibited

the public from disseminating opinions and receiving information.66 They also potentially

inhibited other media outlets from expressing their ideas and opinions for fear of being shut

down in a similar fashion.67 Government is overly involved in expression if it is allowed to

mandate the information that Open must require from its users. This website can be considered a

media outlet that relies on the general public instead of journalists. Turning away users that will

not provide the additional information is comparable to stopping the publication of a newspaper.

Requiring additional information could effectively prevent some users from registering

with the site and make it more difficult for them to disseminate their ideas. Denying individuals

access to the website acts as a means of denying the public information that would be available

to them otherwise. This form of government intervention would be a clear violation of the

internationally recognized freedom of expression and the public would suffer.68

B. Any restrictions placed upon the freedom of expression must pass a three-part test.

Any restriction must a) be provided by law, b) be for the purpose of safeguarding a

legitimate public interest and c) be necessary to achieve secure this interest.69 According to the

Johannesburg Principles, the freedom of expression or information cannot be restricted unless

the government can demonstrate that the restriction is prescribed by law and is necessary in a

65 ibid [1].

66 ibid [4].

67 ibid [37].

68 ACHPR art. 9. 69 Memorandum on 1995 Press Law of the Palestinian National Authority (June 1999) Article 19, 5 accessed 6 November 2011.

4

democratic society to protect a legitimate national security interest.70 Laws concerning these

issues must be narrowly construed and clear.71 They must provide for adequate safeguards

against abuse.72 The government must be able to establish that the expression poses a serious

threat to national security and the restriction is the least restrictive means available.73 Once

information has been made generally available, by whatever means, whether or not lawful, any

justification for trying to stop further publication will be overridden by the publics right to

know.74

The restrictions imposed upon Open through the IRA are in violation of the Johannesburg

Principles on National Security, Freedom of Expression and Access to Information.75 These laws

are not narrowly construed if they affect the entire population that is looking to register an

account or post to any available forum. There are no safeguards in place to protect all the users

that are not participating in activity that could potentially threaten national security. All

individuals are treated equally and face the same restrictions, regardless of whether it is

necessary to do so. In this case, ROB has offered no proof that a majority of users of Open pose a

threat to national security. In fact, they have a very small watch list of people that they believe

may be involved with militant attacks. Yet, the IRA imposes restrictions on all the members of

the public interested in participating on the website.

70 Johannesburg Principles (n 55) para 1(d).

71 ibid para 1.1(a).

72 ibid para 1.1(b).

73 ibid para 1.3(a), (b).

74 ibid para 17.

75 ibid paras 1(b), (c), (d).

5

The Note on Kazakhstans Regulation for the Allocation of Domain Space discusses

requirements for registration on Internet sites. In the case of Kazakhstan, registration for a .kz

domain name requires that an application be filed with the correct government agency that

includes name and contact information and the name and network address for the potential

servers.76 Providing a government agency with the power to decide who can register introduces

the potential for political interference as well as the possibility that domain name registration

may be refused or suspended on a number of vague or seemingly illegitimate grounds.77

Kazakhstan is a party to several agreements which guarantee the freedom of expression,

including Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and its

own constitution.78 In most democratic countries, domain name registration is a relatively

straightforward process, unburdened by excessive regulation or bureaucracy and tends to be

run by non-government entities.79 The restrictions imposed by Kazakhstan are clearly not

aligned with these democratic ideals or international law.80

Similar to Kazakhstans internet regulations, the IRA is in opposition to democratic

ideals and the freedom of expression.81 In this case, ROB is imposing restrictions on internet

access that are also clearly in opposition to democratic ideals and the freedom of expression. The

governments requirement that a private party such as Open demand and verify contact

76 Note on Kazakhstans Regulations for the Allocation of Domain Space (October 2005) Article 19, 2 accessed 10 November 2011. 77 ibid at 3.

78 ibid.

79 ibid at 4.

80 ibid.

81 ibid at 3, 4.

6

information from its users is unnecessary and burdensome. The IRA imposes an unnecessary

burden upon Open and any individuals wishing to participate in the various forums that it

provides.

C. Speech will be chilled through the implementation of a restraint on expression.

Measures which limit access to the Internet, such as imposing registration or other

requirements on service providers violate the freedom of expression.82 These limitations serve

as prior restraints and are unlawful.83 Derogation of the freedom of expression is not permitted,

regardless of the subject of the information or opinions or the political situation of a country.84

Governmental involvement poses a specific risk that speech will be chilled for fear of

repercussions.85 The risk of governmentally imposed implications can serve to encourage

individuals not to speak.86 It also effects how persons disseminating ideas and opinions in all

forms of media choose to act and can cause them to self-censor.87 In this instance, the

government has not proclaimed a state of emergency so the restraint is not necessary based on

the current political situation in Bemidia. These restrictions concerning verifying the name and

contact information of Open users in accordance with the IRA place an undue restraint on

82 Frank LaRue, Dunja Mijatovic, Catalina Botero Marino, and Faith Pansy Tlakula, Joint Declaration on Freedom of Expression and the Internet (1 June 2011) accessed 2 November 2011) para 6(d). 83ECHR art 10(1); ACHR art 13; ACHPR art 9.84 ACHPR art 9. 85Constitutional Rights Project and Others v Nigeria (2000) AHRLR 227 (ACHPR 1999) [38]. 86ibid [37].87ibid.

7

persons interested in participating on the available forums.88 They will chill speech in violation

of the freedom of expression.89

Open should not be required by ROB to collect and verify name and contact information

of users before allowing them to register for an account or make posts on forums.

II. ROB cannot demand disclosure of the identity, following information and historical

location information of Open users under the Internet Responsibility Act without violating

the freedoms of expression, assembly and privacy.

Allowing complete disclosure of identity, following and historical location information

upon governmental request conflicts with the freedoms of expression, assembly and privacy.

Under international law, individuals are given the right to express and disseminate opinions.90

There is also a right to free assembly which can only be restricted if it conflicts with the interest

of national security, the safety, health, ethic and rights and freedoms of others.91 By requiring

disclosure to the government of name and contact information of any user of the website, any

information about the physical location, past or present, of a user of the website, and any other

information about a user of the website, except the contents of a private communication of such a

user, the IRA is in direct conflict with these freedoms provided by several facets of international

law.

89ECHR art 10(1); ACHR art 13; ACHPR art 9.90ACHR art 13(1); ACHPR art 9(2). 91ACHPR art 11.

8

A. Disclosure of following and historical location information would violate the

freedom of expression.

Within the freedom of expression lies the 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 ones choice.92

In Pinto Coelho v Portugal, the ECtHR ruled that Article 10 of the ECHR concerning

freedom of expression had been violated.93 Pinto Coelho was a journalist for a national television

channel in Portugal94 that authored a report discussing further details of the investigation and

showing copies of two documents involved in the investigation95 following an article about it

that was published in a national newspaper.96 He appealed the conviction citing the right to

freedom of expression.97 While the press must be careful when dealing with issues involving the

reputation of others and disclosure of confidential information, they are allowed to communicate

ideas on matters of general interest under the freedom of expression.98 The Court pointed out

that under these circumstances it is difficult to see how the duties and responsibilities of the

92 ACHR art 13(1). 93 Pinto Coelho v Portugal (2011) App no 28439/08 (ECtHR, 28 June 2011) [40]-[41]. 94 ibid [6].

95 ibid [10].

96ibid [7].

97 ibid [14].

98 ibid [32].

9

applicant could outweigh the interests of informing the public and, therefore, the government

had violated the freedom of expression.99

The ROB demanded disclosure of historical information on the website, including

contact, following and location information. This information likely contains confidential facts

and association information that could be related to an individuals reputation and must be

protected. Many posts on the website concern matters of public interest and should not be

restricted or disclosed. Government disclosure would restrict the publics ability to seek, receive

and impart information. Again, ROBs interest in this information does not outweigh the publics

right to disseminate and receive information.

B. Disclosure will violate the freedom of assembly.

The ACHPR also provides individuals with the right to free assembly which can only be

restricted if it conflicts with the interest of national security, the safety, health, ethic and rights

and freedoms of others.100 This freedom 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.101

In NAACP v Alabama, the United State Supreme Court ruled that the state could not

compel the disclosure of the names and addresses of all the members in Alabama without regard

99 ibid [38], [40]-[41].

100 ACHPR art 11. 101 ACHR art 13(3).

10

to their positions within the group.102 NAACP argued that compelled disclosure would abridge

the rights of its rank-and-file members to engage in lawful association in support of their

common beliefs and the Court ruled that only an overriding valid interest of the State can

justify this action.103 They also recognized that there is a vital relationship between freedom to

associate and privacy in ones associations.104 The Court further ruled that compelled

disclosure of petitioners Alabama membership is likely to affect adversely the ability of

petitioner and its members to pursue their collective effort to foster beliefs which they admittedly

have the right to advocate, in that it may induce members to withdraw from the Association and

dissuade others from joining it because of fear of exposure of their beliefs shown through their

associations and of the consequences of this exposure.105 They found that the States interest in

obtaining names of ordinary members was not sufficient to abridge the rights of its citizens.106

Like the government in NAACP v Alabama, the actions of ROB violate the freedoms of

expression and assembly.107 Similarly, the demanded disclosure of information from all users,

not only those of importance, imposes upon the freedom of association. This action chills

expression by limiting the forums available to the public for the dissemination of ideas and

beliefs and will likely discourage individuals from participating in any way on forums that they

otherwise would have. There is no sufficient state interest in obtaining information from all of

the users of the website and, therefore, the IRA violates the freedom of association. 102 NAACP v Alabama, 357 U.S. 449, 451 (1958).

103 ibid at 460.

104 ibid at 461.

105 ibid at 462, 463.

106 ibid at 465.

107 ibid at 453.

11

C. Disclosure will violate the right of privacy.

Individuals are entitled to privacy as related to their correspondence under international

law.108 There should be no discrimination in the treatment of Internet data and traffic, based on

the device, content, author, origin and/or destination of the content, service or application.109

The Commission found that Article 9 of the ACHPR concerning the right to privacy was

violated in Media Rights Agenda v Nigeria.110 Malaolu, a journalist, was punished by Nigerias

military government for stories he published in a newspaper related to the actions of some

military officers.111 The Commission determined that Malaolu was targeted solely based on the

content of the publication, leading to a clear violation of Article 9 of the ACHPR.112

As in Media Rights Agenda v Nigeria, governmental actions threaten to violate Article 9

of the ACHPR and the right to privacy.113 Permitting ROB to access user information of

individuals that they are interested in based solely on their speech will limit their freedom of

expression. ROB requested the identity information of individuals on a watch list, which was

compiled and likely to be expanded through the analysis of following information and historical

location information. Disclosure violates a users freedom of expression.

Open cannot be forced to disclose user information pertaining to identity, following

information or historical location information.108 ECHR art 8(1). 109 Joint Declaration (n 82) para 5(a).

110 Nigeria Media Rights Agenda v Nigeria (2000) AHRLR 262 (ACHPR 2000) [56].

111 ibid [67].

112 ibid [69].

113 ibid.

12

III. The Internet Responsibility Act violates individuals right to privacy due to its lack of

safeguards which render it not in accordance with the law and therefore unlawful.

Individuals have a right to privacy under international law114 that applies to electronic

communications and protects them from secret surveillance.115 This right can only be restricted

in accordance with the law and as necessary in a democratic society.116 A secret surveillance

system without safeguards is not in accordance with the law and is therefore unlawful.117

A. The right to privacy in electronic communications is protected under international

law.

The UDHR, ECHR, ACHR, and ICCPR all establish a right to privacy.118 Specifically,

the UDHR provides protection from arbitrary interference with privacy and guarantees a right

to protection from interference with privacy.119 The ICCPR and ACHR provide similar

114Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR) art 17; ECHR art 8; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 17; ACHR art 11. 115 Klass and Others v Germany (1978) 2 EHRR 214 [93]; Huvig v France (1990) 12 EHRR 528, [32]; Valenzuela Contreras v Spain (1999) 28 EHRR 483 [2(iii)]; Amann v Switzerland (2000) 30 EHRR 843 [56]; Weber and Saravia v Germany (2008) 46 EHRR SE5 [93]; Liberty v UK (2009) 48 EHRR 1 [56]; Kennedy v UK (2010) 52 EHRR 4 [118]; Berger v New York, 388 US 41, 58 (1967); United States v Karo, 468 US 705, 706 (1984); European Court of Human Rights Research Division, Internet: Case-Law of the f (2011) 6 accessed 2 January 2012. 116 ECHR art 8; Malone v United Kingdom (1984) 7 EHRR 14 [67]; Kruslin v France (1990) 12 EHRR 547 [27]; Huvig (n 115) [26]; Amann (n 115) [49]; Association for European Integration and Human Rights and Ekimdzhiev v Bulgaria App no 62549.00 (ECtHR, 28 June 2007) [64]; Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, Human Rights Committee CCPR/C/USA/CO/3/Rev 1 (18 December 2006) para 21. 117 Huvig (n 115) [34]; Kruslin (n 116) [45]; Amann (n 115) [49]; Association (n 116) [76]; Liberty (n 115) [69]; Berger (n 115) at 58-59. 118 UDHR art 8; ECHR arts 8, 11; ICCPR art 17. 119 UDHR art 12.

13

protections.120 This right is not absolute, but is subject to restrictions necessary for goals such

as national security.121

Individuals have a right to privacy if they possess a reasonable expectation of privacy.122

This includes protection from secret surveillance of electronic communications.123 This principle

was illustrated in Kennedy v UK.124 In Kennedy, the applicant believed that he was being secretly

monitored under the UKs secret surveillance statute.125 Although the court found no violation,126

the ECtHR reasoned that secret surveillance of telephone and other electronic communications

are included in the notion of private life and therefore protected.127

B. Requisite safeguards are required for a law to be deemed in accordance with the

law and must be satisfied before necessity is considered.

According to human rights conventions, the UNHRC, scholars and human rights

jurisprudence, any interference with an individuals right to privacy must be in accordance with

the law and necessary.128 In order for surveillance to be in accordance with the law, it must

120 ACHR art 11; ICCPR art 17. , 121 ECHR art 8; ACHPR art 27. 122 MGN Ltd v UK (2011) 53 EHRR 5 [87]; Countryside Alliance v UK (2010) 50 EHRR SE6 [42]; Karo (n 115) at 712; California v Ciarolo, 476 US 207, 211 (1986). 123 Klass (n 115) [37]; Huvig (n 115) [32]; Valenzuela (n 115) [2(iii)]; Amann (n 115) [56]; Association (n 116) [58]; Weber (n 115) [93]; Liberty (n 115) [56]; Kennedy (n 115) [118]; Berger (n 115) at 58; Karo (n 115) at 706; Johannesburg Principles (n 55) para 1.1. 124 Kennedy (n 115) [153]. 125 ibid [13]. 126 ibid [70]. 127 ibid [118]. 128 ECHR art 8; Huvig (n 115) [26]; Malone (n 116) [67]; Kruslin (n 116) [27]; Amann (n 115) [49]; Association (n 116) [64]; Consideration of Reports (n 116) [21].

14

not only satisfy domestic laws, but also must be of sufficient quality to be compatible with the

law.129 In order to be of sufficient quality, a surveillance program must have safeguards130 that

are included within the laws text.131 A secret surveillance scheme without safeguards is contrary

to law and obviates the need to consider necessity.132

Requisite safeguards are a threshold consideration for lawfulness133 and are the only

decisive consideration for determining if secret surveillance is lawful.134 Even less privacy-

protecting jurisdictions require warrants for secret surveillance.135 Attempts to abrogate such

safeguards for national security purposes have been condemned by the UNHRC.136 The ECtHR

has also recognized that attempts to institute surveillance for national security may undermine or

even destroy democracy under the cloak of defending it137 and secret surveillance would reduce privacy

to a nullity.138

This safeguard requirement is illustrated in Association for European Integration and

Human Rights and Ekimdzhiev v Bulgaria (hereinafter Association).139 In Association,

129 Malone (n 116) [67]; Kruslin (n 116) [27]; Association (n 116) [71]; Liberty (n 115) [59]. 130 Kruslin (n 116) [27]; Association (n 116) [93]; Liberty (n 115) [59]-[62]; Kennedy (n 115) [153]; Johannesburg Principles (n 55) para 1.1; ECtHR Research Division (n 115) [8]. 131 Association (n 116) [76]; Kennedy (n 115) [95]. 132 Association (n 116) [93]. 133 Amann (n 115) [49]-[50]; Kennedy (n 115) [153]. 134 Amann (n 115) [49]-[50]. 135 Katz v United States, 389 US 347 (1967); Karo (n 115) at 715. 136 Consideration of Reports (n 116) [21]. 137 Weber (n 115) [106]. 138 Kennedy (n 115) [36].

15

Bulgaria had enacted a secret surveillance statute that allowed technological surveillance140 for

national security purposes.141 The Court stated that safeguards are required for surveillance to be

in accordance with the law,142 and that a lack of safeguards would obviate the need to consider

necessity.143 In reaching its judgment, the Court listed several minimum safeguards that must

all be present in a statute or surveillance will be deemed unlawful.144

The Association court found the Bulgarian safeguards insufficient.145 Despite possessing

numerous safeguards, the law lacked regulations for screening intelligence,146 measures for

review,147 and mandatory reporting to an independent body.148 As such, the Court held that the

safeguards were insufficient and found a violation of the right to privacy.149

American law requires a warrant in order to utilize covert location-tracking technologies

in private locations.150 In United States v Karo, law enforcement used a location tracking device

to track a suspected cocaine dealer to a home despite lacking a warrant.151 The Court stated that a

139 Association (n 116) [71]-[77]. 140 ibid [93]. 141 ibid [10]. 142 ibid. 143 ibid [93]. 144 ibid at [76]. 145ibid [93]. 146 ibid [86]. 147ibid [85]. 148 ibid [88]. 149 ibid [93]. 150Karo (n 115) at 717.

16

search occurs when the government uses an electronic device to get information it could not have

attained from outside the curtilage of a home.152 The legal implications were therefore identical

to having entered without a warrant.153 As such, the search was held to be an unconstitutional

violation of privacy.154

After considering these sources of law, several requisite safeguards can be identified for

secret surveillance to be in accordance with the law.155 Kennedy stated that a secret surveillance

program must (1) establish the nature of the offences which may trigger surveillance, (2) define

the category of people who may be monitored, (3) limit the duration of surveillance, (4) establish

a procedure for examining, using and storing the information gathered, and (5) elaborate

circumstances in which people are placed under surveillance.156 Other cases have required (6)

safeguards regulating access by third parties,157 (7) procedures to protect the confidentiality of

information,158 (8) procedures to prevent arbitrary surveillance,159 and (9) sufficient precision.160

These safeguards are required even if the asserted interest is national security or protecting

151 ibid at 714-715. 152 ibid at 715. 153ibid. 154 ibid at 716. 155 Association (n 116) [76]; Weber (n 115) [95]; Kennedy (n 115) [95]. See also S v UK (2009) 48 EHRR 50 [99]; Liberty (n 115) [62]; Goranova-Karaeneva v Bulgaria App no 12739.05 (ECtHR, 8 March 2011) [47]. 156Kennedy (n 115) [95]. 157 Association (n 116) [95]; S v UK (n 155) [99]; Liberty (n 115) [62]. 158 S v UK (n 155) [99]; Goranova-Karaeneva (n 155) [47]. 159 Kruslin (n 116) [30]; Association (n 116) [67]; Weber (n 115) [101]; Liberty (n 115) [62]; Goranova-Karaeneva (n 155) [47]. 160Kruslin (n 116) [30]; Amann (n 115) [6]; Association (n 116) [75].

17

public order.161 If these safeguards are not present, secret surveillance is unlawful.162 In the

alternative if this Court determines that this test is too stringent, the American warrant

requirement, which is sometimes utilized yet found insufficient in European jurisprudence,163

should be required.

The IRA lacks the safeguards required under international law and is therefore an

unlawful violation of the right to privacy. Unlike the requirement from Association to include

safeguards within the statutes text, the IRAs text possesses neither a single safeguard nor

requires a warrant. The IRA does not state any offense as grounds for surveillance other than the

legal act of internet access. The category of potentially affected individuals includes all internet

users. There are no procedures for examining or storing data, no procedures to ensure

confidentiality, and no limitations upon governmental discretion. Like the government in Karo,

the IRA allows warrantless real-time location tracking in private locations. Furthermore, instead

of meaningful safeguards, the IRA impedes supervision by ensuring that information demands

remain secret for up to 180 days. The closest resemblance to a safeguard is an opportunity for

judicial review, but this provides minimal protection when the IRA does not provide any rights

to assert and individuals are unaware of surveillance. As such, the IRA opens the door to

arbitrary surveillance by allowing ROB to track individuals without any evidence, supervision,

maximum duration, or rules.

161 Association (n 116) [10], [93]; Goranova-Karaeneva (n 155) [47]. 162 Kruslin (n 116) [45]; Huvig (n 115) [34]; Amann (n 115) [49]; Association (n116) [76]; Liberty (n 115) [69]; Berger (n 115) at 58-59. 163 Association (n 116) [92]; Kennedy (n 115) at 161.

18

These concerns are evidenced by ROBs request for real-time tracking location

information concerning followers of the MLM forum regardless of which forum a user posts

in. ROB has no evidence that users of the MLM forum are affiliated with the Mondahi

Liberation Movement, if anyone follows the forum, or if it is even being used by people within

Bemidia. ROB merely suspects harmful use by Mondahi Liberation Movement members.

Furthermore, ROBs suspicion is blind to the fact that there are numerous lawful meanings for

the acronym MLM. For example, MLM is the symbol for Martin Marietta Materials on the

New York Stock Exchange.164 MLM is also used as an acronym for multi-level marketing

and as an emoticon for an offensive hand gesture.165 When considering these and other meanings

of MLM, ROBs hunch cannot be considered as sufficient basis to track everyone who follows

the MLM forum. ROB also has not demonstrated a need for location information from these

users on posts from other forums. Therefore, the IRA has rendered a situation in which ROB can

violate privacy based on an unsubstantiated hunch without any evidence or restraint. As such, the

IRA is not in accordance with the law and violates Opens and its users privacy rights.

This conclusion does not mean that ROB is left without recourse to protect national

security. ROBs interests would be served through a reform of the IRA which allowed ROB to

attain a warrant to determine a forums content. If further surveillance was deemed necessary

and supported by probable cause, ROB could utilize a system requiring warrants and sufficient

safeguards. This would provide greater privacy while simultaneously enhancing national security

through enabling ROB to identity and focus on true threats instead of wasting resources tracking

164 Martin Marietta Materials (2011) NYSE Euronext accessed 22 November 2011. 165What Does MLM Stand For? (2011) Acronym Finder accessed 22 November 2011.

19

stock brokers and crude humorists. While Open is not insensitive to ROBs aim of national

security, the IRA undermines privacy by lacking safeguards and is therefore not in accordance

with the law. In order to lawfully pursue its objectives, ROB must institute a law with sufficient

safeguards.

IV. The First Family Privacy Act is not necessary because it is more extensive than

necessary and ineffective for its objective, and therefore impermissibly violates freedom of

expression.

International law, including the UDHR, protects the freedom of speech and of the press166

subject to the rights of others167 and some objectives such as national security.168 As such, any

restriction must be necessary for legitimate reasons such as national security or preventing

crime.169 However, any restrictions on free expression must satisfy a three-part test of being (1)

provided for by law, (2) serving a specifically enumerated legitimate interest, and (3) be

necessary.170

166 American Declaration of the Rights and Duties of Man (adopted April 1948) OAS Res XXX OEA/Ser L V/II.82 Doc 6 Rev 1 at 17 (ADRDM) art 4; UDHR art 19; ECHR art 10; ICCPR art 19; ACHR art 13. 167 ECHR art 10; ACHR art 13; ACHPR art 27. 168 ECHR art 10; ICCPR art 59; ACHR art 32; ACHPR art 27. 169ECHR art 10; ICCPR art 19; Resolution on the Adoption of the Declaration of Principles of Freedom of Expression in Africa, African Commission on Human and Peoples Rights (adopted 23 October 2002) African Commission on Human and Peoples Rights Res 62(XXXII)02 (DPFEA) art I(1). 170 ECHR art 10; ICCPR art 19; Sunday Times v UK (1979) 2 EHRR 245 [45]-[57]; Observer and the Guardian v UK (1992) 14 EHRR 153.[48]-[58]; Krone Verlag GmbH & Co KG v Austria (2003) 36 EHRR 57 [22]; Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5, Inter-American Court of Human Rights Series A No 5 (13 November, 1985) [39]; DPFEA art I(2); Joint Declaration (n 82) para 1(a); Sandra Coliver, The Article 19 Freedom of Expression Handbook (1993) 48; The Impact of UK Anti-Terror Laws on Freedom of Expression (April 2006) 3 Article 19 accessed 2 January 2012.

20

A restriction on free speech will be deemed unnecessary and fail if it is not the least restrictive

means to fulfill its objective171 or if information has already been published.172

A. The First Family Privacy Act is more extensive than necessary and therefore unlawful.

As established by the UDHR and various conventions, individuals have a right to

freedom of expression that guarantees the right to share and receive information.173 However,

this is subject to duties and responsibilities such as restrictions for national security174 or the

rights of others.175 Nonetheless, a law which is more extensive than necessary cannot be deemed

necessary and is unlawful.176

Despite the high value of freedom of expression, it is not unlimited and can sometimes be

required to yield to the right to privacy.177 This was demonstrated in Von Hannover v

Germany178 by Princess Caroline who performed no state functions.179 In Von Hannover, the

daughter of a Monacan prince was constantly pursued by the paparazzi180 which took pictures

171 Compulsory Membership (n 170) [46]; Johannesburg Principles (n 55) para 1.3; European Court of Human Rights (2011) UNESCO accessed 22 November 2011. 172 Observer and the Guardian (n 170) [69]-[71]; Vereniging Weekblad Bluf! v The Netherlands (1995) 20 EHRR 189 [44]-[45]; Smith v Daily Mail, 443 US 97, 104-105 (1979). 173 UDHR art 19; ADRDM art 4; ECHR art 10; ICCPR art 19; ACHR art 13; ACHPR art 9. 174ECHR art 10; ACHPR art 27. 175 ECHR art 10; ACHR art 13; ICCPR art 19; ACHPR art 27. 176 Compulsory Membership (n 170) [46]; Johannesburg Principles (n 55) para 1.3; UNESCO (n 171). 177Von Hannover v Germany (2005) 40 EHRR 1 [78]-[80]. 178 ibid [80]. 179 ibid [8]. 180 ibid [9]-[17].

21

and wrote articles concerning her personal life.181 After failing to get relief from German courts,

she appealed to the ECtHR that her privacy was violated.182

The court found a violation of her privacy rights,183 but reserved the issue of damages and

did not consider pulling previous publications.184 It reasoned that she did not become a public

figure through family membership185 and that private life extends to the zone of interaction

with others.186 The court further reasoned that the most important factor in determining the

balance of privacy against freedom of expression is contribution the photos and articles could

make to a debate of the general interest.187 The court found a violation of Princess Carolines

right to privacy,188 but the applicant neither sought nor was granted an injunction against

publication of previously dissemination content.189

Nonetheless, in order for exceptions to the freedom of expression to apply, certain

requirements must be satisfied.190 The UNHRC, jurisprudence, and scholars have all utilized the

181ibid. 182 ibid [43]. 183ibid at [85]. 184 ibid [82]-[84]. 185 ibid [72]. 186ibid [50]. 187 ibid [76]. 188ibid [78]-[79]. 189 ibid [83-53]. 190ECHR art 10; ICCPR art 19; Sunday Times (n 170) [45]-[57]; Observer and the Guardian (n 170) [48]-[58]; Krone Verlag GmBH (n 170) [22]; Compulsory Membership (n 170) [39]; Joint Declaration (n 82) para 1(a); Coliver (n 170) 48.

22

same three-part test for limiting freedom of expression.191 Any limitations must be (1) provided

by law, (2) have a specifically enumerated legitimate purpose and (3) be necessary.192

In order to satisfy necessity, any restriction on free expression must utilize the least

restrictive method to fulfill its objectives.193 The Inter-American Court utilized this test in

Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism to

strike down a law which failed this analysis.194 In the case, an American journalist wanted to

publish articles in Costa Rica, but was unable due to a law requiring membership in a journalistic

association.195 The Court determined that because necessity requires a pressing social need, it

cannot be satisfied without using the least restrictive means to fulfill the objective.196 A useful

or reasonable means will not suffice.197 Furthermore, restrictions must be strictly supervised

due to the importance of free expression.198 The law failed this analysis and was unlawful if used

to deny access to utilize the media to express oneself.199

191Compulsory Membership (n 170) [39]; Human Rights Committee, Report of the Human Rights Committee to the General Assembly, 38th Sess. Supp. no. 40, 1983 (UN doc A/38/40, 1983) 110; Johannesburg Principles (n 55) para 1.3; Coliver (n 170) 109. 192 ECHR art 10; ICCPR art 19; Compulsory Membership (n 170) [39]; Sunday Times (n 170) [45]-[57]; Observer and the Guardian (n 170) [48]-[58]; Krone Verlag GmBH (n 170) [22]; DPFEA art 2; Joint Declaration (n 82) para 1(a); UNESCO (n 171). 193 Compulsory Membership (n 170) [46]; Johannesburg Principles (n 55) para 1.3; UNESCO (n 171). 194ibid [79]. 195 ibid [85]. 196 ibid [46]. 197 ibid [79]. 198 Khurshid Mustafa v Sweden (2011) 52 EHRR 24 [42]. 199ibid [81], [85].

23

Like the Costa Rican law, the First Family Protection Act (FFPA) fails the three-part

test because it is not the least restrictive means to fulfill ROBs objectives. Firstly, the FFPA

censors publication of any photograph of the person wherever taken. This would forbid photos

from any public appearances such as charity events, inaugurations, and state dinners. It would

also forbid a teacher or friend taking photos during a school event for a school newsletter or a

coach distributing a team photo from a youth football match in which Talia or Daria participates.

Secondly, the 90 day restriction for disclosing location information is greater than necessary.

There is minimal risk of publishing which section of a city Talia at lunch at 89 days ago.

ROBs interests in protecting the privacy and safety of the First Family do not require

this overbroad and disproportionate censorship. ROBs concerns could be addressed through a

narrower law which encompassed a shorter time frame and more specific locations. Therefore, it

is not the least restrictive way to fulfill ROBs objectives and must be deemed unlawful.

B. The FFPA is unlawful because it cannot be effective to fulfill its objective once

information has already been published.

According to human rights jurisprudence, a privacy interest is greatly reduced if

information has already been disclosed because it cannot fulfill its objective and is therefore

unnecessary.200 The ECtHR demonstrated this rule in Vereniging Weekblad Bluf! v

Netherlands.201 Bluf! intended to publish a confidential government report despite the

government seizing the first print run and proscribing publication.202 Bluf! reprinted the issue and

200 Observer and the Guardian (n 170) [69]; Vereniging Weekblad Bluf! (n 172) [56]; Daily Mail (n 172) at 104-105. 201 Vereniging Weekblad Bluf! (n 172) [54]. 202 ibid [9]-[11].

24

distributed 2,500 copies the next day.203 After these copies were distributed, the government

wanted to prohibit further distribution to protect national security.204 However, because the

information was already public, the Court stated that any restriction no longer appeared

necessary to achieve the legitimate aim pursued and was no longer justified.205 In another

similar case, the ECtHR reasoned that damage had already been done by publishing spy

information, and that the governments interests to censor further publication were

insufficient.206 Due to these failures of necessity, the government had violated the freedom of

expression.207

The United States has adopted similar standards.208 In Smith v Daily Mail Publishing

Company, Daily Mail had published the name of a child who had been murdered after a rival

newspaper had published the victims name.209 The victims family sued Daily Mail for violating

the familys privacy.210 The Court stated that if lawfully obtained information was public, the

government could not punish further publication without a state interest of the highest order.211

203 ibid [11]. 204 ibid [17]. 205 ibid [45]. 206 Observer and the Guardian (n 170) [69]-[70]. 207 ibid. 208 Daily Mail (n 172) at 104-105. 209ibid at 99. 210 ibid at 99-100. 211 ibid at 97.

25

The Court further reasoned that even if the privacy statute served such an interest, it failed its

objective as the information was already public.212

Scholars who created the Johannesburg Principles have promulgated a more absolute

form of this rule. 213 Once information is generally available, regardless of if it was published

legally or illegally, any justification to prevent further dissemination is overridden by the

publics right to information.214

Despite whatever privacy interests the First Family may have, this is more similar to

Daily Mail and Vereniging Weekblad Bluf! than Von Hannover. While Princess Caroline did not

ask the ECtHR for an injunction, the First Family is seeking to remove previously published

photos which were lawfully taken. This is more similar to Daily Mail in which information was

lawfully obtained and Vereniging Weekblad Bluf! in which the government was seeking to

suppress information which was already public. Like Vereniging Weekblad Bluf!, the

information is widely distributed and any potential harm has already occurred. As such, despite

any privacy interests which may exist, requiring the deletion of this information cannot be

successful in fulfilling its objective. As such, it is not necessary and is therefore unlawful.

212 ibid. 213 Johannesburg Principles (n 55) para 17. 214 ibid.

26

PRAYER FOR RELIEF

For the foregoing reasons, Open respectfully requests this Honorable Court to adjudge and

declare as follows:

1. Requiring Open to collect and verify name and contact information of all users with the

Internet Responsibility Act is a violation of the freedom of expression.

2. The required disclosure of identity, following and historical location information of all Open

users violates the freedoms of expression, assembly and privacy.

3. The absence of safeguards renders the demand for real-time location information concerning

followers of the MLM forum to be contrary to the law and therefore an unlawful violation of

the privacy rights of Open and its users.

4. ROBs demand to delete previously posted information is unnecessary and therefore an

unlawful violation of the Freedom of Expression due to being far broader than necessary and

ineffective for its objective.