Council Of Europe Adopts Guidelines On Role Of Internet Intermediaries

The Council of Europe today adopted a set of recommendations containing some 60 detailed obligations and suggestions for governments to ensure internet intermediaries, such as search engines and social media, uphold human rights and fundamental freedoms online.

The newly adopted “Recommendation CM/Rec(2018)2 of the Committee of Ministers to member States on the roles and responsibilities of internet intermediaries,” is available here. A short press release is here.

The 47-member Council of Europe is based in Strasbourg, France. It includes, and extends beyond, the European Union members.

The recommendations call on governments to implement a detailed list of guidelines provided as an annex to the document, aimed an ensuring internet intermediaries protect human rights and fundamental freedoms online.

The nearly 60 guidelines provided are firmly worded, and cover the subjects of: legality; legal certainty and transparency; safeguards for freedom of expression; safeguards for privacy and data protection; access to an effective remedy; respect for human rights and fundamental freedoms; transparency and accountability; content moderation; and use of personal data.

For example, on content moderation (Art. 2.3), it states:

“2.3.1.    Internet intermediaries should respect the rights of users to receive, produce and impart information, opinions and ideas. Any measures taken to restrict access (including blocking or removing content) as a result of a State order or request should be implemented using the least restrictive means.

2.3.2.    When restricting access to content in line with their own content-restriction policies, intermediaries should do so in a transparent and non-discriminatory manner. Any restriction of content should be carried out using the least restrictive technical means and should be limited in scope and duration to what is strictly necessary to avoid the collateral restriction or removal of legal content.

2.3.3.    Any restriction of content should be limited in scope to the precise remit of the order or request and should be accompanied by information to the public, explaining which content has been restricted and on what legal basis. Notice should also be given to the user and other affected parties, unless this interferes with ongoing law-enforcement activities, including information on procedural safeguards, opportunities for adversarial procedures for both parties as appropriate and available redress mechanisms.

2.3.4.    All members of staff of intermediaries who are engaged in content moderation should be given adequate initial and ongoing training on the applicable laws and international human rights standards, their relationship with the intermediaries’ terms of service and their internal standards, as well as on the action to be taken in case of conflict. Such training may be provided internally or externally, including through associations of intermediaries, and its scope should correspond to the importance of the intermediaries’ role and the impact that their actions may have on the ability of users to exercise their freedom of expression. Staff should also be provided with appropriate working conditions. This includes the allocation of sufficient time for assessing content and opportunities to seek professional support and qualified legal advice where necessary.

2.3.5.    Automated means of content identification are useful to prevent the reappearance of specific items of previously restricted content. Due to the current limited ability of automated means to assess context, intermediaries should carefully assess the human rights impact of automated content management, and should ensure human review where appropriate. They should take into account the risk of an over-restrictive or too lenient approach resulting from inexact algorithmic systems, and the effect these algorithms may have on the services that they provide for public debate. Restrictions of access to identical content should not prevent the legitimate use of such content in other contexts.

2.3.6.    In cases where content is restricted by intermediaries in line with their own content-restriction policies because it contains an indication of a serious crime, restriction should be accompanied by adequate measures to ensure that evidence is retained for effective criminal law investigations. If intermediaries have specific knowledge of such restricted content, they should report this to a law-enforcement authority without undue delay.”

Human Rights Backdrop

The document begins by stating definitively that Council of Europe members are obliged to secure the rights and freedoms under the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5), as interpreted by the European Court of Human Rights.

“Access to the internet is a precondition for the exercise of Convention rights and freedoms online,” it starts. “By enhancing the public’s ability to seek, receive and impart information without interference and regardless of frontiers, the internet plays a particularly important role with respect to the right to freedom of expression.” it goes on to explore how this access relates to numerous human rights and benefits, and how its use has helped to degrade certain rights and privileges such as the protection of privacy and personal data.

The internet “has spurred the spread of certain forms of harassment, hatred and incitement to violence, in particular on the basis of gender, race and religion, which remain underreported and are rarely remedied or prosecuted,” it states. For participatory democracy, governments have a distinct obligation to ensure a safe and enabling environment in which all members of society can participate online without fear.

The internet also has led to “substantial challenges substantial challenges for the maintenance of public order and national security, for crime prevention and law enforcement, and for the protection of the rights of others, including intellectual property rights,” it notes.

There should be ample support for promoting media and literacy skills to enable all people to enjoy the benefits of the internet, it says, and regulators face a challenge to ensure that all have equal access including via the speed of their connections.

And the document highlights the consolidated power of a few large internet intermediaries. It states:

“A variety of network effects and mergers have led to the existence of fewer, larger entities that dominate the market in a manner that may jeopardise the opportunities for smaller intermediaries or start-ups and places them in positions of influence or even control of principal modes of public communication. The power of such intermediaries as protagonists of online expression makes it imperative to clarify their role and impact on human rights, as well as their corresponding duties and responsibilities, including as regards the risk of misuse by criminals of the intermediaries’ services and infrastructure.”

The document offers clear, arms-length explanations of complex issues, such as the current definition of an internet intermediary itself:

“A wide, diverse and rapidly evolving range of players, commonly referred to as ‘internet intermediaries’, facilitate interactions on the internet between natural and legal persons by offering and performing a variety of functions and services. Some connect users to the internet, enable the processing of information and data, or host web-based services, including for user-generated content. Others aggregate information and enable searches; they give access to, host and index content and services designed and/or operated by third parties. Some facilitate the sale of goods and services, including audio-visual services, and enable other commercial transactions, including payments.”

“World-Leading Step”

The European Digital Rights initiative (EDRi) today in a statement praised the CoE’s action, as taking a “world-leading step towards protecting online rights.”

“The Council of Europe has taken a crucial first step towards protecting the pillars of democracy in the digital age,” said Joe McNamee, executive director of European Digital Rights.

“The Recommendation is a major milestone towards understanding the obligations of states and of internet companies when it comes to upholding human rights online,” EDRi said. “At a time when governments increasingly use political pressure on companies to filter and block freedom of expression and companies undermine our privacy online, a clear understanding of the legal framework is long overdue. While not perfect, the Recommendation is a step in the right direction.”

EDRi cited as an example the opening paragraph, which it said “sets the standard that European democracies must respect:. It states:

“Any request, demand or other action by public authorities addressed to internet intermediaries that interferes with human rights and fundamental freedoms must be prescribed by law, must be exercised within the limits conferred by law and must constitute a necessary and proportionate measure in a democratic society. States should not exert pressure on internet intermediaries through non-legal means.”

 

Image Credits: Council of Europe