Academic Freedom, Artistic Expression, Content Regulation / Censorship
Thailand v. Patiwat Saraiyaem and Pornthip Munkong
Closed Expands Expression
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The Mexican Supreme Court of Justice found an order against a music website, mandating it to suspend its services indefinitely, to be incompatible with the right to freedom of expression. A governmental agency made the order because the music website contained content that violated Mexico’s intellectual property laws. The website, represented by a communications provider, submitted a writ of amparo (a remedy for the protection of constitutional rights) arguing that the measure constituted a violation to its right to freedom of expression. The Supreme Court of Justice granted the writ of amparo, finding that measures which block entire access to a website constitute an overbroad and disproportionate restriction on the right to freedom of expression.
The telecommunications provider, Alestra (Claimant) filed a writ of amparo (a remedy for the protection of constitutional rights) before the Eighth Court of the Federal District because the Mexican Institute of Industrial Property (IMPI) ordered that an entire music website be blocked indefinitely. According to the IMPI, the website was blocked because it did not have the proper authorization to offer certain intellectual property content.
The claimants, acting on behalf of the music website, alleged that the right to freedom of expression, as protected under article 6 of the Mexican Constitution, article 19 of the International Covenant on Civil and Political Rights, and article 13 of the American Convention on Human Rights, was being violated by the order.
The judge in the Eighth Court of the Federal District determined the writ in favor of the Claimant. Subsequently, the IMPI filed a revision to the writ of amparo that reached the Supreme Court of Justice of the Nation.
Judge Alberto Pérez Dayán delivered the opinion of the Supreme Court of Justice of the Nation (Court).
The main issue before the Court was whether the measure taken by the IMPI of indefinitely blocking a website violated the right to freedom of expression. The Court determined that the IMPI’s measure of blocking the website was a wrongful limitation on the right to freedom of expression on the Internet.
The IMPI argued that articles 6 and 7 of the Mexican Constitution allowed restriction to the right of freedom of expression in some cases to protect other rights such as copyright and other intellectual property rights. Moreover, that blocking the website constituted an effective measure in order to dissuade copyright infringement. The court deemed that IMPI’s claim was baseless. The court also agreed with the lower court that IMPI did not provide sufficient evidence to support the proportionality and necessity of the order to block the website.
Firstly, the court stated in its judgment that freedom of expression is the cornerstone of a democracy. [pg. 25] Moreover, the court acknowledged how the Internet has altered the communications landscape and has had a positive impact on the right to freedom of expression. The Court, referencing a Report of the United Nations Rapporteur on Freedom of Expression, established that the Internet is now a fundamental platform that facilitates the exercise of the right to freedom of expression and opinion. [pg. 28] In light of this, the Court asserted that the flow of information through the Internet must be minimally restricted. It went on to state that it must only be limited in “exceptional circumstances”. [pg. 28] The Court further explained that a global audience could now access information via the Internet.
The Court reiterated that limitations on the right to freedom of expression must be established by law, be based on a legitimate end, and must meet the burden of necessity and proportionality. [pg. 30] In applying this three-part test, the Court was mindful to evaluate restrictions in the context of the Internet. For instance, it mentioned several restrictions that could be adopted online such as blocks or filters, that would be less restrictive than the removal of access to an entire website (which was the effect of the order).
Judge Pérez, analyzed three types of expression on the Internet that can be lawfully restricted (i.e. restricting such expressions will serve a legitimate end): 1) expression that constitutes a crime such as incitement of terrorism, or child pornography; 2) expression that does not amount to a crime, but it can merit a restriction through a civil suit; 3) expression that does not amount to a crime, but it undermines tolerance and respect for others. [pg. 34] In these cases, blocking is a common measure to restrict these types of expression on the Internet. In cases where the expression does not amount to a crime, the restrictions on the right of freedom of expression must refer to specific content and cannot amount to a general prohibition.
The Court determined that blocking the website was unnecessary and disproportionate. In the Court’s opinion, by blocking the entire website instead of just blocking the unlawful content the IMPI had adopted a measure that constituted absolute censorship, the most restrictive limitation on the right to freedom of expression. [p. 39] The Court noted that the flow of information on the Internet must be minimally restricted. The order to block a website, according to the Court, amounts to an unnecessary and disproportionate measure as it does not concentrate on sufficiently clear objectives and prevents access to content that was not deemed illegal.
The Court stated further that blocking a website is a measure that an agency cannot exercise unless there has been an international crime committed through the website such as dissemination of child pornography, incitement of terrorism, incitement to discrimination, hate speech (national, race or religious), or the incitement to commit genocide. [p. 40]. The content on the website, in this case, did not amount to the international crimes that would warrant an absolute block. The Court explained that the IMPI could have just limited the specific content that violated intellectual property laws.
Concerning the nature of the expression, the Court specified that artistic or cultural works, such as musical projects, are the highest form of expression. The Court noted that General Comment No. 34 reasoned that Article 19 of the ICCPR protects all forms of expression and the means for its dissemination. The Court also pointed out the fact that the Committee of Economic, Social and Cultural Rights has recognized that “everyone has also the right to learn about forms of expression and dissemination through any technical medium of information or communication, to follow a way of life associated with the use of cultural goods and resources such as land, water, biodiversity, language or specific institutions, and to benefit from the cultural heritage and the creation of other individuals and communities.” [pg. 43].
Furthermore, the Court concluded that a blocking order would imply censorship where it is imposed on digital mediums where there is a free flow of exchange of cultural and artistic expression. The Court also clarified that copyright laws are not less weighty than the right to freedom of expression. However, when an agency wants to limit the right to freedom of expression in order to protect copyright, it has to limit itself to the parameters of necessity and proportionality.
For these reasons, the Court determined that IMPI’s blocking order amounted to unlawful censorship that inhibited the flow of information through the Internet, and therefore violated the right to freedom of expression.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands the right to freedom of expression as it recognises that a government agency cannot block an entire website just because it contains some content that violates copyright laws. It further explains that a wholesale block is the most extreme measure to be taken against the right to freedom of expression on the Internet. The decision is also important because it discusses how the Internet has changed and altered the right to freedom of expression. It is also noteworthy that the Court relied extensively on international law to reach its decision. However, it is arguable that the Court went somewhat further than other international and regional bodies by recognising the importance of the dissemination of cultural works, such as musical works, in its finding that a blocking order was unconstitutional (compare with the European Court of Human Rights decision in Akdeniz v. Turkey, where Turkey was given a wider margin of appreciation because the case concerned the blocking of two websites for breach of copyright)
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The Supreme Court of Justice of the Nation is the highest court in Mexico.
Let us know if you notice errors or if the case analysis needs revision.