determine what constitutes acceptable content that people within its jurisdiction may seek, receive, or impart, whereas the international system may assert a role in overseeing the exercise
of human rights, including freedom of expression. Similarly, filtering exemplifies the definitional
challenge that presents itself when private action amounts to state action. If a corporation has
an effective monopoly on the supply of an Internet service, is it assuming a governmental
function if it controls access to information according to what it determines to be acceptable
content? Does it matter whether the corporation is doing so of its own accord or whether it is
doing so in response to a government mandate? Should such corporations be considered
agents of the state, bound by the same freedom of expression obligations to which the state
is bound? What responsibilities does a state have for filtering by private actors operating within its jurisdiction? What rights does a person or a group of people have in this mix? How
should jurisdiction for filtering be determined in cyberspace?
Before such questions can be approached, it is helpful first to consider the current international legal landscape.
Key International Legal Instruments
Since the end of World War II, ‘‘human rights’’ in the international arena have moved from being largely a tool of political rhetoric to a substantive set of concrete legal obligations among
states. The most obvious evidence of this development is the enshrining of rights in a number
of binding international documents. At the regional level, countries within several geographical
areas have grouped together to form human rights institutions and to create human rights
obligations applicable within these areas. Alongside these formations has been the development of a truly international set of human rights, established under the United Nations framework. These rights find form in a set of treaties creating legal obligations on states to do, or to
refrain from doing, certain activities. Because these international instruments offer a global
approach and enjoy wide ratification in a way that maps well to the Internet’s international nature, they are the basis of discussion in this chapter.
The applicability of pre-existing legal instruments to the realm of the Internet has been
affirmed by international bodies. The World Summit on the Information Society (referenced
earlier) endorsed a Declaration of Principles that, among other things, proclaims that freedom
of expression in an Internet context is indeed protected by pre-existing instruments. The question then becomes precisely what do these instruments provide, and are they appropriate for
the regulation of filtering in this ‘‘new’’ medium?
Universal Declaration of Human Rights
The starting point for this consideration is the Universal Declaration of Human Rights (the
UDHR), which was adopted by the United Nations General Assembly in 1948. Passed
in the shadow of World War II, the Declaration is not a treaty, but rather an authoritative
Filtering and the International System
77
of human rights, including freedom of expression. Similarly, filtering exemplifies the definitional
challenge that presents itself when private action amounts to state action. If a corporation has
an effective monopoly on the supply of an Internet service, is it assuming a governmental
function if it controls access to information according to what it determines to be acceptable
content? Does it matter whether the corporation is doing so of its own accord or whether it is
doing so in response to a government mandate? Should such corporations be considered
agents of the state, bound by the same freedom of expression obligations to which the state
is bound? What responsibilities does a state have for filtering by private actors operating within its jurisdiction? What rights does a person or a group of people have in this mix? How
should jurisdiction for filtering be determined in cyberspace?
Before such questions can be approached, it is helpful first to consider the current international legal landscape.
Key International Legal Instruments
Since the end of World War II, ‘‘human rights’’ in the international arena have moved from being largely a tool of political rhetoric to a substantive set of concrete legal obligations among
states. The most obvious evidence of this development is the enshrining of rights in a number
of binding international documents. At the regional level, countries within several geographical
areas have grouped together to form human rights institutions and to create human rights
obligations applicable within these areas. Alongside these formations has been the development of a truly international set of human rights, established under the United Nations framework. These rights find form in a set of treaties creating legal obligations on states to do, or to
refrain from doing, certain activities. Because these international instruments offer a global
approach and enjoy wide ratification in a way that maps well to the Internet’s international nature, they are the basis of discussion in this chapter.
The applicability of pre-existing legal instruments to the realm of the Internet has been
affirmed by international bodies. The World Summit on the Information Society (referenced
earlier) endorsed a Declaration of Principles that, among other things, proclaims that freedom
of expression in an Internet context is indeed protected by pre-existing instruments. The question then becomes precisely what do these instruments provide, and are they appropriate for
the regulation of filtering in this ‘‘new’’ medium?
Universal Declaration of Human Rights
The starting point for this consideration is the Universal Declaration of Human Rights (the
UDHR), which was adopted by the United Nations General Assembly in 1948. Passed
in the shadow of World War II, the Declaration is not a treaty, but rather an authoritative
Filtering and the International System
77