National Law School of India University Bangalore 0 Respondent Memorial PDF

32R
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 RESPONDENT
4996 WORDS
TABLE OF CONTENTS
LIST OF ABBREVIATIONS ______________________________________________ IV
INDEX OF AUTHORITIES _______________________________________________ VI
STATEMENT OF RELEVANT FACTS _____________________________________ XX
STATEMENT OF JURISDICTION _______________________________________XXIV
QUESTIONS PRESENTED _____________________________________________ XXV
SUMMARY OF ARGUMENT ___________________________________________XXVI
ARGUMENTS ____________________________________________________________ 1
A. THE REQUIREMENT TO COLLECT AND VERIFY USER INFORMATION IS CONSISTENT WITH
THE PROVISIONS OF THE UDHR_______________________________________________ 1
I. The requirement is not a restriction on Article 19, UDHR ______________________ 1
II. The requirement does not restrict Article 20, UDHR _________________________ 6
III. The requirement does not infringe Article 12, UDHR ________________________ 7
IV. In any event, the restriction is permissible under Article 29(2), UDHR __________ 8
B. THE REQUIREMENT TO DISCLOSE THE IDENTITY, FOLLOWING AND HISTORICAL LOCATION
INFORMATION IS CONSISTENT WITH THE PROVISIONS OF UDHR _____________________ 15
I. The requirement is not a restriction on Articles 19 and 20, UDHR ______________ 15
II. The requirement is not a restriction on Article 12, UDHR ____________________ 15
III. The requirement does not violate Article 8, UDHR _________________________ 17
IV. In any event, the restriction is permissible under Article 29(2), UDHR _________ 17
C. THE REQUIREMENT TO DISCLOSE REAL-TIME LOCATION INFORMATION IS CONSISTENT
WITH PROVISIONS OF UDHR ________________________________________________ 19
II
I. The requirement is not a restriction on Article 12, UDHR _____________________ 19
II. The requirement is not a restriction on Article 13, UDHR ____________________ 21
III. The Requirement is Consistent with Article 8, UDHR_______________________ 22
IV. In any event, the restriction is permissible under Article 29(2), UDHR _________ 22
V. In any event, Bemidia may invoke its right of derogation _____________________ 23
D. THE REQUIREMENT TO DELETE THE CONTENTS OF THE CARLA TRACKER, TALIA TRACKER
AND DARIA TRACKER FORUMS DOES NOT CONTRAVENE ARTICLE 19, UDHR _________ 25
PRAYER ________________________________________________________________ 31
III
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
CA California
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
IV
IACHR Inter American Court of Human Rights
ICCPR International Covenant on Civil and Political Rights
IRA Internet Responsibility Act
prin Principle
s Section
UDHR Universal Declaration of Human Rights
UK United Kingdom
UN United Nations
US United States of America
V
INDEX OF AUTHORITIES
CASES OF THE AFRICAN COURT OF HUMAN AND PEOPLES’ RIGHTS
Referred to in:
Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) 5, 9
CASES OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS
Referred to in:
Compulsory Membership in an Association Prescribed by Law for the 14

Practice of Journalism, Advisory Opinion OC-5/85, Inter-American Court
of Human Rights Series A No 5 (13 November 2003)
Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR, 2 July 2004) 8
CASES OF THE EUROPEAN COURT OF HUMAN RIGHTS
Referred to in:
A and Others v United Kingdom App no 3455/05 (ECtHR, 19 February 24

2009)
Aksoy v Turkey App no 21987/93 (ECtHR, 18 December 1996) 24
Association X v Sweden App no 6094/73 (ECtHR, 6 July 1977) 6
Brannigan & McBride v United Kingdom (1993) 17 EHRR 539 24
Burghartz v Switzerland (1994) 18 EHRR 101 26
VI
Campmany y Diez de Revenga and Lopez Galiacho Perona v Spain App 29
no 54224/00 (ECtHR, 12 December 2000)
Ceylan v Turkey App no 23556/94 (ECtHR, 8 July 1999) 10
Chorherr v Austria (1994) 17 EHRR 358 18
Evans v United Kingdom (2006) 43 EHRR 21 13
Friedl v Austria (1995) Series A no 305 B 29
Funke v France (1993) Series A no 256 A 30
Gaweda v Poland App no 26229/95 (ECtHR, 14 March 2002) 5, 8
Gerger v Turkey App no 24919/94 (ECtHR, 8 July 1999) 12
Greece v United Kingdom App no 176/56 (ECtHR, 14 December 1959) 24
Hachette Filipacchi Associés v France App no 71111/01 (ECtHR, 23 July 29

2009)
Handyside v United Kingdom (1986) Series A no 24 13, 14
Herczegfalvy v Austria (1993) 15 EHRR 437 18
Hinczewski v Poland App no 34907/05 (ECtHR, 5 October 2010) 8
HRH Princess of Wales v MGN Newspapers App no 39069/97 (ECtHR, 29

11 December 2003)
Huvig v France (1990) Series A no 176 B 9, 18
Ireland v United Kingdom (1979-80) 2 EHRR 25 24
Julio BouGibert and El Hogar Y La Moda J.A. v Spain App no 14929/02 29

(ECtHR, 13 May 2003)
VII
Karatas v Turkey App no 23168/94 (ECtHR, 17 June 2008) 12
Keegan v Ireland (1994) 18 EHRR 342 30
Klass v Germany (1978) 2 EHRR 214 10, 17
Kruslin v France (1990) Series A no 176 A 9, 18
KU v Finland (2009) 48 EHRR 52 3, 14
Labita v Italy App no 26772/95 (ECtHR, 6 April 2000) 21
Lawless v Ireland (1961) 1 EHRR 15 23, 24
Leander v Sweden (1987) 9 EHRR 433 13, 17
Leempoel v Belgium App no 64772/01 (ECtHR, 9 November 2006) 29
Lingens v Austria App no 9815/82 (ECtHR, 8 July 1986) 27
Mirror Group Newspapers v United Kingdom App no 39401/04 (ECtHR, 28, 29

18 January 2011)
Mosley v United Kingdom App no 48009/08 (ECtHR, 10 May 2011) 29, 30
Okcuoglu v Turkey App no 24246/94 (ECtHR, 8 July 1999) 12
Ollinger v Austria App no 76900/0 (ECtHR, 29 June 2006) 12
Peck v United Kingdom (2003) 36 EHRR 41 27, 29, 30
PG and JH v United Kingdom App no 44787/98 (ECtHR, 25 September 27, 29

2001)
Rekvényi v Hungary App no 25390/94 (ECtHR, 20 May 1999) 8, 9
Schüssel v Austria App no 42409/98 (ECtHR, 21 February 2002) 26
VIII
SH and Others v Austria App no 57813/00 (ECtHR, 1 April 2010) 13
Silver and Others v United Kingdom (1983) Series A no 61 8
Socialist Party of Turkey and Others v Turkey App no 26482/95 (ECtHR, 12, 13
12 November 2003)
Surek v Turkey App no 24122/94 (ECtHR, 8 July 1999) 8
Surek v Turkey (No 1) App no 26682/95 (ECtHR, 8 July 1999) 12
The Greek Case (1969) 12 Yearbook ECHR 1, [153] 24
The Observer and The Guardian v United Kingdom (1991) Series A no 9, 13

216
The Sunday Times v United Kingdom App no 13166/87 (ECtHR, 26 8, 9, 13

November 1991)
Uzun v Germany App no 35623/05 (ECtHR, 2 September 2010) 20, 22, 23
Von Hannover v Germany (2005) 40 EHRR 1 26, 27, 28, 29
Worm v Austria (1997) 25 EHRR 454 8
X and Y v Netherlands (1985) Series A no 91 29
Young, James and Webster v United Kingdom (1981) 4 EHRR 38 6
Zana v Turkey (1997) 27 EHRR 667 10, 13
IX
AMERICAN CASES
Referred to in:
Acrara v Cloud Books Inc 478 US 697 (1986) 5
Alexander v US 509 US 544 (1993) 5
American Communications Association v Douds 339 U.S. 382 (1950) 6
Aptheker v Secretary of State 378 US 500 (1964) 21
Bartnicki v Vopper 532 US 514 (2001) 6, 27
Bryant v Zimmerman 278 US 63 (1928) 6
Buckley v Valeo 424 US 1 (1976) 3, 3
California v Ciraolo 476 US 207 (1986) 19
Chaplinsky v New Hampshire 315 US 567 (1941) 8
Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 18
186 (1984)
City of Dallas v Staglin 490 US 19 (1989) 6
Clark v Community for Creative Non-Violence 468 US 288 (1984) 5
Commonwealth v Copenhefer 526 Pa 555, 587 A 2d 1353 (Penn 1991). 20
Couch v United States 409 US 322 (1973) 15, 16
Dresbach v Double Day & Co 518 F Supp 1285 (DDC 1981) 27
Ex parte Endo 323 US 283 (1944) 21
X
Florida v Riley 488 US 445 (1989) 19
Freedman v Maryland 380 US 51 (1965) 5
Frisby v Schultz 487 US 474 (1988) 5
Gertz v Welch 418 U.S 323 (1974) 27
Green v Chicago Tribune Co 675 NE 2d 249 (App Ct 1997) 28
Holder v Humanitarian Law Project 561 US ___ (2010) 11
Hutchinson v Proxmire 443 US 111 (1979) 27
In the Matter of the §2703(d) Order relating to Twitter Accounts: 15, 16

wikileaks, rop_g; ioerror; and birgittaj Misc No 10GJ3793 (Eastern District
of Virginia)
Jacobsen v Rochester Communications 410 NW 2d 830 (Minn 1987) 27
Johnson v Stuart 702 F 2d 193 (9th Cir 1983) 4, 4
Katz v United States 389 US 347 (1967) 7, 28
Kent v Dulles 357 US 116 (1957) 21
Laird v Tatum 408 US 1 (1972) 4
Los Angeles v Lyons 461 US 95 (1983) 4
Madsen v Women’s Health Center Inc et al 512 US 753 (1994) 5, 6
McIntyre v Ohio Elections Commission 514 US 334 (1995) 3
Meese v Keene 481 US 465 (1987) 4
Near v Minnesota 283 US 697 (1931) 9, 10
XI
Nebraska Press Association v Stuart 427 US 539 (1976) 14
New York Times Co v Sullivan 376 US 254 (1964) 9, 27
Niemotko v Maryland 340 US 268 (1951) 5
Oliver v United States 466 US 170 (1984) 19, 20
O'Shea v Littleton 414 US 488 (1974) 4, 4
Pearce v State 45 P 3d 679 (Alaska App. 2002) 7
Playboy Enterprises v Frena 839 F Supp 1552 (MD Fla 1993) 2
Renton v Playtime Theatres Inc 475 US 41 (1986) 5
Rotary International v Rotary Club of Duarte 481 US 537 (1987) 6
Shelton v Tucker 364 US 479 (1960) 14
Shuttleworth v Birmingham 394 US 147 (1969) 5
Smith v California 361 US 147 (1959) 2
Smith v Maryland 442 US 735 (1979) 15, 17, 21
Stressman v American Black Hawk Broadcasting Co 416 NW 2d 685 28

(Iowa 1987)
Time Inc v Firestone 424 US 448 (1976) 27
Turner Broadcasting System Inc v FCC 512 US 622 (1994) 5
United States v D‘Andrea 497 F Supp 2d 117 (D Mass 2007) 17
United States v Forrester 512 F 3d 500 (2007) 17, 21
XII
United States v Garcia 474 F 3d 994 (2007) 19, 20
United States v Hambrick 299 F 3d 911 (8th Cir 2002) 16
United States v Kennedy 81 F Supp 2d 1103 (D Kan 2000) 16
United States v Knotts 460 US 276 (1983) 19, 20
United States v Miller 425 US 435 (1976) 15, 16
United States v O’Brien 391 US 367 (1968) 5, 6
United States v Payner 447 US 727 (1980) 15, 16
Viacom International Inc v YouTube Inc 718 F Supp 2d 514 (SDNY 2010) 2
Ward v Rock Against Racism 491 US 781 (1989) 5, 6
Watchtower Bible and Tract Society of New York Inc et al v Village of 5

Stratton 536 US 150 (2002)
Wolston v Reader’s Digest Association Inc 443 US 157 (1979) 27
ENGLISH CASES
Referred to in:
A v B and Anr [2002] EWCA Civ 337 (UK) 27
D v L [2004] EMLR 1 (UK) 28
Douglas v Hello! (No 1) [2001] QB 967 (UK) 28
Douglas v Hello! (No 3) [2005] EWCA Civ 595 (UK) 28
XIII
ETK v News Group Newspapers [2011] EWCA Civ 439 (UK) 29
McKennitt v Ash [2007] 3 WLR 194 (UK) 29
Murray v Express Newspapers [2007] EWHC 1908 (Ch) (UK) 28, 29
R v Broadcasting Standards Commission, ex parte British Broadcasting 28

Corporation (Liberty intervening) [2000] 3 All ER 989 (UK)
R v Loveridge [2001] EWCA Crim 973 (UK) 28
Theakston v Mirror Group Newspapers Ltd. [2002] EWHC 137(QB) (UK) 28, 30
HUNGARIAN CASES
Referred to in:
Decision 60/1994 (XII. 24) AB (Hungary) 27
HUMAN RIGHTS COMMITTEE
Referred to in:
Albert Womah Mukong v Cameroon Communication No 458/1991, UN 8

Doc CCPR/C/51/D/458/1991 (1994) (HRC)
Toonen v Australia Communication No 488/1992, UN Doc 14

CCPR/C/50/D/488/1992 (1994) (HRC)
Zeljko Bodrozic v Serbia and Montenegro Communication No 1180/2003, 27

UN Doc CCPR/C/85/D/1180/2003 (2006) (HRC)
XIV
STATUTES
Referred to in:
Anti-Terrorism, Crime and Security Act 2001 (UK) 18,19
Data Protection Act 1998 (UK) 14,19
Electronic Communications Law (Latvia) 2
Information Privacy Principles under the Privacy Act 1988 (Australia) 18
Information Technology (Guidelines for Cyber Cafe) Final Rules 2011 7

(India)
Information Technology Act 2000 (India) 14, 18, 21, 23
Italian Decree Law on Anti-Terror Measures 2005 (Italy) 7
Italian Personal Data Protection Code 2003 (Italy) 14, 21, 23
Model Code for the Protection of Personal Information (Canada) 19
Processing of Personal Data (Electronic Communications Sector) 4, 7

(Amendment) Regulations 2008 (Malta)
Regulation of Investigatory Powers Act 2000 (UK) 18, 19
Telecommunication Act 2006 (Liechtenstein) 2
Telecommunications Information Privacy Code 2003 (New Zealand) 14, 18, 21
US Code Title 15, s 5409 2
US Code Title 7, s 2140 2
USA PATRIOT Act 2001 (US) 1, 18
XV
REGIONAL AND INTERNATIONAL INSTRUMENTS
Referred to in:
African Charter on Human and Peoples’ Rights (adopted 27 June 1981, 1, 3, 8, 21

entered into force 21 October 1986) (1982) 21 ILM 58
American Convention on Human Rights (adopted 22 November 1969, 1, 3, 8, 9, 23,

entered into force 18 July 1978) 25, 26
Convention on the Rights of the Child (adopted 20 November 1989 UNGA 27

Res 44/25)
European Convention on Human Rights (adopted 4 November 1950, 1, 3, 8, 9, 11,

entered into force 3 September 1953) 12, 16, 23, 24,
26
International Covenant on Civil and Political Rights (adopted 16 December 1, 3, 8, 9, 21,

1966, entered into force 23 March 1976) 999 UNTS 171 23, 25, 26
Universal Declaration of Human Rights (adopted 10 December 1948 1, 8, 11, 16, 21

UNGA Res 217 A(III)
ARTICLES
Referred to in:
A McClurg, ‘Bringing Privacy Law out of the closet: A tort theory of 28

liability for intrusions in public places’ (1995) 73 North Carolina Law Rev
989
Allegra Knopf, ‘Privacy and the Internet: Welcome to the Orwellian 7

World’ (1999-2000) 11 U Fla JL & Pub Pol’y 79
Camrin L Crisci, ‘All the World is Not a Stage: Finding a right to privacy 28
in existing and proposed legislation’ (2002) 6(1) J Leg Pub Policy 230
XVI
Catherine Crump, ‘Data Retention: Privacy, Anonymity and 7
Accountability Online’ (2003) 56 Stanford Law Review 191
Christopher S Yoo, ‘Free Speech and the Myth of the Internet as an 2

Unintermediated Experience’ (2009) Scholarship at Penn Law Paper 697
<http://lsr.nellco.org/upenn_wps/289> accessed 9 November 2011
John Tobin, ‘The United States Public Figure Test: Should it be introduced 27
into Australia?’ (1994) 17 UNSW Law Journal 383
Lilian Edwards and Charlotte Waelde, ‘Online Intermediaries and Liability 2

for Copyright Infringement’ (2005) WIPO Workshop Keynote Paper 19
<http://www.era.lib.ed.ac.uk/bitstream/1842/2305/1/wipo-
onlineintermediaries.pdf> accessed 9 November 2011
M Kim, ‘The Right to Anonymous Association in Cyberspace: US Legal 6

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
Matthew Mazzotta ‘Balancing Act: Finding Consensus on Standards for 3

Unmasking Anonymous Internet Speakers’ (2010) 51 BCL Rev 833
NA Moreham, ‘Privacy in Public Places’ (2006) 65(3) Cambridge Law 28

Journal 606
Noah Levine, ‘Establishing Legal Accountability for Anonymous 2

Communication in Cyberspace’ (1996) 96(6) Columbia Law Review 1526
Sarah Jameson, ‘Cyberharassment: Striking a Balance Between Free 2

Speech and Privacy’ (2008-09) 17 Comm Law Conspectus 231
Seth F Kreimer, ‘Censorship by Proxy: The First Amendment, Internet 1

Intermediaries and the Problem of the Weakest Link’ (2006-07) 155 (11) U
Pa L Rev 11
SJ Edgett, ‘Double-Clicking on Fourth Amendment Protection: Encryption 20

Creates Reasonable Expectation of Privacy’ (2002) 30 Pepp L Rev 339
XVII
Susan M Giles, ‘Public Plaintiffs and Private Facts: Should the “Public 27
Figure” Doctrine be transplanted into Privacy Law?’ (2004-05) 83 Neb
Law Rev 1204
W Wat Hopkins, ‘The Involuntary Public Figure: Not So Dead After All’ 27
(2003) 21 Cardozo Arts and Entertainment Law Journal 1
BOOKS AND TREATISES
Referred to in:
Clare Ovey and Robin CA White, The European Convention on Human 6, 23, 24, 25
Rights (4th edn, OUP 2006)
Sarah Joseph, Jenny Schultz, Melissa Castan and Elizabeth Evatt, The 6, 14, 25
International Covenant on Civil and Political Rights: Cases, Materials and
Commentary (2nd edn, OUP 2005)
CONSTITUTIONS
Referred to in:
Constitution of Brazil 1988 (Brazil) 26
Constitution of India 1950 (India) 11
MISCELLANEOUS
Referred to in:
Brief of Amicus Curiae Center on the Administration of Criminal Law in 20

Support of Petitioner in United States v Antoine Jones No 10-1259 (US)
XVIII
Committee of Ministers Declaration on Freedom of Political Debate in the 27
Media, 12 February 2004 CM/Del/OJ(2004)872E
Council Directive 2002/58/EC of 12 July 2002 concerning the processing 14

of personal data and the protection of privacy in the electronic
communications sector [2002] OJ L201/37
Council Directive 2006/24/EC of 15 March 2006 on the retention of data 4, 7, 14, 18

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
Council Directive 95/46/EC 24 October 1995 on the protection of 14, 17, 18

individuals with regard to the processing of personal data and on the free
movement of such data [1995] OJ L281/31
First Amendment, United States Constitution 1788 21
Giles Tremlett, ‘Pictures of Spanish PM’s daughters get thumbs up from 27

goths’ The Guardian (London, 25 September 2009)
<http://www.guardian.co.uk/world/2009/sep/25/spain-zapatero-daughters-
obama> accessed 20 January 2012
Inter-American Commission on Human Rights, ‘Fourth Report on the 10

Situation of Human Rights in Guatemala’ (1993)
Siracusa Principles on the Limitation and Derogation Provisions in the 11, 13, 14
International Covenant on Civil and Political Rights, UN Doc E/CN
4/1985/4
UNCHR ‘General Comment 10’ in ‘Article 19 (Freedom of Opinion)’ 8

(1983) UN Doc CCPR/C/GC/10
UNCHR ‘General Comment 34’ in ‘Article 19 (Freedom of Opinion and 8

Expression)’ (2011) UN Doc CCPR/C/GC/34
XIX
STATEMENT OF RELEVANT FACTS
POLITICAL SCENARIO IN BEMIDIA
1. The Republic of Bemidia, is populated by two territorially-divided 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 are affluent by focussing on
economic development and commerce. In contrast, the Diryens remain underdeveloped and
envied the Mondahis for their prosperity.
2. The modifications brought to the national taxation system two years ago brought about
redistribution of resources from the more prosperous south to the languishing north.
Dissatisfaction erupted in the form of protests from Mondahis and their leaders, culminating
in discussions about seeking complete independence for the south from Bemidia.
3. These events led to the formation of a militant Mondahi group, called the Mondahi
Liberation Movement (“MLM”). In the months that followed, the MLM carried out a series
of bombings in Arctoun, the capital of Bemidia. Their targets were offices of the Diryen-
based Nationalist Party and crowded public markets that were known to be frequented by
Diryens. These bombings have caused multiple deaths, including that of a Member of the
Parliament.
4. In light of the separatist tendencies and serial bombings, the government mobilized the
military forces and increased public security. Unfortunately, these attempts proved to be
largely ineffective. There were allegations against the government of mistreating Mondahis,
which the government has denied. In order to make its security efforts more effective,
XX
Bemidia’s military secrets law was amended to clarify that location information of military
personnel on duty is protected, and cannot be published.
OPENBEMIDIA AND THE TRACKER FORUMS
5. In the midst of this civil strife, a website called OpenBemidia was created on the
Ushahidi platform. The website requires registration of users to post to Tracker forums which
are designed to collect specific posts on a topic of interest. Such posts, which may include
images as well as text, may be made via SMS, email or the web.
6. Each post in OpenBemidia is tagged with a geographic location by way of GPS tracking
or similar technologies. The time and location information of each post is displayed along
with the post. Users of these forums may ‘follow’ other users or forums, and thereby receive
real time notifications of new posts from those they follow. OpenBemidia gives users an
option to restrict visibility of posts to their followers.
7. One such Tracker forum was Military Tracker started by a user named FreeBemidia.
This Tracker forum gave real time information about the location of the troops that were
deployed to deter attacks and increase security. With the passage of time, Military Tracker
developed into a very good source of information about the real time location of these
military forces. In fact, recently two instances of bombings took place in areas from where
military forces deployed for public security had just exited. This led to a strong suspicion that
the MLM may be using Military Tracker to track the troops and to facilitate bombings.
8. Another forum named in the website is named ‘MLM’ which appears to be empty. The
government suspected that this was used by the members of Mondahi Liberation Movement
who had kept their posts private.
XXI
INTERNET RESPONSIBILITY ACT & DISCLOSURE REQUIREMENTS
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 and/or post to a forum.
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 kept secret for upto 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 has requested OpenBemidia to
obtain and report the identities as well as following information of several users whose names
figure on a secret state watch list – including FreeBemidia and other regular participants on
Military Tracker. Similar requests were made for the MLM forum as well.
FIRST FAMILY PRIVACY ACT
11. The Prime Minister of Bemidia, Vislio Luscon and his family – wife Carla and minor
children Talia and Daria – attract significant media attention. In OpenBemidia, each member
of the First Family, including the Prime Minister himself, has a separate Tracker forum
dedicated to them. These Tracker Forums document their every movement and action. For
instance, Talia Tracker forum had posts like “Talia Has Fish, But No Dessert!” and “Talia
XXII
Going to School”. Further posts contained a photograph of the subject along with a
geolocation tag and details about the subject’s activities at that time.
12. Keeping in mind the security of the First Family, the Bemidian government recently
enacted the First Family Privacy Act (‘FFPA’), which prohibits violation of the privacy of
any member of the First Family – by posting photographs and location information – without
prior written consent. Under the authority of this Act, the Bemidian government has
demanded that OpenBemidia to take down every post in the Carla, Talia and Daria Tracker
forums as they contain prohibited information.
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, the Applicants’ claims have been rejected on merits, and all
domestic legal remedies have been exhausted. Further, OpenBemidia’s standing to bring the
claims in the instant suit is not barred by any law.
XXIII
STATEMENT OF JURISDICTION
OpenBemidia, on its own behalf and on behalf of its users have 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.
The Republic of Bemidia submits to the jurisdiction of this Honourable Court.
XXIV
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 justified under the UDHR?
XXV
SUMMARY OF ARGUMENT
A. The requirement to collect and verify user information is consistent with the
provisions of the UDHR. First, the requirement does not infringe the right to freedom of
expression of the Applicant website as intermediary is the most effective and convenient
form of control. In any event, record-keeping requirements are common and therefore, a
necessary risk. Further, it does not restrict the right to freedom of expression of the users as:
first, Article 19 does not include the right to anonymity; secondly, in the absence of any real
injury there is no chilling effect; and thirdly, there is no prior restraint as speech is merely
regulated and not forbidden. Second, associational rights under Article 20 are not infringed
because the users of OpenBemidia do not enjoy a right to assembly and association under
Article 20 as they lack a common purpose. In any event, a requirement that is designed to
prevent unlawful conduct and only incidentally restricts expressive association is permitted.
Third, the right to privacy under Article 12 is not violated. The users do not possess a
reasonable expectation of privacy after submitting details to the website, as the details are
voluntarily submitted and are already available in the public domain.
In any event, the restriction is permissible under Article 29(2) of the UDHR. It is prescribed
by law under the IRA. The situation in Bemidia shows that the IRA is clearly in pursuit of the
legitimate aims of national security, public order and territorial integrity. The restriction is
necessary in a democratic society as it corresponds to a pressing social need and is
proportionate to the legitimate aims.
B. The requirement to disclose identity, following and historical location information
does not contravene the rights to freedom of expression and association enshrined in Articles
19 and 20 of the UDHR for similar reasons as above. Further, the requirement does not
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contravene the right to privacy guaranteed under Article 12 of the UDHR. The users do not
enjoy a reasonable expectation of privacy in information disclosed to a third party. The
requirement to disclose the list of users in the MLM forum does not infringe their right to
privacy of correspondence, as transactional non-content records are not protected. Finally, the
right to remedy enshrined in Article 8 of the UDHR is not infringed because in cases
involving issues of national security or public order, no notification regarding disclosure of
information is necessary.
In any event, these measures are valid limitations under Article 29(2) of the UDHR. They
satisfy three-tiered test of legality, legitimacy and necessity.
C. The requirement to report location information about users of the MLM forum in
real time is consonant with the UDHR. First, it does not contravene the right to privacy
enshrined in Article 12 as there is no reasonable expectation of privacy in information
accessible by others. Real-time location tracking is a technological substitute for human
observation. Moreover, the act of choosing a ‘private’ setting does not create a reasonable
expectation of privacy. Second, the right to freedom of movement guaranteed under Article
13 is not violated as the chilling effect doctrine is exclusive to First Amendment rights. In any
event, there is no scope for self-censorship as the users are not aware that their real-time
location is being tracked. The requirement also does not contravene the right to remedy
enshrined in Article 8 as a notification regarding disclosure of information is not necessary
where sensitive issues of national security or public order are involved.
In any event, these measures are valid limitations under Article 29(2) of the UDHR. They
satisfy three-tiered test of legality, legitimacy and necessity. In any event, Bemidia may
invoke its right of derogation to justify such contraventions made by requirements under the
XXVII
IRA, as the conditions of public emergency, necessity, and consistency with other
international obligations are satisfied.
D. The requirement to delete the contents of the Carla Tracker, Talia Tracker and Daria
Tracker Forums is a valid restriction on the right to freedom of speech and expression
enshrined in Article 19 as it complies with the three-tiered test under Article 29(2). The
restriction is prescribed by law as it is made under the authority of the FFPA. It is pursuant to
the legitimate aim of protection of rights of others, as the First Family possesses a reasonable
expectation of privacy in the published contents. Further, the restriction is necessary in a
democratic society, as the publication does not contribute to a debate of general interest.
XXVIII
ARGUMENTS
A. THE REQUIREMENT TO COLLECT AND VERIFY USER INFORMATION IS CONSISTENT
WITH THE PROVISIONS OF THE UDHR
1. The IRA requires websites to collect and verify user information.1 Respondent submits
that this requirement is consistent with the rights to freedom of speech and expression under
Article 19 [I]; peaceful assembly and association under Article 20 [II]; and privacy under
Article 12 of the UDHR [III]. In any event, the restriction is valid under Article 29(2) of the
UDHR [IV].
I. The requirement is not a restriction on Article 19, UDHR
2. Article 19 guarantees “the right to freedom of opinion and expression … without
interference…through any media”.2 Respondent submits that the impugned requirement does
not restrict the right to freedom of expression of OpenBemidia [a] or its users [b].
a. The requirement does not restrict the freedom of expression of OpenBemidia
3. While Applicants may contend that the requirement of collection and verification of user
evidence places an onerous burden, Respondent submits that the intermediary is the most
convenient and effective point of control in light of the anonymous nature of the Internet.3
1
¶14, The Case.
2
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19.
See also International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23
March 1976) 999 UNTS 171 (ICCPR) art 19; African Charter on Human and Peoples’ Rights (adopted 27 June
1981, entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9; American Convention on Human
Rights (adopted 22 November 1969, entered into force 18 July 1978) (ACHR) art 13; European Convention on
Human Rights (adopted 4 November 1950, entered into force 3 September 1953) (ECHR) art 10.
3
USA PATRIOT Act 2001 (US); 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 11, 17.
Indeed, in Viacom,4 the Court held that the responsibility lay on the party which was better
equipped to identify the infringement. Additionally, Coase’s least cost avoider principle
transfers the burden to reduce on the party which can do so at the lowest cost.5 Here,
OpenBemidia, being an intermediary, is in a better position to collect and verify the user
information. Further, the alternative would require the government to trace the electronic
communication itself. This is likely to necessitate significant modifications of methods of
surveillance and investigation in law enforcement.6
4. In any event, the requirement of record-keeping is less onerous than imposition of strict
liability on the website.7 Indeed, legislative practice supports mandatory retention of
records.8 This suggests that its implementation will not give rise to such costs which may
drive Internet intermediaries out of business.9 Therefore, the impugned requirement ought to
be accepted as a necessary legal risk and a part of the operating costs.
4
Viacom International Inc. v YouTube, Inc. 718 F Supp 2d 514 (SDNY 2010).
5
Stephen G Gilles, ‘Negligence, Strict Liability and the Cheapest Cost-Avoider’ (1992) 78 Va L Rev 1291,
1306.
6
Sarah Jameson, ‘Cyberharassment: Striking a Balance Between Free Speech and Privacy’ (2008-09) 17 Comm
Law Conspectus 231, 249.
7
Playboy Enterprises v Frena 839 F Supp 1552 (US 1993); Smith v California 361 US 147 (1959); Noah
Levine, ‘Establishing Legal Accountability for Anonymous Communication in Cyberspace’ (1996) 96(6)
Columbia Law Review 1526, 1572.
8
US Code Title 7, s 2140; US Code Title 15, s 5409; Telecommunication Act 2006 (Liechtenstein); Electronic
Communications Law (Latvia); Noah Levine, ‘Establishing Legal Accountability for Anonymous
Communication in Cyberspace’ (1996) 96(6) Columbia Law Review 1526, 1561.
9
Christopher S Yoo, ‘Free Speech and the Myth of the Internet as an Unintermediated Experience’ (2009)
Scholarship at Penn Law Paper 697, 724 <http://lsr.nellco.org/upenn_wps/289> accessed 9 November 2011;
Lilian Edwards and Charlotte Waelde, ‘Online Intermediaries and Liability for Copyright Infringement’ (2005)
WIPO Workshop Keynote Paper 19 <http://www.era.lib.ed.ac.uk/bitstream/1842/2305/1/wipo-
onlineintermediaries.pdf> accessed 9 November 2011.
2
b. The requirement does not infringe the freedom of expression of the users
5. Respondent submits that the impugned requirement does not infringe the right to
freedom of expression of users as: first, Article 19 does not include the right to anonymity [i];
secondly, it does not cause a chilling effect [ii]; and finally, the requirement does not
constitute prior restraint [iii].
i. Article 19 does not include the right to anonymity
6. The right to anonymous free speech is not recognised under UDHR and other
international human rights instruments.10 Although such a right is recognised in the United
States,11 it is not considered absolute. Indeed, in Buckley,12 the Court upheld the validity of
certain legislations which sought to disclose campaign finance details in ‘informational
interest’.13 Further, anonymity has been the subject of severe criticism as it ‘facilitates wrong
by eliminating accountability’.14 In the context of the Internet, it may be used as a shield for
unlawful purposes.15
7. Legislative practice is in support, as laws which regulate the internet and its users by
compromising on anonymity have been enacted in several jurisdictions. For instance, the EU
10
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (ICCPR) art 19; African Charter on Human and Peoples’ Rights (adopted 27 June 1981,
entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9; American Convention on Human Rights
(adopted 22 November 1969, entered into force 18 July 1978) (ACHR) art 13; European Convention on Human
Rights (adopted 4 November 1950, entered into force 3 September 1953) (ECHR) art 10.
11
McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J).
12
Buckley v Valeo 424 US 1 (1976).
13
Buckley v Valeo 424 US 1 (1976).
14
McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J).
15
KU v Finland App no 2872/02 (ECtHR 2 March 2009); Matthew Mazzotta, Balancing Act: Finding
Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833, 840.
3
Data Retention Directive16 and subsequent legislations17 impose an obligation on ISPs to
retain data that is necessary to identify the subscriber or user. In India, similar requirements
of collection and verification of user identities have been imposed on cybercafés.18
ii. The impugned requirement does not cause a ‘Chilling effect’
8. The existence of a chilling effect requires a distinct and palpable injury,19 and not merely
a hypothetical one.20 In fact, in Laird,21 the Court rejected the possibility of a chilling effect
‘merely from the individual’s concomitant fears that, armed with the fruits of those activities,
the agency might in the future take some other and additional action detrimental to that
individual’.22 Here, no evidence of real injury is available. Consequently, mere apprehension
that the information collected by the website may be used against the users in future does not
constitute a chilling effect.23
iii. The impugned requirement does not constitute a prior restraint
9. Respondent observes that the impugned requirement is not a prior restraint which
‘forbids[s] certain communications when issued in advance of the time that such
16
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.
17
Processing of Personal Data (Electronic Communications Sector) (Amendment) Regulations 2008 (Malta).
18
Information Technology (Guidelines for Cybercafe) Rules 2011 (India).
19
O'Shea v Littleton 414 US 488 (1974); Johnson v Stuart 702 F 2d 193 (9th Cir 1983); Meese v Keene 481 US
465 (1987).
20
O'Shea v Littleton 414 US 488 (1974); Los Angeles v Lyons 461 US 95 (1983); Johnson v Stuart 702 F 2d 193
(9th Cir 1983).
21
Laird v Tatum 408 US 1 (1972).
22
Laird v Tatum 408 US 1 (1972) (emphasis added).
23
Laird v Tatum 408 US 1 (1972); Meese v Keene 481 US 465 (1987).
4
communications are to occur’.24 Indeed, a requirement constitutes a prior restraint if the right
to free speech is entirely blocked.25 Here, the impugned requirement does not forbid, but
rather regulates free speech.26 Pertinently, users are not prohibited from posting on the
website, but only required to disclose their identity and contact information.
10. Further, Respondent points out that the requirement is merely a content neutral
regulatory measure 27 as it applies to all users. It does not discriminate vis-à-vis the content of
the posts. Similar content neutral requirements prior to actual expression have been upheld in
several cases.28 Consequently, the standard of intermediate scrutiny ought to be applied,29
instead of strict scrutiny which is applicable to prior restraints. As per this standard, a
content-neutral regulation is lawful if it furthers a substantial governmental interest.30 In this
case, the IRA pursues aims of national security,31 public order32 and territorial integrity.33
Besides, any determination as to the legality of a restriction must inform itself of other
channels of communication.34 Moreover, the restriction should be incidental, and not of an
24
Alexander v US 509 US 544 (1993) (emphasis added).
25
Niemotko v Maryland 340 US 268 (1951); Shuttleworth v Birmingham 394 US 147 (1969); Frisby v Schultz
487 US 474 (1988); Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998); Gaweda v Poland
App no 26229/95 (ECtHR, 14 March 2002).
26
Acrara v Cloud Books Inc 478 US 697 (1986); Alexander v US 509 US 544 (1993).
27
United States v O'Brien 391 US 367 (1968); Renton v Playtime Theatres Inc 475 US 41 (1986).
28
Freedman v Maryland 380 US 51 (1965); Madsen v Women’s Health Center Inc et al 512 US 753 (1994).
29
United States v O'Brien 391 US 367 (1968); Turner Broadcasting System Inc v FCC 512 US 622 (1994);
Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002).
30
United States v O'Brien 391 US 367 (1968).
31
¶19-22, Memorial for the Respondent.
32
33
¶25, Memorial for the Respondent.
34
Clark v Community for Creative Non-Violence 468 US 288 (1984); Ward v Rock Against Racism 491 US 781
(1989).
5
excessive degree.35 Users of OpenBemidia are not precluded from using alternative avenues
to disseminate information. Further, the restriction is incidental as it does not prescribe a
direct ban on speech, but only a requirement to identify oneself prior to it. Respondent
submits that the impugned requirement satisfies the aforesaid conditions.
II. The requirement does not restrict Article 20, UDHR
11. Respondent submits that the users on OpenBemidia do not constitute an association. The
right to association is not a ‘generalised right of “social association” that includes chance
encounters’.36 Users on OpenBemidia do not enjoy associational rights as they are contacts
by virtue of chance encounters of joining the website. Specifically, they are not bound by any
common thread of purpose or affiliation, a sine qua non under Article 20.37 Whilst Applicants
may contend that users of individual forums constitute associations, it is submitted that the
absence of access control and a determinate decision-making body negates such a claim.38
12. In any event, mandatory disclosure requirements designed to prevent unlawful conduct
have been upheld, even though they incidentally regulate the freedom of speech.39 Further,
35
United States v O'Brien 391 US 367 (1968); Ward v Rock Against Racism 491 US 781 (1989); Madsen v
Women’s Health Center Inc et al 512 US 753 (1994); Bartnicki v Vopper 532 US 514 (2001).
36
City of Dallas v Staglin 490 US 19 (1989); Rotary International v Rotary Club of Duarte 481 US 537 (1987).
37
Sarah Joseph, Jenny Schultz, Melissa Castan and Elizabeth Evatt, The International Covenant on Civil and
Political Rights: Cases, Materials and Commentary (2nd edn, OUP 2005) 568; Young, James and Webster v
United Kingdom (1981) 4 EHRR 38; Association X v Sweden App no 6094/73 (ECtHR, 6 July 1977).
38
Clare Ovey and Robin CA White, The European Convention on Human Rights (4th edn, OUP 2006) 337.
39
American Communications Association v Douds 339 US 382 (1950); Bryant v Zimmerman 278 US 63 (1928);
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.
6
the users do not enjoy a right to anonymity.40 Therefore, the requirement does not contravene
Article 20.
III. The requirement does not infringe Article 12, UDHR
13. The right to privacy exists when there is an actual subjective expectation of privacy
which is objectively reasonable.41 Accordingly, a reasonable expectation of privacy is absent
in information which has been voluntarily disclosed, as any subjective expectation is
negated.42 In this case, the users submit information to OpenBemidia voluntarily as they
choose to use the website.
14. Furthermore, reasonable expectation of privacy does not extend to information which is
already in the public domain.43 The name and contact information are details generally
available in public records. In fact, disclosure of email address was already required to join
OpenBemidia before the enactment of IRA.44 Moreover, similar mandatory data retention
legislations have been implemented in several states for aiding criminal investigation.45
40
¶¶6-7, Memorial for the Respondent.
41
Katz v United States 389 US 347 (1967).
42
Allegra Knopf, ‘Privacy and the Internet: Welcome to the Orwellian World’ (1999-2000) 11 U Fla J L & Pub
Pol’y 79, 82; Catherine Crump, ‘Data Retention: Privacy, Anonymity and Accountability Online’ (2003) 56
Stanford Law Review 191.
43
Katz v United States 389 US 347 (1967); Pearce v State 45 P 3d 679 (Alaska App. 2002).
44
¶10, The Case.
45
communications networks and amending Directive 2002/58/EC [2006] OJ L105/54; Italian Decree Law on
Anti-Terror Measures 2005 (Italy); Processing of Personal Data (Electronic Communications Sector)
(Amendment) Regulations 2008 (Malta); Information Technology (Guidelines for Cybercafe) Final Rules 2011
(India).
7
IV. In any event, the restriction is permissible under Article 29(2), UDHR
15. Respondent submits that the rights guaranteed under Articles 12, 19 and 20 are not
absolute,46 and may be subject to restrictions.47 The three-tiered test to determine legality
under Article 29(2)48 is met in this case as first, the restriction is prescribed by law [a];
secondly, it pursues a legitimate aim [b]; and finally, the restriction is necessary in a
democratic society [c].
a. The restriction is prescribed by law
16. A restriction is prescribed by law if it has a basis in domestic law,49 and is accessible,
foreseeable and precise.50 A law is accessible if it gives the citizens an adequate indication of
46
Worm v Austria (1997) 25 EHRR 454.
47
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art
29(2); International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23
March 1976) 999 UNTS 171 (ICCPR) art 19(3); African Charter on Human and Peoples’ Rights (adopted 27
June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9; American Convention on
Human Rights (adopted 22 November 1969, entered into force 18 July 1978) (ACHR) art 11; Convention for
the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as
amended) (ECHR) art 10(2); 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; Chaplinsky v New Hampshire 315 US 567 (1941).
48
29(2); International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23
March 1976) 999 UNTS 171 (ICCPR) art 19; European Convention on Human Rights (adopted 4 November
1950, entered into force 3 September 1953) (ECHR) art 10(2); UNCHR ‘General Comment 34’ in ‘Article 19
(Freedom of Opinion and Expression)’ (2011) UN Doc CCPR/C/GC/34; UNCHR ‘General Comment 10’ in
‘Article 19 (Freedom of Opinion)’ (1983) UN Doc CCPR/C/GC/10; The Sunday Times v United Kingdom App
no 13166/87 (ECtHR, 26 November 1991); Albert Womah Mukong v Cameroon Communication No 458/1991,
UN Doc CCPR/C/51/D/458/1991 (1994) (HRC); Surek v Turkey App no 24122/94 (ECtHR, 8 July 1999);
Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR, 2 July 2004).
49
Hinczewski v Poland App no 34907/05 (ECtHR, 5 October 2010).
50
Silver and Others v United Kingdom (1983) Series A no 61; The Sunday Times v United Kingdom App no
13166/87 (ECtHR, 26 November 1991); Rekvényi v Hungary App no 25390/94 (ECtHR, 20 May 1999);
Gaweda v Poland App no 26229/95 (ECtHR, 14 March 2002).
8
the legal rules applicable to a given case.51 It is foreseeable if it is precise enough to enable
citizens to regulate their conduct52 and predict the consequences of non-compliance.53
Further, it must not vest arbitrary powers for interference with the executive.54
17. In this case, the restriction possesses a basis in domestic law as it is imposed by the
IRA.55 The restriction is clearly accessible and foreseeable. Indeed, the precise acts which
constitute the ‘use’ of a website, and the consequences of non-compliance are expressly
prescribed.56 Moreover, it is not arbitrary as the authorities are not vested with any scope of
discretion in mandating collection of user information.
b. The restriction is in pursuance of legitimate aims
18. The impugned restriction pursues the legitimate aims of national security [i], public
order [ii], and territorial integrity [iii].
i. The restriction is in the interest of national security
19. National security considerations justify imposition of restrictions on free speech,57
including prior restraints.58 A threat to national security requires the existence of imminent
51
The Sunday Times v United Kingdom App no 13166/87 (ECtHR, 26 November 1991).
52
The Sunday Times v United Kingdom App no 13166/87 (ECtHR, 26 November 1991); Rekvényi v Hungary
App no 25390/94 (ECtHR, 20 May 1999).
53
Kruslin v France (1990) Series A no 176 A; Huvig v France (1990) Series A no 176 B.
54
Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998).
55
¶14, The Case.
56
¶14, The Case.
57
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (ICCPR) art 19(3)(b); American Convention on Human Rights (adopted 22 November
1969, entered into force 18 July 1978) (ACHR) art 13(2)(b); European Convention on Human Rights (adopted 4
November 1950, entered into force 3 September 1953) (ECHR) art 10(2); Near v Minnesota 283 US 697 (1931);
The Observer and The Guardian v United Kingdom (1991) Series A no 216.
9
dangers threatening the free democratic constitutional order and the security of the armed
forces.59 In this case, posts on OpenBemidia regularly provide real-time information about
location of security forces.60
20. Furthermore, national security constitutes a legitimate aim to restrict the expression of
sensitive details pertaining to military matters.61 Indeed, in Near,62 the US Supreme Court
held that ‘no one would question ... [the restriction on] … the publication of the sailing dates
of transports or the number and location of troops’.
21. Moreover, the expressions ought to be assessed with respect to their content and
context.63 This approach has been upheld in cases of separatist movements, similar to this
case.64 Case in fact, the separatist movement in Bemidia65 has fuelled serial bombings,66
resulting in the killing of several individuals.67 Further, the threat to the existence of the
nation is evident from the attacks on power centres by separatist organizations.68 In this
context, the government ought to be alert to expressions capable of inciting greater
58
Near v Minnesota 283 US 697 (1931); New York Times Co v United States 403 US 713 (1971).
59
Klass v Germany (1978) 2 EHRR 214.
60
¶12, The Case.
61
Near v Minnesota 283 US 697 (1931); Inter-American Commission on Human Rights, ‘Fourth Report on the
Situation of Human Rights in Guatemala’ (1993).
62
Near v Minnesota 283 US 697 (1931).
63
Zana v Turkey (1997) 27 EHRR 667.
64
Zana v Turkey (1997) 27 EHRR 667; Ceylan v Turkey App no 23556/94 (ECtHR, 8 July 1999).
65
¶6, The Case.
66
¶6, The Case.
67
¶6, The Case.
68
¶6, The Case.
10
violence.69 The popular Military Tracker forum on OpenBemidia comprises sensitive posts
containing location of the military.70 Such content has the ability to further violence, and thus
fulfils the threshold of national security.
22. Applicants may rely on the absence of direct proof relating posts on OpenBemidia to the
attacks.71 However, Respondent submits that it would not be prudent to wait for conclusive
proof in matters concerning national security. In fact, in Holder,72 the US Supreme Court
observed that insistence on specific facts and evidence to conclusively establish the link
‘would be a dangerous requirement’ when the government seeks to prevent imminent harms.
Therefore, national security may be invoked as a legitimate aim.
ii. The restriction is in the interest of public order
23. Public order is a legitimate aim for restricting the rights guaranteed under Articles 19
and 20.73 Broadly, it includes the ‘sum of rules which ensure the functioning of society or the
set of fundamental principles on which society is founded’.74 In this case, information
exchanged on OpenBemidia comprised sensitive information about military location.75
69
70
¶12, The Case.
71
¶12, The Case.
72
Holder v Humanitarian Law Project 561 US ___ (2010).
73
29(2); American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978)
(ACHR) art 13(2)(b); European Convention on Human Rights (adopted 4 November 1950, entered into force 3
September 1953) (ECHR) art 10(2); Constitution of India 1950 (India) art 19(2).
74
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)(iii)(22).
75
¶12, The Case.
11
Further, it included allegations against the military76 at a time when the ethnic tensions were
running high and creating separatist movements.77 Clearly, exchange of such information and
views on a public forum has the potential to endanger public order and safety. In fact, the
failed attempts to prevent bombings, despite acting on credible intelligence information, cast
reasonable suspicion on the posts in Military Tracker forum. In addition, the reporting
posting of military location by several users on OpenBemidia constituted a crime under the
military secrets law.78 In similar unstable conditions, public order has been upheld as a
legitimate aim to restrict speech capable of fuelling additional violence.79 Accordingly, the
collection of user information is necessary to identify the anonymous offenders and restore
public order.
iii. The restriction maintains territorial integrity
24. A threat to territorial integrity80 exists when a demand for secession is accompanied with
use of violence,81 or threat of armed conflict.82 This aim has been previously invoked when
demands for separate nations by minorities have threatened national security.83 In Bemidia,
the secessionist tendencies of territorially-divided ethnic groups84 have resulted in grave
76
¶11, The Case.
77
¶11, The Case.
78
¶13, The Case.
79
Surek v Turkey App no 26682/95 (ECtHR, 8 July 1999).
80
European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953)
(ECHR) art 10(2).
81
Okcuoglu v Turkey App no 24246/94 (ECtHR, 8 July 1999).
82
Gerger v Turkey App no 24919/94 (ECtHR, 8 July 1999); Ollinger v Austria App no 76900/0 (ECtHR, 29
June 2006); Karatas v Turkey App no 23168/94 (ECtHR, 17 June 2008).
83
Socialist Party of Turkey and Others v Turkey App no 26482/95 (ECtHR, 12 November 2003).
84
¶2, The Case.
12
violence.85 Further, the targeted violence in areas occupied by Diryens creates a threat to
national unity, and increases the likelihood of division of state territory.86
c. The restriction is necessary in a democratic society
25. Respondent submits that the restriction is necessary in a democratic society: first, there
exists a pressing social need; and secondly, the measure is not proportionate to the legitimate
aim.87
26. First, there exists a pressing social need for the impugned restriction. Here, the Court’s
analysis must inform itself of whether the reasons adduced by the State are sufficient to
justify the infringement. Notably, the state possesses a wide margin of appreciation in
determining threats of public interests and developing an adequate response.88 Indeed, this
margin also extends to the rules prescribed to achieve a balance between the competing
interests and human rights.89 In view of the severe violence and ethnic tension in Bemidia,
the measure corresponds to a pressing social need of preventing further attacks.
85
¶6, The Case.
86
Socialist Party of Turkey and Others v Turkey App no 26482/95 (ECtHR, 12 November 2003).
87
Handyside v United Kingdom (1986) Series A no 24; The Observer and The Guardian v United Kingdom
(1991) Series A no 216; The Sunday Times v United Kingdom App no 13166/87 (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 I(A)(10)(b) and (d).
87
88
Handyside v United Kingdom (1986) Series A no 24; Leander v Sweden (1987) 9 EHRR 433; Zana v Turkey
(1997) 27 EHRR 667.
89
Evans v United Kingdom (2006) 43 EHRR 21; SH and Others v Austria App no 57813/00 (ECtHR, 1 April
2010).
13
27. Secondly, the restriction is proportionate to the aims.90 The test of proportionality or
reasonableness91 is satisfied when the least onerous restriction is imposed.92 The impugned
requirement satisfies this standard as it does not impose a blanket restriction, but only a
condition to submit name and contact details. In fact, similar mandatory data retention
policies have been implemented by States.93 Further, these aims are recognised as exceptions
to the general rules of data protection, such as specification of purpose and time period.94
Indeed, in K.U. v. Finland,95 the ECtHR approved the collection of information relating to
one’s identity for the purpose of prevention of crime.
90
Handyside v United Kingdom (1986) Series A no 24; 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(A)(10)(d).
91
Toonen v Australia Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994) (HRC); Sarah
Joseph, Jenny Schultz, Melissa Castan and Elizabeth Evatt, The International Covenant on Civil and Political
Rights: Cases, Materials and Commentary (2nd edn, OUP 2005) 483.
92
Shelton v Tucker 364 US 479 (1960); Nebraska Press Association v Stuart 427 US 539 (1976); 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).
93
communications networks and amending Directive 2002/58/EC [2006] OJ L105/54; Information Technology
Act 2000 (India) s 69B; Italian Personal Data Protection Code 2003 (Italy) art 132; Telecommunications
Information Privacy Code 2003 (New Zealand); Information Technology (Guidelines for Cybercafe) Rules 2011
(India).
94
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; 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; Data
Protection Act 1998 (UK).
95
KU v Finland (2009) 48 EHRR 52.
14
B. THE REQUIREMENT TO DISCLOSE THE IDENTITY, FOLLOWING AND HISTORICAL
LOCATION INFORMATION IS CONSISTENT WITH THE PROVISIONS OF UDHR
28. Under the authority of IRA, the Government has mandated OpenBemidia to disclose
identity, following and historical location information of certain users. The Respondent
requests this Court to find that this requirement does not restrict the rights enshrined in
Articles 19 and 20 [I]. Further, it does not violate the rights to privacy under Article 12 [II];
and remedy under Article 8 [III]. In any event, the restriction is permissible under Article
29(2) [IV].
I. The requirement is not a restriction on Articles 19 and 20, UDHR
29. Respondent contends that the requirement to disclose identity, following and historical
location information of users does not create a chilling effect as the users have not suffered a
real injury.96 Further, the users do not possess a right to anonymity.97 Moreover, users of the
Tracker forums do not constitute an association, as the necessary conditions are not
satisfied.98 In any case, membership of such association may be disclosed.
II. The requirement is not a restriction on Article 12, UDHR
30. A reasonable expectation of privacy does not exist in information which is voluntarily
disclosed to a third party.99 In such cases, an individual undertakes the risk of subsequent
96
97
98
99
Couch v United States 409 US 322 (1973); United States v Miller 425 US 435 (1976); Smith v Maryland 442
US 735 (1979); United States v Payner 447 US 727 (1980); 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).
15
disclosure.100 Indeed, in Hambrick,101 the Court affirmed the application of the third party
doctrine to the disclosure of subscriber information which identified an anonymous screen
name. Here, the impugned requirement concerns disclosure of personal information which
has been voluntarily submitted by the user to OpenBemidia, in light of the user agreement.102
In fact, the location information of every post was already publicly displayed.103
31. Whilst Applicants may contend that the disclosure of following and historical location
information by the users to OpenBemidia was not voluntary in itself, Respondent submits that
the information was voluntarily disclosed by the users while exercising the choice of using
OpenBemidia. In similar circumstances, the US Supreme Court in Smith104 noted the absence
of a reasonable expectation of privacy in dialled telephone numbers, as users
‘“exposed” that information to its equipment in the ordinary course of business’.105
32. Moreover, Respondent suggests that the requirement to disclose the identity of users on
the MLM forum does not restrict their right to privacy of correspondence.106 While it may be
argued that the identities of these users are analogous to email addresses, the right to privacy
in correspondence does not extend to non-content transactional information which is
100
United States v Miller 425 US 435 (1976); United States v Payner 447 US 727 (1980); United States v
Kennedy 81 F Supp 2d 1103, 1110 (D Kan 2000).
101
United States v Hambrick 299 F 3d 911 (8th Cir 2002).
102
Clarification #19.
103
¶9, The Case.
104
Smith v Maryland 442 US 735 (1979). See also Couch v United States 409 US 322 (1973); 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).
105
Smith v Maryland 442 US 735 (1979) (emphasis added).
106
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 12;
(ECHR) art 8.
16
accessible by third-party service providers.107 In fact, the decision in Forrester108 expressly
supports this reading by holding that ‘email addresses are not passively conveyed ... but
rather are voluntarily turned over to direct the third party’s servers’.
III. The requirement does not violate Article 8, UDHR
33. Applicants may contend that the gag order mandating maintenance of secrecy violates
Article 8. However, notifications regarding disclosure of information are not necessary in
cases involving issues of national security or public order.109 Moreover, the IRA does not
prohibit notification, but merely suspends it for a period upto 180 days.110
34. The restriction satisfies the three-tiered test of legality, legitimacy and necessity. First,
the restriction is prescribed by law.111 It is foreseeable as it prescribes the precise categories
of information to be disclosed.112 Further, Respondent submits that the IRA need not specify
circumstances in which information disclosure may be required, when enacted in the interest
107
Smith v Maryland 442 US 735 (1979); United States v Forrester 512 F 3d 500 (2007); United States v
D‘Andrea 497 F Supp 2d 117, 120 (D. Mass 2007).
108
United States v Forrester 512 F 3d 500 (9th Cir 2007) (emphasis added).
109
Council Directive 95/46/EC 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; Klass v Germany (1978) 2 EHRR
214; Leander v Sweden (1987) 9 EHRR 433.
110
¶14, The Case.
111
112
¶14, The Case.
17
of national security and public order.113 Indeed, legislative practice across jurisdictions
supports this exception.114
35. Moreover, the degree of precision in laying down the ambit of discretion conferred on a
public authority is contingent on the subject matter.115 The scope of discretion may be
inferred from the policy and purpose of the IRA.116. Accordingly, guidance may be taken not
only from the ‘express provisions of an Act but also its necessary implications’.117 In this
case, the object of criminal investigation circumscribes the executive discretion allowed by
the IRA in seeking disclosure of user information.
36. Secondly, the legitimate aims of public order, national security and territorial integrity
are clear from the object of the enactment.118 Finally, the restriction is necessary in a
democratic society.119 The restriction corresponds to a pressing social need,120 as it is
necessary for apprehending the anonymous offenders. These aims provide for the relaxation
of strict data protection regimes universally.121 The requirement to disclose is only with
113
Kruslin v France (1990) Series A no 176 A; Huvig v France (1990) Series A no 176 B.
114
Information Technology Act 2000 (India) s 69B; Regulation of Investigatory Powers Act 2000 (UK); Anti-
Terrorism, Crime and Security Act 2001 (UK); USA PATRIOT Act 2001 (US); Telecommunications
Information Privacy Code 2003 (New Zealand).
115
Herczegfalvy v Austria (1993) 15 EHRR 437; Chorherr v Austria (1994) 17 EHRR 358.
116
Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984).
117
Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984).
118
119
120
121
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
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; Information Technology Act 2000 (India); Information Privacy
Principles under the Privacy Act 1988, prin 11 (Australia); Model Code for the Protection of Personal
18
respect to a few users. Further, the details sought are limited to those necessary for criminal
investigation, such as non-content transactional information. Therefore, the restriction is
proportionate.
C. THE REQUIREMENT TO DISCLOSE REAL-TIME LOCATION INFORMATION IS CONSISTENT
WITH PROVISIONS OF UDHR
37. Pursuant to the existence of an ostensibly empty forum named ‘MLM’ on OpenBemidia,
the Government has mandated the website to report the real-time location information of
users of that forum. Respondent submits that this requirement does not restrict the rights to
privacy under Article 12 [I]; freedom of movement under Article 13 [II]; and remedy under
Article 8 [III]. In any event, the restriction is permissible under Article 29(2) [IV]. In any
event, the State of Bemidia may invoke its right of derogation [V].
I. The requirement is not a restriction on Article 12, UDHR
38. A reasonable expectation of privacy does not exist in information accessible by others.122
As noted in Knotts123 by the US Supreme Court, ‘a person travelling in an automobile on
public thoroughfares has no reasonable expectation of privacy in his movements’. Similarly,
here, real-time location tracking is analogous to human observation, which does not infringe
the reasonable expectations of privacy of the subject.124 Indeed, the method of obtaining
Information, prin 3 (Canada); Data Protection Act 1998 (UK) s 28; Regulation of Investigatory Powers Act
2000 (UK); Anti-Terrorism, Crime and Security Act 2001 (UK).
122
Oliver v United States 466 US 170 (1984); California v Ciraolo 476 US 207 (1986); Florida v Riley 488 US
445 (1989).
123
United States v Knotts 460 US 276 (1983) (emphasis added).
124
United States v Garcia 474 F 3d 994 (2007).
19
information is not determinative if it could be procured using legal means.125 Further, such
disclosure does not reveal any information about the individual’s activities in his private
space, which cannot otherwise be observed.126
39. Applicants may argue that norms applicable to visual surveillance cannot be utilized in
cases of real-time location tracking. However, Respondent contends that the former is a mere
technological substitute for the same activity.127 The enhancement of sensory facilities using
GPS, for the purpose of efficient investigation, does not infringe reasonable expectations of
privacy.128 In fact, the ECtHR has observed that GPS tracking is less intrusive than visual and
acoustical surveillance.129
40. Moreover, Respondent denies that the act of choosing a ‘private’ setting for posts
protects location information under Article 12. In Copenhefer,130 the Court reasoned that a
mere hope of secrecy does not give rise to a reasonable expectation of privacy.131 Although
the choice of ‘private’ posting was exercised, the location data was nonetheless exposed to
OpenBemidia, a third party. Consequently, the users did not possess a reasonable expectation
125
Oliver v United States 466 US 170 (1984).
126
United States v Knotts 460 US 276 (1983).
127
United States v Garcia 474 F 3d 994 (2007).
128
United States v Knotts 460 US 276 (1983); Brief of Amicus Curiae Center on the Administration of Criminal
Law in Support of Petitioner in United States v Antoine Jones No 10-1259 (US).
129
Uzun v Germany App no 35623/05 (ECtHR, 2 September 2010).
130
Commonwealth v Copenhefer 526 Pa 555, 587 A 2d 1353 (Penn 1991).
131
SJ Edgett, ‘Double-Clicking on Fourth Amendment Protection: Encryption Creates Reasonable Expectation
of Privacy’ (2002) 30 Pepp L Rev 339, 360.
20
of privacy in that transaction data.132 In fact, this is evidenced by the lack of an absolute right
to privacy in location data across regimes.133
II. The requirement is not a restriction on Article 13, UDHR
41. Respondent denies that the requirement to disclose real-time location information
restricts the right to freedom of movement of the users.134 Applicants may rely on the chilling
effect doctrine. However, it has no application in the present case, on three grounds. First, the
concept of chilling effect is exclusive to First Amendment rights.135 Secondly, freedom of
movement has traditionally been invoked in cases which involved a direct restriction on the
individual’s physical movement, such as unwarranted detention136 and denial of passport.137
Thus, the application of the chilling effect doctrine to Article 13 has not been recognised in
international human rights jurisprudence. In any event, the users of the MLM forum are
unaware of the real-time location tracking of their posts, negating any subjective or objective
perception of restriction.138 Consequently, there is no scope for self-censorship to inhibit their
movement through a chilling effect.
132
Smith v Maryland 442 US 735 (1979); United States v Forrester 512 F 3d 500 (2007).
133
Telecommunications Information Privacy Code 2003 (New Zealand); Information Technology Act 2000
(India) s 69B; Italian Personal Data Protection Code 2003 (Italy) art 132.
134
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 13;
See also 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.
135
First Amendment, United States Constitution 1788.
136
Ex parte Endo 323 US 283 (1944); Labita v Italy App no 26772/95 (ECtHR, 6 April 2000).
137
Kent v Dulles 357 US 116 (1957); Aptheker v Secretary of State 378 US 500 (1964).
138
¶14, The Case.
21
III. The Requirement is Consistent with Article 8, UDHR
42. Respondent submits that the gag order accompanying the impugned requirement does
not contravene Article 8, as notification is not necessary in cases involving interests of
national security and public order.139
43. The restriction on Article 12 and Article 13 satisfy the three-tiered test of legality,
legitimacy and necessity under Article 29(2).140 First, the restriction is prescribed by law.141
Respondent submits that the strict standard of foreseeability evolved in the context of
surveillance of telecommunications does not apply to surveillance of movement, which is less
intrusive.142 Instead, general principles of adequate protection against arbitrary interference
are applicable.143 While the IRA does not expressly prescribe safeguards regarding nature,
scope and duration of measures, guidance for the exercise of such discretion may be inferred
from its policy and purpose, which relate to criminal investigation.144
44. Further, the restriction is in pursuance of legitimate aims145 as the existence of an
ostensibly empty forum titled ‘MLM’ warrants reasonable suspicion of a link to the violent
activities of MLM in Bemidia.
139
140
141
142
143
144
145
22
45. Moreover, the restriction is necessary in a democratic society,146 as it corresponds to a
pressing social need.147 The nature of surveillance is relevant in determining the
proportionality of the restriction.148 In this case, the surveillance affected users only when
they posted on OpenBemidia, unlike continuous visual monitoring. Furthermore, Courts have
held that discretion regarding the duration of the measure vests with the state, in light of its
wide margin of appreciation.149 Finally, disclosure of location information by service
providers is permissible in cases of threat to public order and national security.150
V. In any event, Bemidia may invoke its right of derogation
46. Respondent submits that Bemidia may invoke its right of derogation151 to justify the
contravening requirements under IRA, as the conditions of public emergency, necessity and
consistency with other international obligations152 are satisfied.
47. First, the situation in Bemidia amounts to a public emergency, threatening the life of the
nation. A public emergency exists when an exceptional situation of ‘crisis or emergency
affects the whole population’153 and comprises a ‘threat to the organized life of the
146
147
148
149
150
Information Technology Act 2000 (India); Italian Personal Data Protection Code 2003 (Italy) art 132.
151
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23
March 1976) 999 UNTS 171 (ICCPR) art 4; American Convention on Human Rights (adopted 22 November
1969, entered into force 18 July 1978) (ACHR) art 27; European Convention on Human Rights (adopted 4
November 1950, entered into force 3 September 1953) (ECHR) art 15.
152
153
Lawless v Ireland (1961) 1 EHRR 15 (emphasis added).
23
community’.154 The State enjoys a wide margin of appreciation in determining the existence
of a public emergency as it is in direct and continuous contact with the situation.155 In this
case, bombings in densely populated civilian areas by MLM, coupled with the underlying
ethnic strife compose an imminent danger.156 This constitutes a threat to the population157 and
disrupts the organised life of the community.158 Further, existing measures such as
mobilization of the army159 proved unsuccessful in coping with the exigent situation.160
Moreover, the atrocities committed by secret armed militias161 indicate a ‘steady and
alarming increase in terrorist activities’ prior to the emergency.162 Consequently, the absence
of an official declaration of public emergency163 ought not to preclude successful invocation
of the right of derogation.164
154
Lawless v Ireland (1961) 1 EHRR 15.
155
Greece v United Kingdom App no 176/56 (ECtHR, 14 December 1959); Ireland v United Kingdom (1979-
80) 2 EHRR 25; Lawless v Ireland (1961) 1 EHRR 15; Brannigan & McBride v United Kingdom (1993) 17
EHRR 539.
156
A and Others v United Kingdom App no 3455/05 (ECtHR, 19 February 2009).
157
Aksoy v Turkey App no 21987/93 (ECtHR, 18 December 1996).
158
The Greek Case (1969) 12 Yearbook ECHR 1, [153].
159
¶7, The Case.
160
The Greek Case (1969) 12 Yearbook ECHR 1, [153]; Aksoy v Turkey App no 21987/93 (ECtHR, 18
December 1996).
161
Lawless v Ireland (1961) 1 EHRR 15.
162
Lawless v Ireland (1961) 1 EHRR 15; The Greek Case (1969) 12 Yearbook ECHR 1, [153]; Ireland v United
Kingdom (1979-80) 2 EHRR 25; Clare Ovey and Robin CA White, The European Convention on Human Rights
(4th edn, OUP 2006) 318.
163
(ECHR) art 15(3).
164
The Greek Case (1969) 12 Yearbook ECHR 1, [153]; Brannigan & McBride v United Kingdom (1993) 17
EHRR 539; Clare Ovey and Robin CA White, The European Convention on Human Rights (4th edn, OUP 2006)
322.
24
48. Secondly, the measures undertaken are ‘strictly required by the exigencies of the
situation’165 as they are indispensable, clearly linked to the emergency; and proportional to
the situation.166 Bemidia was the focal point of continuous and severe instances of violence,
killing numerous citizens, including a Member of Parliament. The bombings exclusively
targeted areas frequented by Diryens,167 furthering the underlying ethnic divide in Bemidia.
The activities on OpenBemidia, such as posting of military location and existence of a
suspicious, private MLM forum, warrant its regulation. The government order was a
proportionate measure as it only requested disclosure of non-content information, voluntarily
given by the users under the user agreement.168
49. Finally, the measures are consistent with other international obligations, including non-
discrimination.169 Bemidia’s actions are in accordance with its obligations under the UN
Charter and the objects enumerated in the Preamble.
D. THE REQUIREMENT TO DELETE THE CONTENTS OF THE CARLA TRACKER, TALIA
TRACKER AND DARIA TRACKER FORUMS DOES NOT CONTRAVENE ARTICLE 19, UDHR
50. Under the authority of the FFPA, the Government has mandated OpenBemidia to delete
the contents of Carla Tracker, Talia Tracker and Daria Tracker forums. Respondent submits
165
Clare Ovey and Robin CA White, The European Convention on Human Rights (4th edn, OUP 2006) 319;
Sarah Joseph, Jenny Schultz, Melissa Castan and Elizabeth Evatt, The International Covenant on Civil and
Political Rights: Cases, Materials and Commentary (2nd edn, OUP 2005) 825.
166
167
¶6, The Case.
168
Clarification #19.
169
March 1976) 999 UNTS 171 (ICCPR) art 4(1); American Convention on Human Rights (adopted 22 November
1969, entered into force 18 July 1978) (ACHR) art 27(1).
25
that the restriction imposed by this requirement on Article 19 is permissible under Article
29(2) as it satisfies the three-tiered test of legality [a], legitimacy [b], and necessity [c].170
a. The restriction is prescribed by law
51. Respondent submits that the restriction is prescribed by law.171 Applicants may argue
that the restriction is imposed in exercise of executive discretion, which is not prescribed in
the FFPA. However, in the absence of express provisions, guidance may be obtained from
other operative provisions, in light of the object of such legislation.172 Here, each post on the
three forums contains photographs or location information prohibited by the Act.
Consequently, the government order imposing the requirement to delete arises out of the
operative provisions of the Act.
b. The restriction is in pursuance of legitimate aims
52. The restriction pursues a legitimate aim: the ‘protection of rights of others’.173 The
impugned posts infringe the right to privacy of the First Family, established under Article 12
of the UDHR. The protection of private life extends to a person’s identity, such as his
name174 or picture,175 even in a public context.176 Furthermore, the right to privacy of children
170
171
172
173
March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a); American Convention on Human Rights (adopted 22
November 1969, entered into force 18 July 1978) (ACHR) art 13(2)(a); European Convention on Human Rights
(adopted 4 November 1950, entered into force 3 September 1953) (ECHR) art 10(2).
174
Burghartz v Switzerland (1994) 18 EHRR 101; Von Hannover v Germany (2005) 40 EHRR 1.
175
Schüssel v Austria App no 42409/98 (ECtHR, 21 February 2002); Von Hannover v Germany (2005) 40
EHRR 1; Constitution of Brazil 1988 (Brazil) art 5.
26
has been acknowledged as crucial for their personality development.177 Indeed, Spanish law
specifically prohibits the publication of photographs of the Prime Minister’s children.178
53. Admittedly, public figures possess a lesser expectation of privacy than ordinary
persons.179 However, the First Family is not a public figure. Respondent submits that public
figures are persons holding public office including those who play a role in public life;180 or
those who thrust themselves voluntarily into the forefront of any public controversy.181 In this
case, the First Family does not exercise any public function, play any role in public life,182 or
feature voluntarily in any public controversy. At best, their activities attract extensive media
attention by virtue of their relationship to the President, which is not sufficient to transform
them into public figures.183 Indeed, even if the First Family is deemed a public personality,
they possess a reasonable expectation of privacy in their private life, such as their
176
PG and JH v United Kingdom App no 44787/98 (ECtHR, 25 September 2001); Peck v United Kingdom
(2003) 36 EHRR 41; Von Hannover v Germany (2005) 40 EHRR 1.
177
Convention on the Rights of the Child (adopted 20 November 1989 UNGA Res 44/25) (CRC) art 16.
178
Giles Tremlett, ‘Pictures of Spanish PM’s daughters get thumbs up from goths’ The Guardian (London, 25
September 2009) <http://www.guardian.co.uk/world/2009/sep/25/spain-zapatero-daughters-obama> accessed 20
January 2012.
179
New York Times Co v Sullivan 376 US 254 (1964); Lingens v Austria App no 9815/82 (ECtHR, 8 July 1986);
Decision 60/1994 (XII. 24) AB (Hungary); A v B and Anr [2002] EWCA Civ 337 (UK); Zeljko Bodrozic v
Serbia and Montenegro Communication No 1180/2003, U.N. Doc. CCPR/C/85/D/1180/2003 (2006) (UN
Human Rights Committee); Council of Europe, Committee of Ministers Declaration on Freedom of Political
Debate in the Media, 12 February 2004 CM/Del/OJ(2004)872E.
180
Council of Europe, Committee of Ministers Declaration on Freedom of Political Debate in the Media, 12
February 2004 CM/Del/OJ(2004)872E.
181
Gertz v Welch 418 US 323 (1974); Time Inc v Firestone 424 US 448 (1976); Bartnicki v Vopper 532 US 514
(2001); Susan M Giles, ‘Public Plaintiffs and Private Facts: Should the “Public Figure” Doctrine be transplanted
into Privacy Law?’ (2004-05) 83 Neb Law Rev 1204.
182
Clarifications #7, #8.
183
Hutchinson v Proxmire 443 US 111 (1979); Wolston v Reader’s Digest Association, Inc 443 US 157 (1979);
Dresbach v Double Day & Co 518 F Supp 1285, 1295 (DDC 1981); Jacobsen v Rochester Communications 410
NW 2d 830, 836 (Minn 1987); W Wat Hopkins, ‘The Involuntary Public Figure: Not So Dead After All’ (2003)
21 Cardozo Arts and Entertainment Law Journal 1, 29; John Tobin, ‘The United States Public Figure Test:
Should it be introduced into Australia?’ (1994) 17 UNSW Law Journal 383, 403.
27
whereabouts.184 Significantly, in Von Hannover,185 the ECtHR denied the existence of a
legitimate public interest in the location and activities of the Princess of Monaco even if she
appeared in ‘places that cannot always be described as secluded’ and ‘despite the fact that
she is well-known to the public’.
54. While Applicants may contend that the photographs were obtained from public places,
Respondent observes that a spatial conception of the right to privacy has been categorically
rejected universally.186 Notably, the right to privacy has been extended to activities in public
places such as restaurants187 and hospitals,188 as in this case.
55. Moreover, publication of photographs, as compared to other forms of information, is
more intrusive.189 It conveys information ‘not otherwise truly obtainable’,190such as ‘the
personality and mood of the subject of the subject’.191 Further, clandestine filming without
the knowledge of the subject, as in this case, infringes the right to privacy as its prevention is
beyond the control of the subject.192 Indeed, in Murray,193 the Court expressly protected the
184
Von Hannover v Germany (2005) 40 EHRR 1.
185
Von Hannover v Germany (2005) 40 EHRR 1 (emphasis added).
186
Katz v United States 389 US 347 (1967); Von Hannover v Germany (2005) 40 EHRR 1.
187
Stressman v American Black Hawk Broadcasting Co 416 NW 2d 685 (Iowa 1987); Von Hannover v
Germany (2005) 40 EHRR 1; Camrin L Crisci, ‘All the World is Not a Stage: Finding a right to privacy in
existing and proposed legislation’ (2002) 6(1) J Leg Pub Policy 230.
188
Green v Chicago Tribune Co 675 NE 2d 249 (Ill 1996).
189
Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK); D v L [2004] EMLR 1 (UK);
Douglas v Hello! (No 3) [2005] EWCA Civ 595 (UK); Mirror Group Newspapers v United Kingdom App no
39401/04 (ECtHR, 18 January 2011); A McClurg, ‘Bringing Privacy Law out of the closet: A tort theory of
liability for intrusions in public places’ (1995) 73 North Carolina Law Rev 989; NA Moreham, ‘Privacy in
Public Places’ (2006) 65(3) Cambridge Law Journal 606, 613.
190
Douglas v Hello! (No 1) [2001] QB 967 (UK).
191
Douglas v Hello! (No 3) [2005] EWCA Civ 595 (UK).
192
R. v Broadcasting Standards Commission, ex parte British Broadcasting Corporation (Liberty intervening)
[2000] 3 All ER 989 (UK); R. v Loveridge [2001] EWCA Crim 973 (UK); Theakston v Mirror Group
28
right to privacy of children being photographed in public places. Moreover, the photographs
in the instant case were not envisaged for limited use, but disseminated to the public.194
Finally, the state may undertake positive obligations to secure the private life of individuals
in the sphere of relations of individuals among themselves.195 Therefore, the impugned
restriction is in pursuit of legitimate aims.
c. The restriction is in necessary in a democratic society
56. The test for determining the necessity of a restriction is whether the publication
contributes to a debate of general interest.196 Here, the content of the posts relates exclusively
to the private lives of the First Family, which warrant no legitimate public interest.197 At best,
they stimulate public curiosity, which does not override the right to privacy of the First
Family.198
57. Further, the impugned measure is proportionate. It does not impose a complete
restriction on the freedom of speech, but merely requires the procurement of prior written
Newspapers Ltd [2002] EWHC 137(QB) (UK); HRH Princess of Wales v MGN Newspapers App no 39069/97
(ECtHR, 11 December 2003); Von Hannover v Germany (2005) 40 EHRR 1; Hachette Filipacchi Associés v
France App no 71111/01 (ECtHR, 23 July 2009).
193
Murray v Express Newspapers [2007] EWHC 1908 (Ch) (UK).
194
Friedl v Austria (1995) Series A no 305 B; PG and JH v United Kingdom App no 44787/98 (ECtHR, 25
September 2001); Peck v United Kingdom (2003) 36 EHRR 41; Mirror Group Newspapers v United Kingdom
App no 39401/04 (ECtHR, 18 January 2011).
195
X and Y v Netherlands (1985) Series A no 91.
196
Von Hannover v Germany (2005) 40 EHRR 1; McKennitt v Ash [2007] 3 WLR 194.
197
Von Hannover v Germany (2005) 40 EHRR 1; ETK v News Group Newspapers [2011] EWCA Civ 439.
198
Campmany y Diez de Revenga and Lopez Galiacho Perona v Spain App no 54224/00 (ECtHR, 12 December
2000); Julio BouGibert and El Hogar Y La Moda J.A. v Spain App no 14929/02 (ECtHR, 13 May 2003); Von
Hannover v Germany (2005) 40 EHRR 1; Leempoel v Belgium App no 64772/01 (ECtHR, 9 November 2006);
Mirror Group Newspapers v United Kingdom App no 39401/04 (ECtHR, 18 January 2011); Mosley v United
Kingdom App no 48009/08 (ECtHR, 10 May 2011).
29
consent before publication of private information. Indeed, the rule of prior consent finds
place in several regimes.199 The state also enjoys a wide margin of appreciation in matters
involving balancing private and public interests.200 In addition, this restriction is applicable
only for information which facilitates accurate determination of geographic location, and is
less than 90 days old.201 Therefore, the restriction is proportionate to the aim.
199
Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK); Mosley v United Kingdom App
no 48009/08 (ECtHR, 10 May 2011).
200
Funke v France (1993) Series A no 256 A; Keegan v Ireland (1994) 18 EHRR 342; Peck v United Kingdom
(2003) 36 EHRR 41.
201
¶20, The Case.
30
PRAYER
In light of the arguments advanced and authorities cited, the Republic of Bemidia respectfully
requests this Court to adjudge and declare that:
I. The requirement to collect and verify name and contact information is consistent with
the UDHR
II. The requirement to disclose to the government identity information, following
information, and historical location information about the users of OpenBemidia is
consistent with the UDHR
III. The requirement to report location information about the users of the MLM forum in
real time is consistent with the UDHR
IV. The requirement to delete the contents of the Carla Tracker, Talia Tracker, and Daria
Tracker forums is consistent with the UDHR
On behalf of the Republic of Bemidia,
32R
Agents for the Respondent.
31

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32R

THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE UNIVERSAL COURT OF HUMAN RIGHTS

THE 2012 OXFORD PRICE MEDIA LAW MOOT COURT COMPETITION

OPENBEMIDIA & ORS.

MEMORIAL FOR THE RESPONDENT

LIST OF ABBREVIATIONS ______________________________________________ IV

INDEX OF AUTHORITIES _______________________________________________ VI

STATEMENT OF RELEVANT FACTS _____________________________________ XX

STATEMENT OF JURISDICTION _______________________________________XXIV

QUESTIONS PRESENTED _____________________________________________ XXV

SUMMARY OF ARGUMENT ___________________________________________XXVI

A. THE REQUIREMENT TO COLLECT AND VERIFY USER INFORMATION IS CONSISTENT WITH

THE PROVISIONS OF THE UDHR_______________________________________________ 1

I. The requirement is not a restriction on Article 19, UDHR ______________________ 1

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

INFORMATION IS CONSISTENT WITH THE PROVISIONS OF UDHR _____________________ 15

C. THE REQUIREMENT TO DISCLOSE REAL-TIME LOCATION INFORMATION IS CONSISTENT

WITH PROVISIONS OF UDHR ________________________________________________ 19

III. The Requirement is Consistent with Article 8, UDHR_______________________ 22

PRAYER ________________________________________________________________ 31

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

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

ICCPR International Covenant on Civil and Political Rights

IRA Internet Responsibility Act

UDHR Universal Declaration of Human Rights

US United States of America

CASES OF THE AFRICAN COURT OF HUMAN AND PEOPLES’ RIGHTS

Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) 5, 9

CASES OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS

Compulsory Membership in an Association Prescribed by Law for the 14

Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR, 2 July 2004) 8

CASES OF THE EUROPEAN COURT OF HUMAN RIGHTS

A and Others v United Kingdom App no 3455/05 (ECtHR, 19 February 24

Aksoy v Turkey App no 21987/93 (ECtHR, 18 December 1996) 24

Association X v Sweden App no 6094/73 (ECtHR, 6 July 1977) 6

Brannigan & McBride v United Kingdom (1993) 17 EHRR 539 24

Burghartz v Switzerland (1994) 18 EHRR 101 26

Ceylan v Turkey App no 23556/94 (ECtHR, 8 July 1999) 10

Chorherr v Austria (1994) 17 EHRR 358 18

Evans v United Kingdom (2006) 43 EHRR 21 13

Friedl v Austria (1995) Series A no 305 B 29

Funke v France (1993) Series A no 256 A 30

Gaweda v Poland App no 26229/95 (ECtHR, 14 March 2002) 5, 8

Gerger v Turkey App no 24919/94 (ECtHR, 8 July 1999) 12

Greece v United Kingdom App no 176/56 (ECtHR, 14 December 1959) 24

Hachette Filipacchi Associés v France App no 71111/01 (ECtHR, 23 July 29

Handyside v United Kingdom (1986) Series A no 24 13, 14

Herczegfalvy v Austria (1993) 15 EHRR 437 18

Hinczewski v Poland App no 34907/05 (ECtHR, 5 October 2010) 8

HRH Princess of Wales v MGN Newspapers App no 39069/97 (ECtHR, 29

Huvig v France (1990) Series A no 176 B 9, 18

Ireland v United Kingdom (1979-80) 2 EHRR 25 24

Julio BouGibert and El Hogar Y La Moda J.A. v Spain App no 14929/02 29