In the first of a two-part series, Wolfgang Kleinwächter writes on how technologies may change, but the issues surrounding their regulation remain the same
Gutenberg’s invention of the printing press in 1450 challenged power structures: While the Catholic Church first welcomed the new opportunity to reproduce the Bible and to bring the holy book to more people, it soon realised that the technology also enabled the printing of pamphlets critical of the church. Soon, a radical censorship regime emerged, which led to the first Roman Index Librorum Prohibitorum, under Pope Paul IV in 1557. Printing of books was allowed only with the consent of the local bishop. Otherwise, authors risked punishment and, in some cases, their lives. Against this repression, John Milton wrote Areopagitica in 1644, where he called for a right to freedom of expression. Referencing the old Athenean democracy, where open and free discussion was staged in marketplaces—the Areopag—he called freedom of expression a natural right that is not given by any state (or the Church) but is inherent to each individual. His ideas fed into the Declaration on Human Rights of the French Revolution (1791) and the First Amendment of the Constitution of the United States of America (US). The history of how we progressed from the First Amendment of 1791 to the Universal Declaration of 1948 tells a tale of the relationship between governmental power and individual rights. Information and communication in the 17th and 18th centuries were largely local affairs, regulated within national jurisdictions. In the 19th century, with new opportunities for international travel, transborder communication was growing rapidly. However, monarchs feared that a free flow of information could undermine their power. In September 1819, they signed, in a Bohemian spa, the Carlsbad Decrees, which introduced governmental mechanisms to control information content distributed by individuals. The Carlsbad Decrees, essentially an instrument of censorship, became the first international treaty regulating cross-border communication.
Referencing the old Athenean democracy, where open and free discussion was staged in marketplaces—the Areopag—he called freedom of expression a natural right that is not given by any state (or the Church) but is inherent to each individual.
The invention of the telegraph offered an opportunity to bypass the content control system established by the Carlsbad Decrees. It was not a surprise then that governments stepped in and started to regulate, reiterating their sovereign right to control the content of telegrams. The first bilateral telegraph treaty was signed in Dresden in 1850 among the governments of Prussia and Austria. Fifteen years later, the French emperor Napoleon III proposed a multilateral telegraph treaty. The Paris Conference (1865) established the International Telegraph Union (a forerunner of today’s International Telecommunications Union or ITU). Next to technical rules around interworking of equipment, operating procedures, settlement of accounts, standards, using the Morse Code as the international telegraph alphabet etc., the contracting parties reserved in Article 4 of the International Telegraph Convention their right to stop any transmission that they considered “dangerous” for state security or in violation of national laws, public order, or morals. When wireless radiotelegraphy emerged in the early 20th century, the Berlin Radio Telegraphy Convention of 1906 mirrored the Paris treaty from 1865. It was a green light for the cross-border flow of wireless communication, but also a green light for governments to interfere. The same happened with radio broadcasting, which became a subject of multilateral negotiations in the League of Nations in the 1930s. The Geneva Convention on Radio Broadcasting in the Cause of Peace was signed in 1936.
Information and communication in the 17th and 18th centuries were largely local affairs, regulated within national jurisdictions.
Interestingly, a subgroup—which worked on a draft article for a legally non-binding declaration on human rights at the request of Eleanor Roosevelt, who chaired the 3rd Committee of the UNGA—could find common language and did send the agreed 35 words to New York. Those 35 words became Article 19 of the Universal Declaration of Human Rights (UDHR), “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”. This right was balanced by Article 29 which says that “in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”. These rights became binding international law via the International Covenant on Civil and Political Rights(ICCPR) in 1966. The Covenant repeats the language of Article 19 of the UDHR and specifies the justifications for restriction by stating that these “shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (order public), or of public health or morals”.
The resolution decided to organise a UN Conference on Freedom of Information and Freedom of the Press with the mandate to create an international legal framework with safeguards for individual information and communication rights.
However, this debate is not about the nature of the right, it is about understanding and implementation in concrete political and historical circumstances. This is very natural and reflects the reality in a multicultural and multipolar world. There will by diverse interpretations, different ideological points of view, and different political and economic interests. And there are always two sides to a coin. Certainly, the world has changed since Gutenberg´s invention, but the nature of the problem has not. A comparison of arguments used in international conferences shows very little has changed in the last two centuries. Content regulations and information freedom are perpetual issues. Autocrats and dictators prefer control and censorship, democrats and liberals prefer the free flow of information. To read part 2 of the series, click here.
The balanced regulatory framework of the UDHR and the ICCPR has not lost its relevance in a changing technological environment.
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Wolfgang Kleinwaechter is Professor Emeritus at the University of Aarhus. He was a member of the ICANN Board of Directors (2013 2015) a Special Ambassador ...Read More +