HON ANG: Words

211A
2014
THON SANG
AND
CENTIPLEX CORPORATION
(APPLICANTS)
REPUBLIC OF MHUGAN
(RESPONDENT)
MEMORIAL FOR APPLICANTS
4, 534 WORDS
TABLE OF CONTENTS
LIST OF ABBREVIATIONS ................................................................................................. 2
LIST OF AUTHORITIES ....................................................................................................... 3
STATEMENT OF RELEVANT FACTS............................................................................. 11
STATEMENT OF JURISDICTION .................................................................................... 15
QUESTIONS PRESENTED ................................................................................................. 16
SUMMARY OF ARGUMENTS ........................................................................................... 17
ARGUMENTS........................................................................................................................ 20
I. THE IMPOSITION OF LIABILITY ON SANG UNDER THE WIRETAP ACT

CONTRAVENES PROVISIONS OF THE UDHR ................................................................. 20
II. THE SUBPOENA TO SANG REQUIRING THE DISCLOSURE OF THE SOURCE

CONTRAVENES PROVISIONS OF THE UDHR ................................................................. 25
III. THE REQUIREMENT FOR REMOVAL OF WEB PAGES FROM THE FIRST PAGE
OF SEARCH RESULTS CONTRAVENES PROVISIONS OF THE UDHR ......................... 31
IV. THE SEARCH PRIVACY ACT, 2013 CONTRAVENES PROVISIONS OF THE UDHR
…………………………………………………………………………………………..39
PRAYER ................................................................................................................................. 44
1
LIST OF ABBREVIATIONS
___________________________________________________________________________
AFCHR African Convention on Human and People’s Rights
AFCtHR African Court of Human and People’s Rights
ACHR American Convention on Human Rights
App no Application Number
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
EU European Union
EWCA England and Wales Court of Appeal
HRC Human Rights Committee
ICCPR International Covenant on Civil and Political Rights
IACtHR Inter American Court of Human Rights
OUP Oxford University Press
QB Queen’s Bench
UDHR Universal Decleration of Human Rights
UK United Kingdom
UKHL United Kingdom House of Lords
US United States of America
V versus
2
LIST OF AUTHORITIES
___________________________________________________________________________
CASES OF THE EUROPEAN COURT OF JUSTICE

1. The Queen v Minister of Agriculture, Fisheries and Food and Secretary of health, ex
parte Fedesa [1990] ECR I-4023 (ECJ)
CASES OF THE AFRICAN COURT OF HUMAN RIGHTS AND PEOPLE’S RIGHTS

1. Article19 v Eritrea (2007) AHRLR 73 (ACtHPR 2007).
2. Jawara v Gambia (2000) AHRLR 107 (ACtHPR 2000)
CASES OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS

1. Herrera-Ulloa v Costa Rica Petition No 12367 (IACHR, 2 July 2004)
2. Claude Reyes et al. v. Chile, Case 12.108, Report No. 60/03 (IACHR, 10 October
2003)
Pathfinder v. Grenada, 11/96 Case 10.325 (IACHR, 1 March 1996)
CASES OF THE EUROPEAN COURT OF HUMAN RIGHTS

1. Autronic AG v Switzerland [1990] app no 12726/87 (ECtHR, 22 May 1990).
2. Axel Springer AG v Germany App no 39954/08 (ECtHR, 7 February 2012)
3. Aydin Tatlav v Turkey App no 50692/99 (ECtHR, 2 May 2006)
4. Barfod v Denmark App no 15890/89 (ECtHR, 23 September 1994)
5. Björk Eiðsdóttir v Iceland App no 46443/09 (ECtHR, 10 July 2012)
6. Busuioc v Moldova App no 61513/00 (ECtHR, 21 December 2004)
7. Casado Coca v Spain App no 15450/89 (ECtHR, 24 February 1994)
8. Craxi v Italy (No 2) App no 25337/94 (ECtHR, 17 October 2003).
9. Demuth v Switzerland App no 38743/97 (ECtHR, 5 November 2002)
10. Editorial board of Pravoye Delo Shtekel v Ukraine App no 33014/05 (ECtHR, 5 May
2011)
11. Ekin v France App no 39288/98 (EctHR, 17 July 2001
12. Eremia v Republic of Moldova App no 3564/11 (ECtHR, 28 May 2013).
13. Fatullayev v Azerbaijan App no 40984/07 (ECtHR, 22 April 2010)
14. Feldek v Slovakia App no 29032/95 (ECtHR, 12 July 2001)
15. Financial Times and Others v UK App no 821/03 (ECtHR, 15 December 2009)
3
16. Fressoz and Roire v France App no 29183/95 (ECtHR, 21 January 1999)
17. Gaweda v Poland App no 26229/95 (ECtHR, 14 March 2002)
18. Gillan and. Quinton v United Kingdom App no 4158/05 (ECtHR, 12 January 2010).
19. Giniewski v France App no 64016/00 (ECtHR, 31 January 2006)
20. Goodwin v UK App no 28957/95 (ECtHR, 11 July 2002).
21. Gündüz v Turkey App no 35071/97 (ECtHR, 4 December 2003)
22. Handyside v United Kingdom App no 5493/72 (ECtHR, 7 December 1976)
23. Hasan and Chaush v Bulgaria App no 30985/96 (ECtHR, 26 October 2000)
24. Herczegfalvy v Austria App no 10533/83 (ECtHR, 24 September 1992)
25. Hertel v Switzerland App no 53440/99 (ECtHR, 17 January 2002)
26. Hinczewski v Poland App no 34907/05 (ECtHR, 5 October 2010)
27. Iatridis v Greece App no 31107/96 (ECtHR, 25 March 1999)
28. Incal v Turkey App no 22678/93 (ECtHR, 9 June 1998)
29. Informationsverein Lentia and Others v Austria App no 37093/97 (24 November
1993)
30. Karademirci and Others v Turkey App nos 37096/97 and 37101/97 (ECtHR, 25
January 2005)
31. Karako v Hungary App no 39311/05 (ECtHR, 28 April 2009)
32. Klass v Germany App no 5029/71 (ECtHR, 6 September 1978)
33. Krone Verlag GmbH & Co KG v Austria App no 34315/96 (ECtHR, 26 February,
2002)
34. Lingens v Austria App no 9815/82 (ECtHR, 8 July 1986)
35. Manole and others v Maldova App no 13936/02 (ECtHR, 17 November 2009)
36. Mosley v UK App no 48009/08 (ECtHR, 10 May 2011)
37. Nagla v Latvia App no 73469/10 (ECtHR, 16 July 2013)
38. Open Door and Dublin Well Woman v Ireland App no 14234/88 and 14235/88
(ECtHR, 29 October 1992)
39. Özgür Gündem v Turkey App no 23144/93 (ECtHR, 16 March 2000)
40. Perry v UK App no 63737/00 (ECtHR, 17 July 2003)
41. Rekvényi v Hungary App no 25390/94 (ECtHR, 20 May 1999)
42. Ressiot and Others v France App no 15054/07 (ECtHR, 28 June 2012)
43. Saint-Paul Luxembourg S.A. v Luxembourg App no 26419/10 (ECtHR, 18 April
2013)
4
44. Sanoma Uitgevers B.V. v Netherlands App no 38224/03 (ECtHR, 14 September
2010)
45. Silkwood v Kerr-McGee Corp 464 US 238 (1984)
46. Silver and others v UK App no 7136/75 (ECtHR, 25 March 1983)
47. Steel and Morris v UK App no 68416/01 (ECtHR, 15 February 2005)
48. Sürek v Turkey App no 24122/94 (ECtHR, 8 July 1999)
49. Társaság A Szabadságjogokért v Hungary App no 37374/05 (ECtHR, 14 April 2009)
50. Telegraaf Media Nederland Landelijke Media B.V. v The Netherlands App no
39315/06 (ECtHR, 22 February 2013)
51. The Observer and Guardian v UK App no 13585/88 (ECtHR, 26 November 1991)
52. The Sunday Times v UK App no 13166/87 (ECtHR, 26 November 1991)
53. Thorgeir Thorgeirson v Iceland App no 13778/88 (ECtHR, 25 June 1992)
54. Times Newspapers Ltd (Nos. 1 & 2) v The UK App no 3002/03 and 23676/03
(ECtHR, 10 March 2009)
55. Tolstoy Miloslavsky v United Kingdom App no 18139/91 (ECtHR, 13 July 1995)
56. Vereinigun Demokratischer Soldaten Osterreichs and Gubi v Austria App no
15153/89 (ECtHR, 19 December 1994)
57. Vides Aizsardzības Klubs v Latvia App no 57829/00 (ECtHR, 27 May 2004)
58. Von Hannover v Germany App no 59320/00 (ECtHR, 24 September 2004)
59. Voskuil v Netherlands App no 64752/01 (ECtHR, 22 November 2007)
60. Worm v Austria App no 83/1996/702/894 (ECtHR, 29 August 1997)
61. X and Church of Scientology v Sweden App no 11921/86 (ECtHR, 5 May 1979)
62. Zana v Turkey App no 18954 (ECtHR, 25 November 1997)
AMERICAN CASES
1. Ashcroft v ACLU 535 US 564 (2002)
2. Ashcroft v Free Speech Coalition 535 US 234 (2002)
3. Bartnicki v Vopper 532 US 514 (2001)
4. Batzel v Smith 333 F.3d 1018, 1026 (9th Cir. 2003)
5. Belize Broadcasting Authority v Courtenay and Hoare LRC (Const) 276 (1988)
6. Board of Trustees of State University of New York v Fox, 492 US 469 (1989)
7. Bolger v Youngs Drug Products Corp. 526 F.Supp. 823(1983)
8. Branzburg v Hayes 408 US 665 (1972)
9. Bridges v California 314 US 252 (1941)
5
10. Center for Democracy and Technology v Pappert 337 F.Supp. 2d 606 (E.D. Pa. 2004)
11. Central Hudson Gas and Electric Corporation v Public Service Commision of New
York 447 US 557 (1980)
12. Cincinnati v Discovery Network, Inc. 507 US 410 (1993)
13. City of Los Angeles and Department of Water and Power v Preferred
Communications Inc. 476 US 488 (1986)
14. Craig v Harney 331 US 367 (1947)
15. Crookes v Newton [2011] 3 SCR 269
16. De Jonge v State of Oregon 299 US 353 (1937)
17. Dun & Bradstreet, Inc. v Greenmoss Builders, Inc. 472 US 749 (1985)
18. DVD Copy Control Association v Bunner 31 Cal. 4th 864 (2003)
19. Field v Google Inc. 412 F.Supp. 2d 1106 (D.Nev. 2006)
20. First National Bank of Boston v Bellotti 435 US 765 (1978)
21. Florida Star v B.J.F. 491 US 524 (1989)
22. Freedman v Maryland 380 US 51 (1965)
23. Gibson v Florida Legislative Investigation Committee 372 US 539 (1963)
24. Greater New Orleans Broadcasting Association, Inc. v United States 527 US 173
(1999)
25. Griswold v Connecticut 381 US 479 (1965)
26. Kleindienst v Mandel 408 US 753 (1972)
27. Lamont v Postmaster General 381 US 301 (1965)
28. Linmark Associates, Inc. v Township of Willingbro 431 US 85 (1977)
29. Martin v Struthers 319 US 141 (1943)
30. Metro Broadcasting Inc. v FCC 497 US 445 (1990)
31. Minneapolis Star & Tribune Co. v Minnesota Commissioner of Revenue 460 US 575
(1983)
32. NAACP v Button 371 US 415 (1963)
33. Nebraska Press Association v Stuart 427 US 539 (1976)
34. New York Times Co v Sullivan 376 US 254 (1964)
35. New York Times v United States, 403 US 713 (1971)
36. O’Grady v Superior Court 44 Cal. Rptr. 3d 72, 101 (Ct. App. 2006)
37. Pennekamp v Florida 328 US 331 (1946)
38. Perfect 10 v Google Inc. 416 F.Supp. 2d 828 (C.D. Cal. 2006)
6
39. R. A. V. v St. Paul 505 US 377 (1992) Renton v Playtime Theatres, Inc. 475 US 41
(1986)
40. Red Lion Broadcasting Co. Inc. v FCC (No 2) 395 US 367 (1969)
41. Reno v ACLU 521 US 844 (1997)
42. Roth v United States, 354 US 476 (1957)
43. Rubin v Coors Brewing Co. 514 US 476 (1995)
44. Ruth Shulman v. Group W Productions Inc. [1998] 18 Cal. 4th 200, 74 Cal. Rptr. 2d
843, 955 P.2d 46
45. Schneider v Smith 390 US 17 (1968)
46. Shelton v Tucker 364 US 479 (1960)
47. Silkwood v Kerr-McGee Corp 464 US 238 (1984)
48. Simon & Schuster, Inc. v Members of New York State Crime Victims Bd. 502 US
105 (1991)
49. Smith v Daily Mail Publishing Co. 443 US 97 102 (1979)
50. Sorell v IMS Health 131 S. Ct. 2653 (2011)
51. Stromberg v California, 283 US 359 (1931)
52. Sweezy v New Hampshire 354 US 234 (1957)
53. Terminiello v Chicago 337 US (1949)
54. Thomas v Collins 323 US 516 (1945)
55. Thurman v City of Torrington DC 595 FSupp.1521 (1985)
56. Tina Renna v County of Union 210 N.J. 291 (2012)
57. Turner Broadcasting System, Inc. v FCC (I and II) 512 US 662 (1994) and 520 US
180 (1997)
58. United States v Alvarez 567 US (2012)
59. United States v Playboy Entertainment Group, Inc. 529 US 803 (2000)
60. United States v Steven 559 US 460 (2010)
61. United States v Thirty-Seven Photographs 402 US 363 (1971)
62. Virginia State Pharmacy Board v Virginia Citizens Consumer Council 425 US 748
(1976)
63. Ward v Rock Against Racism 491 US 781 (1989)
64. Whitney v California 274 US 357 (1927)
65. Wieman v Updegraff 344 US 183 (1952)
66. Winters v New York 333 US 507 (1948)
67. Wood v Georgia 370 US 375 (1962)
7
ENGLISH CASES
1. Attorney General v Mulholland and Foster [1963] 2 QB 477
2. Bunt v Tilley [2006] EWHC 407
3. Jameel v Wall Street Journal Europe [2006] UKHL 44
4. John v Express Newspapers [2000] 1 WLR 193
5. Metropolitan Schools Ltd v Designtechnica Corporation [2011] 1 WLR 1743
6. Reynolds v Time Newspapers Ltd [2001] 2 AC 127
7. Tamiz v Google Inc [2012] EWHC 449
HUMAN RIGHTS COMMITTEE

1. Zeljko Bodrozic v Serbia and Montengro Communication No 1180/2003, (2006)
(HRC).
2. Mukong v Cameroon Communication No. 458/1991, (1994)(HRC)
AUSTRALIAN CASES
1. Crookes v Newton [2011] 3 SCR 269
AFRICAN CASES
1. In Midi Television (Pty) Ltd v Director of Public Prosecutions (Western Cape) [2007]
ZASCA 56
REGIONAL AND INTERNATIONAL INSTRUMENTS
1. African Charter on Human and People’s Rights (adopted 22 November 1969, entered
into force 18 July 1978) ACHR
2. American Convention on Human Rights (adopted 22 November 1969, entered into
force 18 July 1978) (ACHR)
3. Compulsory Membership of an Association Prescribed by Law for the Practice of
Journalism, Advisory Opinion OC-5/85 Inter-American Court of Human Rights (Ser.
A) No. 5 (1985) (13 November 1985)
4. Expert Seminar on the Links Between Articles 19 and 20 of the ICCPR
5. European Convention on Human Rights (adopted 4 November 1950, entered into
force 3 September 1953) (ECHR)
6. General Comment 34. ICCPR CCPR/C/GC/34;
7. Inter-American Decleration of Principles on Freedom of Expression Principle 8
8
8. International Covenant on Civil and Political Rights (adopted 16 December 1966,
entered into force 23 March 1976) 999 UNTS 171 (ICCPR)
9. Recommendation CM/Rec(2011)7 on a new notion of media (CoE 2011)
10. Recommendation No. R (97) 19 of committee of ministers of CoE on the portrayal of
violence in the electronic media (30 October 1997)
11. Report of Special Rapporteur on Promotion and Protection of Right to Freedom of
Opinion and Expression (2011) UN Doc A/HRC/17/27
12. Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr.
(IAMCHR 2002)
13. Siracusa Principles on the Limitation and Derogation Provisions in the International
Covenant on Civil and Political Rights, UN Doc E/CN 4/1985/4, cl 10(b) and (d)
14. The Johannesburg Principles on National Security, Freedom of Expression and
Access to Information, principle 19 (1 October 1995)
15. UN General Assembly, Declaration on the Elimination of Violence against Women,
20 December 1993
16. UNGA Human Rights Council Resolution A/HRC/20/L.13
17. UNCHR, ‘Report of the Special Rapporteur on the Promotion and Protection of the
Right to Freedom of Opinion and Expression’ (2011) UN Doc A/HRC/17/27
18. Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217
A(III) (UDHR)
BOOKS
1. Helen Fenwick and Gavin Phillipson, Media Freedom Under the Human Rights Act
(2nd edn, OUP 2010)
2. Monroe E. Price, Stefaan G. Verhulst and Libby Morgan (eds), Routledge Handbook
of Media Law (Routledge 2013) at 452
ARTICLES
1. Kate E. Andrias: ‘A robust Public Debate: Realizing Free Speech in Workplace
Representative Election’ (2003) 112 Yale LJ 2415
2. UN General Assembly, Declaration on the Elimination of Violence against Women
(1993) A/RES/48/104
9
3. Freedom of Expression and Advocacy of Religious Hatred that Constitutes Incitement
to Discrimination, Hostility or Violence (2008) UNHCHR Conference Room Paper
#2
4. The Human Rights Review 2012, Article 8 The Right to Respect for Private and
Family Life, Home and Correspondence (2012) The Human Rights Review
5. Miklos Haraszti, ‘Access to information by the media in the OSCE region: trends and
recommendations’ (2007) Organisation for Security and Co-operation in Europe
(OSCE), The Representation on Freedom of the Media
6. Eric Goldman, ‘Search Engine Bias and the Demise of Search Engine Utopianism’
supra note 10, at 191 (2006) Yale Journal of Law and Technology
7. Seth F. Kreimer, Censorship by Proxy: The First Amendment, Internet
Intermediaries, and the Problem of the Weakest Link (2006) 155 U. PA. L. REV. 11
8. Jay Wahlquist, The World Summit of the Information Society: Making the Case for
Private Industry Filtering to Control Extrterritorial Jurisdiction and Transnational
Internet Censorship Conflict, (2005)1 INT’L. & MGMT. REV.
9. Aernout Nieuwenhuis, “The Concept of Pluralism in the Case-Law of the European
Court of Human Rights” (2007) European Constitutional Law Review
10. Collin Cornwell, ‘The Importance of Page One Visibility’ (2010) icrossing
11. Jack M. Balkin, Virtual Liberty: Freedom to Design and Freedom to Play in Virtual
Worlds (2004) 90 VA. L. REV. 2043, 2095-98
12. J.M. Balkin, FreeSpeech and Hostile Environments (1999) 99 COLUM. L. REV.
2295, 2296-2305
13. Michael 1.Meyerson, Authors, Editors, and Uncommon Carriers: Identifying the
“Speaker” Within The New Media (1995) 71 Notre Dame L. Rev. 79,116,118.
10
STATEMENT OF RELEVANT FACTS
_________________________________________________________________________________________
RELEVANT CIRCUMSTANCES IN MHUGAN
1. The Respondent country, the Republic of Mhugan, is a former British Colony and has
had parliamentary form of government since its independence in 1959. Mhuganian
law does not provide for specific crimes with respect to spousal abuse and only laws
of general applicability such as battery apply in such cases.
2. Bansit Sangnont, alias Rho is a pop music singer-songwriter in Mhugan, who rose to
national and international fame in 2011 when the music video for his song “Poké
Poké” went viral on YouTube. Consequently, his song and its signature dance move
have brought a measure of renown to Mhugan itself.
3. In early 2013, rumors began to surface that Rho has been physically and/or
emotionally abusive to his wife. He responded by vehemently denying the allegations.
DEXIAN AND CENTIPLEX
4. Dexian is a global information services company, based in the United States. Its core
business involves collecting, aggregating, analyzing, and disseminating information
relating to individuals.
5. Centiplex Corporation is a leading Internet Services company in Mhugan. It offers a
combination of tightly integrated services such as: an Internet search engine, a social
networking service and a blogging platform inter alia. It enjoys a virtual monopoly in
Mhugan for the services that it provides (more than 80% of all search queries are
conducted through Centiplex and more than 95% of have a Centiplex account and
social networking profile). While the Terms of Service of Centiplex services are silent
11
with respect to its use/disclosure of search engine data; they stipulate the use/limited
circumstances of disclosure of email messages that it processes. Further, prior to
2013, no Mhugan law restricted a search engine’s ability to collect, disclose or use
information.
6. In the course of their commercial relationship with Dexian, Centiplex has provided it
with lists of search queries, indexed by the IP address of the computer that originated
the query, as well as the date and time of the query.
THON SANG’S BLOGGING ACTIVITIES
7. Thon Sang is a programmer in Mhugan, who maintains an active blog on the
Centiplex platform. Recently, his blog has become the “go-to” place for Mhuganian
celebrity gossip on the Internet and receives more than 100,000 hits a day. The
advertisement revenue from this blog accrues entirely to Centiplex.
8. Sang has blogged about the rumors of Rho abusing this wife, writing that if true,
people should boycott Rho’s music in protest. On May 1, 2013, he posted the
recording of a voicemail that Rho allegedly left for a friend named Taur Aklamit, in
which the former hinted at giving his wife “a good smacking.” The next day, Sang
posted Rho’s web searches that included queries such as ‘how to control your
wife’ and ‘whipping techniques.’ He indicated that he acquired this information from
Dexian in exchange for almost 20,000 MHD (One MHD, or Mhuganian Dollar is
approximately 0.02 Euros). By the following day, Sang’s blog was receiving almost
one million hits per day.
9. On May 4, Rho held a press conference, at which he admitted to the authenticity of
the recorded voicemail but questioned whether the web searches were his. His wife,
though present, did not speak at the press conference. The next day, Sang clarified on
12
his blog that the source of the voicemail had mistakenly gained access to Aklamit’s
mailbox by entering in the wrong number and a common default password. The
source had requested anonymity.
THE MHUGAN WIRETAP ACT
10. Mhuganian law makes it illegal under the Wiretap Act to intentionally intercept or
obtain unauthorized access to any telephone or electronic communications. It further
makes it illegal for any person to disseminate the contents of such communications
that the person knows to have been unlawfully intercepted or obtained under this Act.
The Act provides for both civil and criminal penalties.
11. The Act also provides for a provisional remedy under which a plaintiff claiming
under the act may apply for an order against any search engine whereby it would be
required to remove web pages on which the intercepted material appears or from
which it can be “directly accessed”. This Act allows a search engine to meet its
obligation under such an order by de-indexing the relevtn web pages. Further, if the
plaintiff prevails on the claim the order effectively becomes permanent. The Act
provides for civil remedies and criminal remedies in the case of intentional violation.
12. On May 8, 2013, Rho sued Sang under the Wiretap Act for knowingly disseminating
the obtained voicemail; applied for an order against Centiplex; and subpoenaed Sang
for the identity of the unknown source. The court ruled that Sang had violated the Act
and awarded statutory damages to Rho of 400,000 MHD. Meanwhile, Sang responded
by filing a motion to quash the subpoena, asserting a privilege to withhold the identity
of his source. The court denied the motion, finding that Mhuganian law only affords
such a privilege to “professional journalists.” However, the court did grant a stay of
the subpoena to give Sang the opportunity to pursue any national or international
13
appeals.
13. Centiplex immediately began to comply with the order entered against it. It
challenged the validity of the order by appearing in Rho’s case, but the court upheld
the order.
SEARCH PRIVACY ACT
14. On May 15, 2013 the Mhugan Parliament enacted the Search Privacy Act, which
makes it unlawful for a search engine to sell information about a person’s search
queries without the person’s consent. The Act does not apply to non-sale transfers of
such information, nor does it apply to any subsequent transfers of the same
information.
15. On May 20, 2013, Centiplex sued in Mhugan to have the Search Privacy Act declared
invalid under the laws and Constitution of Mhugan. The court held that the Search
Privacy Act was valid and refused to enjoin its enforcement.
MHUGAN SUPREME COURT AND THE UNIVERSAL COURT OF HUMAN
RIGHTS
16. All the above rulings were appealed to the Mhugan Supreme Court and were
subsequently dismissed. Sang and Centiplex have challenged these in the Universal
Court of Human Rights. Their positions have been rejected on the merits in domestic
Mhugan courts and all domestic remedies have been exhausted. Finally, no law,
domestic or international, restricts Sang or Centiplex’s standing to bring these
challenges.
14
STATEMENT OF JURISDICTION
___________________________________________________________________________
Thon Sang and Centiplex Corporation, on its own behalf and on behalf of its users, has
approached the Universal Freedom of Expression Court, the special chamber of the Universal
Court of Human Rights hearing issues relating to the right of freedom of expression under
Article 19, under the enabling Preamble of the UN Charter.
15
QUESTIONS PRESENTED
___________________________________________________________________________
I. WHETHER THE IMPOSITION OF LIABILITY ON SANG UNDER THE MHUGAN WIRETAP
ACT IS CONSISTENT WITH PROVISIONS OF THE UDHR?
II. WHETHER THE SUBPOENA TO SANG REQUIRING THE DISCLOSURE OF THE SOURCE
OF THE RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE
UDHR?
III. WHETHER THE ORDER ISSUED UNDER THE WIRETAP ACT REQUIRING THAT
WEBPAGES THAT LINK TO THE RECORDED VOICEMAIL NEVER APPEAR ON THE FIRST
PAGE OF SEARCH RESULTS IS CONSISTENT WITH THE PROVISIONS OF THE UDHR?
IV. WHETHER THE SEARCH PRIVACY ACT, 2013 IS CONSISTENT WITH THE PROVISIONS
OF THE UDHR?
16
SUMMARY OF ARGUMENTS
___________________________________________________________________________
I. The Wiretap Act prohibits the dissemination of contents of a telephone or electronic
communication that the person knows to have been unlawfully intercepted or obtained
under the Act. Applicants submit that the imposition of liability on Sang in this case
restricts his right to freedom of expression in public interest under Article 19, UDHR.
Sang is an innocent publisher as he did not participate in the illegal interception of the
voicemail. Further, he disseminated the information in public interest as his blog was
directed at the public and the publication has social value and is likely to foster a
public debate. Finally, the public has a right to know about Rho’s condemnable
actions.
Applicants submit that the restriction imposed on the aforesaid right is not permissible
under Article 29(2). While the restriction is prescribed by law it does not pursue a
legitimate aim as an interceptor cannot be deterred by punishing the disseminator.
Lastly, it is not necessary in a democratic society as there exists no pressing social
need in punishing a lawful disseminator.
II. The subpoena to Sang mandates the disclosure of the unknown source of the recorded
voicemail. Such a requirement contravenes the freedom of expression under Aricle
19, UDHR has it causes a chilling effect on sources’ activities and restricts Sang’s
right to impart information in the public interest. Sources are most often insiders who
must not be deterred from coming forward due to the fear of exposure or reprisal.
Further, distinguishing Sang on the basis of accreditation amounts to creating an
unjustified distinction between classes of individuals performing a similar benefit to
society.
17
The restriction on the aforesaid right is not permissible under Article 29(2). Even
though the restriction is prescribed by law, it does not pursue a legitimate aim and is
not necessary in a democratic society.
III. The impugned court order mandates that no webpage on which the intercepted
material appears or may be accessed regardless of how many links it takes, should
appear on the first page of search results. Applicants submit that this requirement
contravenes the right to freedom of opinion and expression under Article 19 [I], of
both Centiplex and its users. Firstly, it inhibits Centiplex’s efficiency and outreach by
undermining page-one visibility. Secondly, it prohibits lawful expression by
Centiplex in form of free crawling and indexing of information. Thirdly, it encourages
Centiplex to err on the side of caution thereby causing an exaggerated prohibitive
effect. Alternatively the requirement causes a chilling effect on the expression of user,
imposes an impermissible prior restraint and constitutes an interference with their
right to receive information. The requirement also compromises Centiplex’s right to
enjoy goodwill and clientele by imposing a burden on its business.
Finally, the restriction on the aforesaid right is not permissible under Article 29(2) of
the UDHR. The restriction is not prescribed by law as it is not foreseeable or precise.
It does not pursue a legitimate aim as the public interest in free expression outweighs
Rho’s diminished right to privacy.
IV. The Search Privacy Act, 2013 makes it unlawful for search engines to sell
information about a person’s search queries without the person’s consent. Such a
requirement violates Centiplex’s right to commercial speech by imposing content and
speaker based burdens and an impermissible commercial value based burden on it.
Applicants submit that the restriction on search queries based on whether or not they
18
contain personal identifiers places an excessively high burden on Centiplex’s speech.
Further, restrictions on only transfers by sale implies an impermissible discrimination
between speech and speech for profit.
The restriction is not permissible under Article 29(2) as it is not founded in a
substantial government interest. It does not directly advance the asserted interest as
the Act provides for multiple exceptions to the law, where user consent is not
required. Lastly, the restriction is more extensive than that necessary to serve the
interest. In contrast, a provision that doesn’t presume illegality and is narrowly
tailored to account for instances of misappropriation would be a least onerous
measure.
19
ARGUMENTS
___________________________________________________________________________
I. THE IMPOSITION OF LIABILITY ON SANG UNDER THE WIRETAP ACT
CONTRAVENES PROVISIONS OF THE UDHR
1. The Wiretap Act prohibits the dissemination of contents of a telephone or electronic
communication that the person knows to have been unlawfully intercepted or obtained under
the Act. Applicants submit that the imposition of liability on Sang violates the right to
freedom of expression and opinion under Article 19 [A]. Further, the restriction is not
permissible under Article 29(2) [B].
A. The imposition of liability restricts Article 19, UDHR
2. The right to freedom of expression through any media and regardless of frontiers is protected
under Article 19. 1 Such protection includes right to disseminate information2 and extends to
the Internet.3 It includes the right to collect and impart information in the public interest. 4 It
is acknowledged that state actions punishing the publication of truthful information seldom
1
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19;
American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) (ACHR)
art 13(1); European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September
1953) (ECHR) art 10(1).
2
Vereinigun Demokratischer Soldaten Osterreichs and Gubi v Austria App no 15153/89 (ECtHR, 19 December
1994); Pathfinder v. Grenada, Inter-American Court of Human Rights Report on 11/96 Case 10.325 (March 1
1996).
3
Reno v ACLU 521 US 844 (1997); Times Newspapers Ltd (Nos. 1 & 2) v The UK App no 3002/03 and
23676/03 (ECtHR, 10 March 2009); Fatullayev v Azerbaijan App no 40984/07 (ECtHR, 22 April 2010); Mosley
v UK App no 48009/08 (ECtHR, 10 May 2011); General Comment 34. ICCPR CCPR/C/GC/34; UNGA Human
Rights Council Resolution A/HRC/20/L.13; UNCHR, ‘Report of the Special Rapporteur on the Promotion and
Protection of the Right to Freedom of Opinion and Expression’ (2011) UN Doc A/HRC/17/27.
4
Reynolds v Time Newspapers Ltd [2001] 2 AC 127; Jameel v Wall Street Journal Europe [2006] UKHL 44.
20
satisfy constitutional standards.5 In fact, the dissemination of truthful information in public
interest warrants the highest protection6, even if such information was obtained illegally.7
3. Significantly, the U.S. Supreme Court in Bartinick v. Vopper ruled that a stranger’s illegal
conduct does not suffice to punish an innocent party that did not participate in or encourage
the illegal conduct but merely disseminated the information in public interest. 8 This holds
true even when the disseminated information contains a factual error, defamatory content or a
combination of both. 9 Debates on public issues should be uninhibited, robust and wide-
open.10 The naked prohibition of disseminating any information solely on the grounds that it
was obtained unlawfully by a third party is in direct contravention to Article 19 of the
UDHR.
4. In the present case, the imposition of liability violates Sang’s right to impart information, as
he was an innocent publisher [a] and imparted information in the public interest [b].11
5
Smith v Daily Mail Publishing Co. 443 US 97 102 (1979).
6
Lingens v Austria App no 9815/82 (ECtHR, 8 July 1986); Özgür Gündem v Turkey App no 23144/93 (ECtHR,
16 March 2000); Manole and others v Maldova App no 13936/02 (ECtHR, 17 November 2009); Stromberg v
California, 283 US 359 (1931); Bridges v California, 314 US 252 (1941); Roth v United States, 354 US 476
(1957); New York Times v United States, 403 US 713 (1971); Reynolds v Time Newspapers Ltd [2001] 2 AC
127; Smith v Daily Mail Publishing Co. 443 US 97 102 (1979); Florida Star v B.J.F. 491 US 524 (1989).
7
New York Times v United States, 403 US 713 (1971); Ruth Shulman v Group W Productions Inc. [1998] 18
Cal. 4th 200, 74 Cal. Rptr. 2d 843, 955 P.2d 46; Bartnicki v Vopper 532 US 514 (2001).
8
Bartnicki v Vopper 532 US 514 (2001);
9
Karako v Hungary App no 39311/05 (ECtHR, 28 April 2009); Axel Springer AG v Germany App no 39954/08
(ECtHR, 7 February 2012); Bridges v California 314 US 252 (1941); Pennekamp v Florida 328 US 331 (1946);
Craig v Harney 331 US 367 (1947); Wood v Georgia 370 US 375 (1962); NAACP v Button 371 US 415 (1963).
10
Thorgeir Thorgeirson v Iceland App no 13778/88 (ECtHR, 25 June 1992); Feldek v Slovakia App no
29032/95 (ECtHR, 12 July 2001); Gündüz v Turkey App no 35071/97 (ECtHR, 4 December 2003); Giniewski v
France App no 64016/00 (ECtHR, 31 January 2006); Whitney v California, 274 US 357 (1927) (Brandeis, J.,
concurring); Stromberg v California 283 US 359 (1931); De Jonge v State of Oregon 299 US 353 (1937);
Bridges v California 314 US 252 (1941); Terminiello v Chicago 337 US (1949); Roth v United States 354 US
476 (1957).
11
The Observer and Guardian v UK App no 13585/88 (ECtHR, 26 November 1991); Busuioc v Moldova App
no 61513/00 (ECtHR, 21 December 2004); Reynolds v Time Newspapers Ltd [2001] 2 AC 127; Jameel v Wall
Street Journal Europe [2006] UKHL 44
21
a) Sang was an innocent publisher.
5. Though the original interceptor of communications may be guilty of engaging in unlawful
conduct, it is not appropriate to deter him/her by punishing a law-abiding possessor of such
information.12 In the present case, Sang did not participate in the illegal interception himself.
He merely posted the information in the course of his usual blogging activities.
b) Sang imparted information in the public interest
6. Applicants submit that Sang disseminated the voicemail in public interest as his blog post is
directed at the public13 [i]; it has a social value and will foster public debate14 [ii]; and the
public has a right to be informed about Rho’s condemnable actions15 [iii].
i. Sang’s blog post was directed at the public.
7. Sang’s weblog is the “go-to” place for Mhuganian Celebrity gossip on the Internet and
receives at least 100,000 hits a day. Further, he posts at least once or twice a day and
generates as well as re-produces content. Clearly, his activities serve as a major source of
news to the Mhuganian public. For the purposes of news on Mhugan celebrities, Sang’s
weblog is a robust, responsible member of the Press.
12
Bartnicki v Vopper 532 US 514 (2001).
13
Monroe E. Price, Stefaan G. Verhulst and Libby Morgan (eds), Routledge Handbook of Media Law
(Routledge 2013) Art 24.
14
Inter American Court of Human Rights Advisory Opinion OC-5/85 November 13, 1985 par 32-33, p 101, par
42, p 106; Kate E. Andrias: ‘A robust Public Debate: Realizing Free Speech in Workplace Representative
Election’ (2003) 112 Yale LJ 2415.
15
Craxi v Italy (No 2) App no 25337/94 (ECtHR, 17 October 2003).
22
ii. The publication has a social value and will foster public debate.
8. Violence is a tacit part of any society’s reality and the “right of the public to be informed also
covers the right to be informed about various manifestations of violence”. 16 Freedom of
expression is applicable not only to information or ideas that are favorably received or
regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or
disturb the State or any sector of the population.17
9. Information about Sang’s alleged violence will definitely instigate a public debate in
Mhugan. This is owing to the stature of Rho the seriousness of the allegations themselves.
Mhuganian Criminal Law does not distinctly make culpable, spousal abuse 18 , an offence
grossly condemned in several international instruments19 and separately punished in various
jurisdictions across the world.20 The efficacy of the public in advocating for a legal reform in
the light of contemporary happenings is well documented.
iii. The public has a Right to be informed about Rho’s condemnable actions.
10. Moreover, the public has the right to be informed about public figures. Particularly when
information may de-place them of repute, including criminal charges and socially condemned
16
Recommendation No. R (97) 19 of committee of ministers of CoE on the portrayal of violence in the
electronic media (30 October 1997).

17
Handyside v United Kingdom App no 5493/72 (ECtHR, 7 December 1976).
18
Fact Sheet ¶. 3
19
European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953)
(ECHR) art 8(1); Eremia v Republic of Moldova App no 3564/11 (ECtHR, 28 May 2013).
20
UN General Assembly, Declaration on the Elimination of Violence against Women (1993) A/RES/48/104;
Opuz v Turkey App no 33401/02 (ECtHR, 9 June 2009); Thurman v City of Torrington DC 595 FSupp.1521
(1985).
23
behavior.21 Having risen to national and international fame, Rho is a public figure who has
impliedly and necessarily consented to lower degree of privacy. 22
11. Applicants submit that in imposing liability on Sang, the domestic courts of Mhugan have
failed to acknowledge Sang’s lack on involvement in the illegal interception; the social value
of the voicemail, the extent to which Rho has voluntarily acceded to a position of public
notoriety and the pressing public interest in dissemination.
c) In any case, the restriction is not permissible under Article 29(2), UDHR
12. Applicants submit that the restriction is not permissible under Article 29(2) as it does not
satisfy the three-part test of legality23. Though the restriction is prescribed by law: Firstly, it
does not pursue legitimate aims [a]; and secondly, it is not necessary in a democratic society
[b].
a) The restriction does not pursue legitimate aims
13. Applicants submit that the legitimate aim of protection of rights and freedoms of others
cannot be invoked in the present case. If the Act truly aims to deter the illegal interception of
communications, it cannot appropriately do so by punishing a lawful disseminator. There is
no rationale to support that prohibition against disclosures reduces the number of illegal
interceptions.24 Thus, provisions of the Act that punish sheer disseminators of communication
do not pursue a legitimate aim.
21
Craxi v Italy (No 2) App no 25337/94 (ECtHR, 17 October 2003).
22
Smith v Daily Mail Publishing Co. 443 US 97 102 (1979).
23
Mukong v Cameroon, Communication No. 458/1991 (HRC 1994).
24
Bartnicki v Vopper 532 US 514 (2001).
24
b) The restriction is not necessary in a democratic society
14. The restriction is necessary in a democratic society if it corresponds to a pressing social need
and is proportionate to the legitimate aim pursued. 25 Further, the reasons provided in
justification of the restriction must be relevant and sufficient. 26 While all citizens may be
entitled to a reasonable expectation of privacy27, the need for the same persists only in the
absence of a compelling need for disclosure in public interest. 28 Applicants submit that the
present pressing social need is that of receiving information in the public interest rather than
punishing the lawful disseminator of information.
15. A restriction is proportionate if it entails the use of the least restrictive measure.29 Applicants
submit that punishing the lawful disseminator of information is definitely not the least
invasive way of preventing illegal interception and assuring Rho’s right to privacy.
II. THE SUBPOENA TO SANG REQUIRING THE DISCLOSURE OF THE
SOURCE CONTRAVENES PROVISIONS OF THE UDHR
16. The subpoena to Sang mandates the disclosure of the unknown source of the recorded
voicemail. Applicants submit that this requirement contravenes the right to freedom of
25
Handyside v United Kingdom [1976] ECHR 5; The Sunday Times v United Kingdom App no 13166/87
(ECtHR, 26 November 1991); The Observer and The Guardian v United Kingdom App no 13585/88 (ECtHR,
26 November 1991); Siracusa Principles on the Limitation and Derogation Provisions in the International
Covenant on Civil and Political Rights, UN Doc E/CN 4/1985/4, cl 10(b) and (d).
26
The Sunday Times v United Kingdom App no 13166/87 (ECtHR, 26 November 1991).
27
American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978 (ACHR)
art 11; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23
March 1976) 999 UNTS 171 (ICCPR) art 17.
28
Books, Cases from the celebrities citation
29
Nebraska Press Association v Stuart 427 US 539 (1976); Reno v ACLU 521 US 844 (1997); DVD Copy
Control Association v Bunner 31 Cal. 4th 864 (2003); Report on Terrorism and Human Rights,
OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr. (IAMCHR 2002).
25
speech and expression under Article 19 [A]. Moreover, the restriction is not permissible
under Article 29(2) [B].
A. The requirement restricts Article 19, UDHR
17. The right to freedom of expression guarantees the right to receive and impart ideas without
interference by a public authority.30 Notably, this includes the right to protect sources, which
is crucial for maintaining the free flow of information.31 Applicants submit that the impugned
requirement violates Article 19 as it causes a ‘chilling effect’ on the use of sources [a], and
restricts Sang’s right to impart information in the public interest [b].
a. The requirement causes a ‘chilling effect’ on the use of sources
18. A chilling effect occurs when an act inhibits the full utilization of the freedom of
expression.32 Applicants acknowledge that sources, being in some sense insiders,33 provide
information that wouldn’t otherwise be available to the public. Where a reporter cannot
guarantee confidentiality, the source is likely to be deterred 34 from coming forward due to the
fear of exposure or reprisal. 35 Thus an order for disclosure requires a strict standard of
30
art 13(1).
31
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (ICCPR) art 19.
32
Lamont v Postmaster General 381 US 301 (1965).
33
Helen Fenwick and Gavin Phillipson, Media Freedom Under the Human Rights Act (2nd edn, OUP 2010) at
pg no 311
34
Gibson v Florida Legislative Investigation Committee 372 US 539 (1963); Freedman v Maryland 380 US 51
(1965).
35
Attorney General v Mulholland and Foster [1963] 2 QB 477; John v Express Newspapers [2000] 1 WLR 193.
26
scrutiny.36 Applicants submit that a chilling effect will arise if Sang is seen to assist in the
identification of his anonymous source.37
19. Firstly, the requirement to disclose restricts the right of Sang and the public to receive
information that is in the public interest. 38 Secondly, the requirement endangers the well
being of the reporter by restricting his/her ability to obtain information from similar sources
in the future. 39 Thirdly, the possibility of sanction may dissuade reporters from using
information provided by sources, thereby reducing the amount of information placed before
the public. 40
b. The requirement restricts Sang’s right to impart information in the public interest
20. The right to receive information in the public interest is a constitutional right enjoyed by all
citizens.41 Consequently, the press is entrusted with the task of imparting such information
and ideas.42 Notably, the promise of a free press is not made for the protection of special
media interests but for the free flow of information.43 Thus, it has been acknowledged that the
36
Goodwin v UK App no 28957/95 (ECtHR, 11 July 2002).
37
Goodwin v UK App no 28957/95 (ECtHR, 11 July 2002); Financial Times and Others v UK App no 821/03
(ECtHR, 15 December 2009); Telegraaf Media Nederland Landelijke Media B.V. v The Netherlands App no
39315/06 (ECtHR, 22 February 2013); Branzburg v Hayes 408 US 665 (1972); John v Express Newspapers
[2000] 1 WLR 193.
38
Issue A(I)(b) 211A Memorial.
39
Financial Times and Others v UK App no 821/03 (ECtHR, 15 December 2009); Miklos Haraszti, ‘Access to
information by the media in the OSCE region: trends and recommendations’ (2007) Organisation for Security
and Co-operation in Europe (OSCE), The Representation on Freedom of the Media.
40
Helen Fenwick and Gavin Phillipson, Media Freedom Under the Human Rights Act (2nd edn, OUP 2010) at
pg no 311
41
Martin v Struthers 319 US 141 (1943).
42
Társaság A Szabadságjogokért v Hungary App no 37374/05 (ECtHR, 14 April 2009); Björk Eiðsdóttir v
Iceland App no 46443/09 (ECtHR, 10 July 2012); Compulsory Membership of an Association Prescribed by
Law for the Practice of Journalism, Advisory Opinion OC-5/85 Inter-American Court of Human Rights (Ser. A)
No. 5 (1985) (13 November 1985).
43
In Midi Television (Pty) Ltd v Director of Public Prosecutions (Western Cape) [2007] ZASCA 56.
27
watchdog role is not unique to the press,44 and may be performed by NGOs45 and Internet
bloggers as well.46
21. Applicants submit that Sang is a social communicator who has a right to keep his sources
confidential. 47 The content provided by him in his Weblog is media because48: Firstly, as a
citizen journalist Sang played an active role in disseminating news with the intention of
enabling the exercise of free expression, to service public interest and influence public
opinion.49 Secondly, Sang exercised editorial oversight by providing verifiable news related
to objective events and allowed readers to judge for themselves. Thirdly, Sang was in
conformity with ethical and legal standards, as he did not participate in the unlawful
interception of the voicemail. 50Fourthly, the information on Sang’s blog is updated almost
twice a day, which makes him a periodic disseminator of news. Fifthly, the contents of
Sang’s blog are intended for reception by and are accessible to the general public, receiving
at least 100,000 hits a day, making it a mass medium.
22. Applicants submit that accreditation works like a restrictive affiliation test that creates an
unjustified distinction between classes of individuals performing a similar benefit to the
public. 51 Therefore, such a requirement restricts Sang’s right to impart information in the
public interest.
44
O’Grady v Superior Court, 44 Cal. Rptr. 3d 72, 101 (Ct. App. 2006).
45
Vides Aizsardzības Klubs v Latvia App no 57829/00 (ECtHR, 27 May 2004); Steel and Morris v UK App no
68416/01 (ECtHR, 15 February 2005); Társaság A Szabadságjogokért v Hungary App no 37374/05 (ECtHR, 14
April 2009).
46
Tina Renna v County of Union 210 NJ 291 (2012).
47
Inter-American Decleration of Principles on Freedom of Expression Principle 8
48
Recommendation CM/Rec(2011) 7 On a New Notion of Media (Council Of Europe 2011)
49
Monroe E. Price, Stefaan G. Verhulst and Libby Morgan (eds), Routledge Handbook of Media Law
(Routledge 2013) at 452
50
Bartnicki v Vopper 532 US 514 (2001); Nagla v Latvia App no 73469/10 (ECtHR, 16 July 2013).
51
Belgium Constitutional Court (nr 2006/91 of 7 June 2006)
28
B. The Restriction is not permissible under Article 29(2), UDHR
23. Applicants submit that the restriction on Sang’s right to receive and impart information in the
public interest is not permissible, as it does not satisfy the three-part test of legality.52 While a
statutory privilege not to reveal sources is prescribed by law in Mhugan, its exclusion of
Sang and similar reporters constitutes a restriction that does not pursue legitimate aims [a];
and is not necessary in a democratic society [b].
a) The restriction does not pursue legitimate aims
24. Applicants contend that the restriction is not in pursuance of any legitimate aim as it
arbitrarily creates a distinction between accredited journalists and public communicator’s
serving the same purpose. In any event, the aim of protection of the rights and freedoms of
others is not satisfied.
25. An order for disclosure can only be made in exceptional circumstances53 when it is justified
by an overriding requirement in the public interest. 54 Applicants submit that, the right to
privacy of Rho is already significantly diminished owing to his role in public life. 55 Given
the newsworthiness 56 and public interest value 57 of the information provided by Sang, the
overriding public interest in this case, lies in facilitating the free flow of information. Thus,
52
The Sunday Times v UK App no 13166/87 (ECtHR, 26 November 1991); Sürek v Turkey App no 24122/94
(ECtHR, 8 July 1999); Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR, 2 July 2004).
53
Financial Times Ltd v UK App no 821/03 (ECtHR, 15 March 2010).
54
Goodwin v United Kingdom App no 17488 (ECtHR, 27 March 1996); Silkwood v Kerr-McGee Corp 464 US
238 (1984); African Commission on Human and Peoples Rights, Declaration of Principles on Freedom of
Expression in Africa, Principle X.
55
Lingens v Austria App no 9815/82 (ECtHR, 8 July 1986); Von Hannover v Germany App no 59320/00
(ECtHR, 24 September 2004); New York Times Co v Sullivan 376 US 254 (1964); Zeljko Bodrozic v Serbia and
Montengro, Communication No 1180/2003, UN Doc CCPR/C/85/D/1180/2003 (2006) (HRC).
56
Krone Verlag GmbH & Co KG v Austria App no 34315/96 (ECtHR, 26 February, 2002).
57
Issue A(I)(b) 211A Memorial.
29
the private interest in disclosing the source is outweighed by the public interest in disclosing
it.58
b) The restrictive measure is not necessary in a democratic society
26. Applicants submit that the restriction imposed is not necessary in a democratic society as
there exists no pressing social need and the restriction is not proportionate to the legitimate
aim pursued.59 The test for a pressing social need requires that the interference must strike a
fair balance between the rights of an individual and those of a democratic society. 60 In the
present case, Rho’s claim based on a diminished right to privacy does not justify restricting
the public interest in the free flow of information.61 The interest in maintaining the right to
impart information on matter of public interest and preventing the potential chilling effect of
a disclosure order are of utmost importance in a democratic society.62
27. A restriction is proportionate to the legitimate aim pursued when the restriction imposed is
least onerous.63 In seeking the disclosure of Sang’s source, Rho must demonstrate that he has
58
Voskuil v Netherlands App no 64752/01 (ECtHR, 22 November 2007); Financial Times Ltd v UK App no
821/03 (ECtHR, 15 March 2010); Saint-Paul Luxembourg S.A. v. Luxembourg App no 26419/10 (ECtHR, 18
April 2013).
59
Handyside v United Kingdom App no 5493/72 (ECtHR, 7 December 1976); The Sunday Times v UK App no
13166/87 (ECtHR, 26 November 1991); The Observer and Guardian v UK App no 13585/88 (ECtHR, 26
November 1991).
60
The Observer and Guardian v UK App no 13585/88 (ECtHR, 26 November 1991); The Sunday Times v UK
App no 13166/87 (ECtHR, 26 November 1991); Zana v Turkey App no 18954 (ECtHR, 25 November 1997);
Incal v Turkey App no 22678/93 (ECtHR, 9 June 1998).
61
Ressiot and Others v France App no 15054/07 (ECtHR, 28 June 2012); Telegraaf Media Nederland
Landelijke Media B.V. v The Netherlands App no 39315/06 (ECtHR, 22 February 2013).
62
Goodwin v United Kingdom App no 17488 (ECtHR, 27 March 1996); Financial Times Ltd v UK App no
821/03 (ECtHR, 15 March 2010); Telegraaf Media Nederland Landelijke Media B.V. v The Netherlands App no
39315/06 (ECtHR, 22 February 2013); John v Express Newspapers Limited (2000) 1 WLR 1931.
63
Shelton v Tucker 364 US 479 (1960); Virginia State Pharmacy Board v Virginia Citizens Consumer Council
425 US 748 (1976); Nebraska Press Association v Stuart 427 US 539 (1976); Klass v Germany App no 5029/71
(ECtHR, 6 September 1978); The Queen v Minister of Agriculture, Fisheries and Food and Secretary of health,
ex parte Fedesa [1990] ECR I-4023 (ECJ).
30
exhausted all reasonable and less invasive alternatives for averting the risk posed. 64
Applicants submit that a least restrictive way of realizing Rho’s right to privacy would be to
independently pursue the source of the voicemail. Compelling Sang to break the
confidentiality not only restricts his personal right to impart information but also causes a
chilling effect on the activities of sources in the future.
III. THE REQUIREMENT FOR REMOVAL OF WEB PAGES FROM THE
FIRST PAGE OF SEARCH RESULTS CONTRAVENES PROVISIONS OF
THE UDHR
28. The impugned court order mandates that no webpage on which the intercepted material
appears or may be accessed regardless of how many links it takes, should appear on the first
page of search results. Applicants submit that this requirement contravenes the right to
freedom of opinion and expression under Article 19 [A], and property under Article 17 [B].
Further, the restriction is not permissible under Article 29(2) [C].
A. The requirement restricts Article 19, UDHR
29. The right to freedom of opinion and expression under Article 19 is guaranteed through any
media, and extends to the Internet.65 Applicants submit that the order violates the freedom of
expression of Centiplex [a] and that of its users [b].
(a) The requirement violates the freedom of expression of Centiplex
30. The right to freedom of expression protects legal persons66 and safeguards the freedom to
64
Financial Times and Others v UK App no 821/03 (ECtHR, 15 December 2009); Silkwood v Kerr-McGee
Corp 464 US 238 (1984).
65
Reno v ACLU 521 US 844 (1997); Ashcroft v ACLU 535 US 564 (2002); Ashcroft v Free Speech Coalition
535 US 234 (2002); Times Newspapers Ltd (Nos. 1 & 2) v The UK App no 3002/03 and 23676/03 (ECtHR, 10
March 2009); Editorial board of Pravoye Delo Shtekel v Ukraine App no 33014/05 (ECtHR, 5 May 2011);
Report of Special Rapporteur on Promotion and Protection of Right to Freedom of Opinion and Expression
(2011) UN Doc A/HRC/17/27.
31
gather and impart information, including the means of transmission67 thereof. In protecting
free expression, states bear a positive obligation to ensure accessibility of means of
communication.68 For this reason, a restriction on the circulation of newspapers has been held
to adversely impact the freedom of expression69. Applicants submit that the impugned court
order violates Centiplex’s right to freely crawl and index information that is openly available
on the Web and intended for mass outreach.70
31. Firstly, the requirement of removing relevant web pages from the first page of search results
for any search severely inhibits Centiplex’s efficiency and outreach. It compels Centiplex to
degrade user experience, which is largely predicated on the assumption that relevant web
pages will appear at the top of search results.71 The displacement of such web pages to the
second page of search results and beyond, unreasonable restricts Centiplex’s ability to freely
and effectively impart information.72
32. Secondly, the Wiretap Act stipulates that search engines may meet their obligations under the
order by de-indexing the relevant web pages. Search results, being a form of opinion
66
Autronic AG v Switzerland App no 12726/87 (ECtHR, 22 May 1990).
67
Autronic AG v Switzerland App no 12726/87 (ECtHR, 22 May 1990); Red Lion Broadcasting Co. Inc. v. FCC
(No 2) 395 US 367 (1969); City of Los Angeles and Department of Water and Power v Preferred
Communications Inc. 476 US 488 (1986); Belize Broadcasting Authority v Courtenay and Hoare LRC (Const)
276 (1988); Metro Broadcasting Inc. v FCC 497 US 445 (1990).
68
Informationsverein Lentia and Others v Austria App no 37093/97 (ECtHR, 24 November 1993); Aernout
Nieuwenhuis, “The Concept of Pluralism in the Case-Law of the European Court of Human Rights” (2007)
European Constitutional Law Review.
69
Sakal Papers (P) Ltd. v Union of India 1962 SCR (3) 842; Bennett Coleman & Co. v Union of India & Ors
1973 SCR (2) 757.
70
Recommendation CM/Rec(2012) 3 of the Committee of Ministers to member States on the Protection of
Human Rights with Regard to Search Engines (2012)
71
Collin Cornwell, ‘The Importance of Page One Visibility’ (2010) icrossing; IAB Europe and InSites
Consultancy Report
72
Collin Cornwell, ‘The Importance of Page One Visibility’ [2010] icrossing.
32
expressed by Centiplex, deserve the same protection as free speech.73 Additionally, Centiplex
does not exert any control on the web pages available on the Internet 74 and merely facilitates
access to them. Thus, in choosing what to include in its search results, Centiplex’s conduct is
fair use of web pages as a matter of law.75
33. Thirdly, in its over broad definition of “directly accessed”, the Act increases the margin of
error and encourages Centiplex to err on the side of caution while de-indexing web pages in
order to avoid liability.76 Such collateral censorship will result in an exaggerated prohibitive
effect on the web pages that could prove to be beneficial to a healthy democratic debate.77
c) The requirement violates the freedom of expression of the users
34. The right to freedom of expression includes the right to impart as well as receive
information78. It is submitted that the order against Centiplex causes a ‘chilling effect’ on
73
Eric Goldman, ‘Search Engine Bias and the Demise of Search Engine Utopianism’ supra note 10, at 191
(2006) Yale Journal of Law and Technology, Eugene Volokh, First Amendment Protection For Search Engine
Search Results available at http://www.volokh.com/wp-
content/uploads/2012/05/SearchEngineFirstAmendment.pdf
74
Bunt v Tilley [2006] EWHC 407; Crookes v Newton [2011] 3 SCR 269; Metropolitan Schools Ltd v
Designtechnica Corporation [2011] 1 WLR 1743, Tamiz v Google Inc [2012] EWHC 449.
75
Batzel v Smith 333 F.3d 1018, 1026 (9th Cir. 2003); Perfect 10 v Google Inc. 416 F.Supp. 2d 828 (C.D. Cal.
2006); Field v Google Inc. 412 F.Supp. 2d 1106 (D.Nev. 2006).
76
Seth F. Kreimer, Censorship by Proxy: The First Amendment, Internet Intermediaries, and the Problem of the
Weakest Link (2006) 155 U. PA. L. REV. 11; See Jay Wahlquist, The World Summit of the Information Society:
Making the Case for Private Industry Filtering to Control Extrterritorial Jurisdiction and Transnational
Internet Censorship Conflict, (2005)1 INT’L. & MGMT. REV.
77
Jack M. Balkin, Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds (2004) 90 VA. L.
REV. 2043, 2095-98; Michael Meyerson, Authors, Editors, and Uncommon Carriers:Identifying the "Speaker"
Within the New Media (1995) 71 NOTRE DAME L. REV. 79,116, 118.
78
1953) (ECHR) art 10(1); Lamont v Postmaster General 381 US 301 (1965); Schneider v Smith 390 US 17
(1968); The Sunday Times v UK App no 13166/87 (ECtHR, 26 November 1991); Jawara v Gambia (2000)
AHRLR 107 (ACtHPR 2000); Compulsory Membership in an Association Prescribed by Law for the Practice of
Journalism, Advisory Opinion OC-5/85, Inter-American Court of Human Rights Series A No 5 (13 November
2003); Article19 v Eritrea AHRLR 73 (ACtHPR 2007).
33
expression [i], imposes an impermissible prior restraint [ii] and interferes with the right to
receive information [iii].
i. The requirement causes a ‘chilling effect’ on expression
35. A chilling effect occurs when protected expression is deterred79 by government regulation
that is not specifically directed at that protected activity. 80 Though the Wiretap Act is aimed
at punishing the publication of prohibited material, it has a much broader application owing
to its vague definition of “directly accessed”. 81 When users don’t have sufficient knowledge
to predict censure, they will be compelled to employ such a degree of detailed checking, that
expression will be chilled. 82 Applicants submit that such self-censorship unreasonably
suppresses truth and opinion. 83 In the present case, the chilling effect will substantially
reduce the ability of users to put forth their views in public interest.84
ii. The requirement imposes an impermissible prior restraint
36. Prior restraints are imposed where the state takes action 85 to prevent the publication or
dissemination of specific expression.86 They bear a presumption of invalidity, 87 call for close
79
Gibson v Florida Legislative Investigation Committee 372 US 539 (1963); Freedman v Maryland 380 US 51
(1965).
80
Winters v New York 333 US 507 (1948); Lamont v Postmaster General 381 US 301 (1965).
81
W. Twining & D. Miers, How to Do Things With Rules 118-24 (1976); J. Wilson, ‘Language & The Pursuit
of Truth’ 36-46 (1967).
82
Sweezy v New Hampshire 354 US 234 (1957); Wieman v Updegraff 344 US 183 (1952).
83
New York Times Co. v Sullivan 376 US 254 (1964).
84
Barfod v Denmark App no 15890/89 (ECtHR, 23 September 1994); Fressoz and Roire v France App no
29183/95 (ECtHR, 21 January 1999), Hertel v Switzerland App no 53440/99 (ECtHR, 17 January 2002).
85
Southeastern Promotions, Ltd v Conrad 420 US 546 (1975); Thomas R Litwack, ‘The Doctrine of Prior
Restraint’ [1977] Harv CR-CL L Rev 519, 520.
86
Mark W Janis, Richard S. Kay and Anthony W. Bradley, European Human Rights Law (OUP 2010) at 313
34
scrutiny, 88 and in some cases are completely prohibited.89 Applicants submit that where users
lawfully express their opinions on web pages subsequent to the order, they face the threat of
being de-indexed and thus may be removed before reaching the public. Further, even the re-
ranking of web pages to the second page of search results, has an exaggerated effect of
restricting dissemination. Such prohibitions on dissemination have been declared
unconstitutional in the past.90
iii. The requirement constitutes interference with the right to receive information
37. The right to freedom of expression includes the right to receive information from accessible
sources without interference by public authorities. 91 Further, the right to receive information
is independent the right of a speaker to disseminate information and may be upheld in the
absence of it92. In the present case, the Act penalizes web pages that contain the intercepted
87
UNCHR ‘Final Report of Special Rapporteurs on Right to Freedom of Opinion and Expressions’ (1992) UN
Doc. E/CN.4/Sub.2/1992/9; Bantam Books Inc et al v Sullivan 372 US 58 (1963); Nebraska Press Association v
Stuart 427 US 539 (1976).
88
The Sunday Times v UK App no 13166/87 (ECtHR, 26 November 1991); Observer and Guardian v UK App
no 13585/88 (ECtHR, 26 November 1991); Ekin v France App no 39288/98 (ECtHR, 17 July 2001).
89
American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978)
(ACHR) art 13(2), Gauthier v Canada [1931] SCR 416 (Canada); Compulsory Membership in an Association
Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-American Court of Human
Rights Series A No 5 (13 November 2003).
90
Chicago Newspaper Publishers Assn. v. City of Wheaton, 697 F.Supp. 1464.
91
(1953) (ECHR) art 10(1); Martin v Struthers 319 US 141 (1943); Thomas v Collins 323 US 516 (1945); Lamont
v Postmaster General 381 US 301 (1965); Schneider v Smith 390 US 17 (1968); The Sunday Times v UK App
no 13166/87 (ECtHR, 26 November 1991); Jawara v Gambia (2000) AHRLR 107 (ACtHPR 2000);
Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion
OC-5/85, Inter-American Court of Human Rights Series A No 5 (13 November 2003); Article19 v Eritrea
AHRLR 73 (ACtHPR 2007; Claude Reyes et al. v Chile Case 12.108, Report No. 60/03, Inter-American Court
of Human Rights (10 October, 2003).
92
United States v Thirty-Seven Photographs 402 US 363 (1971); Griswold v Connecticut 381 US 479 (1965);
Kleindienst v Mandel 408 US 753 (1972).
35
material as well as web pages that may lead to it. Such pages may be removed from the first
page or de-indexed all together. Applicants submit that this constitutes an unacceptable
restriction on the right of Centiplex users to receive lawful information.
B. The requirement violates Article 17, UDHR
38. The right to property93 includes the right of a company to enjoy goodwill and clientele. 94 The
court order places restrictions on Centiplex’s right to freely index information available on
the Internet. Presumably, this imposes a burden on Centiplex’s business, which may cause
users to divert to alternative search engines or sources of relevant information. Consequently,
there is an infringement of Centiplex’s right to property.
C. The restriction is not permissible under Article 29(2), UDHR
39. Applicants submit that the restriction is not permissible under Article 29(2) as it does not
satisfy the three-part test of legality95: Firstly, the restriction is not prescribed by law [a];
secondly, it does not pursue legitimate aims [b]; and thirdly, it is not necessary in a
democratic society [c].
a. The restriction is not prescribed by the law
40. A restriction is prescribed by law if it has a basis in domestic law,96 and is foreseeable and
precise.97 Applicants submit that the Mhugan Wiretap Act is not foreseeable, as it does not
93
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art
19;European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953)
(ECHR) art 1.
94
Iatridis v Greece App no 31107/96 (ECtHR, 25 March 1999).
95
Worm v Austria App no 83/1996/702/894 (ECtHR, 29 August 1997); Mukong v Cameroon Communication
No. 458/1991 (1994)(HRC).
96
Herczegfalvy v Austria App no 10533/83 (ECtHR, 24 September 1992); Perry v UK App no 63737/00
(ECtHR, 17 July 2003); Hinczewski v Poland App no 34907/05 (ECtHR, 5 October 2010).
97
The Sunday Times v The UK App no 6538/74 (ECtHR, 26 April 1979).
36
enable a citizen to regulate his conduct. 98 The Act, in its over broad definition of “directly
accessed” requires users to predict whether their web pages reasonably indicate that they will
lead to the intercepted material, regardless of how many links it takes. Notably, where
citizens cannot ascertain whether their statements come within the scope of an Act, a
restriction arising therefrom is not permissible. 99
41. Applicants submit that the Wiretap Act is not precise because it confers discretion without
sufficiently clarifying the scope and manner of exercise of such discretion.100 This discretion
is with regard to identifying web pages and the manner in which they are to be removed from
the first page. The Act clearly suggests de-indexing as one means, however this would have
the effect of removing we pages from their index altogether rather than simply off the first
page.
b. The restriction does not pursue a legitimate aim
42. Applicants submit that the protection of rights and freedoms of others101 cannot be invoked
as a legitimate aim because web pages that may merely lead to the intercepted material do not
violate the right to privacy of Rho. Where the disabling of targeted websites have resulted in
98
Sunday Times v UK App no 13166/87 (ECtHR, 26 November 1991); Hasan and Chaush v. Bulgaria App no
30985/96 (ECtHR, 26 October 2000).
99
Gaweda v Poland App no 26229/95 (ECtHR, 14 March 2002); Karademirci and Others v Turkey App nos
37096/97 and 37101/97 (ECtHR, 25 January 2005).
100
Silver and others v UK App no 7136/75 (ECtHR, 25 March 1983); Sanoma Uitgevers B.V. v Netherlands
App no 38224/03 (ECtHR, 14 September 2010).
101
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art
29(2); International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23
March 1976) 999 UNTS 171 (ICCPR) art 19(3); American Convention on Human Rights (adopted 22
November 1969, entered into force 18 July 1978 (ACHR) art 11; African Charter on Human and People’s
Rights (adopted 22 November 1969, entered into force 18 July 1978) ACHR art 9; European Convention on
Human Rights (adopted 4 November 1950, entered into force 3 September 1953) ECHR art 10(2).
37
the blocking of innocent web pages as well, a restriction is not permissible.102 Applicants
submit that a restriction on such web pages, do not further Rho’s right to privacy in any way.
43. Further, owing to his position and role in public life103, Rho enjoys a lesser expectation of
privacy. In balancing the competing interests of an individual and that of the public, a
restriction on the lawful expression of Centiplex and its users clearly outweighs a diminished
right to privacy of Rho.
c. The restriction is not necessary in a democratic society
44. In order to deem necessity in a democratic society, the order must correspond to a pressing
social need, it must be proportionate to the legitimate aim pursued and the reasons given to
justify it must be relevant and sufficient104. Applicants submit that there is no pressing social
need to restrict the lawful expression of Centiplex users. Further, when speech is used to
participate in a debate affecting the general public interest, the margin of appreciation
afforded to courts is relatively narrow105.
45. The test for proportionality is satisfied only when the least onerous restriction is imposed.106
102
Center for Democracy and Technology v Pappert 337 F.Supp. 2d 606 (E.D. Pa. 2004).
103
New York Times Co v Sullivan 376 US 254 (1964); Lingens v Austria App no 9815/82 (ECtHR, 8 July 1986);
Zeljko Bodrozic v Serbia and Montenegro Communication No 1180/2003 (2006) (HRC).
104
Handyside v UK App no 5493/72 (ECtHR, 7 December 1976); Barthold v Germany App no 8734/79
(ECtHR, 25 March 1985); The Observer and The Guardian v UK App no 13585/88 (ECtHR, 26 November
1991); The Sunday Times v UK App no 13166/87 (ECtHR, 26 November 1991); Open Door and Dublin Well
Woman v Ireland App no 14234/88 and 14235/88 (ECtHR, 29 October 1992); Hertel v Switzerland App no
53440/99 (ECtHR, 17 January 2002); Demuth v Switzerland App no 38743/97 (ECtHR, 5 November 2002);
Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and
Political Rights, UN Doc E/CN 4/1985/4, cl 10(b) and (d).
105
Barthold v Germany App no 8734/79 (ECtHR, 25 March 1985), Hertel v Switzerland App no 53440/99
(ECtHR, 17 January 2002).
106
Shelton v Tucker 364 US 479 (1960); Virginia State Pharmacy Board v Virginia Citizens Consumer Council
425 US 748 (1976); Nebraska Press Association v Stuart 427 US 539 (1976); Klass v Germany App no 5029/71
(ECtHR, 6 September 1978); The Queen v Minister of Agriculture, Fisheries and Food and Secretary of Health,
ex parte Fedesa and Ors [1990] ECR I-4023 (ECJ).
38
The restriction is firstly, broad in that it applies to web pages that are not illegal and secondly,
lacking in sufficient safeguards with respect to permanence and remedies.
IV. THE SEARCH PRIVACY ACT, 2013 CONTRAVENES PROVISIONS OF
THE UDHR
46. The Search Privacy Act, 2013 makes it unlawful for search engines to sell information about
a person’s search queries without that person’s consent. Applicants submit that the Act
contravenes Centiplex’s right to freedom of opinion and expression under Article 19 [A].
Additionally, the restriction is not permissible under Article 29(2) [B].
A. The Act violates Article 19, UDHR
47. The right to freedom of expression includes the right to commercial speech 107 . Notably,
commercial speech refers not only to truthful advertising and other forms of commercial
speech but also the sale, distribution & transfer of lawfully obtained data. 108 Applicants
submit that in the creation and dissemination of information, Centiplex indulges in lawful
expression.109 Since Article 19 protects even dry information, devoid of advocacy, political
relevance or artistic expression, 110 search query logs in the possession of Centiplex warrant
107
Virginia State Pharmacy Board v Virginia Citizens Consumers Council 425 US 748 (1976); Hugh Carey v
Population Services International 431 US 678 (1977); First National Bank of Boston v Bellotti 435 US 765
(1978); Board of Trustees of State University of New York v Fox 492 US 469 (1989); Linmark Associates, Inc. v
Township of Willingbro 431 US 85 (1977); Central Hudson Gas and Electric Corporation v Public Service
Commision of New York 447 US 557 (1980); Bolger v Youngs Drug Products Corp., 526 F.Supp. 823(1983);
Sorell v. IMS Health 131 S. Ct. 2653 (2011); X and Church of Scientology v. Sweden App no 11921/86 (ECtHR,
5 May 1979).
108
Sorell v IMS Health 131 S. Ct. 2653 (2011); Bartnicki v Vopper 532 US 514 (2001); Rubin v Coors Brewing
Co. 514 US 476 (1995); Dun & Bradstreet, Inc. v Greenmoss Builders, Inc. 472 US 749 (1985); Sorell v IMS
Health 131 S. Ct. 2653 (2011);
109
Dun & Bradstreet, Inc. v Greenmoss Builders, Inc. 472 US 749 (1985); Rubin v Coors Brewing Co. 514 U.S.
476 (1995); Bartnicki v Vopper 532 US 514 (2001); Sorell v IMS Health 131 S. Ct. 2653 (2011);
110
Sorell v. IMS Health 131 S. Ct. 2653 (2011); Barthold v Germany App no 8734/79 (ECtHR, 25 March 1985).
39
protection. Further, it is well established that speech does not lose protection simply because
money is spent to purchase it.111
48. It is contended that the Search Privacy Act, 2013 restricts the commercial speech of
Centiplex. Since restrictions on protected expression are distinct from restrictions on
economic activity, or more generally, on non-expressive conduct,112 the Act requires a high
level of scrutiny. Applicants submit that the Act violates Article 19 by imposing content &
speaker based burdens [a]113 and by imposing a commercial value based burden on protected
speech [b].114
a) The Act imposes content & speaker based burdens on protected expression
49. Restrictions on speech are said to be content neutral when they are justified without reference
115
to the content of the regulated speech. Content-based restrictions are generally
impermissible because they impose an exceptionally high burden on free speech. 116Therefore,
even where a regulation appears to be content and speaker neutral, if it imposes unjustified
burdens as to the content or speaker of speech, it would amount to such a restriction.117
111
New York Times Co. v Sullivan 376 US 254 (1964); Virginia State Pharmacy Board v Virginia Citizens
Consumers Council 425 US 748 (1976); Casado Coca v Spain App no 15450/89 (ECtHR, 24 February 1994).
112
Turner Broadcasting System, Inc. v FCC (I and II), 512 US 662 (1994) and 520 US 180 (1997).
113
Minneapolis Star & Tribune Co. v Minnesota Commissioner of Revenue 460 US 575 (1983); Simon &
Schuster, Inc. v Members of New York State Crime Victims Bd., 502 US 105 (1991); Cincinnati v Discovery
Network, Inc. 507 US 410 (1993); Turner Broadcasting System, Inc. v FCC 512 US 622 (1994); United States v
Playboy Entertainment Group, Inc. 529 US 803 (2000).
114
Sorell v IMS Health 131 S. Ct. 2653 (2011).
115
Ward v Rock Against Racism 491 US 781 (1989); Renton v Playtime Theatres, Inc. 475 US 41 (1986);
Cincinnati v Discovery Network, Inc. 507 US 410 (1993); Bates v State Bar of Arizona 433 US 350 (1977).
116
United States v Steven 559 US 460; R. A. V. v St. Paul 505 US 377 (1992); Ashcroft v ACLU 535 US 564
(2002).
117
Renton v Playtime Theatres, Inc. 475 US 41 (1986); Ward v Rock Against Racism 491 US 781 (1989).
40
50. Applicants submit that the Search Privacy Act forbids the transfer of search query logs, based
on the content of the search query118. The Act disfavours the transfer of search query data
accompanied by personal identifiers only .ie., speech with particular content. The Act
additionally restricts only such transfers by exhausting the liability of future transfers.119
(i) The Act imposes a commercial value based burden on protected expression.
51. A restriction on disclosure of information amounts to a restriction on speech; a restriction on
the ‘sale’ of information is a restriction on disclosure for profit. Speech disseminated for
profit warrants the same level of protection even if it were disseminated for free. 120 A
restriction on the sale of information alone is therefore - a commercial value based restriction,
warranting the high judicial scrutiny.121 The Search Privacy Act bars the transfer of such
search query logs only in exchange for anything of value122 i.e., a restriction discriminating
on the commercial value of such search query logs.
52. Applicants submit that the Act seeks to protect citizens from privacy infringements though
the indirect means of restraining certain speech by certain speakers. But mere speculation or
conjecture that unlawful use of such data will arise only when they’re sold is unfounded.123
118
Fact Sheet ¶ 19.
119
Fact Sheet ¶ 19.
120
New York Times Co. v Sullivan 376 US 254 (1964); Virginia State Pharmacy Board v Virginia Citizens
Consumers Council 425 US 748 (1976); Sorell v. IMS Health 131 S. Ct. 2653 (2011).
121
Simon & Schuster, Inc. v Members of New York State Crime Victims Bd. 502 U.S. 105 (1991); Cincinnati v
Discovery Network, Inc. 507 US 410 (1993); Minneapolis Star & Tribune Co. v Minnesota Commissioner of
Revenue 460 US 575 (1983); Turner Broadcasting System, Inc v FCC 512 US 622 (1994); United States v
Playboy Entertainment Group, Inc. 529 US 803 (2000); Sorell v IMS Health 131 S. Ct. 2653 (2011).
122
Fact Sheet ¶ 19.
123
Greater New Orleans Broadcasting Association, Inc. v United States 527 US 173 (1999).
41
B. The restriction is not permissible under Article 29(2), UDHR
53. Applicants submit that such a content and commercial value based restriction on Centiplex’s
protected expression is not permissible as it fails to satisfy the three-part test of legality:124
Firstly, the restriction is not founded in a substantial government interest. [a], secondly it
does not directly advance the asserted interest [b] and thirdly, it is more extensive than is
necessary to serve that interest [c].
a) The restriction is not founded in a substantial government interest.
54. Applying the third party doctrine 125 to determine if users of any electronic service had a
“reasonable expectation of privacy”, the operational reality of the privacy agreements
between the parties is to be considered.126 Unless a search engine’s terms of service states to
the contrary, users usually anticipate the use of search query logs by search engines both for
their own use and lawful use by third parties. 127 Absent an explicit prohibition on the
dissemination of information to third parties, there could be no reasonable expectation of
privacy. 128 Applicants submit that since there is no legitimate expectation of privacy of
search queries among users, the Mhugan Search Privacy Act does not pursue a legitimate
aim.
b) The restriction does not directly advance the asserted interest.
124
Central Hudson Gas and Electric Corporation v Public Service Commision of New York 447 US 557 (1980);
Board of Trustees of State University of New York v Fox 492 US 469 (1989); Thompson v Western States
Medical Center 535 US 357 (2002).
125
United States v Miller 307 US 174 (1939)
126
United States v. Slanina, 283 F.3d 670, 677 (5th Cir. 2002); Leventhal v. Knapek, 266 F.3d 64, 74 (2nd Cir.
2001); Adams v. City of Battle Creek, 250 F.3d 980, 984 (6th Cir. 2001)
127
Omar Tene,’What Google Knows: Privacy in Internet Engines Vol 2008 No.4 Utah Law Review
128
U.S. v. Hambrick
42
55. Applicants submit that the restriction does not directly advance the right to privacy of
Centiplex users because the Act does not safeguard the disclosure of information about a
person’s search queries. Is it possible to find cases that strike down laws for failing to secure
privacy? The Search Privacy Act prohibits the transfer of search queries, even when
associated with personal identifiers, only for the exchange for anything of value. Further, it
permits even the sale of such data to law enforcement agencies and in the course of a search
engine’s ordinary business. Finally, it exhausts liability subsequent to the initial transfer.
Evidently, search queries along with personal identifiers are adequately accessible to a wide
audience.
56. Applicants submit that even in the absence of user consent; search engines are free to transfer
information about a person’s search queries through non-sale transfers. Where the user’s
consent is immaterial to the disclosure of such data, the protection of privacy of users cannot
be invoked as a legitimate aim. In fact, the lack of privacy afforded by the Act reflects State’s
impermissible intent to burden disfavoured speech.129
c) The restriction is more extensive than to serve that interest.
57. Applicants submit that a lesser restrictive measure to achieve the same measures the State
proposes would be too narrowly define 130 misappropriate use of search query logs with
prescriber identifying information.
129
130
43
PRAYER
In light of the issues raised, arguments advanced and authorities cited, applicants most
humbly request this Hon’ble Court to adjudge and declare that:
I. The damages imposed on Sang under the Mhugan Wiretap Act contravene his right to
freedom of expression under Article 19 of the UDHR.
II. The subpoena issued to Sang to disclose the identity of his source contravenes the
principles of the UDHR.
III. The requirement that web pages that link to the impugned material never appear on the
first page of search results contravenes the principles of the UDHR.
IV. The Mhugan Search Privacy Act, 2013 contravenes the principles of the UDHR and is
therefore invalid.
All of which is humbly prayed,
211A
Agents for Applicants
44

HON ANG: Words

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

HON ANG: Words

Uploaded by

Copyright:

Available Formats

211A

MEMORIAL FOR APPLICANTS

LIST OF AUTHORITIES ....................................................................................................... 3

STATEMENT OF RELEVANT FACTS............................................................................. 11

STATEMENT OF JURISDICTION .................................................................................... 15

QUESTIONS PRESENTED ................................................................................................. 16

SUMMARY OF ARGUMENTS ........................................................................................... 17

I. THE IMPOSITION OF LIABILITY ON SANG UNDER THE WIRETAP ACT

II. THE SUBPOENA TO SANG REQUIRING THE DISCLOSURE OF THE SOURCE

AFCHR African Convention on Human and People’s Rights

AFCtHR African Court of Human and People’s Rights

ACHR American Convention on Human Rights

App no Application Number

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

EWCA England and Wales Court of Appeal

HRC Human Rights Committee

ICCPR International Covenant on Civil and Political Rights

IACtHR Inter American Court of Human Rights

OUP Oxford University Press

UDHR Universal Decleration of Human Rights

UKHL United Kingdom House of Lords

US United States of America

CASES OF THE EUROPEAN COURT OF JUSTICE

CASES OF THE AFRICAN COURT OF HUMAN RIGHTS AND PEOPLE’S RIGHTS

CASES OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS

CASES OF THE EUROPEAN COURT OF HUMAN RIGHTS

HUMAN RIGHTS COMMITTEE

REGIONAL AND INTERNATIONAL INSTRUMENTS

RELEVANT CIRCUMSTANCES IN MHUGAN

had parliamentary form of government since its independence in 1959. Mhuganian

of general applicability such as battery apply in such cases.

have brought a measure of renown to Mhugan itself.

emotionally abusive to his wife. He responded by vehemently denying the allegations.

DEXIAN AND CENTIPLEX

business involves collecting, aggregating, analyzing, and disseminating information

5. Centiplex Corporation is a leading Internet Services company in Mhugan. It offers a

circumstances of disclosure of email messages that it processes. Further, prior to

the query, as well as the date and time of the query.

THON SANG’S BLOGGING ACTIVITIES

7. Thon Sang is a programmer in Mhugan, who maintains an active blog on the

advertisement revenue from this blog accrues entirely to Centiplex.

one million hits per day.

9. On May 4, Rho held a press conference, at which he admitted to the authenticity of

source had requested anonymity.

THE MHUGAN WIRETAP ACT

obtain unauthorized access to any telephone or electronic communications. It further

The Act provides for both civil and criminal penalties.

SEARCH PRIVACY ACT

Privacy Act was valid and refused to enjoin its enforcement.

MHUGAN SUPREME COURT AND THE UNIVERSAL COURT OF HUMAN

domestic or international, restricts Sang or Centiplex’s standing to bring these

Article 19, under the enabling Preamble of the UN Charter.

I. WHETHER THE IMPOSITION OF LIABILITY ON SANG UNDER THE MHUGAN WIRETAP

ACT IS CONSISTENT WITH PROVISIONS OF THE UDHR?

OF THE RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

PAGE OF SEARCH RESULTS IS CONSISTENT WITH THE PROVISIONS OF THE UDHR?

I. The Wiretap Act prohibits the dissemination of contents of a telephone or electronic

legitimate aim as an interceptor cannot be deterred by punishing the disseminator.

Lastly, it is not necessary in a democratic society as there exists no pressing social

need in punishing a lawful disseminator.

voicemail. Such a requirement contravenes the freedom of expression under Aricle

Further, distinguishing Sang on the basis of accreditation amounts to creating an