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Freedom of speech over right to access information

From: Yvette P. Hoitink <y.p.hoitink@heritas.nl>
Date: Thu, 9 Oct 2003 21:00:28 +0200
To: <w3c-wai-gl@w3.org>
Message-ID: <001a01c38e97$9e78ab20$7b00a8c0@Adder>

During last weeks telecon, I took an action item upon me to talk to a Dutch
lawyer about freedom of speech issues.

As promised, I have contacted a lawyer, who let me know it that even though
she studied human rights in university, this wasn't her primary field of
expertise. I will try to find another lawyer to ask about this issue.

My question to her was this, translated from Dutch: (Those interested in the
lawyer's answer only can scroll down to the section marked with <answer>)

<question>
As you probably know I'm in an international workgroup which makes
guidelines for the accessibility of website for people with disabilities. In
some countries, like the US, there guidelines are going to be enforced by
law. In Europe too, I expect that this will happen within the next few years
(at least for governmental websites).

We're faced with a problem. Some of these guidelines might conflict with the
freedom of speech. For example: one guideline is "Use the simplest language
which is appropriate for the goals of the website". This ensures that people
with a mental disability, or non-native speakers, can understand the
information as well. But you do limit the possibilities of the owner of the
website to express himself. According to some people, this limits his
freedom of speech. Another example is a guideline which says there should be
enough contrast between text and background, but this limits people in their
artistic freedom. On the other hand, it limits users who are visually
impaired or colorblind in their possibility to use the website.

At this moment, the workgroup tends to not require anything that potentially
limits someone's freedom of information. Unfortunately, this way a lot of
guidelines get thrown out the window that are very important to some groups
of people.

Do you have any information how this situation is in the Netherlands from a
legal point of view? Can you make these types of guidelines mandatory by law
or is the right to freedom of speech more important? My own feeling is that
the visitor's right to access information should be weighed against the
freedom of speech of the website owner. How this comparison comes out for an
individual website cannot be determined before. But that's just my laymen's
opinion :-)

I can imagine that this is not an easy question which may not be your area
of expertise. If you don't know, do you have any idea what organization I
can pose this question to? At this moment only US lawyers have looked at
this and freedom of speech is almost holy there. We want to add some
European opinions to the group as well. Any information or insights about
this are very welcome!
</question>

I will now quote what the answer of the lawyer. Please beware that I am
_not_ a lawyer and translated this from Dutch so I probably got the names of
the international laws and human rights wrong but I hope the general drift
of it will be understandable.

<answer>
Freedom of speech is a fundamental right that appears in human rights
treaties, while there is no fundamental right to access of information. The
only thing that comes close is the right to participate in cultural and
scientific life, which is included in the International Treaty about
economic, social and cultural rights. This treaty (the 'soft' addition to
the international treaty for civil and political rights, "ITCPR") has only
been recognized by a few countries so is not a large factor in the equation.

If you want to know which fundamental rights there are, the best starting
point is the ITCPR. This treaty was made by the UN, based on the UN
manifesto and the universal declaration of human rights. The universal
declaration itself doesn't have any legal status, only a moral one (if I
remember correctly from my classes about this subject).

Article 19 ITCPR says:
part 1: "Everyone has the right to have an opinion without interference by
others". part 2: "Everyone has the right to freely express his opinion, this
right contains as well the right to gather information and thoughts of any
nature, to receive and transmit, regardless of borders, both verbally, in
writing of in print, in art or using other media of his choice."

I can't imagine how guidelines about background color can impede the freedom
of speech. Isn't it a good idea to approach it like this: The guidelines
apply, unless the author of the website makes a case that this limits his
freedom of speech? This way you reverse the issue and don't throw away the
good with the bad. Only if freedom of speech is actually limited, the
guidelines are set aside. The guidelines are not set aside prematurely.
Provisions will have to be made for this, including judicial actions
(questions like: who will take action? The website-writer who feels limited
in his freedom of speech or the disabled person who can't read it? How
severely is this tested?).

I also wonder if the government (because this is whom you want to make the
guidelines mandatory for? Not other organizations?) can claim human rights!
The government does not have an unlimited right to freedom of speech. That
is, not in the Netherlands, where we have the general principles of orderly
government. These contain language regulations (Dutch and in some cases
Frisian). Also the government must carefully prepare decisions (including
the decision to make information public?) and can not abuse power. The same
limitation of this right would apply in the US, I guess.

</answer>

She also gave me a few links to Dutch websites, which I haven't had a chance
to go through yet.

I will explain to her that the rules _are_ meant to be enforced for other
organizations besides the government.

I think her suggestion to enforce the guidelines which possibly limit
freedom of speech anyway unless the author claims his right to freedom of
speech is rather good. Such a claim can be encorporated into the
accessibility statement of a website, explaining why certain parts do not
meet the guidelines. How does the rest of the group feel about this? I hope
we can discuss this later tonight.

Yvette Hoitink
CEO Heritas, Enschede, The Netherlands 
Received on Thursday, 9 October 2003 15:00:47 GMT

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