[IRP] [Expression] good practice to define limits of freedom of expression

Meryem Marzouki meryem
Sun Dec 13 12:10:40 EET 2009

Max, and all,

Le 7 d?c. 09 ? 18:09, Max Senges a ?crit :

> My intention is to find intercultural consensus and deliberate  
> about a practical institutional ecology to address FoE issues on  
> the internet. Stating that there should be no limits to FoE is a  
> contribution, but wont help us find a solution besides the radical  
> solution of no mediating bodies.

I'm afraid this is impossible, not only if you advocate and defend  
freedom of expression, but also if you abide by the international  
human rights law and - since you mentioned the Germany case - in  
particular the European Convention on human rights.

Whatever is Milton's understanding of FoE (Re: the US First  
Amendment) which I don't share, his comment in this thread was not  
advocating unlimited FoE, but opposing prior censorship ("The fallacy  
here is one of prior restraint"), especially by private actors.

If you find this aggressive, then you might prefer the nice reminder  
from Momoko in her message that you forwarded to us. In summary:
- censorship should only occur a posteriori
- censorship must be legal and subject to important restrictions
- recourse must exist against censorship

Not only what you qualify as "good practice" is not compliant with  
these requirements, but also you are mixing illegal content and so- 
called harmful - while not illegal - content (for some categories of  
population, e.g. children).

Moreover, I'm afraid 'good practice to define limits of FoE' is an  
oxymoron. And your intention to "find intercultural consensus" is  
equally frightening. Human rights are universal (and indivisible,  
interdependent and interrelated, see Vienna Declaration of 1993  
reaffirming this without any ambiguity. The Declaration was adopted  
by 171 UN member States by consensus -- quite intercultural).
Attempts to restrict this universal nature - and thus the need for  
its universal realization - in the name of 'cultural relativism' are  
well known and indeed growing. In general, they come from  
authoritarian States.

The transboundary nature of the Internet, together with the easiness  
to publish content on the Internet in comparison to  other media  
(printed, radio, TV, ...) have brought new allies to these  
authoritarian States: private actors, corporates but some civil  
society organizations as well, backed by some democratic countries,  
including EU countries.
What you call "practical institutional ecology to address FoE issues  
on the internet" is nothing else than private actors circumventing  
courts, to impose their own vision of what one should think, say, and  
hear. In other words, their own moral order.

Many of us have been fighting this trend and these attempts for more  
than a decade, this is well documented. I'm very surprised to see  
this advocated on these FoE and IRP coalition lists. Generally  
speaking, I recognize in the language you're using in this thread  
("good practice", "whole ecosystem of public and semi-public  
institutions", "intercultural consensus", "institutional ecology",  
"mediating bodies"..) the well known, as fuzzy as empty, doxa of  
private censorship advocates. It's very easy for even the best  
intentioned person to get trapped, and it needs a solid knowledge and  
understanding of the corpus of rights and the issues at stake to  
avoid such traps.

Meryem Marzouki - Paris, France
Email: meryem at marzouki.info
Lab. LIP6/CNRS/UPMC - www-polytic.lip6.fr
IRIS (Imaginons un r?seau Internet solidaire) - www.iris.sgdg.org
EDRI (European Digital Rights) - www.edri.org

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