[IRPCoalition] IRP Digest, Vol 93, Issue 1
Easton, Catherine
c.easton at lancaster.ac.uk
Wed Apr 29 12:08:27 EEST 2015
Dear all,
In relation to my previous message on the CoE call for comments, please find the full Draft Recommendation below within the text of the email.
Regards,
Catherine
Draft Recommendation CM/Rec(2015)__ of the Committee of Ministers to
member states on Internet freedom
(adopted by the Committee of Ministers on ____ 2015 at the __th meeting of the Ministers’
Deputies)
1. The European Convention on Human Rights (hereinafter the ECHR) applies without any
distinction to the physical world and to the Internet. The Council of Europe member States
have both negative and positive obligations to protect and promote human rights and
fundamental freedoms on the Internet.
2. The Council of Europe’s member States’ understanding of Internet freedom should not be
bound by different cultural or political approaches or sensitivities but should instead be
construed as the exercise and enjoyment on the Internet of the fundamental rights and
freedoms which are enshrined in the ECHR. Internet freedom should be considered as part
of an affirmative vision and a proactive role of the implementation of the ECHR and other
Council of Europe standards on the Internet by Council of Europe member states.
3. Internet governance arrangements, whether national, regional or global, must build on
this notion of Internet freedom. States have rights and responsibilities with regard to
international Internet-related policy. In the exercise of their sovereignty rights, states
should, subject to international law, refrain from any action that would directly or indirectly
harm persons or entities outside of their territorial jurisdiction. Any national decision or
action amounting to a restriction of fundamental rights should comply with international
obligations and in particular be based on law, necessary in a democratic society and fully
respect the principles of proportionality and the right of and independent appeal with due
process safeguards.
4. As part of their duty to secure the rights and freedoms enshrined in the ECHR, States
should create an enabling environment for Internet freedom. In this regard States should
not only fulfil a range of positive and negative obligations with regard to these rights and
freedoms but also carry out regular evaluations of the Internet freedom landscape at the
national level with a view to ensuring that the necessary legal, economic and political
conditions are in place for Internet freedom to exist and develop. Such evaluations
2
contribute to a greater understanding of the application of the ECHR to the Internet in
member States and to its better implementation by national authorities.
5. The ECHR and Council of Europe standards provide benchmarks and references for
national evaluations of Internet freedom. They can be conceptualised as indicators which
guide and enable member States to identify existing or potential challenges to Internet
freedom, as an analytical framework to evaluate the implementation of human rights
standards on the Internet and as a reference for developing international policy and
approaches relating to the Internet.
6. The Council of Europe has a key role to play in promoting Internet freedom in Europe.
Building on member States’ national evaluations, the Council of Europe can observe the
evolution of regulatory and other developments in its member states and provide regular
overviews on the challenges to Internet freedom in Europe. This would be a good basis for
further development of Council of Europe Internet-related policy.
7. The Committee of Ministers recommends to member states to:
- periodically evaluate the implementation of human rights and fundamental
freedom standards with regard to the Internet using the indicators included in
this recommendation, with a view to elaborating national reports, wherever
appropriate;
- ensure the participation of all stakeholders from private sector, civil society and
technology experts in their evaluation of the state of Internet freedom and
development of national reports;
- consider sharing on a voluntary basis information or national reports on Internet
freedom with the Council of Europe;
- be guided by these indicators when participating in international dialogue and
international policy-making on Internet freedom.
8. The Committee of Ministers also invites the Secretary General of the Council of Europe to
elaborate an annual report which provides an overview of Internet freedom challenges in
Council of Europe member states.
INTERNET FREEDOM INDICATORS
These indicators focus on the right to freedom of expression, the right to freedom of
assembly and association and the right to private life. They are intended to provide
guidance in conducting a qualitative and objective evaluation of and reporting on the
enabling environment for Internet freedom in Council of Europe member states. They are
not designed to rate the levels of Internet freedom or as a means of comparing countries to
each other.
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I- An enabling environment for Internet freedom
1. Constitutional or any other national law guarantee the protection of human
rights and fundamental freedoms on the Internet in full compliance with the ECHR.
2. The State does not interfere with the exercise of human rights and
fundamental freedoms on the Internet and protects these rights from interference by
non-state actors.
3. The State creates an enabling environment for the exercise of human rights
and fundamental freedoms on the Internet.
4. Laws and policies relating to the Internet are assessed at the stage of their
development with regard to negative impact that their implementation may have on
the exercise of human rights and fundamental freedoms.
5. Laws and policies relating to the Internet are developed by State authorities
in an open process which enables the participation of all stakeholders.
6. Any state body which has regulatory or other competence over Internet
matters carries its activities independently of political or commercial interference, in
a transparent way and protects and promotes Internet freedom.
7. The State provides digital literacy programmes for users to foster their ability
to make informed decisions and gives access to digital education and knowledge in
order to exercise rights and freedoms on the Internet. The state promotes access to
education, cultural, scientific, scholarly and other content in official languages.
8. The State promotes Internet self-regulation and the development and
existence of ethical standards for Internet users.
II. The right to freedom of expression
1. Freedom to connect
1.1. There are no infrastructural limitations or financial barriers which negatively
impact the availability, accessibility and affordability of Internet access for all groups
of population without any discrimination.
1.2. The public has access to the Internet in facilities supported by the public
administration (Internet access points), educational institutions or private owners
(universal community service).
1.3. The State takes measures to ensure that Internet access is available and
affordable to those in low income, in rural or geographically remote areas and those
with special needs such as disabled persons.
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1.4. The State recognises in law and in practice that disconnection of individuals
from Internet access is a disproportionate restriction on the right to freedom of
expression. Any disconnection measure is taken only if safeguards for freedom of
expression are in place in compliance with Article 10 of the ECHR and the right to
due process and including a right to be heard and/or a right of appeal.
1.5. The law does not impose blanket prohibitions on Internet access. State policy
and legislation ensure that general Internet access is maintained at all times
notwithstanding political difficulty, opposition or turmoil, by all Internet service
providers of all forms of infrastructure through any technology.
2. Freedom of opinion and the right to receive and impart information
2.1. The State or any other actor does not block or otherwise restrict access to
and usage of Internet platforms (social media, social networking, blogging or any
other websites) or ICTs tools (instant messaging or other applications).
2.2. The State does not impose removal of Internet content by Internet platforms
prior or after its publication.
2.3. Any decision to block or otherwise restrict access to Internet platforms, ICTs
tools or to remove Internet content is taken by a court or an independent
administrative authority whose decisions are subject to judicial review.
2.4. A blocking, filtering or content-removal decision is as targeted and as specific
as possible, based on an assessment of its effectiveness, risks of over-blocking
(whether it leads to disproportionate banning of access to Internet content or to
specific types of content) and whether it is the least restrictive means available to
achieve the stated legitimate aim.
2.5. Internet service providers manage Internet traffic in a transparent manner
and without discrimination on the basis of sender, receiver, content, application,
service or device.
2.6. Internet users or other interested parties have access to an appeal procedure
compliant with Article 6 of the ECHR with regard to any action taken to restrict their
access to the Internet or their ability to access and impart content.
2.7. The State provides information to the public about any restrictions, such as
lists of blocked websites, together with details of the necessity and justification for
the blocking or restriction.
3. Freedom of the media
3.1. The editorial independence of news and media outlets operating on the
Internet is guaranteed in regulation/ policy and in practice. They are not subjected to
pressure by political or commercial actors to include or exclude information from
their reporting or to follow a particular editorial direction.
5
3.2. News and media outlets operating on the Internet and new media actors,
including blogging websites are not required obtain permission or licence from the
government or state authorities which goes beyond business registration in order to
be allowed to operate or blog.
3.3. Journalists and other media actors using the Internet are not subject to
threats or harassment by the State. They do not practice self-censorship.
3.4. The confidentiality of journalists and other media actors’ sources is
guaranteed by law. Their activities on the Internet are not subjected to surveillance.
3.5. Websites of news and media outlets operating on the Internet and websites of
new media actors are not subjected to cyber attacks or other action disrupting their
functioning (e.g. denial of service attacks).
3.6. Press, radio, broadcasters and new media content is not subjected to
discrimination through traffic management.
4. Legality, legitimacy and proportionality of restrictions
4.1. Any restriction of the right to freedom of expression on the Internet is in strict
compliance with the requirements of Article 10 of the ECHR, namely:
- is prescribed by law, which is accessible, clear, unambiguous and sufficiently
precise to enable individuals to regulate their conduct.
- pursues a legitimate aim as exhaustively enumerated in Article 10 of the ECHR;
- is necessary in democratic society and therefore proportional to the legitimate aim.
There is a pressing social need for the restriction. There is a fair balance between the
exercise of the right to freedom of expression and the interests of the society as a
whole. If a less intrusive measure is capable of achieving the same goal the least
restrictive measure is applied. The restriction is narrowly construed and applied and
does not encroach on the essence of the right to freedom of expression.
4.2. The State does not impose undue restrictions to freedom of expression on the
Internet by means of law. Defamation laws are specific and narrowly defined as to
their scope of application. They do not inhibit public debate or criticism of state
bodies and do not impose criminal sanctions, excessive fines or disproportionate
awards of damages or legal costs.
4.3. Laws addressing hate speech or protecting public order, public morals,
national security or official secrecy do not inhibit public debate about issues of public
concern. Such laws impose restrictions on freedom of expression only in response to
a pressing matter of public interest, are defined as narrowly as possible to meet the
public interest and include proportional sanctions.
6
III. The right to freedom of assembly and association
1. Individuals are free to use Internet platforms, such social media and other ICTs,
whether on fixed or mobile devices to establish associations, to determine the
objectives of such associations and to carry out activities within the limits
provided for by laws that comply with international standards.
2. Associations are free to use the Internet to exercise their right to freedom of
expression and to participate in matters of political and public debate.
3. Individuals are free to use Internet platforms, such social media and other ICTs
and applications, whether on fixed or mobile devices, to organise themselves for
purposes of peaceful assembly.
4. The state does not block or otherwise restrict Internet platforms, such as social
media or other ICTs in the context of the exercise of the right to peaceful
assembly.
5. Any restriction on the exercise of the right to freedom of peaceful assembly and
right to freedom of association with regard to the Internet is in strict compliance
with Article 11 of the ECHR, namely:
- is prescribed by law, which is accessible, clear, unambiguous and sufficiently
precise to enable individuals to regulate their conduct;
- pursues a legitimate aim as exhaustively enumerated in Article 11;
- is necessary in democratic society and therefore proportional to the legitimate
aim. There is a pressing social need for the restriction. There is a fair balance
between the exercise of the right to freedom of assembly and freedom of
association and the interests of the society as a whole. If a less intrusive measure
is capable of achieving the same goal the least restrictive measure is applied. The
restriction is narrowly construed and applied and does not encroach on the
essence of the right.
IV. The right to a private life
1. Personal data protection
1.1. The law guarantees that all personal data is protected in strict compliance
with Convention for the Protection of Individuals with regard to Automatic Processing
of Personal Data (Convention 108).
1.2. The law is sufficiently clear and precise with regard to the conditions for
collecting, storing and processing personal data, including clear and unambiguous
consent of the data subject. The law defines the duties of public and private entities
with regard to collecting, storing and processing personal data personal data.
7
1.3. With regard to intermediaries and data profiling (personal data processing
techniques that apply a profile to an individual in order to take decisions for purposes
of analysing or predicting his or her personal preferences, behaviour and attitudes):
- the law or policy framework is sufficiently clear and precise with regard to the
conditions for the collection and processing of personal data in the context of
data profiling. Such conditions include lawfulness, data quality and
information to Internet users.
- there are effective tools for Internet users to consent to, object to or
withdraw from profiling and to secure correction, deletion or blocking of their
personal data.
2. Freedom from surveillance
2.1. Surveillance on the Internet which consists of bulk access to, collection and
retention of communications data (content and metadata including information on
individuals, their location and online activities) is done in accordance with the law
which is accessible, clear and precise and foreseeable.
2.2. The law contains minimum safeguards for the exercise of discretion by public
authorities and thus defines with sufficient clarity and precision:
- the offences and activities in relation to which surveillance may be ordered;
- the categories of individuals who may be subjected to surveillance;
- time limitations for carrying out surveillance;
- the procedures for examining, using and storing the data obtained from
surveillance;
- the precautions to be taken when communicating the data to other parties;
- the rules on the destruction and erasure of data obtained from surveillance;
- the bodies responsible for supervising the use of surveillance powers.
2.3. Any surveillance measure pursues a legitimate aim as exhaustively
enumerated in Article 8 of the ECHR.
2.4. Any surveillance measure responds to a pressing social need in a democratic
society and thus is proportionate.
2.5. Any surveillance measure is subject to an effective control assured by the
judiciary or another state body offering the best guarantees of independence
from the authorities carrying surveillance, impartiality and a proper
procedure.
8
2.6. There are independent public oversight mechanisms (including Parliamentary
oversight) to avoid abuse of power and arbitrariness and to ensure
transparency and accountability of surveillance on the Internet.
2.7. The State does not prohibit anonymity and confidentiality of communications
or the usage of encryption technologies. Interference with anonymity and
confidentiality of communications is subject to the requirements of legality,
legitimacy and proportionality of Article 8 of the ECHR.
V - Internet intermediaries
1. Internet intermediaries do not restrict the human rights and fundamental
freedoms of their users. The intermediaries’ policies comply with international human
rights law. They assess the impact of their services and technologies on Internet
freedom.
2. The State does not require Internet access and service providers, Internet
platforms such as social media or networks to prevent access to or remove content
unless this is in strict compliance with Article 10 of the ECHR. Internet intermediaries
are not coerced or pressured to follow a particular editorial direction, policy or
political party line.
3. The State does not require disclosure of personal data of Internet users unless this
is in strict compliance with Article 8 of the ECHR and Convention 108.
4. Internet intermediaries are not obliged to monitor content on the Internet to
which they give access, transmit or store. They are not obliged to search for facts
potentially relating to illegal activity.
5. Internet intermediaries are held liable for content uploaded onto their systems by
Internet users or other parties only when they do not act expeditiously to remove or
disable access to information or services as soon as they become aware of their
illegal nature.
6. Internet intermediaries inform Internet users about restrictive measures taken
and put in place procedures for users to appeal.
VI. Remedies
1. The State ensures that individuals have access to a judicial or administrative
process that can impartially decide on their claims concerning violations of human
rights online in compliance with Article 6 of the ECHR.
2. The State provides for the right to an effective remedy in compliance with Article
13 of the ECHR.
________________________________________
From: IRP [irp-bounces at lists.internetrightsandprinciples.org] on behalf of irp-request at lists.internetrightsandprinciples.org [irp-request at lists.internetrightsandprinciples.org]
Sent: 29 April 2015 10:00
To: irp at lists.internetrightsandprinciples.org
Subject: IRP Digest, Vol 93, Issue 1
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Today's Topics:
1. Council of Europe Draft Recommendation on Internet freedom
(Easton, Catherine)
----------------------------------------------------------------------
Message: 1
Date: Tue, 28 Apr 2015 17:23:04 +0000
From: "Easton, Catherine" <c.easton at lancaster.ac.uk>
To: "irp at lists.internetrightsandprinciples.org"
<irp at lists.internetrightsandprinciples.org>
Subject: [IRPCoalition] Council of Europe Draft Recommendation on
Internet freedom
Message-ID:
<E0FA75C3062924498FADB84B0FDF01FA32D31380 at EX-0-MB0.lancs.local>
Content-Type: text/plain; charset="iso-8859-1"
Dear all,
The Council of Europe is seeking feedback and comments on the attached draft recommendation on Internet freedom. While the deadline is looming (the 30th of April), we are in a position to join the dialogue by collaboratively developing a statement and submitting it as the IRP Dynamic Coalition. If you would like to comment on the recommendation please post your submission to the IRP mailing list or, alternatively, email me directly at: c.easton at lancaster.ac.uk<mailto:c.easton at lancaster.ac.uk>
Regards,
Catherine
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