New EU Human Rights Guidelines On Freedom Of Expression, Offline And Online

The Council of the European Union reaffirmed the crucial role of freedom of expression in democratic society in the online and offline world by adopting a new set of EU human rights guidelines. This includes explicit limitations on restrictions of copyright and internet operators.

The Council of EU member states adopted the “EU Human Rights Guidelines on Freedom of Expression Online and Offline,” in Brussels on 12 May.

Annex I of the guidelines, on page 20 (see below), details ways in which copyright and internet restrictions cannot interfere with freedom of expression.

With the increasing technological progress in information and communications technology, a number of new ways of promoting freedom of expression have been created but new challenges also have been brought.

The Council addressed this by declaring, “all human rights which exist offline must also be protected online, in particular the right to freedom of opinion and expression.”

To promote and protect the freedom of expression, the EU intends to give special attention to six different important areas. Among them, is, for instance, to combat violence, persecution, harassment and intimidation of individuals including journalists and other media actors because of their exercise of their right to freedom of expression.

Others include promoting laws and practices that protect freedom of opinion and expression, and fostering an understanding among public authorities of the dangers of unwarranted interference with critical reporting.

To achieve these goals, all available and appropriate tools will be used, including traditional ones such as political dialogues, high-level visits, public statements and démarches. But it also will include the use of financial instruments, public diplomacy in multilateral fora – especially in the United Nations agenda -, and cooperation with regional organisations, the guidelines say.

Their main aim, according to a press release, is “to address unjustified restriction on freedom of expression, promote media freedom and provide valuable guidance to EU officials and staff across the globe.”

Annex I of the Guidelines states:

“Internet restrictions by operators: Specific content, applications or services should never be blocked, slowed down, degraded or discriminated against, except in very limited circumstances (e.g. implement a court order or a legislative provision, for instance conforming to the law enforcement provisions on child abuse, crucial network security issues, prevent unsolicited communication, minimise exceptional congestion). Interference may also arise out of abusive, opportunistic or discriminatory (variable geometry) application of various laws, interference with privately operated Internet based platforms or applications, etc.

The jamming of wireless signals is another means of censorship which deprives individuals of their right of freedom of expression.

Restrictions on the right of access to information: The UN Special Rapporteur on Freedom of Expression recommends that parliaments enact legislation on access to public information, in accordance with internationally recognised principles, underlining that in all democratic societies, transparency of public activities plays a crucial role for the confidence and trust of the population.

Restricting freedom of expression in order to protect intellectual property rights: Blocking access to websites on the grounds of copyright protection could constitute a disproportionate restriction of freedom of opinion and expression. Any restrictions must comply with the three part cumulative test set out in paragraph 20 of these Guidelines.

Restrictions on the right of privacy and data protection: Illegal surveillance of communications, their interception, as well as the illegal collection of personal data violates the right to privacy and the freedom to hold opinions without interference and can lead to restrictions on freedom of expression.

Undue interference with individuals’ privacy can both directly and indirectly limit the free development and exchange of ideas. Restrictions on anonymity in communication, for example, could discourage victims of all forms of violence from reporting the abuses against them, for fear of double victimization. In this regard, Article 17 of ICCPR refers directly to the protection from interference with “correspondence”, a term that should be interpreted to encompass all forms of communication, both online and offline.

Unlawful or arbitrary government or private company access to personal data can have a negative impact on freedom of expression as individuals may be less likely to use electronic communication technologies.”

Joséphine De Ruyck is an intern at Intellectual Property Watch. She is currently finishing an LLM degree in intellectual property rights and ICT law at University of Leuven in Belgium. She holds a Master’s Degree in Law with honours from University of Louvain and an LLM degree from Queen Mary University of London. She has a strong interest in several intellectual property issues, especially access to health, climate change and new challenges facing copyright law.