Happy Yule, everybody! In our series of reminders about important talkbacks, we’ve come to the reminder that the act of hunting for people who share culture and knowledge online violates their fundamental human rights, as doing so wiretaps private communications.
The hunt for people who share culture and knowledge online violates article 10 of the European Convention of Human Rights, the most important Bill-of-Rights on the planet, according to no other court than the highest court of the land, superseding Supreme Courts and Constitutions: The European Court of Human Rights.
(References to the European Convention on Human Rights, which is overseen by this Court, is written directly into many constitutions – including that of the European Union itself.)
In the case of Ashby Donald et co vs. France, the Court references Article 10, the right to freely seek and share information:
“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” (European Convention on Human Rights, art 10)
The court further found, in its first test ever on the subject matter, that the enforcement of the copyright monopoly online interferes (violates) this fundamental human right (my highlights):
For the first time in a judgment on the merits, the European Court of Human Rights has clarified that a conviction based on copyright law for illegally reproducing or publicly communicating copyright protected material can be regarded as an interference with the right of freedom of expression and information under Article 10 of the European Convention. Such interference must be in accordance with the three conditions enshrined in the second paragraph of Article 10 of the Convention. This means that a conviction or any other judicial decision based on copyright law, restricting a person’s or an organisation’s freedom of expression, must be pertinently motivated as being necessary in a democratic society, apart from being prescribed by law and pursuing a legitimate aim.
The court goes on to note that all three of these exception criteria were fulfilled in the case at hand, allowing an exception as a whole in this specific case to the fundamental human rights applicable. However, the partial finding – that the hunt for people sharing culture and knowledge online is a violation of their fundamental rights – is a watershed decision and an important talkback.
This is what stands at the heart of the debate on sharing culture and knowledge online, that you can’t sort legal private communications from illegal private communications without actually looking at them. In other words, you can’t enforce the copyright monopoly against file-sharers without wiretapping the entire internet.
That’s far too high a price to pay for maintaining an old distribution monopoly for an entertainment industry.