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Online Bill of Rights: What might it look like?

About The Author

Chris Bridges (Executive Editor)

Chris is an IT and Data Protection solicitor at a top 20 full service firm and the founder of Keep Calm Talk Law. He also contributes to Computers and Law and other sector specific publications.

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Twenty-Five years ago yesterday, Sir Tim Berners-Lee, creator of the internet, filed the memo that led to the creation of the web. Exactly 25 years after the ball started rolling on the creation of what is often cited as the greatest invention of human history, Berners-Lee has spoken out in favour of online privacy and responsible anonymity. He has urged people to put together an ‘Online Bill of Rights’, or 'Online Magna Carta' that enshrine the principles he designed the web around, preventing abuse of power by governments around the world.

It comes as no surprise that he is a proponent of online privacy, having designed the web on principles of openness, privacy and non-censorship. These things, he says, are crucial for democracy. "Unless we have an open, neutral internet we can rely on without worrying about what's happening at the back door, we can't have open government, good democracy, good healthcare, connected communities and diversity of culture”.

The very nature of the World Wide Web allows any person to access any website they wish just by typing an address into the address bar (albeit censored in the modern day in certain geographical localities). In an interview with The Guardian, Berners-Lee said:

These issues [principles of privacy, free speech, and responsible anonymity] have crept up on us… Our rights are being infringed more and more on every side, and the danger is that we get used to it. So I want to use the 25th anniversary for us all to do that, to take the web back into our own hands and define the web we want for the next 25 years.

He wants to create a body of principles to act as the international standard for the values he built the internet upon. The project, entitled “Web We Want” (see what they did there?), wants people to contribute to the international dialogue about the web their country wants, and draft an Internet Users Bill of Rights, whether it be national, regional, or international. This project hopes to make inroads into decision making around theglobe, perhaps most notably via the UN who are calling for an investigation into global online surveillance.

Below, I shall examine Berners-Lee’s principles, focusing on their credibility in the modern world, and where the lines might be drawn in practice if they were to be implemented on a global or semi-global scale.

Openness

Cost of Content & Services

This is a principle that is close to my heart. I started Keep Calm Talk Law because I felt there were no appropriate resources for aspiring lawyers to obtain legal commentary, without paying costly subscriptions to obtain what was still not satisfactory for purpose or audience.

Despite this, it is a principle that simply cannot stand. In a commercial world, the majority of websites are created to make money. Some choose to keep it free and collect data or display adverts (more discussion on this under the heading below), but many feel that they must charge for their content or service, as do many legal and non-legal publications, and other online services. Some meet half way and offer a free trial or a reduced version for non-paying members.

It is the incentive of income that provides the motivation for development of software and creation of services in the vast majority of cases. If it were not for the possibility of earning an income, we would not have the websites we have today, nor indeed the technology that we take for granted. Without the incentive of a return, there would be very little time and money invested in the internet.

Admittedly, as noted above, there is an alternative way of monetizing a website, the sale of data or the sale of advert space, however these can raise their own (and possibly worse) issues. For this reason, I do not see this principle as a feasible principle to take forward – to do so could curb innovation and stagnate the internet, arguably the world’s greatest asset and without a doubt its largest marketplace.

Web We Want only ask for affordable access, but affordability is not a constant. What is affordable to one person may not be to thousands of others. I would argue that in the vast majority of cases, online subscriptions and services are not affordable, but that is my personal assessment. In an ideal world, I would argue that everything on the internet should be free, but for the sake of maintaining investment and the availability of services, affordable access must be what is settled upon. However, this relies on good will – how could a bill of rights possibly determine what is universally affordable? My budget and a multi-national corporation’s budget are far apart…

Copyright & Piracy

In his interview Berners-Lee seems to be pro-everything on the subject of openness, and seems to see anti-piracy laws as an issue:

We also need to revisit a lot of legal structure, copyright law – the laws that put people in jail which have been largely set up to protect the movie producers … None of this has been set up to preserve the day to day discourse between individuals and the day to day democracy that we need to run the country.

The same arguments as per above apply; if there was no protection at all and films and music could be shared without paying anything to the maker(s), would music or films be made at all? They certainly would not have the same budgets, which, in general would mean a lower quality film (I concede there are many good low-budget films, but as a general principle…).

Again, in an ideal world, I would love these to be free. However, I would also like to be an astronaut, but it is not going to happen unless we start outsourcing legal services to space, and I get a job up there.

Therefore, if an Online Bill of Rights was to come about, I do not see how it could feasibly limit the commercialisation of the internet in this way. Subscription only publications and services are, in my opinion, here to stay. It is too big an ask for them to go.

Online Privacy

This is a principle that unlike openness, I can see working in practice. Web We Want are interested in “The protection of personal user information and the right to communicate in private”. This is an issue I have discussed to some length previously in my articles ‘Data Privacy: Due Diligence Due?’ and ‘Google to get a slap on the wrist for ‘stalking adverts’?’.

The first of the above is more concerned with governmental access to data, and the second with commercial data collection, sale and access. Both of this would be prominent issues in any Online Bill of Rights.

Governmental Data Access

This issue is in recent times associated with the Edward Snowden leaks. Snowden was a NSA contractor, who leaked details of:

Most notably, details of the US PRISM program operated by the National Security Agency (NSA), and the UK’s equivalent Tempora program operated by GCHQ (not to be mistaken for the more tasty Japanese dish, Tempura).

The two programs are not dissimilar – both monitor telecommunication traffic, storing intelligence, which may very well include your personal data (as un-valuable intelligence as it might be).

For more information on this subject, please read my previous article, ‘Data Privacy: Due Diligence Due?’. In that article, I expressed an opinion that the problem is our mistrust in the government, and that in a Western democracy we should be able to trust our government to handle our data in a responsible way that only infringes our rights for the prevention of terrorism. It shames me to say that this is exactly the ignorance Berners-Lee mentions in his interview:

I wouldn't say people in the UK are apathetic – I would say that they have greater trust in their government than other countries. They have the attitude that we voted for them, so let them get on and do it.

However, reading this made me think, there is much merit in his idea of an Online Bill of Rights. Whilst I might trust our government and the US government with my data, that does not mean I can trust every country out there that could be handling my data. For this reason, the creation of a definitive principle enshrined in an international convention would be very welcome indeed.

The only issue is, where do you draw the line, and if governmental snooping were allowed for the prevention of crime, who would police the ‘police-ers’? Somehow, even though the Cold War is over, I doubt the Russian FSB would let NATO personnel check their intelligence for foul play…

In fact, I suspect Berners-Lee would only draw the line at zero snooping. Without even a concession allowing snooping for the prevention of terrorism, I do not believe a single country would sign up and stick to it. Would they really let terrorists and other criminals communicate freely?

Commercial Data Collection & Manipulation

Many websites that do not charge for their services, yet make huge profits, often do so via either collecting data and then selling it or making it available in some form (in either anonymised or un-anonymised form). Ever wondered how Google and Facebook make so much money? They indirectly sell your data and browsing habits to advertisers who pay to target adverts at the audience that are most likely to click. While this data is (arguably) anonymised, and not given directly to the advertiser, there is still profiteering happening at the expense of your privacy. (For more on this topic, see my previous article ‘Google to get a slap on the wrist for ‘stalking adverts’?’).

In some cases, infringements of privacy go further, with Google recently piloting an endorsed advert scheme, which could potentially show your picture and comments next to an advert.

I trust commercial organisations with my privacy much less than I do others. This is why I make a point of reading privacy policies when signing up to websites, so that I know what is happening with my data (I draw the line at sale of my data in an un-anonymised form). Most people would call me superstitious, and I am certainly in the minority by doing this. However, this highlights the problem: if people do not check themselves (and I do not blame them, a boring, long, read) who is going to protect them from commercial organisations making a quick buck out of their private lives?

Therefore, again, an international convention would be very welcome, especially if directly applicable to private organisations.

However, again, it is hard to restrict such an area, as with cost restriction, without the income generated from data, many websites simply would not exist, and we would not experience the same levels of innovation and investment that have derived from the profitability of the internet. It is clear therefore, that if universal principles were to be implemented, they would have to accommodate for some leeway, and the line would have to be drawn in a sensible place; exactly where is a little more difficult to determine.

In my personal opinion, all that is needed is greater clarity on exactly how your data is used, which is not hidden away in pages and pages of privacy policy. This then places internet users in a better place to determine whether a service is worth the concessions they make on their privacy. The phrase ‘nothing comes for free’ springs to mind – the currency is your data, and as with everything, it is up to the individual to decide how much they wish to pay for what they receive.

Freedom of Expression

The country that immediately pops to mind in this context is China. However, to think the problem is limited to China would be very naïve indeed. Despite always being told never to cite Wikipedia, here it is a very useful source, complete with a map. Some countries you might expect to be green are not…

The fact is, that whilst we may trust our government not to censor our Internet usage, many countries do not have the same luxury. As with governmental data access, the creation of an Online Bill of Rights could help ensure that universal principles are applied across the world, ensuring the web really is a World Wide Web of information.

Whilst freedom of expression is a value we are extremely familiar with, and devoted to, it is not something the entire world is familiar with. Without sounding like we wish to preach to the world about what is right and wrong, it is important to help spread such an intrinsic value, and one that is part of the DNA of the internet. Freedom of expression needs no further introduction than this.

There are, of course, important qualifications that should be made to such a freedom. It would not be right to ban the restriction of child pornography for instance, and this is something many people will agree on. Problems however arise when you consider thing such as national security that could be open to abuse. As with governmental data access, who would police the fair use of a national security exemption should one be in place?

Regardless, it is unlikely that the countries censoring the internet routinely would sign up; many of them are not countries you would call ‘internationally co-operative’.

Closing Comments

There is certainly merit in some of Berners-Lee’s ideas, most notably the protection of online privacy and freedom of expression. However, they are somewhat idyllic. In reality, any such convention would be riddled with issues that make it unworkable. Whilst I personally would welcome them, many nations would not, and if they did, too many concessions would have to be made for any progress to be made. Few things are truly universal (just watch some HSBC adverts), and law is rarely, if ever, one of them.

There may be some scope to implement such a convention on a micro scale (in the context of the world), such as within Europe, or between Europe and America, but even this would come with significant challenges.

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Tagged: Commercial Law, Human Rights, International Law, Privacy Law

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