32A

2012

THE UNIVERSAL FREEDOM OF EXPRESSION COURT

IN

THE UNIVERSAL COURT OF HUMAN RIGHTS

THE 2012 OXFORD PRICE MEDIA LAW MOOT COURT COMPETITION

OPENBEMIDIA & ORS.

(APPLICANTS)

V.

REPUBLIC OF BEMIDIA

(RESPONDENT)

MEMORIAL FOR THE APPLICANT

4940 WORDS

II

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ______________________________________________ IV 

INDEX OF AUTHORITIES _______________________________________________ VI 

STATEMENT OF RELEVANT FACTS ___________________________________ XXVI 

STATEMENT OF JURISDICTION _______________________________________ XXXI 

QUESTIONS PRESENTED ____________________________________________ XXXII 

SUMMARY OF ARGUMENTS ________________________________________ XXXIII 

ARGUMENTS ____________________________________________________________ 1 

A. THE REQUIREMENT OF COLLECTION AND VERIFICATION OF USER INFORMATION

CONTRAVENES PROVISIONS OF UDHR _________________________________________ 1 

I. The requirement restricts Article 19, UDHR ________________________________ 1 

II. The requirement imposes a restriction on Article 20, UDHR ___________________ 6 

III. The requirement imposes a restriction on Article 12, UDHR __________________ 7 

IV. The requirement violates Article 17, UDHR _______________________________ 9 

V. The restriction is not permissible under Article 29(2), UDHR __________________ 9 

B. THE REQUIREMENT TO DISCLOSE IDENTITY, FOLLOWING, AND HISTORICAL LOCATION

INFORMATION CONTRAVENES PROVISIONS OF UDHR _____________________________ 15 

I. The requirement imposes a restriction on Article 19, UDHR ___________________ 15 

II. The requirement restricts Article 20, UDHR _______________________________ 16 

III. The requirement imposes a restriction on Article 12, UDHR _________________ 16 

IV. The requirement violates Article 8, UDHR _______________________________ 19 

V. The restriction is not permissible under Article 29(2), UDHR _________________ 20 

III

C. THE REQUIREMENT TO REPORT LOCATION INFORMATION ABOUT USERS OF THE MLM

FORUM IN REAL TIME CONTRAVENES PROVISIONS OF UDHR ______________________ 21 

I. The requirement is a restriction on Article 12, UDHR ________________________ 22 

II. The requirement restricts Article 13, UDHR _______________________________ 26 

III. The requirement contravenes Article 8, UDHR ____________________________ 27 

IV. The restriction is not permissible under Article 29(2), UDHR ________________ 27 

D. THE REQUIREMENT TO DELETE THE CONTENTS OF THE CARLA TRACKER, TALIA TRACKER

AND DARIA TRACKER FORUMS CONTRAVENES ARTICLE 19, UDHR _________________ 28 

I. The requirement imposes a restriction on Article 19, UDHR ___________________ 29 

II. The restriction is not permissible under Article 29(2), UDHR. _________________ 30 

PRAYER ________________________________________________________________ 34 

IV

LIST OF ABBREVIATIONS

¶ Paragraph

AfCHR African Convention on Human and Peoples’ Rights

ACtHPR African Court of Human and Peoples’ Rights

ACHR American Convention on Human Rights

AIR All India Reporter

App no Application Number

art Article

cl Clause

EC European Council

EU European Union

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

ECmHr European Commission of Human Rights

EHRR European Human Rights Reports

FFPA First Family Privacy Act

HRC Human Rights Committee

IACHR Inter American Court of Human Rights

V

ICCPR International Covenant on Civil and Political Rights

IRA Internet Responsibility Act

NJ New Jersey

prin Principle

s Section

UDHR Universal Declaration of Human Rights

UK United Kingdom

UN United Nations

US United States of America

VI

INDEX OF AUTHORITIES

CASES OF THE AFRICAN COURT OF HUMAN AND PEOPLES’ RIGHTS

Referred to in:

Article19 v Eritrea (2007) AHRLR 73 (ACtHPR 2007) 6

Jawara v Gambia (2000) AHRLR 107 (ACtHPR 2000) 6

Marques de Morais v Angola (2005) AHRLR 3 (2005) 14

Media Rights Agenda and Others v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

2, 3

Scanlen and Holderness v Zimbabwe (2009) AHRLR 289 (ACtHPR 2009) 5

CASES OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS

Referred to in:

Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-American Court of Human Rights Series A No 5 (13 November 2003)

5, 6

Herrera-Ulloa v Costa Rica Petition no 12367 (IACtHR, 2 July 2004) 9

Ricardo Canese v Paraguay Inter-American Court of Human Rights Series C No 111 (31 August 2004)

32

VII

CASES OF THE EUROPEAN COURT OF HUMAN RIGHTS

Referred to in:

Amann v Switzerland [2000] ECHR 87 9, 11, 27

App no 14661/81 (ECtHR, 9 July 1991) 8

App no 9804/82 (ECtHR, 7 December 1982) 8

Association for European Integration and Human Rights and Ekimdzhiev v Bulgaria [2007] ECHR 533

11

Autronic AG v Switzerland App no 12726/87 (ECtHR, 22 May 1990) 2

Busuioc v Moldova App no 61513/00 (ECtHR, 21 December 2004) 29

Dudgeon v United Kingdom App no 7525/76 (ECtHR, 23 September 1981)

33

Eerikäinen & Ors v Finland App no 3514/02 (ECtHR, 10 February 2009) 29

Ekin v France (2001) ECHR 473 5, 10

Evans v United Kingdom App no 6339/05 (ECtHR, 7 March 2006) 14

Gaweda v Poland App no 26229/95 (ECtHR, 14 March 2002) 2, 10

Gillan and. Quinton v United Kingdom App no 4158/05 (ECtHR, 12 January 2010)

10

Giorgi Nikolaishvili v Georgia App no 37048/04 (ECtHR, 13 January 2009)

29

Goodwin v United Kingdom [2002] 35 EHRR 447 10

Hachette Filipacchi Associés v France App no 71111/01 (ECtHR, 23 July 2009)

32

VIII

Handyside v United Kingdom [1976] ECHR 5 13, 14

Herczegfalvy v Austria (1993) 15 EHRR 437 20

Hinczewski v Poland App no 34907/05 (ECtHR, 5 October 2010) 10

Hirst v United Kingdom [2005] ECHR 681 15

Iatridis v Greece App no 31107/96 (ECtHR, 25 March 1999) 9

Incal v Turkey ECHR 1998-IV 1547 12, 13

Karhuvaara and Iltalehti v Finland App no 53678/00 (ECtHR, 16 November 2004)

31

Kennedy v United Kingdom [2010] ECHR 682 4, 26

Klass v Germany (1979-80) 2 EHRR 214 14, 19

Kopp v Switzerland App no 23224/94 (ECtHR, 25 March 1998) 9

Krone Verlag GmbH & Co KG v Austria (2006) 42 EHRR 28 30

Kruslin v France (1990) 12 EHRR 547 10, 11, 20

KU v Finland App no 2872/02 (ECtHR 2 March 2009) 8

Leander v Sweden (1987) 9 EHRR 433 9, 19

Liberty and Others v the United Kingdom [2008] ECHR 568 11, 20

Lingens v Austria App no 9815/82 (ECtHR, 8 July 1986) 30

Malone v United Kingdom (1984) 7 EHRR 14 10, 17, 19, 20

Moseley v United Kingdom [2011] ECHR 774 29, 32, 33

IX

National Association of Teachers in Further and Higher Education v United Kingdom App no 28910/95 (ECtHR, 16 April 1998)

7

Peck v United Kingdom (2003) 36 EHRR 41 31

PG and JH v UK App no 44787/98 (ECtHR, 25 September 2001) 17, 19

Rekvényi v Hungary App no 25390/94 (ECtHR, 20 May 1999) 10

Republican Party of Russia v Russia App no 12976/07 (ECtHR, 12 April 2011)

15

Rotaru v Romania (2000) 8 BHRC 449 (ECtHR) 8, 9

S and Marper v United Kingdom [2008] ECHR 1581 8, 14

Silver and Others v United Kingdom (1983) 5 EHRR 347 10

Surek v Turkey App no 24122/94 (ECtHR, 8 July 1999) 9

The Observer and The Guardian v United Kingdom App no 13585/88 (ECtHR, 26 November 1991)

5, 13, 29

The Sunday Times v United Kingdom App no 13166/87 (ECtHR, 26 November 1991)

5, 6, 9, 10, 13

The Sunday Times v United Kingdom (1979-80) 2 EHRR 245 10

Thorgeirson v Iceland (1992) 14 EHRR 843 12

Uzun v Germany App no 35623/05 (ECtHR, 2 September 2010) 22, 27, 28

Van der Velden v The Netherlands App no 29514/05 (ECtHR, 7 December 2006)

8

Von Hannover v Germany ECHR 2004-VI 54 29, 32

X

Weber and Saravia v Germany App no 54934/00 (ECtHR, 29 June 2006) 11, 27

Worm v Austria (1997) 25 EHRR 454 9

X v Iceland [1967] ECHR 24 22

X v United Kingdom App no 9072/82 (ECtHR, 6 October 1982) 8

Zana v Turkey (1997) 27 EHRR 667 14

CASES OF THE EUROPEAN COMMISSION OF HUMAN RIGHTS

Referred to in:

Denev v Sweden (1989) 59 DR 127 (ECmHR) 9

CASES OF THE EUROPEAN COURT OF JUSTICE

Referred to in:

The Queen v Minister of Agriculture, Fisheries and Food and Secretary of Health, ex parte Fedesa and Ors [1990] ECR I-4023 (ECJ)

14

AMERICAN CASES

Referred to in:

Al-Haramain Islamic Foundation et al v Bush et al 451 F Supp 2d 1215 (NDCA 2009)

19

Amnesty International et al v John McConnell et al, 646 F Supp 2d 633 (SDNY 2009)

19

XI

Anderson v Hale 159 F Supp 2d 1116 (ND Ill 2001) 7

Application for Order of a Pen Register 402 F Supp 2d (SDNY 2005) 17

Baird v State Bar of Arizona 401 US 1 (1971) 7

Bantam Books Inc et al v Sullivan 372 US 58 (1963) 5

Bates v Little Rock 361 US 516 (1960) 7

Berlin Democratic Club v Rumsfeld 410 F Supp 144 (Dist of Columbia 1976)

4

Board of Trustees of State Univ of NY v Fox 492 US 469 (1989) 10

Bret Michaels v Internet Entertainment Group Inc and Ors Lexsee 5 F Supp 2d 823 (CD Cal 1998)

30, 32

Burrows v Superior Court 529 P 2d 596 (Cal 1974) 17

Cantwell v Connecticut 310 US 296 (1940) 13

Columbia Ins Co v Seescandy.com 185 FRD 573 (ND Cal. 1999) 3, 5

Daily Times Democrat v Graham 162 So 2d 474 (Ala 1964) 31

Dendrite Int'l Inc v Doe No 3 775 A 2d 756 (NJ 2001) 1, 4, 20

Denver Area Educational Telecommunications Consortium Inc v FCC 518 US 727 (1996)

6

Doe v Cahill 884 A 2d 451 (Del 2005) 6, 20

Dow Chemical v United States 476 US 227 (1986) 23, 24

Farmers Educational and Co-operative Union, North Dakota Division v WDAY Inc 360 US 525 (1959)

29

XII

Gertz v Robert Welch Inc 418 US 323 (1974) 31

Gibson v Florida Legislative Investigation Committee 372 US 539 (1963) 7

Grosjean v American Press Co 297 US 233 (1936) 3, 5

In the Matter of the §2703(d) Order relating to Twitter Accounts: wikileaks, rop_g; ioerror; and birgittaj Misc No 10GJ3793 (Eastern District of Virginia)

19

Internet Archive et al v Michael B Mukasey No C 4:07-06346 CW (ND Cal 2007)

19, 20

Katz v United States 389 US 347 (1967) 8, 16, 18, 22, 25

Kingsley International Pictures Corp v Regents 360 US 684 (1959) 20

Kyllo v United States 533 US 27 (2001) 24, 25

Laird v Tatum 408 US 1 (1972) 4

Lamont v Postmaster General 381 US 301 (1965) 4, 6

Lubin v Agora Inc 882 A 2d 833 (Md Ct App 2005) 5

McIntyre v Ohio Elections Commission 514 US 334 (1995) 1, 3

Meeropol v Nizer 560 F 2d 1061 (2nd Cir 1977) 31

NAACP v Alabama 357 US 449 (1958) 7

NAACP v Button 371 US 415 (1963) 4

Near v Minnesota 283 US 697 (1931) 5, 12, 29

Nebraska Press Association v Stuart 427 US 539 (1976) 5, 14

XIII

New York Times Co v United States 403 US 713 (1971) 11, 12

New York Times Co v Sullivan 376 US 254 (1964) 30

Ontario v Quon 560 US ___ (2010) 18

People v Weaver 12 NY 3d 433 (2009) 23, 24

Reno v ACLU 521 US 844 (1997) 1, 29

Ronald Galella v Jacqueline Onassis 487 F 2d 986 (2nd Cir 1973) 24, 31

Schneider v Smith 390 US 17 (1968) 6

Shelton v Tucker 364 US 479 (1960) 7, 14

Silverman v United States 365 US 505 (1961) 25

Smith v California 361 US 147 (1959) 29

Smith v Maryland 442 US 735 (1979) 17, 23

Southeastern Promotions Ltd v Conrad 420 US 546 (1975) 4

State v Jackson 76 P 3d 217 (Wash 2003) 23, 24

Talley v California 362 US 60 (1960) 1

Tattered Cover Inc v City of Thornton 44 P.3d 1044 (Colo 2002) 1, 5

United States v Forrester 512 F 3d 500 (9th Cir 2007) 23

United States v Chadwick 433 US 1 (1977) 22

United States v Jacobson 466 US 109 (1984) 22

XIV

United States v Karo 468 US 705 (1984) 25, 28

United States v Kennedy 81 F Supp 2d 1103 (D Kan 2000) 16

United States v Knotts 460 US 276 (1983) 23

United States v Maynard 615 F 3d 544 (2010) 22, 23, 24

United States v Miller 307 US 174 (1939) 16

United States v Rumely 345 US 41 (1953) 7

United States v Torres 523 US 224 (1998) 27

Virginia State Pharmacy Board v Virginia Citizens Consumer Council 425 US 748 (1976)

14

Woodard v Hutchins 464 US 377 (1984) 30

Zeran v America Online Inc 524 US 937 (1998) 29

Zupnik v Associated Press 31 F Supp 2d 20 (D Conn 1998) 31

ENGLISH CASES

Referred to in:

A v B and Anr [2002] EWCA Civ 337 (UK) 30, 31, 32

Reynolds v Times Newspapers [1999] 4 All ER 609 (UK) 32

Sir Elton John v Associated Newspapers [2006] EMLR 27 (UK) 31

Theakston v Mirror Group Newspapers Ltd. [2002] EWHC 137(QB) (UK) 30

XV

HUMAN RIGHTS COMMITTEE

Referred to in:

Albert Womah Mukong v Cameroon Communication No 458/1991, UN Doc CCPR/C/51/D/458/1991 (10 August 1994)

9

Coeriel et al v The Netherlands Communication No 453/1991, UN Doc CCPR/C/52/D/453/1991 (1994) (HRC)

8

Hak-Chul Shin v Republic of Korea Communication No 926/2000, UN Doc CCPR/C/80/D/926/2000 (2004) (HRC)

12

Keun-Tae Kim v Republic of Korea Communication No 574/1994, UN Doc CCPR/C/64/D/574/1994 (1999) (HRC)

12

Tae Hoon Park v Republic of Korea Communication No 628/1995, UN Doc CCPR/C/64/D/628/1995 (1998) (HRC)

12

Vladimir Petrovich Laptsevich v Belarus Communication No 780/1997, UN Doc CCPR/C/68/D/780/1997 (2000) (HRC)

11

Vladimir Velichkin v Belarus Communication No 1022/2001, UN Doc CCPR/C/85/D/1022/2001 (2005) (HRC)

11

Zeljko Bodrozic v Serbia and Montenegro Communication No 1180/2003, UN Doc CCPR/C/85/D/1180/2003 (2006) (HRC)

30

CANADIAN CASES

Referred to in:

Gauthier v Canada [1931] SCR 416 (Canada) 5

XVI

GERMAN CASES

Referred to in:

Vorratsdatenspeicherung [Data Retention] BVerfG 2 March 2010, 1 BvR 256/08 (Germany)

14

INDIAN CASES

Referred to in:

Bennett Coleman & Co v Union of India AIR 1973 SC 106 (India) 3

District Registrar and Collector, Hyderabad v Canara Bank 2005 (1) SCC 496 (India)

17

ROMANIAN CASES

Referred to in:

Decision no. 1258, 8 October 2009 (Romania) 14

NEW ZEALAND CASES

Referred to in:

Hosking v Runting [2004] NZCA 34 (NZ) 31

XVII

STATUTES

Referred to in:

Reader Privacy Act 2011 (California) 1, 5

Electronic Communications Privacy Act 1986 (US) 20, 28

Pen Register Act 1986 (US) 21

Personal Information Protection and Electronic Documents Act 2001 (Canada)

18

Right to Financial Privacy Act 1978 (US) 21

Telecommunications (Interception and Access) Act 1979 (Australia) 20, 28

USA PATRIOT Act 2001 (US) 8

REGIONAL AND INTERNATIONAL INSTRUMENTS

Referred to in:

African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58

6, 19, 26

American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978)

5, 6, 7, 19

European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953)

5, 6,7, 9, 18, 19

International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171

5, 8, 19, 26

Universal Declaration of Human Rights (adopted 10 December 1948 5, 6, 9, 18, 26

XVIII

UNGA Res 217 A(III)

ARTICLES

Referred to in:

Alekhya Prakasha and P Pallavi, ‘No End of Trouble?: Intermediary Liability after Perfect 10 v. Visa International’ (2008) 1 IJIPL 74

3

Amber Melville-Brown, ‘Private Lives’ [2010] European Lawyer 30

Andrew J DeFilippis, ‘Securing Informationships: Recognizing a Right to Privity in Fourth Amendment Jurisprudence’ (2006) 115 Yale LJ 1086

17

Casey Holland, ‘Neither Big Brother Nor Dead Brother: The Need for a New Fourth Amendment Standard Applying to Emerging Technologies’ (2005-06) 94 Ky LJ 393

18

Christopher S Yoo, ‘Free Speech and the Myth of the Internet as an Unintermediated Experience’ (2009) Scholarship at Penn Law Paper 289 <http://lsr.nellco.org/upenn_wps/289> accessed 9 November 2011

2

Christopher Slobogin and Joseph E Schumacher, ‘Reasonable Expectations of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at “Understandings Recognized and Permitted by Society”’ (1993) 42 Duke LJ 727

17

Christopher Slobogin, ‘Subpoenas and Privacy’ (2005) 54 DePaul L Rev 805

17

Daniel J Solove, ‘Digital Dossiers and the Dissipation of Fourth Amendment Privacy’ (2002) 75 S Cal L Rev 1083

17

Daniel J Solove, ‘A Taxonomy of Privacy’ (2006) 154 U Pa L Rev 477 26

David Cole, ‘The Poverty of Posner's Pragmatism: Balancing Away Liberty After 9/11’ (2007) 59 Stan L Rev 1735

15

XIX

Deborah Buckner, ‘Internet Search and Seizure in United States v. Forrester: New Problems in the New Age of Pen Registers’ (2008) 22 BYU J Pub L 499

19

Diane L Zimmerman, ‘Requiem for a Heavyweight: a farewell to Warren and Brandeis’s Privacy Tort’ (1983) 68 Cornell Law Review 291

32

Gavin Phillipson, ‘The “right” of privacy in England and Strasbourg compared’ in Andrew T Kenyon and Megan Richardson (eds), New Dimensions in Privacy Law: International and Comparative Perspectives (CUP 2006) 226

32

Gerald G Ashdown, ‘The Fourth Amendment and the “Legitimate Expectation of Privacy”’ (1981) 34 V and L Rev 1289

17

Hal Roberts and John Palfrey, ‘The EU Data Retention Directive in an Era of Internet Surveillance’ in Ronald J. Deibert and others (eds), Access Controlled: The Shaping of Power, Rights, and Rule in Cyberspace (MIT Press 2010)

8

Ian Brown and Douwe Korff, ‘Terrorism and the Proportionality of Internet Surveillance’, [2009] Eur J Criminology 8 <http://ssrn.com/abstract=1261194> accessed 20 January 2012

11

J Beckwith Burr, ‘The Electronic Communications Privacy Act of 1986: Principles for Reform’ (2010) <http://digitaldueprocess.org/files/DDP_Burr_Memo.pdf> accessed 9 November 2011

18, 19

James C White, ‘People, Not Places: A Policy Framework for Analyzing Location Privacy Issues’ (Electronic Privacy Information Center, 2003) <epic.org/privacy/location/jwhitelocationprivacy.pdf> accessed 9 November 2011

22

Julie Cohen, ‘A Right to Read Anonymously: A Closer Look at “Copyright Management” In Cyberspace’ [1996] 28 Conn L Rev 981

5

Kevin McLaughlin, ‘The Fourth Amendment and Cell Phone Tracking: Where are we?’ (2006-07) 29 Hastings Comm & Ent LJ 421

17, 28

XX

Lilian Edwards and Charlotte Waelde, ‘Online Intermediaries and Liability for Copyright Infringement’ (2005) WIPO Workshop Keynote Paper <http://www.era.lib.ed.ac.uk/bitstream/1842/2305/1/wipo-onlineintermediaries.pdf> accessed 9 November 2011

2, 3

M Kim, ‘The Right to Anonymous Association in Cyberspace: US Legal Protection for Anonymity in Name, in Face, and in Action’, (2010) 7:1 SCRIPTed 51 <http://www.law.ed.ac.uk/ahrc/script-ed/vol7-1/kim.asp> accessed 20 January 2012

7

MA Sanderson, ‘Is Von Hannover v Germany a step backward for the substantive analysis of speech and privacy rights?’ (2004) 6 European Human Rights Law Review 631

32

Mark A Lemley, ‘Rationalising Internet Safe Harbours’ (2007-08) 6 J on Telecomm. & High Tech L 101

2

Mathias Vermeulen, ‘Unilateral Exceptions to Fundamental Rights in the Use of Detection Technologies in the Fight against Terrorism: Permissible Limitations of the Right to Privacy’ (2011) European University Institute Working Paper

26

Matthew D Lawless, ‘The Third Party Doctrine Redux: Internet Search Records and the Case for a “Crazy Quilt” of Fourth Amendment Protection’ (2007) UCLA J L & Tech 1

17

Matthew Mazzotta, ‘Balancing Act: Finding Consensus on Standards for Unmasking Anonymous Internet Speakers’ (2010) 51 BCL Rev 833

20

NA Moreham, ‘Privacy in public places’ (2006) 65(3) Cambridge Law Journal 606

31

NANM van Eijk and others, ‘Moving Towards Balance: A Study into Duties of Care on the Internet, Institute for Information Law’ (Liebniz Centre for Law, University of Amsterdam, 2010) 53 <http://www.ivir.nl/publications/vaneijk/Moving_Towards_Balance.pdf> accessed 9 November 2011

2

Patrick Breyer, ‘Telecommunications Data Retention and Human Rights: 2, 3, 9, 14

XXI

The Compatibility of Blanket Traffic Data Retention with the ECHR’ (2005) 11(3) ELJ 365

Paul M Schwartz, ‘Beyond Lessig’s Code for Internet Privacy: Cyberspace Filters, Privacy-control and Fair Information Practices’ (2000) Wisc L Rev 743

9

Ronald Deibert, ‘Black Code: Censorship, Surveillance and the Militarization of Cyberspace’ (2003) 32 J Int’l Stud 501

8

Ryan Singel, ‘Twitter’s Response to the WikiLeaks Subpoena Should Be the Industry Standard’ (Wired, 10 January 2011) <http://www.wired.com/threatlevel/2011/01/twitter/> accessed 9 November 2011

20

Seth F Kreimer, ‘Censorship by Proxy: The First Amendment, Internet Intermediaries and the Problem of the Weakest Link’ [2006-07] 155(11) U Pa L Rev 31

29

Sherry F Colb, ‘What Is a Search? Two Conceptual Flaws in Fourth Amendment Doctrine and Some Hints of a Remedy’ (2002) 55 Stan L Rev 119

17

SJ Edgett, ‘Double-Clicking on Fourth Amendment Protection: Encryption Creates Reasonable Expectation of Privacy’ (2002) 30 Pepp L Rev 339

22

Stephen E Henderson ‘Learning from All fifty states: how to apply the fourth amendment and its state analogs to protect third party information from unreasonable search’ (2006) 55 Catholic University Law Review 373 available at <http://works.bepress.com/stephen_henderson/3> accessed 20 January 2012

17, 23

Steven J Murdoch and Ross Anderson, ‘Tools and Technology of Internet Filtering’ in Ronald Deibert and others (eds), Access Denied: Practice and Policy of Global Internet Filtering (MIT Press 2008)

9

Thomas I Emerson, ‘The Doctrine of Prior Restraint’ (1955) Faculty Scholarship Series Paper 2804 <http://digitalcommons.law.yale.edu/fss_papers/2804> accessed on 9

5, 29

XXII

November 2011

Thomas R Litwack, ‘The Doctrine of Prior Restraint’ [1977] Harv CR-CL L Rev 519

4

W Wat Hopkins, ‘The Involuntary Public Figure: Not So Dead After All’, (2003) 21 Cardozo Arts and Entertainment Law Journal 1

Warren and Brandeis, ‘The Right to Privacy’ (1890) 4 Harv L Rev 193 8, 32

BOOKS AND TREATISES

Referred to in:

Lessig, Code: Version 2.0 (Perseus Books 2006) 8

Christopher Slobogin, Privacy at Risk: The New Government Surveillance and the Fourth Amendment (2007)

17

Helen Fenwick and Gavin Phillipson, Media Freedom under the Human Rights Act (2006)

32

Nihal Jayawickrama, The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (1st edn, CUP 2002)

6, 22

Richard A Posner, Not A Suicide Pact: The Constitution in a Time of National Emergency (OUP 2006)

17

Richard Clayton and Hugh Tomlinson, The Law of Human Rights (1st edn, OUP 2000)

1, 29

Sarah Joseph and others, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2nd edn, OUP 2005)

6, 16

Wayne R Lafave, Search and Seizure: A Treatise on the Fourth Amendment (2004)

17

XXIII

CONSTITUTIONS

Referred to in:

Constitution of Sweden 1991 1, 3

MISCELLANEOUS

Referred to in:

‘Constitutional Law. Freedom of Speech. State Police Intelligence System Focusing on Public Protesters Declared Unconstitutional. Anderson v. Sills, 106 NJ Super 545, 256 A. 2d 298 (Ch. 1969), Appeal Docketed, No. A-150-69 (Super. Ct., App. Div. 1969)’ 1970 83(2) HLR 935.

4

Article 19: Global Campaign for Free Expression, Statement on the Right to Communicate (London, 2003) <http://www.article19.org/data/files/pdfs/publications/right-to-communicate.pdf> accessed 9 November 2011

1

Brief of Amici Curiae Electronic Frontier Foundation and American Civil Liberties Union of the National Capital Area in Support of Appellant Jones in United States v Lawrence Maynard and Antoine Jones No 08-3030/08-3034 (US)

25

Brief of Center for Democracy & Technology, Electronic Frontier Foundation, Matt Blaze, Andrew J Blumberg, Roger L Easton, and Norman M Sadeh as Amici Curiae in Support of Respondent in United States v Antoine Jones No 10-1259 (US)

23, 24, 25, 29

Center for Democracy & Technology, Intermediary Liability: Protecting Internet Platforms for Expression and Innovation (2010) <http://www.cdt.org/files/pdfs/CDT-Intermediary%20Liability_(2010).pdf> accessed 9 November 2011

3

Council Directive 2002/58/EC of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic

12

XXIV

communications sector [2002] OJ L201/37

Council Directive 2006/24/EC of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC [2006] OJ L105/54

8

Council Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281/31

12, 18, 19

Council of Europe, ‘Declaration on Freedom of Communication on the Internet’ (2003)

1, 3, 5

European Commission, 'Report from the Commission to the Council and the European Parliament: Evaluation report on the Data Retention Directive (Directive 2006/24/EC)' COM(2011) 225 final (Brussels 18 April 2011) <http://ec.europa.eu/commission_2010-2014/malmstrom/archive/20110418_data_retention_evaluation_en.pdf> accessed 20 January 2012

3

European Digital Rights, ‘What the European Commission owes 500 million Europeans’ (2010) <http://www.edri.org/files/Data_Retention_Conference_031210final.pdf> accessed 9 November 2011

16

Johannesburg Principles on National Security, Freedom of Expression and Access to Information, UN Doc E/CN 4/1996/39 (1996)

11, 12

Organisation for Economic Co-operation and Development, ‘Workshop Summary: The Role of Internet Intermediaries in Advancing Public Policy Objectives’ (Paris, 2010) 9 <http://www.oecd.org/dataoecd/8/59/45997042.pdf> accessed 9 November 2011

3

Privacy International, ‘Memorandum of laws concerning the legality of data retention with regard to the rights guaranteed by the European Convention on Human Rights’ (2010) <https://www.privacyinternational.org/countries/uk/surveillance/pi_data_retention_memo.pdf> accessed 9 November 2011

14

XXV

Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN 4/1985/4

12, 13, 14

UNCHR ‘Final Report of Special Rapporteurs on Right to Freedom of Opinion and Expressions’ (1992) UN Doc E/CN.4/Sub.2/1992/9

5

UNCHR ‘General Comment 10’ in ‘Article 19 (Freedom of Opinion)’ (1983) UN Doc CCPR/C/GC/10

10, 11

UNCHR ‘General Comment 34’ in ‘Article 19 (Freedom of Opinion and Expression)’ (2011) UN Doc CCPR/C/GC/34

9

UNCHR, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression’ (2011) UN Doc A/HRC/17/27

1, 29

UNHRC, ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’ (2009) UN Doc A/HRC/13/37

19, 20, 26

XXVI

STATEMENT OF RELEVANT FACTS

POLITICAL SCENARIO IN BEMIDIA

1. The Respondent country, Republic of Bemidia, is populated with two ethnic groups – the

Diryens of the North (70% of the population) and the Mondahis of the South (about 25% of

the population). While the Diryens enjoy significant political power, the lack of it was source

of disgruntlement for the Mondahis. However, the Mondahis were affluent by virtue of their

economic development and their interactions with developed countries. In contrast, the

Diryens remain underdeveloped and envy the Mondahis for their prosperity. The ethnic,

political and economic disparities have resulted in tension between the two groups.

2. Two years ago, the Bemidian government, controlled by the Diryen-based Nationalist

Party, completely overhauled the taxation system and centralised the government’s spending.

This way, considerable resources were transferred from the flourishing south to the

languishing north. Dissatisfaction erupted in the form of protests from Mondahi leadership as

well as the general public, leading to discussions on independence for the south.

MONDAHI LIBERATION MOVEMENT

3. At this point, a small militant group named the Mondahi Liberation Movement (‘MLM’)

carried out bombings in many places. The mainstream Mondahis, largely represented by the

Federalist Party, immediately distanced themselves from the activities of MLM. The

inexperienced military forces of Bemidia were unsuccessful in combating the guerrilla

warfare employed by the MLM. Instead, reports of killings and kidnapping of the Mondahis

residing in the north and mistreatment of those brought in for interrogation by the military

surfaced.

XXVII

OPENBEMIDIA AND TRACKER FORUMS

4. In the midst of this unrest, a group of Mondahis started a website called OpenBemidia,

built on the Ushahidi platform. OpenBemidia facilitates the creation of Tracker forums,

which are designed to collect specific posts (either text or images) on a topic of interest. In

order to post to these forums, the users were required to register by simply providing an email

address. The disclosure of any other information such as name or address was optional.

5. The username is the only means of identification of a user of the website. Users may

‘follow’ other users or forums. Users may restrict who can follow them and make their posts

private to their followers.

6. Each post in OpenBemidia is tagged with a geographic location by way of GPS tracking

on mobile phones, or mobile phone towers, or other such technologies like geo-locating

laptops. The time and location information of each post is displayed with the post. Forum

posts may be viewed in the regular reverse chronological order or as plotted on a map.

TRACKER FORUMS ON OPENBEMIDIA

7. Started by a user ‘FreeBemidia’, Military Tracker is one such popular Tracker forum. It

collects posts related to the military. Sometimes, the posts note the location of the military at

a given point in time. With the passage of time, Military Tracker has developed into a very

good source of information about the military forces. When two bombings took place in areas

from where military forces had just exited, the government, with no direct proof in this

regard, suspected that MLM might be using Military Tracker to facilitate its illegal activities.

Subsequently, the military secrets law was amended to protect the location information of

military personnel on duty.

XXVIII

8. Another forum in the website is named ‘MLM’ which appears to be empty. The

government suspected that this was being used by the members of Mondahi Liberation

Movement who had kept their posts private.

INTERNET RESPONSIBILITY ACT

9. The Bemidian government recently enacted the Internet Responsibility Act (‘IRA’) that

imposes the following regulations on websites:

a. Name and contact information of users of a website should be collected and verified

prior to allowing such user to register for an account, post to a forum, or otherwise

make content available to one or more persons other than the website itself, or access

information that is not generally available to the public.

b. At any time, the website may be called upon to disclose such name and contact

information, geographic location information, and any other information about any

user of the website.

c. The existence of any request and/or fulfilment thereof may be required to be kept

secret for up to 180 days.

d. Any knowing violation of any provision of this law will invite criminal sanctions.

10. Under the authority of the IRA, the Bemidian government issued an order demanding

OpenBemidia to obtain and report the identities, as well as following information of several

users and forums. These users figure on a secret watch list, compiled by the government.

They include FreeBemidia along with other regular participants on Military Tracker. Similar

demands were imposed for the MLM forum, where the government sought the complete

details of all followers, their historical location information and real-time location of any post

XXIX

made in the future by any user of the forum. A gag order was imposed on OpenBemidia to

keep all such disclosures secret.

FIRST FAMILY PRIVACY ACT

11. The Prime Minister of Bemidia, Vislio Luscon is revered by a large number of

Bemidians and treated like a monarch. His family, consisting of wife Carla and daughters

Talia and Daria, attract significant media coverage, both nationally and internationally.

OpenBemidia has a separate Tracker forum dedicated to each member of the First Family.

These Tracker forums have posts that record the activities of the Family that occur in public

places. These posts, made from different accounts, contain low resolution photographs of the

subject along with a geolocation tag. Some posts show the First Lady dining with prominent

Mondahis.

12. Citing security reasons, the Bemidian government recently enacted the First Family

Privacy Act (‘FFPA’). The Act prohibits the publication of ‘private information’ of any

member of the First Family (excluding the Prime Minister). Such private information

includes any photograph of the person regardless of where it was taken and any information

divulging the location of the person. Further, such private information could not be published

without the person’s (or the guardian’s) prior written consent. Under the authority of the

FFPA, the Bemidian government has ordered OpenBemidia to take down every post in the

Carla, Talia and Daria Tracker forums.

13. OpenBemidia, on behalf of itself and its users, has challenged all of the above

requirements under, but not limited to, Articles 12, 19 and 20 of the Universal Declaration of

Human Rights (‘UDHR’). So far, OpenBemidia’s claims have been rejected on merits, and

XXX

all domestic legal remedies have been exhausted. Further, OpenBemidia’s standing to bring

the instant suit is not barred by any law.

XXXI

STATEMENT OF JURISDICTION

OpenBemidia, on its own behalf and on behalf of its users, has approached the Universal

Freedom of Expression Court, the special chamber of the Universal Court of Human Rights

hearing issues relating to the right of freedom of expression under Article 19, under the

enabling Preamble of the UN Charter.

XXXII

QUESTIONS PRESENTED

A. Whether the requirement to collect and verify name and contact information before

allowing a user to register for an account and post to a forum is consistent with the provisions

of the UDHR?

B. Whether the requirement to disclose to the government identity information,

following information, and historical location information about OpenBemidia’s users is

consistent with the provisions of the UDHR?

C. Whether the requirement to report location information about the users of the MLM

forum in real time is consistent with the provisions of the UDHR?

D. Whether the requirement to delete the contents of the Carla Tracker, Talia Tracker,

and Daria Tracker forums is consistent with the provisions of the UDHR?

XXXIII

SUMMARY OF ARGUMENTS

A. The IRA requires websites to collect and verify the name and contact information of

all users, before allowing them to use the website. This infringes on the freedom of speech

and expression, enshrined in Article 19 of the UDHR, of both the Applicant website and its

users. The website has an onerous burden of collection and verification imposed upon it,

curtailing its growth. The users are forced to identify themselves as a prerequisite to using the

website – this creates a chilling effect on their speech, constitutes a prior restraint and also

restricts the right to receive without interference. The various Tracker Forums constitute

assemblies in cyberspace. The right to anonymity extends to assemblies as well. Therefore a

requirement such as this, which effectively compels disclosure of the membership of Tracker

Forums, restricts the right to assembly under Article 20. Moreover, the right to privacy,

guaranteed by Article 12, protects personal information such as name and contact

information. The collection of such information involves a possibility of monitoring of data –

a form of surveillance – and violates this right. Furthermore, the requirement contravenes the

right to property enshrined in Article 17 as it compels website to expend their resources and

risk losing clientele.

Finally, the restriction on the aforesaid rights is not permissible under Article 29(2) of the

UDHR. The restriction is not prescribed by law and does not pursue legitimate aims like

national security and public order. Further, it is not necessary in a democratic society to

collect every user’s details as the link between the posts and the alleged threats to national

security and public order has not been established.

B. The requirement to disclose identity, following and historical location information

contravenes the freedom of speech and expression. Seen in conjunction with the reports of

XXXIV

governmental atrocities on Mondahis, the possibility of disclosure of personal information to

the government creates a chilling effect on speech. Moreover, it also violates the users’ right

to read anonymously. A Tracker forum or a user, together with their ‘followers’ are

cyberspace assemblies as they share a common purpose. Consequently, disclosure of

following information infringes the right to private expressive association. The right to

privacy of the users is infringed as the users enjoy a reasonable expectation of privacy in the

identity information submitted to OpenBemidia. The requirement to disclose the list of users

in the MLM forum infringes their right to privacy of correspondence, as transactional non-

content records are protected. Further, the gag order on such disclosure contravenes the right

to remedy enshrined in Article 8.

The restriction on the aforesaid rights is not permissible under Article 29(2). It is not

prescribed by law as it vests unfettered discretion with the executive. It does not pursue

legitimate aims, and is not necessary in a democratic society.

C. The requirement to report location information about users of the MLM forum in real-

time contravenes the right to privacy, right to freedom of movement and right to remedy. The

right to privacy is infringed as: first, the users possess a reasonable expectation of privacy in

their real-time location information; secondly, the location information acquired through GPS

technology is fundamentally different from that obtained through human observation.

Arguendo, the real-time location tracking still contravenes the right to privacy as procurement

of such information cannot be easily duplicated. Further, reasonable expectation of privacy in

such information continues to exist, irrespective of the fact that it can be obtained through

human observation. Moreover, the right to freedom of movement guaranteed under Article 13

is also violated, as the real-time location tracking causes a chilling effect on movement.

XXXV

Lastly, the gag order preventing notification to the users deprives them the opportunity to

seek an effective remedy, thereby violating Article 8.

The restriction does not satisfy the test for valid limitations – prescription by law, pursuit of

legitimate aims and necessity.

D. The requirement to delete the contents of the Carla Tracker, Talia Tracker and Daria

Tracker Forums under the FFPA restricts the right to freedom of speech and expression

enshrined in Article 19. These Tracker Forums have information of public interest which the

public has a right to receive. Further, the website may self-censor and delete even borderline

contents that do not violate any law, out of the fear of sanctions. The requirement of

obtaining prior written consent under the FFPA is a prior restraint on free speech.

Such a restriction on Article 19 is not permissible under Article 29(2). The restriction is not

prescribed by law as it is made by unfettered executive discretion. It does not follow the

legitimate aim of protection of rights of others, as the First Family does not possess a

reasonable expectation of privacy in the published contents. Further, the restriction is not

necessary in a democratic society as these are matters of public interest.

1

ARGUMENTS

A. THE REQUIREMENT OF COLLECTION AND VERIFICATION OF USER INFORMATION

CONTRAVENES PROVISIONS OF UDHR

1. The IRA mandates all websites to collect and verify name and contact details of all users.

Applicants submit that this requirement contravenes the rights to freedom of speech and

expression under Article 19 [I], peaceful assembly and association under Article 20 [II],

privacy under Article 12 [III], and property under Article 17 [IV]. Moreover, the restriction

is not permissible under Article 29(2) [V].

I. The requirement restricts Article 19, UDHR

2. The right to freedom of speech and expression extends to the Internet1 and includes the

rights to anonymous speech2 and its reception.3 Applicants submit that the requirement

violates the freedom of expression of OpenBemidia [a], and that of its users [b].

a. The requirement violates the freedom of expression of OpenBemidia

3. The right to freedom of expression protects means of communication,4 such as websites.

The impugned requirement infringes Article 19 by imposing an onerous burden on

1 Reno v ACLU 521 US 844 (1997); UNCHR, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression’ (2011) UN Doc A/HRC/17/27; Richard Clayton and Hugh Tomlinson, The Law of Human Rights (1st edn, OUP 2000) 1059.

2 Talley v California 362 US 60 (1960); McIntyre v Ohio Elections Commission 514 US 334 (1995); Dendrite Int'l Inc v Doe No 3 775 A 2d 756 (NJ 2001); Council of Europe, ‘Declaration on Freedom of Communication on the Internet’ (2003) prin 7; Article 19: Global Campaign for Free Expression, Statement on the Right to Communicate (London, 2003) <http://www.article19.org/data/files/pdfs/publications/right-to-communicate.pdf > accessed 9 November 2011. See also Constitution of Sweden 1991, ch 2.

3 Reader Privacy Act 2011 (California); Tattered Cover Inc v City of Thornton 44 P.3d 1044 (Colo 2002).

2

OpenBemidia, thereby inhibiting its growth and outreach. First, the requirement to collect

identity and contact data of all users demands an exponential increase in storage facility.5

Such measures ought to be reasonable and proportional to the economic, technical and

personnel constraints of the intermediary.6 As OpenBemidia is a nascent enterprise, it would

be crippled by the substantial costs incurred in securing additional storage.7 This would be

unreasonably restrictive of OpenBemidia’s ability to freely and effectively disseminate

information.8

4. Secondly, it is not feasible for OpenBemidia to determine the veracity of the name and

contact information of every user so provided. Such a measure would necessitate significant

human intervention, adding to personnel costs.9 Indeed, Internet freedom is premised on a

healthy, cheap and competitive environment.10 Subjecting OpenBemidia to such high burden

is detrimental to its freedom of expression.

4 Autronic AG v Switzerland App no 12726/87 (ECtHR, 22 May 1990); Media Rights Agenda and Others v Nigeria (2000) AHRLR 200 (ACtHPR 1998); Gaweda v Poland App no 26229/95 (ECtHR, 14 March 2002).

5 Lilian Edwards and Charlotte Waelde, ‘Online Intermediaries and Liability for Copyright Infringement’ (2005) WIPO Workshop Keynote Paper 15 <http://www.era.lib.ed.ac.uk/bitstream/1842/2305/1/wipo-onlineintermediaries.pdf> accessed 9 November 2011.

6 NANM van Eijk and others, ‘Moving Towards Balance: A Study into Duties of Care on the Internet, Institute for Information Law’ (Liebniz Centre for Law, University of Amsterdam, 2010) 53 <http://www.ivir.nl/publications/vaneijk/Moving_Towards_Balance.pdf> accessed 9 November 2011.

7 Patrick Breyer, ‘Telecommunications Data Retention and Human Rights: The Compatibility of Blanket Traffic Data Retention with the ECHR’ (2005) 11(3) ELJ 365, 373.

8 Patrick Breyer, ‘Telecommunications Data Retention and Human Rights: The Compatibility of Blanket Traffic Data Retention with the ECHR’ (2005) 11(3) ELJ 365, 373; Christopher S Yoo, ‘Free Speech and the Myth of the Internet as an Unintermediated Experience’ (2009) Scholarship at Penn Law Paper 289, 8 <http://lsr.nellco.org/upenn_wps/289> accessed 9 November 2011.

9 Mark A Lemley, ‘Rationalising Internet Safe Harbours’ (2007-08) 6 J on Telecomm. & High Tech L 101, 110.

10 Lilian Edwards and Charlotte Waelde, ‘Online Intermediaries and Liability for Copyright Infringement’ (2005) WIPO Workshop Keynote Paper 17 <http://www.era.lib.ed.ac.uk/bitstream/1842/2305/1/wipo-onlineintermediaries.pdf> accessed 9 November 2011; Patrick Breyer, ‘Telecommunications Data Retention and

3

5. Various courts have recognised that imposition of onerous conditions on newspapers has

a negative impact on the exercise of freedom of expression.11 It is submitted that this would

extend to websites. The prohibitive effect of such a measure, sans monetary aid by the

government, directly and inevitably exposes OpenBemidia to financial losses.12 This hampers

its growth,13 thereby curtailing its freedom of expression.14

b. The requirement infringes the right to anonymous free speech of the users

6. The right to freedom of speech protects anonymous speech.15 The requirement that users

part with their identity and contact information before using the website compromises their

anonymity. Applicants submit that the impugned requirement violates Article 19 as it causes

Human Rights: The Compatibility of Blanket Traffic Data Retention with the ECHR’ (2005) 11(3) ELJ 365, 373.

11 Grosjean v American Press Co 297 US 233 (1936); Bennett Coleman & Co v Union of India AIR 1973 SC 106 (India); Media Rights Agenda and Others v Nigeria (2000) AHRLR 200 (ACtHPR 1998).

12 Organisation for Economic Co-operation and Development, ‘Workshop Summary: The Role of Internet Intermediaries in Advancing Public Policy Objectives’ (Paris, 2010) 9 <http://www.oecd.org/dataoecd/8/59/45997042.pdf> accessed 9 November 2011; European Commission, 'Report from the Commission to the Council and the European Parliament: Evaluation report on the Data Retention Directive (Directive 2006/24/EC)' COM(2011) 225 final (Brussels 18 April 2011) <http://ec.europa.eu/commission_2010-2014/malmstrom/archive/20110418_data_retention_evaluation_en.pdf>.

13 Lilian Edwards and Charlotte Waelde, ‘Online Intermediaries and Liability for Copyright Infringement’ (2005) WIPO Workshop Keynote Paper 17 <http://www.era.lib.ed.ac.uk/bitstream/1842/2305/1/wipo-onlineintermediaries.pdf> accessed 9 November 2011; Alekhya Prakasha and P. Pallavi, ‘No End of Trouble?: Intermediary Liability after Perfect 10 v. Visa International’ (2008) 1 IJIPL 74, 74; Center for Democracy & Technology, Intermediary Liability: Protecting Internet Platforms for Expression and Innovation (2010) <http://www.cdt.org/files/pdfs/CDT-Intermediary%20Liability_ (2010).pdf> accessed 9 November 2011.

14 Center for Democracy & Technology, Intermediary Liability: Protecting Internet Platforms for Expression and Innovation (2010) <http://www.cdt.org/files/pdfs/CDT-Intermediary%20Liability_(2010).pdf> accessed 9 November 2011.

15 McIntyre v Ohio Elections Commission 514 US 334 (1995); Columbia Ins Co v Seescandy.com 185 FRD 573 (ND Cal 1999); Council of Europe, ‘Declaration on Freedom of Communication on the Internet’ (2003) prin 7. See also Constitution of Sweden 1991, ch 2.

4

a chilling effect [i], imposes a prior restraint on free speech [ii], and restricts the right to

receive without interference [iii].

i. The requirement causes a ‘chilling effect’ on expression

7. A chilling effect occurs when an act inhibits full utilisation of the freedom of

expression.16 It is acknowledged that mere knowledge of the means of information access

available to the government creates a chilling effect.17 In this case, the public is aware that the

collected user information can be accessed by the government at any time.18 Further, reports

of targeted governmental violence against the Mondahis19 raise a reasonable inference that

such information would be adversely used to harass users in future.20 Therefore, the

collection of personal information creates a significant chilling effect on their speech by

inducing self-censorship.21

ii. The requirement imposes a prior restraint

8. Prior restraints are imposed by subjecting the expression to prior governmental control,22

directly23 or indirectly.24 They bear a presumption of invalidity,25 call for careful scrutiny,26

16 Lamont v Postmaster General 381 US 301 (1965).

17 ‘Constitutional Law. Freedom of Speech. State Police Intelligence System Focusing on Public Protesters Declared Unconstitutional. Anderson v. Sills, 106 NJ Super 545, 256 A. 2d 298 (Ch. 1969), Appeal Docketed, No A-150-69 (Super. Ct., App. Div. 1969)’ 1970 83(2) HLR 935, 938.

18 ¶14(b),The Case.

19 ¶7, The Case.

20 NAACP v Button 371 US 415 (1963); Laird v Tatum 408 US 1 (1972); Berlin Democratic Club v Rumsfeld 410 F Supp 144 (Dist of Columbia 1976); Dendrite Int'l Inc v Doe No 3 775 A 2d 756 (NJ 2001); Kennedy v United Kingdom App no 26839/05 (ECtHR, 18 May 2010).

21 NAACP v Button 371 US 415 (1963); Lamont v Postmaster General 381 US 301 (1965).

22 Southeastern Promotions, Ltd v Conrad 420 US 546 (1975); Thomas R Litwack, ‘The Doctrine of Prior Restraint’ [1977] Harv CR-CL L Rev 519, 520.

5

and in some cases are completely prohibited.27 Crucially, the requirement of compulsory

registration as a condition to expression has been recognised as a prior restraint.28

Consequently, mandatory compliance with specific conditions before publication of posts29

imposes a prior restraint on the exercise of the freedom of expression.

iii. The requirement restricts the right to receive without interference

9. The right to freedom of expression includes the right to receive information

anonymously30 from accessible sources without interference by public authorities.31 The

23 Near v Minnesota 283 US 697 (1931); Nebraska Press Association v Stuart 427 US 539 (1976); The Sunday Times v The United Kingdom App no 13166/87 (ECtHR, 26 November 1991); The Observer and The Guardian v United Kingdom App no 13585/88 (ECtHR, 26 November 1991).

24 Grosjean v American Press Co 297 US 233 (1936); Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-American Court of Human Rights Series A No 5 (13 November 2003); Scanlen and Holderness v Zimbabwe (2009) AHRLR 289 (ACtHPR 2009); Thomas R Litwack, ‘The Doctrine of Prior Restraint’ [1977] Harv CR-CL L Rev 519, 520,

25 UNCHR ‘Final Report of Special Rapporteurs on Right to Freedom of Opinion and Expressions’ (1992) UN Doc. E/CN.4/Sub.2/1992/9; Bantam Books Inc et al v Sullivan 372 US 58 (1963); Nebraska Press Association v Stuart 427 US 539 (1976).

26 The Sunday Times v United Kingdom App no 13166/87 (ECtHR, 26 November 1991); Observer and Guardian v United Kingdom App no 13585/88 (ECtHR, 26 November 1991); Ekin v France (2001) ECHR 473.

27American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) (ACHR) art 13(2); Gauthier v Canada [1931] SCR 416 (Canada); Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-American Court of Human Rights Series A No 5 (13 November 2003).

28 Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-American Court of Human Rights Series A No 5 (13 November 2003).

29 Thomas I. Emerson, ‘The Doctrine of Prior Restraint’ (1955) Faculty Scholarship Series Paper 2804 <http://digitalcommons.law.yale.edu/fss_papers/2804> accessed 9 November 2011; Council of Europe, ‘Declaration on Freedom of Communication on the Internet’ (2003) prin 7.

30 California Reader Privacy Act 2011 (CA); Columbia Ins Co v Seescandy.com 185 FRD 573 (ND Cal 1999); Tattered Cover Inc v City of Thornton 44 P.3d 1044 (Colo 2002); Lubin v Agora Inc 882 A 2d 833 (Md Ct App 2005); Julie Cohen, ‘A Right to Read Anonymously: A Closer Look at “Copyright Management” In Cyberspace’ (1996) 28 Conn L Rev 981.

31 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19; American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) (ACHR) art 13(1); European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September

6

impugned requirement would expose the users’ reading preferences. Consequently,

information gathering activities which usually precede expression are hindered,32 causing a

chilling effect.33 Thus, the removal of anonymity constitutes an unacceptable restriction on

the right to receive information.

II. The requirement imposes a restriction on Article 20, UDHR

10. The right to assemble34 enables ‘persons to gather intentionally and temporarily for a

specific purpose’.35 Applicants submit that the Tracker forums on OpenBemidia constitute

assemblies’ within the scope of Article 20. They stimulate discussion on particular topics36 by

bringing together individuals who express their opinions.37

1953) (ECHR) art 10(1); Lamont v Postmaster General 381 US 301 (1965); Schneider v Smith 390 US 17 (1968); The Sunday Times v United Kingdom App no 13166/87 (ECtHR, 26 November 1991); Jawara v Gambia (2000) AHRLR 107 (ACtHPR 2000); Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-American Court of Human Rights Series A No 5 (13 November 2003); Article19 v Eritrea (2007) AHRLR 73 (ACtHPR 2007).

32 Lamont v Postmaster General 381 US 301 (1965); Denver Area Educational Telecommunications Consortium Inc v FCC 518 US 727 (1996); Julie Cohen, ‘A Right to Read Anonymously: A Closer Look at “Copyright Management” In Cyberspace’ [1996] 28 Conn L Rev 981.

33 Denver Area Educational Telecommunications Consortium Inc v FCC 518 US 727 (1996).

34 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 20; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22; African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11; American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) (ACHR) arts 15 and 16; European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) (ECHR) art 11.

35 Sarah Joseph and others, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2nd edn, OUP 2005) 568.

36 ¶8, The Case.

37 Nihal Jayawickrama, The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (1st edn, CUP 2002) 723.

7

11. Furthermore, the compelled disclosure of identity and contact information of users of

Military Tracker and MLM Tracker forums contravenes their associational rights. Anonymity

of an individual in an association is essential to avoid the social stigma of overt

membership,38 ‘particularly where a group espouses dissident beliefs’.39

12. Moreover, in NAACP v Alabama,40 the US Supreme Court held that an order mandating

disclosure of membership rolls contravenes the collective right of an association,41 as it

undermines its ability to recruit and retain members.42 Significantly, the right of anonymous

membership extends to online communities.43 Therefore, it is submitted that the order

mandating disclosure of membership of Tracker forums on OpenBemidia contravenes Article

20.

III. The requirement imposes a restriction on Article 12, UDHR

13. The right to privacy44 is the right to be let alone.45 As noted in Katz,46 there must exist an

actual, subjective expectation of privacy which is objectively reasonable. Clearly, it extends

38 United States v Rumely 345 US 41 (1953); NAACP v Alabama 357 US 449 (1958); Shelton v Tucker 364 US 479 (1960); Gibson v Florida Legislative Investigation Committee 372 US 539 (1963); Baird v State Bar of Arizona, 401 US 1 (1971).

39 NAACP v Alabama 357 US 449 (1958).

40 NAACP v Alabama 357 US 449 (1958).

41 NAACP v Alabama 357 US 449 (1958); Bates v Little Rock 361 US 516 (1960); Gibson v Florida Legislative Investigation Committee 372 US 539 (1963); National Association of Teachers in Further and Higher Education v United Kingdom App no 28910/95 (ECtHR, 16 April 1998).

42 M Kim, ‘The Right to Anonymous Association in Cyberspace: US Legal Protection for Anonymity in Name, in Face, and in Action’, (2010) 7(1) SCRIPTed 51 <http://www.law.ed.ac.uk/ahrc/script-ed/vol7-1/kim.asp> accessed 20 January 2012.

43 Anderson v Hale 159 F Supp 2d 1116 (ND Ill 2001).

44 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 17; European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) (ECHR) art 8; American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) (ACHR) arts 11.

8

to personal information such as the person’s name,47 contact details,48 medical records49 and

details of personal expenditure.50

14. The presence of data in the public sphere does not annul this right, if the information has

been collected and stored systematically in files held by the authorities;51 or if sufficient

possibility of misuse can be shown.52 The mandatory requirement to collect and verify the

name and contact information of users necessarily implies storage of data.53 Further, it

involves the possibility of misuse54 and monitoring of data by websites.55 Indeed, this

constitutes a form of surveillance.56 In any event, the mere storage of personal information

45 Warren and Brandeis, ‘The Right to Privacy’ [1890] 4 HLR 193, 195.

46 Katz v United States 389 US 347 (1967).

47 Coeriel et al v The Netherlands Communication No 453/1991, UN Doc CCPR/C/52/D/453/1991 (1994) (HRC).

48 X v United Kingdom App no 9072/82 (ECtHR, 6 October 1982).

49 App no 14661/81 (ECtHR, 9 July 1991).

50 App no 9804/82 (ECtHR, 7 December 1982).

51 Rotaru v Romania (2000) 8 BHRC 449 (ECtHR); Van der Velden v The Netherlands App no 29514/05 (ECtHR, 7 December 2006); S and Marper v United Kingdom App no 30562/04 (ECtHR, 4 December 2008).

52 Lessig, Code: Version 2.0 (Perseus Books 2006) 215.

53 Council Directive 2006/24/EC of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC [2006] OJ L105/54; Hal Roberts and John Palfrey, ‘The EU Data Retention Directive in an Era of Internet Surveillance’ in Ronald J. Deibert and others (eds), Access Controlled: The Shaping of Power, Rights, and Rule in Cyberspace (MIT Press 2010).

54 USA PATRIOT Act 2001 (US); KU v Finland App no 2872/02 (ECtHR 2 March 2009); Lessig, Code: Version 2.0 (Perseus Books 2006) 215.

55 Paul M Schwartz, ‘Beyond Lessig’s Code for Internet Privacy: Cyberspace Filters, Privacy-control and Fair Information Practices’ (2000) Wisc L Rev 743, 747; Steven J Murdoch and Ross Anderson, ‘Tools and Technology of Internet Filtering’ in Ronald Deibert and others (eds), Access Denied: Practice and Policy of Global Internet Filtering (MIT Press 2008) 64.

56 Ronald Deibert, ‘Black Code: Censorship, Surveillance and the Militarization of Cyberspace’ (2003) 32 J. Int’l Stud. 501; Steven J. Murdoch and Ross Anderson, ‘Tools and Technology of Internet Filtering’ in Ronald Deibert and others (eds), Access Denied: Practice and Policy of Global Internet Filtering (MIT Press 2008) 64.

9

constitutes an interference with the right to privacy, regardless of the possible subsequent

use.57 Therefore, the impugned requirement restricts their right to privacy.

IV. The requirement violates Article 17, UDHR

15. The right to enjoy property58 includes the goodwill and clientele of a company.59 The

requirement imposes a burden on OpenBemidia to obtain technical capabilities for collection,

verification and storage of large volumes of data.60 Presumably, the website would be forced

to utilize considerable resources. Further, the website may suffer the loss of many users, who

fear a violation of their rights. Consequently, there is an infringement of Article 17.61

V. The restriction is not permissible under Article 29(2), UDHR

16. Applicants submit that the restriction is not permissible under Article 29(2) as it does not

conform to the three-tiered test:62 First, the restriction is not prescribed by law [a]; secondly,

it does not pursue legitimate aims [b]; and thirdly, it is not necessary in a democratic

society63 [c].

57 Leander v Sweden (1987) 9 EHRR 433; Kopp v Switzerland App no 23224/94 (ECtHR, 25 March 1998); Amann v Switzerland [2000] ECHR 87; Rotaru v Romania (2000) 8 BHRC 449 (ECtHR).

58Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19; European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) (ECHR) art 1.

59 Iatridis v Greece App no 31107/96 (ECtHR, 25 March 1999).

60 Patrick Breyer, ‘Telecommunications Data Retention and Human Rights: The Compatibility of Blanket Traffic Data Retention with the ECHR’ (2005) 11(3) ELJ 365, 374.

61 Denev v Sweden (1989) 59 DR 127 (ECmHR).

62 Worm v Austria (1997) 25 EHRR 454.

63 The Sunday Times v United Kingdom App no 6538/74 (ECtHR, 26 April 1979); Albert Womah Mukong v Cameroon Communication No 458/1991, UN Doc CCPR/C/51/D/458/1991 (10 August 1994); Surek v Turkey App no 24122/94 (ECtHR, 8 July 1999); Herrera-Ulloa v Costa Rica Petition no 12367 (IACtHR, 2 July 2004); UNCHR ‘General Comment 34’ in ‘Article 19 (Freedom of Opinion and Expression)’ (2011) UN Doc

10

a. The restriction is not prescribed by law

17. A restriction is prescribed by law if it has a basis in domestic law,64 and is foreseeable

and precise.65 Applicants submit that the restriction is not prescribed by law as it is not

foreseeable. A law is foreseeable if it is formulated with sufficient precision to enable the

citizen to regulate his conduct.66 The IRA prescribes collection and verification of personal

information of all users. In Malone,67 the ECtHR observed that a restriction, which does not

specify the categories of people under its application, leaves citizens vulnerable to a risk of

surveillance. The blanket restriction is not foreseeable as it subjects all users to the certainty

of interference, thereby leaving no scope for regulation of conduct. Further, the law is void

for overbreadth because it infringes the rights of all persons, irrespective of whether they are

suspected of a crime.68

18. Admittedly, in cases of surveillance, an expectation on part of the persons to be informed

in advance does not exist. Nevertheless, the law must prescribe adequate safeguards to

protect against arbitrary interference.69 These safeguards include, inter alia, a definition of

the categories of people whose rights may be interfered with, circumstances which could lead

CCPR/C/GC/34; UNCHR ‘General Comment 10’ in ‘Article 19 (Freedom of Opinion)’ (1983) UN Doc CCPR/C/GC/10.

64 Hinczewski v Poland App no 34907/05 (ECtHR, 5 October 2010).

65 The Sunday Times v United Kingdom (1979-80) 2 EHRR 245; Silver and Others v United Kingdom (1983) 5 EHRR 347; Malone v United Kingdom (1984) 7 EHRR 14; Rekvényi v Hungary App no 25390/94 (ECtHR, 20 May 1999); Ekin v France (2001) ECHR 473; Gaweda v Poland App no 26229/95 (ECtHR, 14 March 2002); Gillan and. Quinton v United Kingdom App no 4158/05 (ECtHR, 12 January 2010).

66 The Sunday Times v United Kingdom App no 13166/87 (ECtHR, 26 November 1991).

67 Malone v United Kingdom (1984) 7 EHRR 14.

68 Board of Trustees of State Univ of NY v Fox 492 US 469 (1989).

69 Kruslin v France (1990) 12 EHRR 547.

11

to such interference, and the time period during which such interference would continue.70 In

this case, IRA does not specify any safeguards,71 even for those persons whose details are

being collected ‘fortuitously’.72 Therefore, the restriction is not prescribed by law.

b. The restriction does not pursue a legitimate aim

19. Applicants contend that the restriction is not in pursuance of any legitimate aim, as the

IRA does not state any express aim.73 This principle has been particularly stressed in cases of

data collection and retention.74 In any event, the aims of national security and public order are

not satisfied.

20. First, Applicants submit that the aim of national security75 is inapplicable. The term

‘national security’ being broad and vague, must be interpreted narrowly.76 It may be invoked

only if its ‘genuine purpose and demonstrable effect’ is to protect the country’s ‘existence or

70 Kruslin v France (1990) 12 EHRR 547; Weber and Saravia v Germany App no 54934/00 (ECtHR, 29 June 2006); Association for European Integration and Human Rights and Ekimdzhiev v Bulgaria [2007] ECHR 533; Liberty and Others v the United Kingdom [2008] ECHR 568; Ian Brown and Douwe Korff, ‘Terrorism and the Proportionality of Internet Surveillance’, [2009] Eur J Criminology 8 <http://ssrn.com/abstract=1261194> accessed 20 January 2012.

71 Clarification #5, #14, #15.

72 Amann v Switzerland [2000] ECHR 87.

73 UNCHR ‘General Comment 10’ in ‘Article 19 (Freedom of Opinion)’ (1983) UN Doc CCPR/C/GC/10; ladimir Petrovich Laptsevich v Belarus Communication No 780/1997, § 8.5, UN Doc CCPR/C/68/D/780/1997 (2000) (HRC); Vladimir Velichkin v Belarus Communication No 1022/2001, § 7.3, UN Doc CCPR/C/85/D/1022/2001 (2005) (HRC).

74 Council Directive 2002/58/EC of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector [2002] OJ L201/37; Council Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281/31.

75 Johannesburg Principles on National Security, Freedom of Expression and Access to Information, UN Doc E/CN 4/1996/39 (1996), prin 6.

76 New York Times Co v United States 403 US 713 (1971).

12

its territorial integrity against the use or threat of force’.77 The prevention of ‘merely local or

relatively isolated threats to law and order’78 are excluded. In the present case, there is no

evidence of threat of violent overthrow of the government. On the contrary, the government

is alleged to have links to armed militias perpetrating ethnic violence.79

21. For the freedom to be constricted, the expression must constitute a precise and imminent

threat to national security.80 Moreover, there must be a direct and immediate connection

between the two,81 such that the absence of the restriction will necessarily lead to imminent

violence.82 Besides, expressions that disseminate information about alleged violation of

human rights standards are protected.83 The contents of the posts in this case do not intend or

seem likely to incite violence, but simply inform the public about the location of the

military84 and instances of atrocities.85 In the absence of clear evidence linking the posts on

77 Johannesburg Principles on National Security, Freedom of Expression and Access to Information, UN Doc E/CN 4/1996/39 (1996), prin 2(a) (emphasis added).

78 Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN.4/1985/4, cl I(B)(30).

79 ¶7, The Case.

80 Incal v Turkey ECHR 1998-IV 1547; Tae Hoon Park v Republic of Korea Communication No 628/1995, UN Doc CCPR/C/64/D/628/1995 (1998) (HRC); Keun-Tae Kim v Republic of Korea Communication No 574/1994, UN Doc CCPR/C/64/D/574/1994 (1999) (HRC); Hak-Chul Shin v Republic of Korea Communication No 926/2000,UN Doc CCPR/C/80/D/926/2000 (2004) (HRC).

81 Johannesburg Principles on National Security, Freedom of Expression and Access to Information, UN Doc E/CN 4/1996/39 (1996), prin 6(c).

82 Near v Minnesota 283 US 697 (1931); New York Times Co v United States 403 US 713 (1971).

83 Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN 4/1985/4, cl I(B)(vi)(32); Thorgeirson v Iceland (1992) 14 EHRR 843.

84 ¶11, The Case.

85 ¶11, The Case.

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Military Tracker with the bombings,86 any other inference is merely speculative. Therefore,

these posts cannot be construed as a threat to national security.

22. Secondly, the aim of public order does not apply in this case. In order to invoke this aim,

there must be an immediate threat to public safety, peace, or order.87 Further, there must be a

proximate relationship between the restriction and the achievement of public order.88 Speech

cannot be unduly restricted under the guise of conserving desirable conditions.89 Here, there

is no proven causal link between the posts on OpenBemidia and the incidents of violence.90

Further, the mandatory collection of personal information of all users is not likely to prevent

the instances of disorder.

c. The restriction is not necessary in a democratic society

23. Applicants submit that the restriction is not necessary in a democratic society. First,

there is no pressing social need; and secondly, the restriction is not proportionate to the

legitimate aim.91

24. First, determining a pressing social need requires a fair balance between the fundamental

rights of individuals and the right of a democratic society to protect itself.92 In this case, the

86 ¶12, The Case.

87 Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN 4/1985/4, cl I(C)(54); Cantwell v Connecticut 310 US 296 (1940).

88 Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN 4/1985/4, cl I(C)(54); Incal v Turkey ECHR 1998-IV 1547.

89 Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN 4/1985/4, cl I(B)(vii)(34); Cantwell v Connecticut 310 US 296 (1940).

90 ¶12, The Case.

91 Handyside v United Kingdom [1976] ECHR 5; The Sunday Times v United Kingdom App no 13166/87 (ECtHR, 26 November 1991); The Observer and The Guardian v United Kingdom App no 13585/88 (ECtHR, 26 November 1991); Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN 4/1985/4, cl 10(b) and (d).

14

posts have not directly led to violence. Further, as noted in Evans,93 the margin of

appreciation in determining necessity is narrow when an important facet of individual identity

is at stake. Moreover, the adoption of data retention policies by a few regimes has been

subject to wide criticism94 and declared unconstitutional by several courts.95 Therefore, there

is no pressing social need to collect personal information of all users.

25. Secondly, the restriction is not proportionate to the legitimate aim.96 The test of

proportionality is satisfied only when the least onerous restriction is imposed.97 In this case,

the indiscriminate collection of personal information of all users is not qualified by any

timeframe or safeguards against abuse.98 In addition, the requirement would raise a suspicion

against the users’ innocence99 and expose them to a possible violation of rights in future.100

92 Zana v Turkey (1997) 27 EHRR 667.

93 Evans v United Kingdom App no 6339/05 (ECtHR, 7 March 2006).

94 Patrick Breyer, ‘Telecommunications Data Retention and Human Rights: The Compatibility of Blanket Traffic Data Retention with the ECHR’ (2005) 11(3) ELJ 373.

95 Decision no. 1258, 8 October 2009 (Romania); Vorratsdatenspeicherung [Data Retention] BVerfG 2 March 2010, 1 BvR 256/08 (Germany).

96 Handyside v United Kingdom [1976] ECHR 5; Goodwin v United Kingdom [2002] 35 EHRR 447; Marques de Morais v Angola (2005) AHRLR 3 (HRC 2005); Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN 4/1985/4, cl 10(c).

97 Shelton v Tucker 364 US 479 (1960); Virginia State Pharmacy Board v Virginia Citizens Consumer Council 425 US 748 (1976); Nebraska Press Association v Stuart 427 US 539 (1976); Klass v Germany (1979-80) 2 EHRR 214; The Queen v Minister of Agriculture, Fisheries and Food and Secretary of Health, ex parte Fedesa and Ors [1990] ECR I-4023 (ECJ).

98 S and Marper v United Kingdom App no 30562/04 (ECtHR, 4 December 2008); Clarification #14.

99 S and Marper v United Kingdom App no 30562/04 (ECtHR, 4 December 2008); Patrick Breyer, ‘Telecommunications Data Retention and Human Rights: The Compatibility of Blanket Traffic Data Retention with the ECHR’ (2005) 11(3) ELJ 365, 373.

100 Privacy International, ‘Memorandum of laws concerning the legality of data retention with regard to the rights guaranteed by the European Convention on Human Rights’ (2010) <https://www.privacyinternational.org/countries/uk/surveillance/pi_data_retention_memo.pdf> accessed 9 November 2011.

15

Such a sweeping restriction without classification is disproportionate.101 In contrast, a less

onerous restriction, such as applying the requirement to a specific class of forums, could have

been adopted. Moreover, the imposition of a heavy burden on the website,102 accompanied by

criminal sanctions for non-fulfilment103 is disproportionate to the legitimate aims.

B. THE REQUIREMENT TO DISCLOSE IDENTITY, FOLLOWING, AND HISTORICAL LOCATION

INFORMATION CONTRAVENES PROVISIONS OF UDHR

26. Under the authority of IRA, the government has demanded OpenBemidia to disclose

identity, following and historical location information of certain users. Applicants submit that

this requirement restricts the rights to freedom of speech and expression under Article 19 [I],

peaceful assembly and association under Article 20 [II], privacy under Article 12 [III], and

remedy under Article 8 [IV]. The restriction is not permissible under Article 29(2) [V].

I. The requirement imposes a restriction on Article 19, UDHR

27. Applicants suggest that the impugned requirement violates Article 19 by causing a

chilling effect104 on the freedom of speech and expression of the users. Although Respondent

may contend that the users are unaware of the disclosure order, it is submitted that the mere

existence of such a system restrains protected speech on the Internet.105 Furthermore, the

101 Hirst v United Kingdom [2005] ECHR 681; Republican Party of Russia v Russia App no 12976/07 (ECtHR, 12 April 2011).

102 ¶¶3-5, Memorial for the Applicant.

103 ¶14(d), The Case.

104 ¶7, Memorial for the Applicant.

105 David Cole, ‘The Poverty of Posner's Pragmatism: Balancing Away Liberty After 9/11’ (2007) 59 Stan L Rev 1735; European Digital Rights, ‘What the European Commission owes 500 million Europeans’ (2010) <http://www.edri.org/files/Data_Retention_Conference_031210final.pdf> accessed 9 November 2011.

16

disclosure violates the right of users to read anonymously106 as their interests are being

monitored by the government.

II. The requirement restricts Article 20, UDHR

28. The following capability of the Applicant website permits the follower to receive real-

time notifications of activity on the forum or by a user, so followed.107 Applicants submit that

the followers of a particular idea/individual constitute an assembly as the pre-requisite of

common purpose is satisfied. The requirement to disclose sensitive following information of

users infringes their right to freely and anonymously associate with individuals and areas of

interest.108 Consequently, the requirement infringes the right to private expressive

association.

III. The requirement imposes a restriction on Article 12, UDHR

29. As per the universally accepted dictum in Katz,109a reasonable expectation of privacy

exists when there is a subjective expectation of privacy, which is objectively reasonable.

Admittedly, in Miller,110 the US Supreme Court held that individuals lose an expectation of

privacy in information voluntarily disclosed to third parties.111 However, this reasoning has

106 ¶9, Memorial for the Applicant.

107 ¶10, The Case.

108 Sarah Joseph and others, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2nd edn, OUP 2005) 568.

109 Katz v United States 389 US 347 (1967).

110 United States v Miller 307 US 174 (1939).

111 United States v Miller 307 US 174 (1939); United States v Kennedy 81 F Supp 2d 1103 (D. Kan 2000).

17

been subject to severe criticism.112 It is submitted that the third-party doctrine is based on an

incorrect property-based conception of privacy,113 as mere disclosure of private information

to one entity does not render it public.114 Indeed, the ECtHR in Malone115 and PG and JH116

impliedly rejected the third party doctrine by upholding a right to privacy in dialled telephone

numbers. Thus, the information sought by the government is protected by a reasonable

expectation of privacy of the users.

30. Further, Applicants contend that the following and historical location information was

not voluntarily disclosed by the users. Instead, it was automatically known to OpenBemidia

by virtue of its technical capabilities.117 As noted in Justice Brennan’s opinion in Smith,118 ‘it

is idle to speak of “assuming” risks in contexts where, as a practical matter, individuals have

112 Smith v Maryland 442 US 735 (1979) (Brennan J); Wayne R Lafave, Search and Seizure: A Treatise on the Fourth Amendment (2004) 2.7; Stephen E Henderson ‘Learning from All fifty states: how to apply the fourth amendment and its state analogs to protect third party information from unreasonable search’ (2006) 55 Catholic University Law Review 373 available at <http://works.bepress.com/stephen_henderson/3> accessed 20 January 2012; Andrew J DeFilippis, ‘Securing Informationships: Recognizing a Right to Privity in Fourth Amendment Jurisprudence’ (2006) 115 Yale LJ 1086, 1092; Matthew D Lawless, ‘The Third Party Doctrine Redux: Internet Search Records and the Case for a “Crazy Quilt” of Fourth Amendment Protection’ (2007) UCLA J L & Tech 1, 3; Christopher Slobogin, Privacy at Risk: The New Government Surveillance and the Fourth Amendment (2007) 151.

113 District Registrar and Collector, Hyderabad v Canara Bank 2005 (1) SCC 496 (India); Daniel J Solove, ‘Digital Dossiers and the Dissipation of Fourth Amendment Privacy’ (2002) 75 S Cal L Rev 1083, 1086; Richard A Posner, ‘Not A Suicide Pact: The Constitution in a Time of National Emergency’ (OUP 2006).

114 Gerald G Ashdown, ‘The Fourth Amendment and the “Legitimate Expectation of Privacy”’ [1981] 34 V and L Rev 1289, 1315; Christopher Slobogin and Joseph E Schumacher, ‘Reasonable Expectations of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at “Understandings Recognized and Permitted by Society”’ (1993) 42 Duke LJ 727, 732; Sherry F Colb, ‘What Is a Search? Two Conceptual Flaws in Fourth Amendment Doctrine and Some Hints of a Remedy’ (2002) 55 Stan L Rev 119, 122.

115 Malone v United Kingdom (1984) 7 EHRR 14.

116 PG and JH v UK App no 44787/98 (ECtHR, 25 September 2001).

117 Clarification #25.

118 Smith v Maryland 442 US 735 (1979) (Brennan J) (emphasis added). See also Burrows v Superior Court 529 P 2d 596 (Cal 1974); Application for Order of a Pen Register 402 F Supp 2d (SDNY 2005); Gerald G Ashdown, ‘The Fourth Amendment and the “Legitimate Expectation of Privacy”’ (1981) 34 Vand L Rev 1289, 1315; Christopher Slobogin, ‘Subpoenas and Privacy’ (2005) 54 DePaul L Rev 805, 829; Kevin McLaughlin, ‘The Fourth Amendment and Cell Phone Tracking: Where are we?’ (2006-07) 29 Hastings Comm & Ent LJ 421, 441.

18

no realistic alternative’. In this respect, this information is analogous to traffic data, which is

protected against third-party disclosures by numerous data protection policies.119

31. Moreover, Applicants submit that the requirement to disclose the identities of all users of

MLM forum restricts their right to privacy of correspondence.120 It has been acknowledged

that ‘clearly communicated’ employer policies regarding communications shape the

reasonable expectations of privacy of employees.121 Here, the users of MLM forum were

provided with a private setting option. The exercise of this choice was an express act creating

an expectation of privacy in all details of the posts.122

32. Secondly, Applicants suggest that the MLM forum, comprising users with private

settings, is a system of private communication analogous to an e-mail. Thus, the disclosure of

their identities is comparable to disclosure of e-mail addresses. Although transactional non-

content records such as email addresses and time of posts123 are exposed to third-party service

providers, they are as intrusive as content information.124 Therefore, their disclosure restricts

the right to privacy of the users.125

119 Data Protection Act 1998 (UK); Personal Information Protection and Electronic Documents Act 2001 (Canada); Council Directive 2002/58/EC of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector [2002] OJ L201/37; Council Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281/31.

120 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 12; European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) (ECHR) art 8.

121 Ontario v Quon 560 US ___ (2010) (emphasis added).

122 Katz v United States 389 US 347 (1967).

123 J Beckwith Burr, ‘The Electronic Communications Privacy Act of 1986: Principles for Reform’ (2010) <http://digitaldueprocess.org/files/DDP_Burr_Memo.pdf> accessed 9 November 2011.

124 Casey Holland, ‘Neither Big Brother Nor Dead Brother: The Need for a New Fourth Amendment Standard Applying to Emerging Technologies’ (2005-06) 94 Ky LJ 393, 408–09; Deborah Buckner, ‘Internet Search and Seizure in United States v. Forrester: New Problems in the New Age of Pen Registers’ (2008) 22 BYU J Pub L

19

IV. The requirement violates Article 8, UDHR

33. The requirement of disclosure of personal data is accompanied by a gag order, mandating

that such request be kept secret for a period upto 180 days.126 Applicants contend that the gag

order prevents the users from seeking an effective remedy.127 The secretive nature of

disclosure requests adversely affects the standing of subjects to invoke the judicial process.128

In fact, notification to data subjects is a prescribed norm for data disclosure.129 Although

notification requirements are relaxed in cases of surveillance,130 the IRA lacks the minimum

safeguards requisite in surveillance legislations. Further, recent precedents such as Twitter131

499; J Beckwith Burr, ‘The Electronic Communications Privacy Act of 1986: Principles for Reform’ (2010) <http://digitaldueprocess.org/files/DDP_Burr_Memo.pdf> accessed 9 November 2011.

125Malone v United Kingdom (1984) 7 EHRR 14; PG and JH v UK App no 44787/98 (ECtHR, 25 September 2001).

126 ¶14(c), The Case.

127 European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) (ECHR) art 13; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 2(3); American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) (ACHR) art 25; African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 7.

128 Amnesty International et al v John McConnell et al 646 F Supp 2d 633 (SDNY 2009); Al-Haramain Islamic Foundation et al v Bush et al 451 F Supp 2d 1215 (NDCA 2009); UNHRC, ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’ (2009) UN Doc A/HRC/13/37.

129 Council Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281/31; Council Directive 2002/58/EC of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector [2002] OJ L201/37.

130 Klass v Germany (1979-80) 2 EHRR 214; Leander v Sweden (1987) 9 EHRR 433.

131 In the Matter of the §2703(d) Order relating to Twitter Accounts: wikileaks, rop_g; ioerror; and birgittaj Misc No 10GJ3793 (Eastern District of Virginia).

20

and Internet Archive132 emphasise the role of the Internet intermediary as a ‘torch-bearer’.133

Hence, the gag order violates Article 8.

V. The restriction is not permissible under Article 29(2), UDHR

34. The impugned restriction does not fulfil the tests of legality, legitimacy and necessity.134

The requirement is not prescribed by law.135 Although surveillance legislations are not

required to state the precise criteria governing the release of private information,136 they must

be sufficiently circumscribed and prescribe minimum safeguards.137 Further, the law ought to

indicate the scope of any discretion conferred upon the executive,138 especially when

exercised in secret.139 The IRA does not prescribe the minimum standards required for

unmasking the anonymity of online users, such as the existence of reasonable suspicion.140

Additionally, government orders for disclosure are not subject to prior judicial

132 Internet Archive et al v Michael B Mukasey No C 4:07-06346 CW (Northern District of California).

133 Ryan Singel, ‘Twitter’s Response to the WikiLeaks Subpoena Should Be the Industry Standard’ (Wired, 10 January 2011) <http://www.wired.com/threatlevel/2011/01/twitter/> accessed 9 November 2011.

134 ¶16, Memorial for the Applicant.

135 ¶¶17-18, Memorial for the Applicant.

136 Kruslin v France (1990) 12 EHRR 547.

137 ¶¶17-18, Memorial for the Applicant.

138 Kingsley International Pictures Corp v Regents 360 US 684 (1959); Herczegfalvy v Austria (1993) 15 EHRR 437; Liberty and Others v the United Kingdom [2008] ECHR 568.

139 Malone v United Kingdom (1984) 7 EHRR 14; Herczegfalvy v Austria (1993) 15 EHRR 437; UNHRC, ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’ (2009) UN Doc A/HRC/13/37;

140 Dendrite Int'l Inc v Doe No 3 775 A 2d 756 (NJ 2001); Doe v Cahill 884 A 2d 451 (Del 2005); Matthew Mazzotta, ‘Balancing Act: Finding Consensus on Standards for Unmasking Anonymous Internet Speakers’ (2010) 51 BCL Rev 833, 847.

21

authorisation.141 In the absence of such guidelines in the creation of the watch-list,142 the

procedure established by law is not foreseeable and arbitrary.

35. Furthermore, the requirement to disclose does not pursue legitimate aims.143 The aims of

national security144 and public order145 may not be invoked in the absence of a proximate

nexus between the posts in the Military Tracker forum and the violence in Bemidia.146 Also,

the restriction is not necessary in a democratic society.147 The government has not only

sought information about the posters of the allegedly offending material, but also about their

‘followers’. This further weakens the chain of causation. In any case, the disclosure of

sensitive personal information mandates prior judicial overview.148 Therefore, the restriction

is not the least onerous in the circumstances.

C. THE REQUIREMENT TO REPORT LOCATION INFORMATION ABOUT USERS OF THE

MLM FORUM IN REAL TIME CONTRAVENES PROVISIONS OF UDHR

36. Under the authority of IRA, the government has mandated OpenBemidia to disclose the

real-time location information of the users of an empty forum named ‘MLM’. Applicants

submit that this requirement restricts the rights to privacy enshrined in Article 12 [I]; and

141 Clarification #15; Electronic Telecommunications (Interception and Access) Act 1979 (Australia); Communications Privacy Act, 1986 (US).

142 Clarification #10.

143 ¶19, Memorial for the Applicant.

144 ¶¶20-21, Memorial for the Applicant.

145 ¶22, Memorial for the Applicant.

146 ¶¶20-22, Memorial for the Applicant.

147 ¶¶23-25, Memorial for the Applicant.

148 Right to Financial Privacy Act 1978 (US); .Electronic Communications Privacy Act 1986 (US); Pen Register Act 1986 (US).

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freedom of movement guaranteed under Article 13 [II]. The restriction is not permissible

under Article 29(2) [III].

I. The requirement is a restriction on Article 12, UDHR

37. Applicants submit that the MLM forum possess a reasonable expectation of privacy in

real-time location information [a]. The location information obtained through GPS tracking is

fundamentally different from that acquired through human observation [b]. Arguendo, the

real-time location tracking still contravenes Article 12 [c].

a. Users of the MLM forum possess a reasonable expectation of privacy in real-time location

information

38. The right to privacy protects, inter alia, the right to establish and develop relationships

with other human beings and the outside world.149 Further, an expectation of privacy is

created when an individual takes affirmative steps to ensure that his property remains

private.150 Applicants submit that the users of the MLM forum possess a reasonable

expectation of privacy in their real-time location information. By expressly using the

‘private’ setting for posts, the users chose to hide their real-time location displayed with the

posts. Consequently, they had a reasonable expectation that their location will not be tracked

without their knowledge.151

149 X v Iceland [1967] ECHR 24; Uzun v Germany App no 35623/05 (ECtHR, 2 September 2010); Nihal Jayawickrama, The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (1st edn, CUP 2002) 602.

150 Katz v United States 389 US 347 (1967); United States v Chadwick 433 US 1 (1977); United States v Jacobson 466 US 109 (1984); SJ Edgett, ‘Double-Clicking on Fourth Amendment Protection: Encryption Creates Reasonable Expectation of Privacy’ (2002) 30 Pepp L Rev 339, 350.

151 United States v Maynard 615 F 3d 544 (2010); James C White, ‘People, Not Places: A Policy Framework for Analyzing Location Privacy Issues’ (Electronic Privacy Information Center, 2003) <epic.org/privacy/location/jwhitelocationprivacy.pdf> accessed 9 November 2011.

23

39. Respondent may contend that the right to privacy does not protect the impugned

information as it was voluntarily disclosed to OpenBemidia.152 However, the disclosure of

information to a third party does not extinguish a reasonable expectation of privacy in that

information with respect to others.153 Moreover, the information was not exposed to

OpenBemidia voluntarily as the users did not possess a choice in the matter.154

b. The location information obtained through GPS tracking is fundamentally different from

that acquired through human observation

40. Admittedly, in Knotts,155 the Court held that warrantless monitoring of an electronic

tracking device did not restrict the right to privacy, as it exposed information that could have

been obtained through human surveillance. However, Applicants submit that this principle

does not inform the present case. Unlike Dow Chemical,156 where the information obtained

through aerial photography ‘was not so revealing of intimate details so as to raise

constitutional concerns’,157 GPS tracking is not a mere enhancement of human sensory

capacity.158 In contrast, it enables a more precise, extensive and intrusive record of location

information.159 Indeed, prolonged surveillance of an individual’s movements may reveal an

152 Smith v Maryland 442 US 735 (1979); United States v Forrester 512 F 3d 500 (9th Cir 2007).

153 ¶¶29-30, Memorial for the Applicant.

154 ¶¶29-30, Memorial for the Applicant.

155 United States v Knotts 460 US 276 (1983).

156 Dow Chemical v United States 476 US 227 (1986).

157 Dow Chemical v United States 476 US 227 (1986) (emphasis added).

158 State v Jackson 76 P 3d 217 (Wash 2003); People v Weaver 12 NY 3d 433 (2009).

159 United States v Maynard 615 F 3d 544 (2010); Brief of Center for Democracy & Technology, Electronic Frontier Foundation, Matt Blaze, Andrew J Blumberg, Roger L Easton, and Norman M Sadeh as Amici Curiae in Support of Respondent in United States v Antoine Jones No 10-1259 (US); Stephen E Henderson ‘Learning from All fifty states: how to apply the fourth amendment and its state analogs to protect third party information

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intimate picture of his life.160 By plotting positions on a map,161 it provides invasive details of

activities of users in a location by associating it with the businesses in that area.162 Such

indefinite, automated, and around-the-clock surveillance simultaneously on a large-scale is

not practically or economically feasible via human surveillance.163

c. In any event, real-time location tracking still contravenes Article 12.

41. Applicants submit that real-time location tracking restricts the right to privacy, even if

GPS technology is deemed as merely augmenting human observation. First, technological

enhancement of human observation breaches the reasonable expectation of privacy if the

procurement of the information cannot be readily duplicated by the public.164 In this case,

OpenBemidia procures the geo-location of users’ posts using GPS, mobile phone tower

information and other technologies.165 However, members of the public cannot routinely use

GPS technology to track a person since it is unlawful.166 Secondly, real-time location tracking

from unreasonable search’ (2006) 55 Catholic University Law Review 373 available at <http://works.bepress.com/stephen_henderson/3> accessed 20 January 2012.

160 Ronald Galella v Jacqueline Onassis 487 F 2d 986 (2nd Cir 1973); State v Jackson 76 P 3d 217 (Wash 2003); People v Weaver 12 NY 3d 433 (2009);United States v Maynard 615 F 3d 544 (2010).

161 ¶9, The Case.

162 Brief of Center for Democracy & Technology, Electronic Frontier Foundation, Matt Blaze, Andrew J Blumberg, Roger L Easton, and Norman M Sadeh as Amici Curiae in Support of Respondent in United States v Antoine Jones No 10-1259 (US).

163 Brief of Center for Democracy & Technology, Electronic Frontier Foundation, Matt Blaze, Andrew J Blumberg, Roger L Easton, and Norman M Sadeh as Amici Curiae in Support of Respondent in United States v Antoine Jones No 10-1259 (US).

164 Dow Chemical v United States 476 US 227 (1986); Kyllo v United States, 533 US 27 (2001).

165 ¶9, The Case.

166 Brief of Center for Democracy & Technology, Electronic Frontier Foundation, Matt Blaze, Andrew J Blumberg, Roger L Easton, and Norman M. Sadeh as Amici Curiae in Support of Respondent in United States v Antoine Jones No 10-1259 (US).

25

reveals information about the interior of the spaces in which the users possess a reasonable

expectation of privacy, such as private residences.167 The procurement of such information

without judicial supervision infringes the reasonable expectation of privacy of users.168

42. In any event, Applicants contend that reasonable expectation of privacy in the impugned

information continues to exist, irrespective of the fact that such information can be acquired

through human observation. An intrusive method to obtain private information is not lawful

merely because that information could be obtained using legal means.169 Indeed, the Court in

Kyllo170 stated that ‘the fact that equivalent information could sometimes be obtained by

other means does not make lawful the use of means that violate the Fourth Amendment’.171

Therefore, the possibility that human observation may obtain the same information as GPS

technology does not imply that the latter does not restrict the users’ right to privacy.172

167 Katz v United States 389 US 347 (1967); United States v Karo 468 US 705 (1984).

168 United States v Karo 468 US 705 (1984); Kyllo v United States, 533 US 27 (2001); Brief of Amici Curiae Electronic Frontier Foundation and American Civil Liberties Union of the National Capital Area in Support of Appellant Jones in United States v Lawrence Maynard and Antoine Jones No 08-3030/08-3034 (US).

169 Silverman v United States 365 US 505 (1961); Katz v United States 389 US 347 (1967); Kyllo v United States 533 US 27 (2001).

170 Kyllo v United States 533 US 27 (2001).

171 Kyllo v United States 533 US 27 (2001) (emphasis added).

172 Brief of Center for Democracy & Technology, Electronic Frontier Foundation, Matt Blaze, Andrew J Blumberg, Roger L Easton, and Norman M Sadeh as Amici Curiae in Support of Respondent in United States v Antoine Jones No 10-1259 (US).

26

II. The requirement restricts Article 13, UDHR

43. The right to privacy is essential for the enjoyment of all other freedoms, including

freedom of movement.173Applicants contend that impugned requirement restricts the freedom

of movement of users by causing a chilling effect.174

44. Admittedly, the users of the MLM forum are not notified about the order for disclosure

of real-time location information.175 However, it has been acknowledged that the awareness

of the possibility of surveillance is as inhibitory as knowledge of actual surveillance.176 In

fact, in Kennedy,177 the ECtHR opined that ‘where there is no possibility of challenging the

alleged application of secret surveillance measures … widespread suspicion and concern that

secret surveillance powers are being abused cannot be said to be unjustified.’178 Hence, the

impugned requirement restricts the freedom of movement.

173 UNHRC, ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’ (2009) UN Doc A/HRC/13/37. See also Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 13; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 12; African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 12.

174 UNHRC, ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’ (2009) UN Doc A/HRC/13/37.

175 ¶14(c), The Case.

176 Daniel J Solove, ‘A Taxonomy of Privacy’ (2006) 154 U Pa L Rev 477, 495; Mathias Vermeulen, ‘Unilateral Exceptions to Fundamental Rights in the Use of Detection Technologies in the Fight against Terrorism: Permissible Limitations of the Right to Privacy’ (2011) European University Institute Working Paper.

177 Kennedy v United Kingdom App no 26839/05 (ECtHR, 18 May 2010).

178 Kennedy v United Kingdom App no 26839/05 (ECtHR, 18 May 2010) (emphasis added).

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III. The requirement contravenes Article 8, UDHR

45. The requirement of disclosure of real-time location is accompanied by a ‘gag order’ for a

period upto 180 days.179 Applicants submit that the lack of notification prevents the users

from seeking an effective remedy.180 Therefore, it contravenes Article 8.

IV. The restriction is not permissible under Article 29(2), UDHR

46. Applicants contend that the impugned requirement is an unreasonable limitation under

Article 29(2) as it does not satisfy the tests of legality, legitimacy and necessity.181 First, the

limitation is not in prescribed by law182 as it lacks adequate safeguards against arbitrariness

and abuse.183 As per the ECtHR in Uzun,184 laws authorising GPS surveillance must be

assessed in light of factors such as the nature, scope and duration of measures, and the

grounds for ordering them. Here, the IRA neither states the duration nor indicates the grounds

required for imposition of such restriction. The lack of judicial review,185 coupled with the

hidden, continuous and indiscriminate surveillance also raises the probability of law

enforcement abuse.186

179 ¶14(c), The Case.

180 ¶33, Memorial for the Applicant.

181 ¶16, Memorial for the Applicant.

182 ¶17, Memorial for the Applicant.

183 Amann v Switzerland [2000] ECHR 87; Weber and Saravia v Germany App no 54934/00 (ECtHR, 29 June 2006).

184 Uzun v Germany App no 35623/05 (ECtHR, 2 September 2010).

185 Uzun v Germany App no 35623/05 (ECtHR, 2 September 2010).

186 United States v Torres 523 US 224 (1998).

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47. Secondly, the impugned requirement is not in pursuance of legitimate aims.187 The mere

existence of an empty forum titled ‘MLM’ indicates no probable link of its users to the aims

of national security188 and public order.189 In any event, the test of necessity190 is not satisfied.

Applicants submit that the absence of a visible link between the forum users and the

legitimate aims indicates no pressing social need.191 Unlike Uzun,192 the Government did not

use intrusive measures of a lower degree prior to GPS tracking. Moreover, the lack of a

specified time period implies an indefinite restriction of the users’ right to privacy and

freedom of movement. Such invasive measures require prior judicial authorisation.193

Therefore, the requirement is disproportionate.

D. THE REQUIREMENT TO DELETE THE CONTENTS OF THE CARLA TRACKER, TALIA

TRACKER AND DARIA TRACKER FORUMS CONTRAVENES ARTICLE 19, UDHR

48. Pursuant to the enactment of FFPA, the Government has ordered OpenBemidia to delete

the contents of Carla Tracker, Talia Tracker and Daria Tracker forums. Applicants submit

that this requirement restricts their right to freedom of speech and expression enshrined in

Article 19, UDHR [I]. The restriction is not permissible under Article 29(2) UDHR [II].

187 ¶19, Memorial for the Applicant.

188 ¶¶20-21, Memorial for the Applicant.

189 ¶22, Memorial for the Applicant.

190 ¶23, Memorial for the Applicant.

191 ¶24, Memorial for the Applicant.

192 Uzun v Germany App no 35623/05 (ECtHR, 2 September 2010).

193 Telecommunications (Interception and Access) Act 1979 (Australia); Electronic Communications Privacy Act, 1986 (US); United States v Karo 468 US 705 (1984); Uzun v Germany App no 35623/05 (ECtHR, 2 September 2010); Kevin McLaughlin, ‘The Fourth Amendment and Cell Phone Tracking: Where are we?’ (2006-07) 29 Hastings Comm & Ent LJ 421, 441.

29

I. The requirement imposes a restriction on Article 19, UDHR

49. Article 19 includes expressions made on the Internet.194 Indeed, the expression can take

the form of photographs.195 OpenBemidia comprises forums which impart information and

ideas of public interest, which the public has a right to receive.196

50. Further, the fear of sanctions on the Applicant website for failure to take down the

contents creates a chilling effect on its freedom of expression. Websites are likely to remove

even borderline contents out of the fear of sanctions.197 The exercise of excessive caution and

self-censorship will affect the public at large.198 Moreover, the requirement of obtaining

written consent mandated by the FFPA199 is a prior restraint on free speech,200 overriding the

exceptions prescribed in Near.201

194 Reno v ACLU 521 US 844 (1997); UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression’ (2011) UN Doc. A/HRC/17/27; Richard Clayton and Hugh Tomlinson, The Law of Human Rights (1st edn, OUP 2000) 1059.

195 Von Hannover v Germany ECHR 2004-VI 54; Giorgi Nikolaishvili v Georgia App no 37048/04 (ECtHR, 13 January 2009); Eerikäinen & Ors v Finland App no 3514/02 (ECtHR, 10 February 2009).

196 The Observer and The Guardian v United Kingdom App no 13585/88 (ECtHR, 26 November 1991); Busuioc v Moldova App no 61513/00 (ECtHR, 21 December 2004).

197 Zeran v America Online Inc 524 US 937 (1998); Moseley v United Kingdom [2011] ECHR 774; Seth F Kreimer, ‘Censorship by Proxy: The First Amendment, Internet Intermediaries and the Problem of the Weakest Link’ [2006-07] 155(11) U Pa L Rev 31; Brief of Center for Democracy & Technology, Electronic Frontier Foundation, Matt Blaze, Andrew J Blumberg, Roger L Easton, and Norman M Sadeh as Amici Curiae in Support of Respondent in United States v Antoine Jones No 10-1259 (US).

198 Farmers Educational and Co-operative Union, North Dakota Division v WDAY Inc 360 US 525 (1959); Smith v California 361 US 147 (1959).

199 ¶20, The Case.

200 Moseley v United Kingdom [2011] ECHR 774.

201 Near v Minnesota, 283 US 697 (1931); Thomas I. Emerson, ‘The Doctrine of Prior Restraint’ [1955] Faculty Scholarship Series Paper 2804 <http://digitalcommons.law.yale.edu/fss_papers/2804> accessed 9 November 2011.

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II. The restriction is not permissible under Article 29(2), UDHR.

51. The restriction is not permissible under Article 29(2) as it does not satisfy the tests of

legality [a], legitimacy [b] and necessity [c].202

a. The restriction is not prescribed by law

52. Applicants contend that the restriction is not prescribed by law.203 The reasonableness of

the law ought to be tested both substantively and procedurally. The impugned requirement is

arbitrary as it is made by unfettered executive discretion and not judicial determination.204

b. The restriction is not in pursuance of legitimate aims

53. Applicants submit that the legitimate aim of protection of rights of others cannot be

invoked in this case as the contents of the three Tracker forums do not violate the right to

privacy of the First Family. As noted in Sullivan,205 public figures have lesser expectations of

privacy owing to their positions and role in public life. The test for public figures takes into

account their newsworthiness.206 Indeed, this includes matters of public concern, including

everyday lives of famous individuals and role models.207 Here, the First Family is a public

202 ¶16, Memorial for the Applicant.

203 ¶17, Memorial for the Applicant.

204 ¶34, Memorial for the Applicant.

205 New York Times Co v Sullivan 376 US 254 (1964); Lingens v Austria App no 9815/82 (ECtHR, 8 July 1986); Zeljko Bodrozic v Serbia and Montenegro, Communication No 1180/2003, UN Doc CCPR/C/85/D/1180/2003 (2006) (HRC).

206 Krone Verlag GmbH & Co KG v Austria (2006) 42 EHRR 28; Amber Melville-Brown, ‘Private Lives’ [2010] European Lawyer.

207 Woodard v Hutchins 464 US 377 (1984); Bret Michaels v Internet Entertainment Group Inc and Ors Lexsee 5 F Supp 2d 823(CD Cal 1998); Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK); A v B and Anr [2002] EWCA Civ 337 (UK).

31

figure by virtue of their relationship with the reigning Prime Minister.208 Their activities are

newsworthy and attract constant attention of the national and international press.209

Moreover, they serve as role models for the nation, which holds the Prime Minister in very

high esteem.210

54. Although public figures possess a reasonable expectation of privacy in private matters, it

ceases to exist in activities which are in public sphere.211 Further, the publication of

photographs of public figures in public places does not violate their right to privacy unless it

depicts them in intimate or traumatic circumstances;212 or causes harassment.213 Case in

point, the contents of all posts have been obtained in public places, such as streets and

restaurants.214 The photographs, which are of low resolution, were not obtained by causing

harassment to the subjects.215 Moreover, they do not depict the First Family in intimate or

traumatic moments. Therefore, the protection of right to privacy cannot be invoked as a

legitimate aim.

208 Ronald Galella v Jacqueline Onassis 487 F 2d 986 (2nd Cir, 1973); Gertz v Robert Welch Inc 418 US 323 (1974); Meeropol v Nizer 560 F 2d 1061 (2nd Cir 1977); Zupnik v Associated Press 31 F Supp 2d 20 (D Conn 1998); Karhuvaara and Iltalehti v Finland App no 53678/00 (ECtHR, 16 November 2004); W Wat Hopkins, ‘The Involuntary Public Figure: Not So Dead After All’, (2003) 21 Cardozo Arts and Entertainment Law Journal 1, 29.

209 ¶3, The Case.

210 ¶3, The Case.

211 A v B and Anr [2002] EWCA Civ 337 (UK); Sir Elton John v Associated Newspapers [2006] EMLR 27 (UK).

212 Daily Times Democrat v Graham 162 So 2d 474 (Ala 1964); Peck v United Kingdom (2003) 36 EHRR 41); Hosking v Runting [2004] NZCA 34 (NZ); NA Moreham, ‘Privacy in Public Places’ (2006) 65(3) Cambridge Law Journal 606, 623.

213 Ronald Galella v Jacqueline Onassis 487 F 2d 986 (2nd Cir. 1973); NA Moreham, ‘Privacy in Public Places’ (2006) 65(3) Cambridge Law Journal 606, 623.

214 ¶¶17, 21, The Case.

215 ¶18, The Case.

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c. The restriction is not necessary in a democratic society

55. Applicants contend that the impugned restriction does not satisfy the test of necessity216

as there is no pressing social need.217 Crucially, public interest in the publication is

determinative in deciding the balance between free speech and privacy rights.218 Although in

Von Hannover,219 ECtHR observed that the impugned publications did not contribute to a

‘debate of general interest’, such restrictive interpretation has been subject to severe

criticism.220 Applicants observe that public interest is not merely synonymous with debate on

purely political matters or official functions.221 Indeed, the ambit of public interest not only

includes matters which contribute to a debate in democratic society, but also everyday

activities of public figures.222 In any event, posts about Carla meeting members of the

Mondahi faction223 relate to sensitive matters concerning the two ethnic factions, capable of

contributing to a debate of general interest.

216 ¶23, Memorial for the Applicant.

217 ¶24, Memorial for the Applicant.

218 A v B and Anr [2002] EWCA Civ 337 (UK); Ricardo Canese v Paraguay Inter-American Court of Human Rights Series C No 111 (31 August 2004); Hachette Filipacchi Associés v France App no 71111/01 (ECtHR, 23 July 2009; Warren and Brandeis, ‘The Right to Privacy’ (1890) 4 Harv L Rev 193.

219 Von Hannover v Germany ECHR 2004-VI 54 (emphasis added).

220 MA Sanderson, ‘Is Von Hannover v Germany a step backward for the substantive analysis of speech and privacy rights?’ (2004) 6 European Human Rights Law Review 631, 641; Gavin Phillipson, ‘The “right” of privacy in England and Strasbourg compared’ in Andrew T Kenyon and Megan Richardson (eds), New Dimensions in Privacy Law: International and Comparative Perspectives (CUP 2006) 226; Helen Fenwick and Gavin Phillipson, Media Freedom under the Human Rights Act (2006) 669.

221 MA Sanderson, ‘Is Von Hannover v Germany a step backward for the substantive analysis of speech and privacy rights?’ (2004) 6 European Human Rights Law Review 631, 641.

222 Bret Michaels v Internet Entertainment Group Inc and Ors Lexsee 5 F Supp 2d 823 (CD Cal 1998); Reynolds v Times Newspapers [1999] 4 All ER 609 (UK); Moseley v United Kingdom [2011] ECHR 774; Diane L Zimmerman, ‘Requiem for a Heavyweight: a farewell to Warren and Brandeis’s Privacy Tort’ (1983) 68 Cornell Law Review 291, 346; Gavin Phillipson, ‘The “right” of privacy in England and Strasbourg compared’ in Andrew T Kenyon and Megan Richardson (eds), New Dimensions in Privacy Law: International and Comparative Perspectives (CUP 2006) 226.

223 ¶19, The Case.

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56. Moreover, the justifications for interference do not outweigh the continuous detrimental

effects of the prior consent requirement,224 and take-down order225 on the freedom of

speech.226 Further, the restriction is indiscriminately broad as it does not exclude posts

depicting First Family in public meetings and official functions. Therefore, the restriction is

disproportionate to the aims.

224 ¶20, The Case.

225 ¶21, The Case.

226 Dudgeon v United Kingdom App no 7525/76 (ECtHR, 23 September 1981); Moseley v United Kingdom [2011] ECHR 774.

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PRAYER

In light of the arguments advanced and authorities cited, the Applicants respectfully request

this Court to adjudge and declare that:

I. The requirement to collect and verify name and contact information before allowing a

user to register for an account and post to a forum violates the UDHR.

II. The requirement to disclose to the government identity information, following

information, and historical location information about OpenBemidia’s users violates

the UDHR.

III. The requirement to report location information about the users of the MLM forum in

real time violates the UDHR.

IV. The requirement to delete the contents of the Carla Tracker, Talia Tracker, and Daria

Tracker forums violates the UDHR.

On behalf of OpenBemidia and its users,

32A

Agents for the Applicants.