Freedom of Expression
Unfiltered: How blocking andfiltering affect free speech
December 2016
Policy Brief

ARTICLE 19
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Executive summary
In this policy brief, ARTICLE 19 outlines its position on the compatibility ofblocking and/or filtering of online content with international standards on humanrights, in particular the right to freedom of expression.
The policy brief is motivated by concerns about developments - in authoritarianand democratic countries alike - whereby freedom of expression online isrestricted through the blocking/filtering of content that governments deem
“illegal”. It deals with blocking/filtering of content on websites at network level(hence, in this document, the term “blocking/filtering” only refers to these typesof measures). ARTICLE 19 is concerned about these measures for several reasons:ISBN: 978-1-910793-15-2© ARTICLE 19, 2016–– First, technical restrictions on access to content are prima facie an interferencewith the fundamental right of every person to exchange information and ideas;

This work is provided under the Creative Commons Attribution-Non-Commercial-ShareAlike 2.5
licence. You are free to copy, distribute and display this work and to make derivative works,
provided you:–– Second, blocking measures in particular are notoriously ineffective, carrying
the risks of both over-blocking and under-blocking and as such are a violationof the right to freedom of expression;1) give credit to ARTICLE 19;2) do not use this work for commercial purposes;
3) distribute any works derived from this publication under a licence identical to this one.
To access the full legal text of this licence, please visit: http://creativecommons.org/licenses/by-ncsa/2.5/legalcode.
ARTICLE 19 would appreciate receiving a copy of any materials in which information from thisreport is used.
The Principles were developed as a part of the Civic Space Initiative financed by the Swedish
International Development Cooperation, Sida. Sida does not necessarily share the opinions here
within expressed. ARTICLE 19 bears the sole responsibility for the content of the document.

–– Third, blocking/filtering decisions usually lack transparency and are rarely
ordered by a court. Very often, they are adopted by either administrative
authorities or through so-called ‘voluntary’ cooperation with service providers.
As a result, many governments are now in breach of their obligations
under international human rights law through their use of blocking/filtering
technologies. Even more disturbingly, vast swathes of information are
disappearing from the Internet without users even noticing.
For these reasons, ARTICLE 19 rejects the use of blocking/filtering as a matter ofprinciple. Nonetheless, we explain that blocking can only ever be compatible withinternational standards on freedom of expression where it has been provided bylaw and a court has determined that a blocking measure is necessary in order toprotect the rights of others, or where filtering has been voluntarily adopted by theindividual user.
This policy brief is divided into four parts. First, we provide basic definitions
and terminology concerning blocking/filtering. This is followed by an outline ofrelevant international standards on freedom of expression. We then address thefundamental issues underlying the use of filters and blocking measures. Finally,
we provide comprehensive recommendations for legislators, policy and decisions
makers in this area.
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Summary of recommendations

Table of contents

1. Blanket filtering must be prohibited by law;

Executive summary

2. Filtering should be user-controlled and transparent;

Summary of recommendations

1
2

3. Any requirement to block content must be provided by law;

Table of contents

3

4.	
Blocking should only be ordered by an independent and impartial court or
adjudicatory body;

Introduction

5

Blocking/filtering: the basics

7

5. Blocking orders must be strictly proportionate to the aim pursued.

Definitions and terminology

7

Types of blocking/filtering

8

Application of filters

9

Blocking/filtering orders

10

Applicable international human rights standards
The right to freedom of expression under international law

1111

Limitations on the right to freedom of expression

12International standards on blocking/filtering

13

Blocking/filtering: key issues

15

	
Proportionality of blocking/filtering under international humanrights law

15	
Permissibility of voluntary filtering under international humanrights law

2

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3

ARTICLE 19’s recommendations
Recommendation 1: Blanket filtering must be prohibited by law

19
19

	
Recommendation 2: Filtering should be user-controlled andtransparent

19

	
Recommendation 3: Any requirement to block unlawful content
must be provided by law

19	
Recommendation 4: Blocking should only be ordered byan independent and impartial court or ajudicatory body20

	
Recommendation 5: Blocking orders must be strictly proportionate
to the aim pursued

21

About ARTICLE 19

23

References

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Introduction
The Internet was designed to enable the free flow of information; however,technical measures restricting access to content are now worryingly
commonplace in authoritarian and democratic countries alike. Whereas theGreat Firewall of China used to be the most extreme example of how repressive
governments seek to restrict freedom of expression online, European countries
now increasingly rely on blocking measures to restrict access to copyright
infringing or “extremist” websites.1
Although a growing number of countries are turning to the removal of content
rather than merely blocking access to it,2 ARTICLE 19 remains deeply concernedby content blocking/filtering.
–– Firstly, these measures are prima facie an interference with the fundamental
right of every person to seek and exchange information and ideas.
–– Secondly, they are notoriously ineffective, as they involve risks of both overblocking and under-blocking content and as such amount to a violation of theright to freedom of expression.
–– Thirdly, blocking/filtering decisions usually lack transparency and are
rarely ordered by a court. More often than not, they are adopted by either
administrative authorities or through so-called ‘voluntary’ cooperation withservice providers.
As a result, many governments are now in breach of their obligations underinternational human rights law as a result of their use of blocking/filtering
technologies.3 Even more disturbingly, vast swathes of information are
disappearing from the Internet without users even noticing. Blocking/filtering also
contribute to the fragmentation of the Internet by reinstating borders, contrary to
the medium’s architecture and design.
In response to these developments, this ARTICLE 19 policy brief addresses theissues raised by the blocking/filtering of content on websites at network level. In
particular, we review whether blocking and filtering can ever be compatible withinternational human rights standards, and offer a series of recommendations
which the courts or independent adjudicatory bodies should take into
consideration when reviewing blocking requests.

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While ARTICLE 19 rejects the use of filters and blocking measures as a matter ofprinciple, we include recommendations as to the compatibility of such measureswith international human rights standards.

Blocking/filtering: the basics
Definitions and terminology“Filtering” and “blocking” are terms which are often used interchangeably to referto activities aimed at preventing Internet users from accessing certain content.
Due to the technical complexity of the Internet, blocking/filtering can easily be
confused with other measures which are employed to deal with undesirable orunlawful content.
–– Definition of blocking and filtering: the difference between “filtering” and“blocking” is a matter of scale and perspective.4–– Filtering is commonly associated with the use of technology that blocks
pages by reference to certain characteristics, such as traffic patterns,
protocols or keywords, or on the basis of their perceived connection tocontent deemed inappropriate or unlawful;5–– Blocking, by contrast, usually refers to preventing access to specificwebsites, domains, IP addresses, protocols or services included
on a blacklist.6
In this policy, ARTICLE 19 focuses solely on the blocking/filtering of content
on websites at network level, which can be done by Internet service providers(ISPs), Internet exchange points (IXPs), registries and other parts of the Internet
infrastructure. We do not address other types of blocking/filtering, for instance inthe context of spam, self-censorship or content removal on third-party platforms.
–– Blocking/filtering are distinct from content removal or ‘takedown’: blocking/filtering restrict access to content which continues to exist on the network,whereas the effect of content removal or ‘takedown’ is that the content itself
no longer exists because it is removed from the server where it is stored.7

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–– Monitoring is a pre-requisite for blocking and/or filtering: ”monitoring” is aterm that can describe anything from the capability of systems administrators
and ISPs to oversee the flow of traffic on their networks, to the full-blowninterception of the content of communications by law enforcement agencies or
intelligence services. Monitoring can be either passive or active.

Types of blocking/filtering
There are several types of blocking measures that can be used to restrict accessto content on the Internet with varying degrees of precision.11 The most common
methods used, either alone or combined, include:12–– Passive monitoring involves searching for specific protocols, patterns
or keywords;–– Uniform Resource Locator (URL) blocking, which allows the blocking ofspecific web pages and page elements such as images;–– Active monitoring, by contrast, involves the close inspection of data traffic
using techniques such as Deep Packet Inspection.8 Whilst active monitoringis commonly – but not exclusively - used for surveillance purposes, passive
monitoring is usually associated with blocking/filtering.

–– Internet Protocol (IP) address blocking, which prevents users from connecting
to a host (which may host many separate websites);

There is an obvious distinction, however, between monitoring the data, whichflows across a network, and filtering/blocking it. At the same time, it is important
to bear in mind that monitoring data traffic is a precondition for filtering and/or
blocking. Most recently, the increasing use of protocols which encrypt data andmetadata, such as TLS (colloquially know as HTTPS), have made the granularmonitoring of content – and therefore precise blocking - more difficult.9–– Domain Name System (DNS) tampering, which restricts access to entire
domain names;–– Protocol blocking, which prevents access to certain types of networks such as
peer-to-peer networks or Virtual Private Networks (VPN).
Filtering is usually implemented in the following ways:13–– Blacklists – the software compiles a list of URLs or content to be filtered;–– Network filtering is distinct from filtering by services:–– Network level filtering impacts users’ access to certain websites,
applications and protocols;–– Filtering by services is used by providers of services - such as Google,
Twitter or YouTube - as part of their internal policing of their email, searchand content sharing services and platforms.10 While the latter is problematicin its own right, it will be examined in a different ARTICLE 19 policy.

–– Whitelists – the software compiles a list of ‘authorised’ URLs, i.e. that are notsubject to blocking or filtering;–– Keyword blocking – the software blocks content according to a list of keywords,
such that websites containing one or more of these key words are blocked;–– Deep Packet Inspection (DPI) – this technique scans the content of eachdata packet that passes through a network. This implementation method issignificantly different from those outlined above as it involves a deeper levelof analysis of data traffic. DPI is commonly used for network management
purposes, e.g. to filter out viruses and spam. If used for surveillance or filtering
purposes, however, it significantly interferes with the right to privacy andfreedom of expression.
The above filtering mechanisms are not mutually exclusive. For instance,
blacklists and whitelists can be operated alongside one another and combinedwith keyword blocking and content rating.

89Application of filters
Blocking/filtering can be implemented at several different levels, including - but
not limited to - the following:–– National level – when governments require all Internet Service Providers toapply filters nationwide;–– ISP level – affecting all of the customers of a specific ISP;–– Company network filtering – filters are often applied to computers inworkplaces or school/university campuses, and implemented on a contractual
basis between users and the company;–– End-user level – a user decides to apply filters to his or her Internet connection
or device, e.g. parental control software on a tablet.

Blocking/filtering orders
Under international human rights standards, the blocking/filtering of content
should be ordered by a court or other independent adjudicatory bodies.14 However,in some countries, it is ordered by government departments or other publicagencies.15 Orders might also take place through informal channels with therelevant government agency contacting ISPs directly by phone and asking them toblock specific content.16
Filtering can occur as a result of legislation that imposes direct obligations on
ISPs to filter certain types of content.17 Failure to comply with these obligations
is usually punished by sanctions ranging from withdrawal of a license to provide
telecommunications services to imprisonment.18
By contrast, filtering may also be applied voluntarily, either because the enduser decides to enable filters on his or her own device or Internet connection, or
because an intermediary (typically an ISP or hosts) wants to prevent its customers
from viewing certain types of content.

10

Applicable international
human rights standards
The right to freedom of expression underinternational law
The right to freedom of expression is guaranteed by a number of international
instruments, including Article 19 of the Universal Declaration of Human Rights(UDHR)19 and Article 19 of the International Covenant on Civil and Political
Rights (ICCPR).20 Importantly, Article 19 (1) of the ICCPR provides that the rightto freedom of expression includes the individual’s freedom to seek, receive andimpart information and ideas of all kinds, regardless of frontiers and through any
media of his choice.
In September 2011, the UN Human Rights Committee (HR Committee), the UN
treaty-monitoring body, expressly recognised that Article 19 of the ICCPR protects
all forms of expression and the means of their dissemination, including all formsof electronic and Internet-based modes of expression.21 The HR Committee also
recommended that the legal framework regulating the mass media should take
into account the differences between the print and broadcast media and theInternet, as well as the ways in which media converge.22
Similarly, the four special mandates for the protection of freedom of expression
highlighted in their 2011 Joint Declaration on Freedom of Expression on theInternet that regulatory approaches in the telecommunications and broadcasting
sectors could not simply be transferred to the Internet.23 In particular, they
recommended the development of tailored approaches for responding toillegal content online, while pointing out that specific restrictions for material
disseminated over the Internet were unnecessary. They also promoted the use of
self-regulation as an effective tool in countering harmful speech.24

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Limitations on the right to freedom of expression

International standards on blocking/filtering

While the right to freedom of expression is a fundamental right, it is notguaranteed in absolute terms. Article 19 (3) of the ICCPR permits the right to be
restricted subject to three specific conditions, which are often articulated as thethree-part test. In particular, restrictions must:

International human rights bodies have expressed their deep concern about
blocking/filtering measures.26 In particular, the four special mandates on freedomof expression in their 2011 Joint Declaration on Freedom of Expression on theInternet held that:27–– Be provided by law;–– Pursue one or more of the legitimate aims exhaustively listed under Article 19(3), namely respect for the rights or reputations of others, the protection ofnational security or public order, public health or morals; and1. Mandatory blocking of entire websites, IP addresses, ports, network protocols
or types of uses (such as social networking) is an extreme measure – analogous tobanning a newspaper or broadcaster – which can only be justified in accordancewith international standards, for example where necessary to protect children
against sexual abuse.

–– Be strictly necessary and proportionate in a democratic society. Importantly,
restrictions on the right to freedom of expression must be interpreted andapplied strictly and narrowly.

2. Content filtering systems which are imposed by a government or commercial
service provider and which are not end-user controlled are a form of priorcensorship and are not justifiable as a restriction on freedom of expression.

The same principles apply to electronic forms of communication or expression
disseminated over the Internet. In particular, the HR Committee has said in its
General Comment No 34 that:

3. Products designed to facilitate end-user filtering should be required to beaccompanied by clear information to end-users about how they work and theirpotential pitfalls in terms of over-inclusive filtering.

Any restrictions on the operation of websites, blogs or any other Internetbased, electronic or other such information dissemination system, including
systems to support such communication, such as Internet service providers
or search engines, are only permissible to the extent that they are compatible
with paragraph 3. Permissible restrictions generally should be content-specific;
generic bans on the operation of certain sites and systems are not compatible
with paragraph 3. It is also inconsistent with paragraph 3 to prohibit a site or an
information dissemination system from publishing material solely on the basisthat it may be critical of the government or the political social system espousedby the government.25

At the same time, the UN Special Rapporteur has recognised that website
blocking may be justified in limited circumstances in order to deal with categories
of content which are prohibited under international law, namely: child sex abuse
images (child pornography), incitement to commit genocide, advocacy of national,
racial or religious hatred that constitutes incitement to discrimination, hostility
or violence, and incitement to terrorism.28 In the case of child pornography, heopined that this was one of the clear exceptions where website blocking may bejustified.
Nonetheless, he made it absolutely clear that blocking measures must always
comply with the three-part test under Article 19(3) ICCPR.29 In this respect, helaid down some minimum criteria that must be met in order for website blocking
and filtering to be justified under international law, namely:30–– Blocking/filtering provisions should be clearly established by law;–– Any determination on what content should be blocked must be undertaken by
a competent judicial authority or body which is independent of any political,
commercial, or other unwarranted influences;

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–– Blocking orders must be strictly limited in scope in line with the requirementsof necessity and proportionality under Article 19 (3);–– Lists of blocked websites together with full details regarding the necessity andjustification for blocking each individual website should be published;

Blocking/filtering:key issues–– An explanation as to why a page has been blocked should also be provided ona page that is substituted in for the affected websites;

Proportionality of blocking/filtering underinternational human rights law

The above standards have been echoed by regional mechanisms for the protectionof human rights, including the Council of Europe,31 the European Court of
Human Rights32 and the OAS Special Rapporteur on Freedom of Expression.33
Importantly, they have confirmed that:

Blocking/filtering are sometimes presented as a remedy to various social ills, fromsex abuse images, adult pornography, intellectual property infringement, privacy
violations, defamation, illegal gambling, and ”hate speech”, to terrorism or othernational security threats.

–– Search engines and other intermediaries should not be required to monitor
their networks proactively in order to detect possible illegal content;34

Typically, these measures are aimed at:–– It should be possible to challenge blocking and filtering orders before an
independent and impartial tribunal and seek clarification and remedies.35 In
this regard, the HR Committee has clarified that there should be no genericbans on the operation of sites or systems.36
More generally, international human rights bodies have recommended that filtering
be end-user controlled, and that at minimum, users should be informed when afilter is active and given as much control as possible over the level of filtering.37–– Preventing users from accessing certain types of content to protect them(e.g. child sex abuse images) or a third party (e.g. privacy violation); or–– Preventing users from downloading illegal material (e.g. ‘pirate’ websites) andpotentially committing an offence (e.g. accessing child sex abuse images).
In this sense, blocking/filtering can be framed as measures to combat andreduce criminality.
Before such measures are adopted or implemented, however, the key questionthat must be answered is whether blocking/filtering are necessary andproportionate to tackle the problems they are purported to address. The responsevery much depends on the technology being used to block/ filter content and its
impact on the rights to freedom of expression and privacy, as some technologies
are more intrusive than others. If the answer is in the negative, then website
filtering and blocking should not be implemented at all.
In ARTICLE 19’s view, blocking/filtering are disproportionate under international
human rights law for the following reasons:38–– Over-blocking or ‘false positives’: no system can ensure that legitimate content
is not wrongfully restricted. In particular, legitimate sites may be blocked
because they use the same IP address as “unlawful” sites;39

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–– Under-blocking’ or ‘false negatives’: conversely, sites containing illegal ortargeted content might not be caught by the blocking/filtering system. This isparticularly problematic in the case of online child protection as parents derivea false sense of security from the knowledge that web-blocking measures arein place;–– Failure to address the root causes: blocking/ filtering do not address
the root causes of the particular problem at issue and are no substitutefor law enforcement and the prosecution of serious crimes committed overthe Internet.40–– Possibility of circumvention: blocks/filters are generally relatively easy tocircumvent both by sufficiently tech-savvy end-users and “criminals” when
they detect that they have been added to a blocking list;–– Failure to consider the changing nature of websites: website blocking, as
opposed to blocking of specific webpages, ignores the fact that the content of
websites is liable to change over time, often significantly;41–– Violation of human rights: granular blocking/filtering strategies are deeply
intrusive of users’ right to privacy and freedom of expression as they analyse
the content of the material exchanged between users;–– Interference with the Internet infrastructure: blocking/filtering interfere withseveral critical elements of the Internet’s infrastructure and design, and causes
reduction in traffic speed and financial burdens on Internet intermediaries.42
In short, blocking/filtering are profoundly inimical to freedom of expression
and human rights whilst not being effective at tackling the problems they are
purported to address. They are therefore disproportionate and should not be
implemented.

Permissibility of voluntary filtering underinternational human rights law
Unfortunately, governments often decide that blocking/filtering should be applied
regardless of the well-documented lack of effectiveness of these measures.
When that is the case, the key issue becomes how blocking and filtering are
implemented and more specifically, whether these measures are provided bylaw or “voluntary” agreements. In a large number of countries, decisions to block/filter content are opaque. In particular, blocking powers are rarely expressly
provided by law.43 When that is the case, the restriction is per se illegal underinternational law.
Moreover, because governments are prohibited from imposing blanket filtering incertain countries,44 they have sought to encourage intermediaries to ‘cooperate’with them or other stakeholders in combating content deemed unlawful or
harmful. In some countries, they have put pressure on ISPs to install filters by
default on the Internet connection of their customers, who can request to opt-outof the filters.45
In ARTICLE 19’s view, this system is deeply problematic for several reasons:–– Given the impracticality of contacting ISPs to request an opt-out, many people
are likely to leave the filters on;–– Neither the categories of filtered content or the way in which the categories areapplied in individual cases are transparent to the end-user;–– Potentially thousands of websites are blocked because they fall within one of
the categories of harmful content put in place by the ISPs;–– Legitimate websites which are being filtered are not notified that their content
might be filtered;–– There is no mechanism for websites to challenge being wrongfully placed on a
blacklist of sites that must be blocked.

1617Voluntary filtering of this kind might also violate the right to freedom of expression
under international law:–– Voluntary measures are, almost by definition, not provided by law. This
includes, for instance, measures adopted by ISPs of their own accord. At
the same time, voluntary agreements promoted or brokered by states almost
certainly amount to government measures without a legal basis;–– The absence of a legal basis means that there is no requirement to clarify thecategories of content subject to filtering or offering mechanisms of redress forwrongful filtering;–– It effectively places ISPs in the position of having to decide which types ofcontent should be filtered, which is wholly inappropriate. As profit-making
enterprises, ISPs are ill suited to make neutral decisions as to the kinds ofcontent that should or should not be blocked/filtered. In particular, they haveneither the required independence, nor are they sufficiently qualified, to makedecisions about the legality of material, much of which they would have little
or no formal knowledge about;–– To the extent that the underlying purpose of this type of voluntary filtering is tocircumvent the prohibition on mandatory filtering, it is also likely to be contrary
to the rule of law; while it may be more socially acceptable than mandatory
network filtering, the net effects are likely the same.
By contrast, user-controlled filtering is proportionate since it remains entirely thedecision of each individual to determine the type of content to which he or she
does not wish to gain access. In this sense, the decision of a private individual
to purchase filtering software for his or her own use does not offend humanrights standards, for it is for each individual to make decisions about which typesof material they wish to be exposed to online, so long as they are aware of theattendant risks of over-blocking and other issues.

ARTICLE 19’s
recommendations
Recommendation 1: Blanket filtering must
be prohibited by law
Internet intermediaries should never be required to monitor their networks
proactively in order to detect possible illegal content. Blanket filtering should be
explicitly prohibited by law.

Recommendation 2: Filtering should beuser-controlled and transparent
Filtering should be user-controlled and not imposed by governments or internet
intermediaries. Users who do not wish to be exposed to certain types of content
should be free to decide for themselves not to get access to it without restricting
others’ ability to access the same content.
To the extent that ISPs may wish to apply filtering measures by virtue of a contract
with users, such measures should be transparent. In particular, everyone affectedshould be able to understand the criteria according to which the filtering operates;for example, blacklists, whitelists, keyword blocking, content rating and others
should be clearly specified.46 Moreover, users should at the very least be given an
opportunity to opt-out from the application of filters, which prevent them fromaccessing certain types of content.

Equally, Internet filtering may be acceptable if users give their informed consent
to filters being applied by their ISP as a strictly opt-in measure. At the sametime, filtering by contract cannot be used to negate the prohibition on content
monitoring for the reasons outlined above.

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Recommendation 3: Any requirement to block
unlawful content must be provided by law
Blocking is a disproportionate interference with the right to freedom of expression
as it is ineffective to achieve its stated purpose. However, to the extent thatgovernments seek to impose blocking measures, any such measure must be
provided by law. Moreover, blocking should only be permitted in respect of content
which is unlawful or can otherwise be legitimately restricted under international
standards on freedom of expression. Accordingly, any law providing for blocking
powers should do the following:47–– Specify the categories of content that can be lawfully blocked, consistent withinternational standards on freedom of expression;–– Specify the level or levels at which blocking may be applied and the kindsof technologies that may be used; in this regard, before using specifictechnologies, impact assessments should be carried out to determine whether
the proposed technologies have a detrimental impact on freedom of expression
and the right to privacy and whether alternative, less intrusive, methods could
be used to achieve the same purpose;

Recommendation 4: Blocking should only beordered by an independent and impartial court or
adjudicatory bodyInsofar as blocking may already be permitted by law, this measure should only be
imposed by the courts or other independent and impartial adjudicatory bodies.
Moreover, in order for blocking orders to be maximally compatible withinternational human rights standards, the following procedural safeguards shouldbe put in place:–– When a public authority or third party applies for a blocking order, ISPs orother relevant internet intermediaries must be given the opportunity to beheard in order to contest the application;–– There should similarly be procedures in place allowing other interested parties,
such as free expression advocates or digital rights organisations, to intervene inproceedings in which a blocking order is sought;–– Specify that blocking should only be authorised by an independent andimpartial court with related procedural safeguards under the rule of law.

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–– Users must also be given a right to challenge, after the fact, the decision ofa court or public body to block access to content.48 Whenever certain content
has been blocked by such an order, moreover, anyone attempting to access it
must be able to see that it has been blocked and a summary of the reasons
why it was blocked, in order that they may have the opportunity to challenge
the decision.49 In particular, blocked pages should contain the following
minimum information:

Recommendation 5: Blocking orders must be
strictly proportionate to the aim pursued
Any order to block access to content should be limited in scope and strictly
proportionate to the legitimate aim pursued.52 In determining the scope of any
blocking order, the courts should address themselves to the following:53–– Any blocking order should be as narrowly targeted as possible;–– The party requesting the block;–– The legal basis for the decision to block; the reasons for the decision inplain/user friendly language (not legal jargon); and HTTP status code 45150
should be served;–– The case number, if any, together with a link to the relevant court order;–– Whether the blocking order is the least restrictive means available to deal withthe alleged unlawful activity, including an assessment of any adverse impact
on the right to freedom of expression;–– Whether access to other lawful material will be impeded and if so towhat extent, bearing in mind that in principle, lawful content should
never be blocked;–– The period during which the order is valid;–– The overall effectiveness of the measure and the risks of over-blocking;–– contact details in case of an error;–– Information about avenues of appeal or other redress mechanisms.
Finally, in countries where blocking decisions are already authorised by publicauthorities, it is vital that at a minimum, these authorities are independentof government and that their decisions are subject to prompt review by anindependent and impartial court or tribunal.51
ARTICLE 19 notes, however, that we do not support this regulatory model as
government agencies are more likely to err on the side of caution and call formeasures that protect the interests they are tasked to protect, such as national
security or child safety, rather than freedom of expression or privacy.

22–– Whether the blocking order should be of limited duration: in this regard,
ARTICLE 19 considers that blocking orders to prevent future unlawful activity
are a form of prior censorship and as such are a disproportionate restriction on
freedom of expression.
–– Whether the list of banned sites should be made public by ISPs and/or theauthorities concerned. ARTICLE 19 believes that such lists should be madepublic as a matter of principle. At the same time, the courts should be able toorder that the list should be kept private when it is more likely than not that it
would be used to circumvent the blocking order.

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About ARTICLE 19
ARTICLE 19 is an international human rights organisation, founded in
1986, which defends and promotes freedom of expression and freedomof information worldwide.
It takes its mandate from the Universal Declaration of Human Rights, whichguarantees the right to freedom of expression and information. An increasingly
important means to express oneself and to seek, receive and impart informationis through information and communication technologies such as the Internet.
Hence, ARTICLE 19 has been promoting the Internet freedoms for over 10 years
and is active in developments in policy and practice around freedom of expression
and the Internet through our network of partners, associates and expert contacts.
ARTICLE 19 encourages organisations and individuals to give us feedback
about how this policy brief is being used. Please send your feedback tolegal@article19.org.

References
1.	For a detailed comparative analysis ofblocking and filtering practices in Europe,
see Council of Europe, Comparative study
on filtering, blocking and take down ofillegal content on the Internet, December
2015. See in particular country reports.

13.	R. S. Rosenberg, Controlling Access to theInternet: The Role of Filtering.

2.	Freedom House, Freedom on the Net,2015.

15.	See, e.g. CLD, Russia: Comments on
Internet content restrictions, July 2013.

3.	Special Rapporteur on the promotion
and protection of the right to freedomof opinion and expression, Report to the
Human Rights Council (May 2011 Reportof the SR on FOE), A/HRC/ 17/27, 16 May
2011.

16.	See e.g. For example Azerbaijan, The
Expression Online Initiative, Searching for
Freedom: Online Expression in Azerbaijan,
November 2012.

4.	See IETF, Blocking and Filtering
Considerations, RFC 7754, March 2016
5.	For a short introduction to filtering, seeOpen Net Initiative
6.

Ibid.

7.	Servers are computers, which performessential functions by centralising andmanaging requests from other computersthat form part of a network. For moredetails about content removals, see
ARTICLE 19, Internet Intermediaries:
Dilemma of Liability, 2013.
8.	For more detailed explanation of the DPI,
see the next section.
9.

See Freedom House, op. cit., p. 6.

10.	See e.g. PC World, Google Explains Gmail
Spam Filtering Process, 20 March 2012.
11. 	Each of these methods also has various
implications for the integrity of the
network, i.e. the very architecture of theInternet.

14.	See e.g. Twentieth Century Fox Film
Corporation and others v British Telecom
Plc [2011] EWHC 1981 (Ch)17.	See e.g. Vietnam, Open Net Initiative,
Access Denied, Country Profile: Vietnam, 7August 201218.	See e.g. Indonesia, ARTICLE 19,
Navigating Indonesia’s Information
Highway, March 2013.
19.	UN General Assembly Resolution
217A(III), adopted 10 December 1948.
20.	The ICCPR legally binds 168 states torespect its provisions and implement its
framework at the national level.
21.	General Comment No. 34, CCPR/C/GC/34,
adopted on 12 September 2011, para.12.
22.	Ibid. para. 39.
23.	See Joint Declaration on Freedom ofExpression and the Internet, June 2011.
24.	Ibid. See also SR on FOE, Report to theGeneral Assembly A/66/290, 10 August
2011, para. 16.
25.	General Comment No. 34, op.cit., para.
43.
26. Ibid., para 43.

12. Open Net Initiative, op.cit.

24

25

27.	The 2011 Joint Declaration, op.cit.
28. 	SR on FOE, 2011 Report to the General
Assembly, op.cit.
29. 	Ibid. para. 81
30. 	Ibid., see also the SR on FOE May 2011
report, paras. 70 and 71.
31.	Council of Europe, Recommendation of
the Committee of Ministers to member
states on the protection of human rights
with regard to search engines, para. 12 ff.
32. 	European Court of Human Rights (ECtHR),
Yildirim v Turkey, no. 3111/10, 18
December 201233.	Inter-American Commission on Human
Rights, Freedom of Expression and theInternet, December 2013, p.36.
34.	The 2011 Joint Declaration, op.cit, para
22; Recommendation of the Committeeof Ministers to member states on theprotection of human rights with regard
to search engines, op.cit, para. 13; EU
E-Commerce Directive, article 15 andCouncil of Europe, Declaration on Freedomof Communication on the Internet,
Principle 3; this was also confirmed by the
Court of Justice of the European Union(CJEU), which held in Case C-70/10
Scarlet Extended SA v Societe belge
des auteurs compositeurs et editeurs(SABAM), judgment of 24 Novembre2011) that blanket web filtering systems
installed by ISPs to prevent illegal filesharing on peer-to-peer networks wasincompatible with fundamental rights.
This ruling was strongly reaffirmed in Case
C-360/10 Sabam v Netlog, judgment of
16 February 2012, which raised the samequestion in relation to social networks.

26

35.	The SR on FOE May 2011 report,
op.cit., para, 31 and Recommendation
CM/Rec(2008)6 of the Committee of
Ministers to member states on measures
to promote the respect for freedom of
expression and information with regard toInternet filters, 26 March 2008, Section
III (vi); see also Yildirim v Turkey, op.cit.,para. 64.
36.	General Comment No. 34, op.cit., para
43; also Yildirim v Turkey, op.cit., para. 68
37.	Recommendation CM/Rec(2008)6 of theCommittee of Ministers to member states
on measures to promote the respect for
freedom of expression and information
with regard to Internet filters, Section I.
and Recommendation on the protectionof human rights with regard to searchengines, op.cit, para. 16.
38.	See The SR on FOE May 2011 report,
op.cit., paras. 31, 32, 70, 71 and 76.
39. 	For instance, the UK media regulator,
Ofcom, has warned that currently available
blocking techniques typically carry a riskof over-blocking and are not a 100%
effective: see Ofcom, Site-blocking’ toreduce online copyright infringement: areview of sections 17 and 18 of the Digital
Economy Act, 27 May 2011.
40.	European Digital Rights Initiative, Internet
Blocking: Crimes should be punished andnot hidden.
41.	For example Wayne Crookes v Newton,
2011 SCC 47, in which the Supreme
Court of Canada concluded that there
could be no liability for hyperlinking in adefamation claim.

43.	OSCE Report, Freedom of Expression on
the Internet, 2011.
44.	E.g. in the EU, Member States areprohibited under Article 15 of the
E-Commerce Directive from imposing ageneral obligation on providers to monitor
or store information they transmit or store.
45.	For example, in the UK, throughout 2011
and 2013, the government prodded
Internet Service Providers to install filters
by default on the Internet connection they
provide to UK residents. Users can request
to opt-out of the filters, but defaultfiltering means that potentially thousandsof websites are blocked because they fallwithin one of the categories of harmful
content put in place by the ISPs; see e.g.
BBC, Online pornography to be blocked bydefault, PM announces, 22 July 2013.

50.	In computer networking, HTTP 451
Unavailable For Legal Reasons is anerror status code of the HTTP protocol tobe displayed when the user requests a
resource which cannot be served for legal
reasons.

Ibid., Recommendation CM/Rec(2008)6,
51.	
Section III (ii) and Yildirim v Turkey, op.cit,
para. 6452.	Article 19 (3) ICCPR and Article 10 (2)of the European Convention on Humanrights; Recommendation CM/Rec(2008)6,
op.cit. Section III (i).
53. Yildirim v Turkey, op.cit, para. 66.

46. Ibid.
47.	Council of Europe, Recommendation
CM/Rec(2008)6 of the Committee of
Ministers to member states on measures
to promote the respect for freedomof expression and information withregard to Internet filters, op.cit., andRecommendation CM/Rec(2012)3, op.cit.,para. 16.
48.	See e.g. ECtHR, Cengiz and Others v.
Turkey, nos. 48226/10 and 14027/11,
ECHR 201549.	See Recommendation CM/Rec(2008)6,
op.cit. Section I. and Recommendation on
the protection of human rights with regard
to search engines, op.cit. para 16.

42.	Commission staff working document,“Online services, including e-commerce,in the single market,” SEC(2011) 1641
final, 11 January 2012, page 51, Section
3.4.5.3 Filtering.

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