The term digital rights is indicative of the freedom of individuals to perform actions involving the use of a computer, any electronic device, or a communications network. The term is particularly related to the protection and realization of existing rights, such as the right to privacy or freedom of expression (see freedom of information), in the context of new digital technologies, especially the Internet.[1]
In December 2003 the World Summit on the Information Society (WSIS) was convened under the auspice of the United Nations (UN). After lengthy negotiations between governments, businesses and civil society representatives the WSIS Declaration of Principles was adopted[7] reaffirming human rights:
"We reaffirm the universality, indivisibility, interdependence and interrelation of all human rights and fundamental freedoms, including the right to development, as enshrined in the Vienna Declaration. We also reaffirm that democracy, sustainable development, and respect for human rights and fundamental freedoms as well as good governance at all levels are interdependent and mutually reinforcing. We further resolve to strengthen the rule of law in international as in national affairs[8]
"We reaffirm, as an essential foundation of the Information Society, and as outlined in Article 19 of the Universal Declaration of Human Rights, that everyone has the right to freedom of opinion and expression; that this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Communication is a fundamental social process, a basic human need and the foundation of all social organisation. It is central to the Information Society. Everyone, everywhere should have the opportunity to participate and no one should be excluded from the benefits of the Information Society offers."[9]
The 2004 WSIS Declaration of Principles also acknowledged that "it is necessary to prevent the use of information resources and technologies for criminal and terrorist purposes, while respecting human rights[10] Wolfgang Benedek comments that the WSIS Declaration only contains a number of references to human rights and does not spell out any procedures or mechanism to assure that human rights are considered in practice.[11]
Digital rights landscape
Internet Bill of Rights
The Dynamic Coalition for an Internet Bill of Rights emerged in preparation for the 2008 World Summit on the Information Society (WSIS) in Rio as part of which the Coalition held a large preparatory Dialogue Forum on Internet Rights in Rome, September 2007. The Dialogue Forum established that the aim was not to develop a new legal bill of rights, but to work on a set of guidelines interpreting existing human rights with regard to the needs and challenges of the information society. The Coalition intends to undertake an inventory of existing international human rights instruments and to serve as a engagement platform to elaborate the content of the Internet Bill of Rights.[12]
According to reports Cisco Systems was invited to the initial discussions but didn't take part in the initiative. Harrington Investments, which proposed that Cisco establish a human rights board, has dismissed the GNI as a voluntary code of conduct having any impact. Chief executive John Harrington called the GNI "meaningless noise" and instead calls for bylaws to be introduced that force boards of directors to accept human rights responsibilities.[16]
Digital rights landscape
In 2005, the United Kingdom's Open Rights Group published a digital rights landscape, documenting the range of organizations and people active in the cause of preserving digital rights. The diagram related groups, individuals, and websites to interest areas.[17]
Issues
ISPs: Graduated response
In response to copyright violations using peer to peerfile sharing or BitTorrent the content industry has developed what is known as a graduated response, or three strikes system. Consumers who do not adhere to repeated complaints on copyright infringement, risks losing access to internet. The content industry has thought to gain the co-operation of internet service providers (ISPs), asking them to provide subscriber information for ISP addresses identified by the content industry as engaged in copyright violations. Consumer rights groups have argued that this approach denies consumers the right to due process and the right to privacy. The European Parliament passed a non-binding resolution in April 2008 admonishing laws that would require ISPs to disconnect their users and would prevent individuals from acquiring access to broadband.[18][19]
In a number of European countries attempts to implement a graduated response have led to court cases to establish under which circumstances an ISP may provide subscriber data to the content industry. In order to pursue those that download copyrighted material the individual committing the infringing must be identified. Internet users are often only identifiable by their Internet Protocol address (IP address), which distinguishes the virtual location of a particular computer. Many ISPs allocate a pool of IP addresses as needed, rather than assigning each computer a never-changing static IP address. Using ISP subscriber information the content industry has thought to remedy copyright infringement, assuming that that the ISPs are legally responsible for end user activity, and that the end user is responsible for all illegal activity connected to his or hers IP address.[20][21]
In 2005 a Dutch court ordered ISPs in the Netherlands to not divulge subscriber information because of the way the Dutch content industry group had collected the IP addresses (Foundation v. UPC Nederland). According to Dutch law ISPs can only be ordered to provide personal subscriber data if it is plausible that an unlawful act occurred, and if it is shown beyond a reasonable doubt that the subscriber information will identify the person who committed the infringing act. In Germany court specifically considered the right to privacy and in March 2008 the German Federal Constitutional Court ruled that ISPs could only give out IP address subscription information in case of a "serious criminal investigation". The court furthermore ruled that copyright infringement did not qualify as a serious enough offense. Subsequently, in April 2008, the Bundestag (German parliament) approved a new law requiring ISPs to divulge the identity of suspected infringers who infringe on a commercial scale. In Spain the Spanish Supreme Court recently ruled that personal data associated with an IP address could only be disclosed in the course of a criminal investigation or for public safety reasons (Productores de Música de España v. Telefónica de España SAU). In Italy courts established that criminally liability does not extend to file sharing copyrighted material, as long as it is not done for commercial gain. Ruling on a case involving a copyright holder employed a third party to collect IP addresses of suspected copyright infringers, the Italian Data Protection Authority ruled in February 2008 that the systematic monitoring peer-to-peer activities for the purpose of detecting copyright infringers and suing them.[22]
At the same time a number of other European countries are considering to implement a graduated response to copyright infringement via the internet, including France and Britain. In France President Nicolas Sarkozy is backing a proposal to implement a graduated response law, while in Britain voluntary arrangement between ISPs and the content industry is considered towards this end.[23]
