Μάθημα : INTERNATIONAL TELECOMMUNICATIONS LAW - ΔΙΕΘΝΕΣ ΔΙΚΑΙΟ ΤΗΛΕΠΙΚΟΙΝΩΝΙΩΝ (Χ 2024 - 25)

1) Discuss the importance of Article 10 of the European Convention of Human Rights for International Telecommunications:

Important for telecommunications is the second sub-right of art. 10: “receive and impart information and ideas without interference by public authority and regardless of frontiers”.

Para. 2 introduces acceptable limitations to the right: in the interest of the State, individuals, the judiciary.

ECHR: “Article 10 applies to judicial decisions preventing a person from receiving transmissions from telecommunications satellites” (Autronic AG v. Switzerland)

“A judicial decision preventing a person from receiving transmissions from telecommunications satellites may be considered as form of interference with the right to freedom of expression” (Khurshid Mustafa and Tarzibachi v. Sweden)

ECHR, on the relationship between the third sentence of Article 10 §1 (“this Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises”) and 10 §2: “the grant or refusal of a licence may also be made conditional on other considerations…”.

Meaning of “Prescribed by Law”: to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.

Meaning of “Necessary in a democratic society”:

- “a pressing social need”  (Gorzelik and Others v. Poland; Barthold v. Germany; The Sunday Times v. the United Kingdom)

- any penalty must not amount to a form of censorship intended to discourage the press from expressing criticism (Bédat v. Switzerland)

- need for a relevant and sufficient reasoning from national courts in assessing interference (Uj v. Hungary, Sapan v. Turkey, Gözel and Özer v. Turkey).

In general, the necessity for restricting the rights and freedoms of Art. 10 para. 1 must be convincingly established...” (Autronic AG v. Switzerland; Worm v. Austria).

ECHR on the Internet as form of communication

the Court has  emphasised that Art. 10 is to apply to communication on the Internet, whatever the type of message being conveyed and even when the purpose is profit-making in nature (Ashby Donald and Others v. France).

The Court has repeatedly noted that the internet is “an unprecedented platform for the exercise of freedom of expression” (Delfi AS v. Estonia). “in view of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information generally”. Consequently, “the blocking of access to the Internet may be in direct conflict with the actual wording of paragraph 1 of Article 10 of the Convention, according to which the rights set forth in that Article are secured “regardless of frontiers” (Ahmet Yıldırım v. Turkey).

2) Which are the fundamental principles of ITU with respect to the international regulation and administration of telecommunications?

The dilemma in the Preamble of the ITU Constitution (preservation of State sovereignty – promotion of the international telecommunication service) :

Preamble

“While fully recognizing the sovereign right of each State to regulate its telecommunication and having regard to the growing importance of telecommunication for the preservation of peace and the economic and social development of all States,… with the object of facilitating peaceful relations, international cooperation among peoples and economic and social development by means of efficient telecommunication services…”.

Principles in favour of the public – individuals:

ARTICLE 33 - The Right of the Public to Use the International Telecommunication Service

Principles on favour of States:

ARTICLE 34 - Stoppage of Telecommunications

ARTICLE 35 - Suspension of Services

ARTICLE 36 – [No] Responsibility [for member States]

ARTICLE 41 - Priority of Government Telecommunications

ARTICLE 45 ITU C, ARTICLE 4 RR - Harmful Interference

ARTICLE 48 - Installations for National Defense Services: “Member States retain their entire freedom with regard to military radio installations” – However, this does not derogate from Article 45.

Principles in favour of both (States – persons):

ARTICLE 37 - Secrecy of Telecommunications

ARTICLE 40 - Priority of Telecommunications Concerning Safety of Life

ARTICLE 46 - Distress Calls and Messages

The specific case (and importance) of ARTICLE 44 - Use of the Radio-Frequency Spectrum and of the Geostationary-Satellite and Other Satellite Orbits: Frequences and orbits are limited natural resources and must be kept for all States (“equitable access”)!