memorandum by Ms Postanjyan, rapporteure
"La liberté consiste
à pouvoir faire tout ce qui ne nuit pas à autrui." [Freedom consists
of the power to do everything which does not harm others.] Paragraph
4 of the Declaration of the Rights of Man and of the Citizen, adopted
by the French National Assembly on 26 August 1789
1 In December 2009, my former colleague, the late Andrew McIntosh
tabled a motion for a resolution on the protection of freedom of
expression and information in electronic media (Doc. 12094). The
Committee on Culture, Science and Education appointed me rapporteur
on this subject in October 2010.
2 The phrase "electronic media" was commonly introduced as a
technical term for radio and television. It may also cover Internet
and other online media. However, the most important challenges today
are with the latter, but not so much with radio and television.
The committee therefore followed my proposal and changed the title
of my report from "The protection of freedom of expression and information
in electronic media" to "The protection of freedom of expression
and information on the Internet and online media".
In preparation of this report, the Sub-Committee on the Media
organised an Open Forum on Internet openness and privacy at the
United Nations Internet Governance Forum (IGF) in Vilnius (Lithuania)
on 15 September 2010. A panel of that Open Forum looked specifically
at Internet freedom - structural and operational openness online.
The transcript of this event is available on the IGF website.Note
2 The issues
4 Thanks to the rapid development of information and
communication technologies (ICTs), the Internet and online media
such as mobile communications devices are rapidly expanding. A growing
number of access and service providers are offering an ever wider
range of services.
5 At the same time, the ICT world becomes more and more complex.
The commercial exploitation of ICT-based media is leading to new
and often not very transparent practices, which affect the dissemination
of, and access to, information.
6 Internet search websites develop their own content preferences,
and content that they have rejected might not be accessible to users.
Search websites may give in to commercial or political pressure
and censor specific websites by putting them last among the searched
websites indicated or not including them in the search results at
all. Due to the dominant position of search websites such as Google
or Yahoo!, censorship by them would have a serious impact. Microsoft
and other companies, for example, filed complaints with the European
Commission in 2010 asking it to investigate alleged manipulations
of Google's search tool to the detriment of commercial competitors.
Google announced in early 2010 that it would no longer give in to
political pressure from the Chinese authorities demanding censorship
of the Chinese Google search site www.google.cn.
Social media and information websites may have a corporate
policy which favours certain information and disadvantages other
information, for instance for commercial or political reasons. Access
and service providers may apply such restrictions for the same reasons.
This is particularly likely if such websites are run by companies
which are also engaged in other commercial activities. Together
with national regulatory authorities, the European Union Commissioner
in charge of telecommunications is currently investigating allegations
that Internet and mobile access were blocked or throttled.Note
Intermediaries of ICT-based media co-operate with other intermediaries
which are established in different countries or offer services abroad
or in unclear locations such as cloud computing.Note
domestic courts, it therefore becomes difficult to localise geographically
and legally restrictions to freedom of expression and information
which are imposed by those intermediaries.
9 At the same time, it becomes more difficult for national authorities
to localise illegal content, for example the abuse of freedom of
expression and information. The Convention on Cybercrime (ETS No.
185) and its Additional Protocol concerning the criminalisation
of acts of a racist and xenophobic nature committed through computer
systems (ETS No. 189) are key instruments in fighting illegal acts
and content on the Internet.
10 National parliaments have the democratic task of setting legal
standards through legislation. It is therefore important to raise
awareness among parliamentarians about the issues at stake when
regulating freedom of expression and information through the Internet
and ICT-based media, such as web-based audiovisual services and
online telecommunication services.
11 The rapid progress of ICT and the exponential growth of ICT-based
media services have challenged traditional media regulation and
policies over the past decade. This challenge was not brought about
by a change of opinion over the merits of existing standards, but
rather by technological difficulties in applying such regulations
to new media services. In addition, the increasing globalisation
of new media services has caused legal insecurities regarding national
jurisdiction and the application of national laws. Over the years,
several general principles have been confirmed or have emerged.
3 Freedom of expression
and information on ICT-based media
12 Freedom of expression and information is a fundamental
human right for every individual and a necessary element for democracy.
This right undoubtedly applies to the Internet and online media.
It is thus necessary to recall existing standards in this field
and clarify the rights and responsibilities of ICT intermediaries in
ensuring that the freedom of others is not violated.
3.1 United Nations
standards and work within the Organisation for Economic Co-operation
and Development (OECD)
13 Article 19 of the International Covenant on Civil
and Political Rights (ICCPR) of the United Nations guarantees the
right to freedom of opinion and expression. This human right is
also recognised under Article 19 of the Universal Declaration of
Human Rights of 1948. Article 19 is fully applicable to the Internet
and other ICT-based media.
Limitations to this right can, in particular, be found in
Article 20 of the ICCPRNote
and Article 4 of
the International Convention on the Elimination of All Forms of
The United Nations
clarified already in 1997 that the latter Article 4 applies also
to the Internet, and discussed possible measures against cyber racism.NoteNote
provisions require States to ensure that adequate laws exist and
At the level of the United Nations Educational, Scientific
and Cultural Organization (UNESCO), the International Federation
of Library Associations and Institutions (IFLA) pursued work which
led to the IFLA/UNESCO Internet Manifesto Guidelines of September
contain a series of principles for public access and Internet use,
especially through public libraries.
On 19 August 2010, academics at the Oxford Internet Institute
presented a report for UNESCO on "Freedom of Connection - Freedom
of Expression: The Changing Legal and Regulatory Ecology Shaping
the many recommendations contained in this report, I should like
to point out those to continue efforts to support the worldwide
diffusion of the Internet, to strengthen and clarify international mechanisms
for Internet governance, to monitor and document the diffusion of
legal and regulatory initiatives, and to drive corporate social
The OECD is also working on the role of Internet intermediaries
in advancing public policy objectives. An OECD workshop held in
Paris on 16 June 2010 found that Internet intermediaries influence
and determine access to and choice between online information, services
limitations of liability for Internet intermediaries had enabled
these entities and the wider Internet economy to flourish in the
past, the workshop noted that there was increasing national and
international pressure from governments, the commercial sector and
consumer groups to hold Internet intermediaries responsible for
illegal activities committed through their services, and that European
courts had shown increased willingness to find that Internet intermediaries
had a duty of care.
18 Although the focus of this OECD work is on criminal liability,
some conclusions can also be drawn for the general responsibilities
of Internet intermediaries regarding the proper functioning of the
Internet and ICT-based media.
3.2 Article 10 of the
European Convention on Human Rights
19 Article 10 of the European Convention on Human Rights
(ETS No. 5, "the Convention") guarantees the right to freedom of
expression and information, including through the Internet and online
media. Article 10 obviously applies to ICT-based media services
in the sense that individuals have the right to express themselves
freely on ICT-based media and to receive information through such
media. Article 10 is technology-neutral, that is to say it applies
irrespective of the technology used for expressing opinions or receiving information.
20 While Article 10 of the Convention is considered primarily
as a right of individuals against interference by State authorities,
it might be timely to take into account that freedom of expression
and information through ICT-based media is - de
facto - equally likely to be restricted by private entities
such as ICT intermediaries (software producers, network providers,
access providers, service providers, content hosts, producers of content
search devices, etc.). Article 10 of the Convention may require
that member States take appropriate action to ensure that the effective
protection of freedom of expression and information is not unlawfully
infringed by private persons.
The European Court of Human Rights ("the Court") has established
extensive case law under Article 10 of the Convention. The Court
has recognised that States have a positive obligation to have an
adequate legal framework for the effective protection of this freedom
with regard to Internet journalists.Note
Furthermore, the Court has found
that the dissemination and collection of information through the
Internet is protected by Article 10.Note
The case law of the Court consistently holds that hate speech
is not protected by Article 10 in accordance with Article 17 of
In addition, the Court has held
that Internet users may claim damages before a domestic court if
an Internet service provider acts under the control of public authorities
and fails to control or protect effectively against unwanted email
messages or "spam".Note
23 The universal human right to freedom of expression and information
should not be confused, however, with a general freedom - recognised
under most domestic laws - to pursue commercial activities or other services
through ICT-based media.
3.3 Other Council of
24 The Committee of Ministers of the Council of Europe
has developed several general recommendations defining the right
to freedom of expression and information through ICT-based media
in the light of Article 10 of the Convention.
Committee of Ministers Recommendation No. R (99) 14 on universal
community service concerning new communication and information servicesNote
for the first time that some universal service principles should also
be applied to the Internet, including public support for access
to Internet as well as for the provision of content and services.
Committee of Ministers Recommendation No. R (2001) 8 on self-regulation
concerning cyber contentNote
a set of principles for the protection of users against illegal
or harmful Internet content through self-regulation, in particular
through content descriptors and selection tools as well as complaints
Through their Declaration on freedom of communication on the
Internet of 28 May 2003,Note
of Ministers defined the following seven general principles (see
also the Appendix):
rules for the Internet
- Self-regulation or co-regulation
- Absence of prior State control
- Removal of barriers to the participation of individuals
in the information society
- Freedom to provide services via the Internet
- Limited liability of service providers for Internet content
In their Declaration on human rights and the rule of law in
the Information Society of 13 May 2005,Note
of Ministers reiterated a number of human rights comprising the
right to freedom of expression, information and communication, the
right to respect for private life and correspondence, the right
to education and the importance of encouraging access to the new
information technologies and their use by all without discrimination.
The Declaration also added the idea of a "multi-stakeholder governance
approach for building the Information Society".
Committee of Ministers Recommendation CM/Rec(2007)11 on promoting
freedom of expression and information in the new information and
on empowering individual users, common standards and strategies
for reliable information, flexible content creation and transparency
in the processing of information, affordable access to ICT infrastructure,
access to information as a public service, and co-operation between
Internet filters were addressed in Committee of Ministers
Recommendation CM/Rec(2008)6 on measures to promote the respect
for freedom of expression and information with regard to Internet
guidelines appended to this recommendation contained principles
for using and controlling Internet filters in order to fully exercise
and enjoy the right to freedom of expression and information, appropriate
filtering for children and young people, and the use and application
of Internet filters by the public and private sectors.
On 29 September 2010, the Committee of Ministers adopted its
Declaration on network neutrality.Note
that "operators of electronic communication networks may have to
manage Internet traffic. This management may relate to quality of
service, the development of new services, network stability and
resilience or combating cybercrime. In so far as it is necessary
..., traffic management should not be seen as a departure from the
principle of network neutrality. However, exceptions to this principle
should be considered with great circumspection and need to be justified
by overriding public interests".
On 21 September 2011, the Committee of Ministers adopted two
texts which also set out political guidelines relevant for freedom
of expression ad information on ICT-based media: its Recommendation
CM/Rec(2011)8 on the protection and promotion of the universality,
integrity and openness of the InternetNote
its Declaration on Internet governance principles of 21 September
3.4 The European Union
Charter of Fundamental Rights and European Union legislation
Article 11 of the European Union Charter of Fundamental
Rights guarantees the right to freedom of expression and information
within the European Union.Note
As the Court of Justice
of the European Union in Luxembourg has applied EU law in the light
of the Convention in the past, it can be assumed that Article 11
will also be interpreted and applied in accordance with the case
law of the European Court of Human Rights under Article 10 of the
Article 11 of the Charter of Fundamental Rights is binding
on EU organs and requires that secondary EU law is in conformity
with the right to freedom of expression and information. Such secondary
EU law includes various EU Directives, in particular the so-called
Telecoms Reform Package of 25 November 2009.NoteNote
35 The EU Telecoms Reform Package revised several EU Directives
and allows member States to set minimum quality levels for network
transmission services, including the obligation of network neutrality,
and to disconnect Internet users for illegally downloading copyright-protected
content. The right of users to be notified of certain breaches of
data protection was also established, as well as the right to have
service disconnections reviewed by a judicial body. Finally, the
EU Telecoms Reform Package also created the Body of European Regulators
of Electronic Communications (BEREC), which comprises the 27 national
regulatory authorities of the 27 EU member States and has its office
in Riga, Latvia.
The Internet and online media have become a vital
backbone for everyone in the modern information society. The public
depends increasingly on ICT-based media for accessing and disseminating
information and opinions. The right to freedom of expression and
information is thus dependent on the proper functioning of this
cyberspace. Where State authorities restrict, filter or block access
to the Internet or mobile communication services, Article 10 of
the Convention is clearly at stake. The European Court of Human
Rights has already received applications in this respect.Note
Organization for Security and Co-operation in Europe (OSCE)Note
the United NationsNote
focused on this issue recently.
37 However, there is a need to ensure the protection of users'
freedom of expression and information on the Internet and online
media against threats coming not only from public authorities, but
also from private intermediaries. Indeed, with the privatisation
of national telecom firms in Europe over the last two decades, the Internet
and online media are mostly provided and managed by private companies.
Private companies enjoy a wide margin of managing their services
under the existing telecoms and Internet legislations. This was
seen, for instance, in the context of the discussion about network
neutrality, namely whether Internet service providers should be
allowed to offer slower services to some users and provide preferential
services to others.
38 Intermediaries of ICT-based media might restrict the access
to, and dissemination of, information for commercial, political
or other reasons without informing their users. Due to the complex
corporate and technical structures of such intermediaries, their
often unclear corporate localisation and their co-operation with corporate
partners in other countries, users may have difficulties in ensuring
court jurisdiction in such cases. Many of those intermediaries,
such as Internet access or service providers and mobile phone or telecommunications
companies, have a dominant position vis-à-vis individual users because
they are system-relevant or exercise significant market power.
39 In this context, it is important to ensure that the right
to freedom of expression and information under Article 10 of the
Convention is restricted neither by States nor by private companies.
As the Committee of Ministers reaffirmed in its Declaration on Internet
governance principles of 21 September 2011: "All public and private
actors should recognise and uphold human rights and fundamental
freedoms in their operations and activities, as well as in the design
of new technologies, services and applications."