The “Right to Be Forgotten” and Blocking Orders under the American Convention: Emerging Issues in Intermediary Liability and Human Rights


Publish Date:
September 30, 2017
  • Subhajit Banerji, Savni Dutt, Ella Hallwass, Yindee Limpives, Miguel Morachimo, Mirena Taskova, Shelli Gimelstein & Shane Seppinni, The "Right to Be Forgotten" and Blocking Orders under the American Convention: Emerging Issues in Intermediary Liability and Human Rights, Intermediary Liability & Human Rights Policy Practicum, September 2017 (advised by Daphne Keller & Luiz Fernando Marrey Moncau).
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Executive Summary:

Today, an increasing number of social and economic activities depend on the internet and the internet functions through intermediaries at every stage. The internet has increasingly become the critical platform for all types of speech: news, comments, opinions, political organization, and more. Internet intermediaries host, index, and provide access to this speech and, hence, play an important role in facilitating free expression on the internet. This Report considers the nature and scope of liability imposed on intermediaries for speech shared online by internet users, and the ways that such liability may indirectly lead to suppression of lawful speech. By reviewing key human rights documents from the OAS and other international systems, it identifies core substantive and procedural norms that must shape intermediary liability in order to protect users’ rights to free expression. It then considers two recent trends that are gaining traction around the world: the so-called ‘right to be forgotten doctrine’ (‘RTBF’) and orders compelling Internet Service Providers (‘ISPs’) to block entire websites, applications or services (‘site and service blocking’ or ‘SSB’). Both issues are understood through existing jurisprudence, international human rights documents and sources specific to the OAS countries.

The objective of this Report is to provide the Office of the Special Rapporteur on the Freedom of Expression (‘OSRFE’) for the OAS countries with an overview of human rights considerations raised by RTBF and SSB. This resource can then be used by the OSRFE to understand the treatment of these issues within OAS countries and especially, to identify: (a) whether the emerging trends are acceptable under the OAS human rights framework; (b) countries within the OAS that are complying with the OAS human rights framework with their treatment of RTBF and SSB, and; (c) problem areas within the OAS region that need the Special Rapporteur’s attention and suggestions.

It is important to consider and study the emergence of RTBF and SSB because these issues are currently in the developing stage, with opportunities to advocate for approaches and interpretations that respect free expression rights. It is also noticeable that while the OAS human rights framework is uniquely protective of expressive freedoms, individual OAS countries have very different ways of interpreting laws that affect free expression. For instance, some mirroring may be observed of the European developments, particularly with respect to RTBF and data protection laws, in OAS states. As such, this is a critical time to attend to these issues and preserve strong protections for freedom of expression in the OAS countries. To that end, this Report aims to provide a helpful source of information for the OSRFE.

As interpreted by authoritative sources, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights call for equal human rights online and offline. In the OAS human rights framework, the American Convention on Human Rights (‘ACHR’) lays down the guiding principles. Most importantly, Article 13 of the ACHR provides the three-step test for all actions that may restrict the freedom of expression. The ACHR’s unique prohibition on laws that restrict expression by “indirect methods” including “government or private controls over … equipment used in the dissemination of information” provides an unusually clear mandate that laws governing Internet intermediaries must not effectively suppress free expression. Regional human rights sources and interpretations confirm this, repeatedly urging clear intermediary liability principles to avoid removal of lawful speech. Guidelines drawing on OAS and other international human rights sources have been collected and detailed in a key civil society document, the Manila Principles.

Procedurally, both OAS sources and the Manila Principles emphasize the importance of adjudication by an independent judicial body before intermediaries are legally obliged to remove users’ expression. Additionally, there is also importance given to the right of an affected person to be informed of a restriction and given a chance to redress their grievance. Concerning the intermediaries, there is also an emphasis on the transparency of policies and practices of an intermediary.

Both RTBF and SSB developments may be in considerable tension with — or simply in violation of — OAS free expression standards, particularly as those standards relate to intermediary liability.

The so-called ‘right to be forgotten’ doctrine rose to prominence following the European Court of Justice’s 2014 Google Spain decision, and has generated a significant trend of similar claims within OAS countries. Particularly in countries with data protection laws modeled on the EU’s, some have supported following the Google Spain model: designating search engines as data controllers, and compelling them to de-list links to webpages containing personal information upon request. Judicial acceptance of this argument has varied within OAS countries. At least two important cases have highlighted points of tension between RTBF and regional or national protections for free expression rights. A Colombian court identified net neutrality and free expression concerns as reasons not to impose RTBF obligations on a search engine, but did require a news publisher to exclude pages from Google’s search index. A Mexican court, in a key case vindicating procedural rights, rejected an RTBF order against the search engine because the publisher of the web page at issue had not been notified of the order or given an opportunity to contest it. In Peru, by contrast, Google was compelled to de-list webpages on RTBF grounds. This diversity of interpretations indicates an important opportunity for guidance from the OSRFE on whether or how the EU model can be reconciled with the OAS human rights framework.

Similarly, there have been several instances of SSB in the OAS countries. ISPs have been compelled to block entire websites and, more famously, popular applications like Whatsapp and Uber. However, there is no uniformity in the laws applied. Some countries in the OAS that do not have specific laws concerning SSB have used other existing laws to justify their imposition. As with RTBF, any restriction that limits the freedom of expression must comply with the three-part test, and in particular must be narrowly tailored and accompanied by procedural protections against over breadth. SSB orders that compel ISPs to block entire websites when only some pages are known to contain unlawful content are highly unlikely to meet these standards. In order to comply with OAS human rights standards, courts and government actors should consider and exhaust less restrictive approaches, such as blocking individual pages or requesting that the website remove content, before resorting to SSB orders against ISPs. Even when states have particularly compelling grounds to restrict content, such as to combat child pornography, procedural protections against over-blocking are critical. These may include notice to the affected website or application provider; notice to affected users seeking the site or service; opportunities to contest blocks; geographic and temporal limits on the scope of blocking orders; and broad public transparency about government and ISP blocking practices.

Apart from the inherent conflict of SSB orders with freedom of expression, SSB also conflicts with the principle of network neutrality. A number of countries including Canada, Colombia and Chile have seen recent attention in their legislation to promoting network neutrality, suggesting that it, along with core intermediary liability principles, provides an important limit on SSB orders to block online expression.

Drawing on our review of human rights documents and emerging trends globally and within OAS countries, this Report proposes the following actions by the OSRFE. These are discussed in more detail within each of the substantive parts of this Report, with specific proposals for RTBF and SSB.

a. Sending information requests regarding the existing regulations concerning intermediaries in the OAS.
b. Recommending the incorporation of free expression review, and the involvement of experts specialized in free expression, in any proceedings regarding RTBF or SSB.
c. Preparing special reports with interpretative principles to guide RTBF and SSB interpretation, and inviting the countries to study the effectiveness of their existing regimes.
d. Assisting in the development of the meaning of ‘least restrictive means’ in the SSB context, and thereafter formulating possible interventions between the least and most restrictive measures.
e. Assisting in the development of guidance for agencies and courts interpreting data protection laws in cases affecting free expression.
f. Promoting and calling upon member states to promote transparency regarding removal orders or requests to intermediaries.
g. Encouraging multi-stakeholder discussions between intermediaries, civil society, and governments to discuss existing measures and propose new measures that would limit intermediary liability and at the same time increase understanding of the limits of intermediary responsibility.