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

ii
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

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

iv
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

v
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) <http://www.osce.org/
fom/78309> 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

vi
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

vii
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 <http://www.unesco.org/new/en/
communication-and-information/freedom-of-expression/professional-journalistic-standards-andcode-of-ethics/europe/media-legislation-and-regulation/european-court-of-human-rights-echr/>
accessed 22 November 2011. ................................................................................................ 20, 22
European Court of Human Rights Research Division, Internet: Case-Law of the European Court
of Human Rights (2011) <http://www.echr.coe.int/NR/rdonlyres/E3B11782-7E42-418B-AC04A29BEDC0400F/0/RAPPORT_RECHERCHE_Internet_Freedom_Expression_EN.pdf>
accessed 2 January 2012. ....................................................................................................... 12, 14
Martin Marietta Materials (2011) NYSE Euronext <http://www.nyse.com/about/listed/
lcddata.html?ticker=MLM> accessed 22 November 2011. ......................................................... 18
Memorandum on 1995 Press Law of the Palestinian National Authority (June 1999) Article 19
< http://www.article19.org/data/files/pdfs/analysis/palestine.prs.99.pdf> accessed 6 November
2011. ... 3
Note on Kazakhstans Regulations for the Allocation of Domain Space (October 2005) Article
19 <http://www.osce.org/fom/16759> accessed 10 November 2011. .......5
Sandra Coliver, The Article 19 Freedom of Expression Handbook (1993). .................... 19, 21, 22

viii
The Impact of UK Anti-Terror Laws on Freedom of Expression (April 2006) Article 19
<http://www.article19.org/data/files/pdfs/analysis/terrorism-submission-to-icj-panel.pdf>
accessed 2 January 2012. ............................................................................................................. 19
The Johannesburg Principles on National Security, Freedom of Expression and Access to
Information
(1996)
Article
19
<http://www.article19.org/data/files/pdfs/standards/
joburgprinciples.pdf> accessed 1 November 2011. ............... 1, 2, 4
What Does MLM Stand For? (2011) Acronym Finder <http://www.acronymfinder.com/
MLM.html> accessed 22 November 2011. ................................................................................. 18

ix
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

Compromis, paras 3, 6.

Compromis, paras 2, 3.

ibid.

ibid 2, 3.

Compromis, paras 4, 5.

Compromis, para 1.

Compromis, para 4.

ibid.

Compromis, para 5.

10

ibid.

x
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

11

ibid.

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.

xi
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.

xii
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.

37

Clarifications, question 15.

38

Clarifications, question 14.

39

Clarifications, question 6.

40

Compromis, para 14.

41

ibid.

42

Compromis, para 16.

43

ibid.

44

ibid.

45

ibid.

xiii
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.

xiv
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.

xv
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?

xvi
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

xvii
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 realtime 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.

1
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.

55

European 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
<http://www.article19.org/data/files/pdfs/standards/ joburgprinciples.pdf> accessed 1 Nov 2011.

56
ECHR 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].

3
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
<http://www.article19.org/data/files/pdfs/analysis/palestine.prs.99.pdf> 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
<http://www.osce.org/fom/16759> 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) <http://www.osce.org/ fom/78309> accessed 2 November 2011) para
6(d).
83

ECHR art 10(1); ACHR art 13; ACHPR art 9.

84

ACHPR art 9.

85

Constitutional Rights Project and Others v Nigeria (2000) AHRLR 227 (ACHPR 1999) [38].

86

ibid [37].

87

ibid.

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.

89

ECHR art 10(1); ACHR art 13; ACHPR art 9.

90

ACHR art 13(1); ACHPR art 9(2).

91

ACHPR 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].

96

ibid [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

114

Universal 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 <http://www.echr.coe.int/
NR/rdonlyres/E3B11782-7E42-418B-AC04-A29BEDC0400F/0/RAPPORT_RECHERCHE_Internet_Freedom_
Expression_EN.pdf> 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 privacyprotecting 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].

145

ibid [93].

146

ibid [86].

147

ibid [85].

148

ibid [88].

149

ibid [93].

150

Karo (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.

153

ibid.

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].
156

Kennedy (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].
160

Kruslin (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 <http://www.nyse.com/about/listed/lcddata.html?ticker=

MLM> accessed 22 November 2011.
165

What Does MLM Stand For? (2011) Acronym Finder <http://www.acronymfinder.com/ MLM.html> 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.

169

ECHR 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 <http://www.article19.org/
data/files/pdfs/analysis/terrorism-submission-to-icj-panel.pdf> 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 <http://www.unesco.org/new/en/ communication-and-information/freedom-of-expression/
professional-journalistic-standards-and-code-of-ethics/europe/media-legislation-and-regulation/european-court-ofhuman-rights-echr/> 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.

174

ECHR 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).

177

Von 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

181

ibid.

182

ibid [43].

183

ibid at [85].

184

ibid [82]-[84].

185

ibid [72].

186

ibid [50].

187

ibid [76].

188

ibid [78]-[79].

189
190

ibid [83-53].

ECHR 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

191

Compulsory 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).

194

ibid [79].

195

ibid [85].

196

ibid [46].

197

ibid [79].

198

Khurshid Mustafa v Sweden (2011) 52 EHRR 24 [42].

199

ibid [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.

209

ibid 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.

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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.