B Explanatory memorandum
by Mr Reiss, rapporteur
With the emergence of websites
and applications that publish content generated by a wide range
of users (blogs, social media platforms like Facebook and Twitter),
the need to maintain balance between the right to freedom of expression
and the protection of other rights has moved centre stage, in particular
because of the global and instantaneous nature of online content
publication and the serious and irreversible harm which illegal
content can cause. In this context, there are two key questions:
1) who should determine whether content is legal or illegal? and
2) to what extent are internet intermediariesNote
(hereafter “intermediaries”) liable
for content published online?
These questions are not new. In 2011, the United Nations already
called for a degree of intermediary liability for content disseminated.Note
2015, UNESCO issued a publication on the role of internet intermediaries. The
OSCE and the OECD (Privacy Framework 2013, Article 14) have adopted
similar positions on intermediary liability.
On 28 September 2017, the European Commission adopted a communication
setting out guidelines for platforms concerning notification
procedures and action to tackle illegal content online. These guidelines highlight
the importance of tackling illegal hate speech online and the need
to move forward with implementing the code of conduct.
On 9 January 2018, several European Commissioners met representatives
of online platforms to discuss progress made in tackling the spread
of illegal content online, including online terrorist propaganda
and racist and xenophobic hate speech, as well as breaches of intellectual
property rights (see joint
). On 1 March 2018, the European Commission adopted Recommendation
on measures to effectively tackle illegal content online.
At the Council of Europe, the latest initiatives from the
Committee of Ministers follow the same approach, in particular in Recommendation
on the roles and responsibilities of internet intermediaries; more
recently, the Parliamentary Assembly adopted Resolution 2281 (2019)
“Social media: social threads or threats to human rights?”,
in which it called on intermediaries to “take an active part not
only in identifying inaccurate or false content circulating through
[them] but also in warning their users about such content, even when
it does not qualify as illegal or harmful and is not taken down”.
7. At the same time, we are witnessing important developments
in the case law of the European Court of Human Rights. For instance,
the Delfi AS v. Estonia case
in principle allows platform liability for third-party content (European
Court of Human Rights, Grand Chamber, 16 June 2015, Delfi AS v. Estonia, Application No. 64569/09).
National laws have reflected this increasingly restrictive and regulatory
approach towards intermediaries in general and in particular with
regard to content liability.
8. However, some aspects of content regulation are vague. The
“right to be forgotten” codified in Article 17 of the General Data
Protection Regulation (GDPR) is one example here. Other grounds
for requesting deletion or dereferencing may also create uncertainty
and give rise to difficult judgment calls, in particular in the
case of hate speech and defamatory content. In addition, criteria
such as “necessity” and “proportionality” may be assessed differently
by the various players concerned.
9. Against this background, intermediaries employ different methods
of self-regulation: they hire moderators to detect possible illegal
content and draw up their own internal community standards. Nevertheless,
even if intermediaries act in good faith, they may find it difficult
to determine whether the disputed content is illegal. As a result,
when complaints are made by users, or on their own initiative, they
may err on the side of caution and remove “objectionable” or “provocative”
content. In these cases, there is a real risk of users’ freedom
of expression being infringed.
10. Some crucial questions remain, about which no general agreement
has yet been reached: What types of regulations and procedures should
be developed to protect fundamental rights online and how should
the fragile balance between the right to freedom of expression and
the protection of other rights be maintained? To what extent are
intermediaries liable for content published online and who would
have the necessary authority and skills to determine whether online
content is legal or illegal?
To tackle the problem of illegal content online, the internet
giants provide their own community standards which may vary from
one operator to the next and which are not necessarily fully in
line with national legislation or the European legal framework.
(International Association of Internet
Hotlines) hotline system offers various solutions depending on the
relevant countries. Government regulation of issues relating to
illegal content currently comes up against difficulties of a practical
nature (how to apply the law) and in terms of legal harmonisation
(legal approaches differ between Europe and the USA and also between
Council of Europe member States).
12. Against a background lacking in consistency, clarity and harmonisation,
users may feel confused when confronted with different platforms
and national legal systems. We must find a way to: 1) facilitate
user reporting of illegal content published online; 2) help intermediaries
to determine whether questionable content is legal or illegal so
as to prevent the publication of legally unacceptable content and
wrongful deletion as a result of erring on the side of caution;
3) promote, in the event of disputes, prompt and friendly settlements
between intermediaries and users and thereby prevent lengthy legal
13. The idea of setting up an Internet Ombudsman institution (also
referred to here as “Ombudsman”) seems capable of satisfying these
14. In this report, after reviewing the approaches proposed by
various stakeholders for tackling the problem of illegal content
online, I will therefore analyse the advantages of an Internet Ombudsman
institution, as well as possible financial, legal, institutional
and practical challenges involved in setting up such an institution.
I will also address sensitive issues such as the procedure for appointing
the Ombudsman and the staff of the institution and the mechanism
for guaranteeing their independence and competence. In addition,
I will consider the relations between the Internet Ombudsman institution
and the legislature, executive and judiciary.
2 Solutions for tackling illegal content
intermediaries’ own systems
15. To protect web users and avoid
any liability, social media sites develop their own online policies
and interfaces for reporting breaches and abuses. Given the recognition
of the “right to be forgotten” by the Court of Justice of the European
Union, assessment of online content has become a challenge for all
internet intermediaries: it is a challenge for small companies in
particular because they cannot afford huge legal departments, but
it is also a challenge for big companies because of the vast quantity
of data online.
Facebook employs an army of moderators (some 4 500, with Mark
Zuckerberg promising to add 3 000 more following the video posted
on Facebook Live of a man committing suicide in Thailand after killing
his 11-month-old daughter) to monitor the billions of posts on the
Its moderators are overwhelmed by
the volume of work and often only have 10 seconds to make a decision.Note
As a result, it is possible, firstly,
that illegal content is overlooked, misinterpreted or not dealt
with promptly by internet intermediaries and, secondly, that freedom
of expression is undermined by excessive blocking and overzealous
taking down of online content.
17. Most systems for taking down online content or assessing its
lawfulness are implemented by public bodies which co-operate with
enforcement agencies or by enforcement agencies themselves. Any
potentially illegal content may be reported: 1) to site administrators:
sites such as Facebook, YouTube and Twitter offer users easy methods
for complaining about pages, messages or videos; 2) to hosting companies:
if websites themselves are suspected of being illegal, users may
contact the hosting companies or internet providers; 3) to relevant
18. It is mostly the companies running the sites that assess and
take down social media content. Some aspects of the arrangements
at Facebook, Twitter and YouTube are set out below.
19. Facebook has developed a set
of standards to help users understand what type of sharing is allowed
on the platform and what type of content can be reported and removed.
Facebook takes down content, deactivates accounts and co-operates
with law enforcement agencies when it believes that there is a real
risk of harm to individuals, criminal activity or a threat to public
security, for instance self-harm, incitement and harassment, sexual
violence and exploitation and hate speech. In order to encourage
respectful conduct, Facebook also removes other content (for instance
containing nudity) in line with its community standards.
20. Governments can also ask Facebook to take down content that
breaches local laws but not the community standards. If, following
legal checks, Facebook concludes that the content is illegal under
local legislation, it is possible to prevent access to it solely
for users with IP addresses in the countries concerned.
21. YouTube has its own reporting
centre tasked with taking down illegal content and blocking accounts
that breach its community rules, such as those concerning nudity,
sexual content, harmful or dangerous content and hateful or threatening
Access to content which may be inappropriate for younger users
can also be age-restricted.Note
A “reporting tool” enables users
to report illegal content or submit more detailed reports for consideration.
YouTube provides specific legal webforms which users or relevant
national authorities can use to request the removal of content that
breaches local legislation.Note
24. The Twitter Rules set out limits
for the content available on their services. Graphic content and
abusive conduct are banned. This includes threats of violence (direct
or indirect), harassment, hateful conduct, disclosure of private
information, impersonation and self-harm. Any accounts used for
the specified activities may be temporarily blocked or permanently
If an individual representing a government or a law enforcement
agency wishes potentially illegal content to be removed from Twitter
because of breaches of local legislation, they must first consult
the Twitter rules and, where appropriate, submit a content review
request. If Twitter receives a valid request from an authorised entity,
it can immediately block access to some content or to certain accounts
in given countries.Note
If a report submitted by a user to
an internet intermediary fails to produce results, the user may
submit it again to an independent public body. The latter must determine
the nature of the content and take appropriate action or co-operate
with law enforcement agencies.
INHOPE hotline system
INHOPE is an influential and
active collaborative network comprising 51 hotlines in 45 countries worldwide.
Its aim is to stamp out child sexual abuse material and also online
hate/xenophobia. INHOPE was set up in 1999 under the European Commission’s Safer Internet
programme and now
consists of an association and a foundationNote
(a charitable body set up in 2010
to sponsor and provide financial support for efforts to set up new
hotlines outside the European Union). In addition to EU member States,
INHOPE’s members include countries such as the Russian Federation,
Canada, the United States, Turkey, Brazil, Australia, Japan and
South Africa. Not all Council of Europe member States have joined,
INHOPE co-ordinates a network of national web hotlines jointly
founded and supported by the European Union. Its key objective is
to facilitate and promote work by web hotlines to combat illegal
content, in particular child sexual abuse material. INHOPE works
with partners such as Google, Facebook, Twitter and Microsoft and
law enforcement partners such as Europol, Interpol and the Virtual
Global Task Force in putting in place effective and rapid responses
to illegal content online.Note
28. INHOPE’s members run public or independent hotlines to receive
complaints of suspected illegal content. They then assess the content
in line with their national legislation. If the content is illegal
in the host country, the national hotline takes the necessary steps
for it to be taken down, in consultation with the law enforcement
difference between social media giants and ordinary websites
29. The action which users must
take when they encounter potentially illegal content online differs depending
on whether small websites or digital giants are involved. Facebook,
Twitter, Tumblr and YouTube have their own user-friendly reporting
mechanisms for content generated by third parties. It is not the companies
themselves which generate the content. As end users, web users can
report content generated by other parties to internet intermediaries.
Intermediaries apply their own “codes of conduct” or local legislation
in assessing the nature of the content and deciding on the steps
to be taken. If intermediaries do not take action and users still
believe that the content is illegal, users may report it to the
relevant national authorities.
30. At the same time, in the case of small websites where the
site administrators are themselves the content generators, the procedure
is more complicated. As it is the operators who have generated potentially
illegal content, reporting content to them would not be very effective.
It would be necessary to seek out the companies hosting the websites
or their internet providers for the purpose of reporting content.
As the procedure is not as quick and reliable (lack of big legal
departments and transparency), users would probably have to report content
directly to the relevant national authorities. It would then be
up to the latter to assess the nature of the content and take the
necessary action. As a rule, the action taken by national authorities
depends on whether the websites concerned are hosted inside or outside
the relevant countries.
31. The reporting mechanisms vary from country to country, as
does the definition of illegal content. Websites which can be found
with the aid of search engines (for example Bing or Google) may
be illegal and the only thing which search engines can do is dereference
the relevant websites from their search lists without actually being
able to remove them from the web as a whole.
32. Clearly, there is a vital need for a swift, reliable and appropriate
content assessment mechanism for small ordinary websites to allow
co-operation between States on the subject.
legislation regarding legal responsibility of Internet intermediaries
33. In December 2018, a new law
explicitly targeting opinion manipulation during elections was passed.
Its purpose is to combat the deliberate dissemination of false news
in order to better protect democracy. Platforms, search engines
and social networks must ensure transparency regarding operators
which pay for the dissemination of sponsored content and the related
payments. Failure to comply carries a penalty of one year’s imprisonment
and a fine of €75 000, which may be supplemented by a five-year
34. In July 2019, the National Assembly passed a bill by Ms Laëtitia
Avia designed to combat hateful content online. The aim is to simplify
and speed up the removal of content illegal under the 1881 law on
press freedom, in particular “content published online which entails
incitement to hatred or insults based on race, religion, ethnic
origin, gender, sexual orientation or disability”. The audiovisual
regulator (CSA) will have to draw up guidelines on good practices
for internet intermediaries and will have powers in terms of oversight
and penalties in respect of hateful content online. A special prosecution
service will also be set up. On the basis of summary or ex parte applications, the courts
will be able to order the blocking or dereferencing of the disputed content.
The legislation also provides for aggravated penalties (fines of
up to €250 000) in the case of failure to comply with the obligations
of the law and those relating to the requirement for operators to
appoint a legal representative in France. The bill is awaiting examination
in the Senate.
35. During a meeting with Mark Zuckerberg in Paris in May 2019,
President Macron explained that he wanted to make France the country
that devised regulation of the digital sector that reconciled technology
and the common good; the boss of Facebook said that he was hopeful
that the French standards would become a model at European Union
36. The latest example of laws
imposing intermediary liability for content is the Network Enforcement
Act (Netzwerkdurchsetzungsgesetz or
“NetzDG”), which came into force on 1 January 2018. The act establishes an
enhanced intermediary liability regime with substantial penalties.
It imposes an obligation on intermediaries to remove content which
is “manifestly unlawful” within 24 hours and “unlawful content”
within seven days. It refers to offences under the German Criminal
Code, such as the prohibition of blasphemy, hate speech and defamation
in general. In the event of non-compliance with the above obligations,
severe administrative penalties of up to €50 million apply for social
networks having more than 2 million registered users in Germany.
Intermediaries may delegate assessment of the lawfulness of
content to self-regulation institutions. These institutions review
the content concerned and deliver decisions which the intermediaries
must comply with. So far, no such institutions have been approved.
The self-regulatory functions would be contingent on a “systemic
approach”. It may be noted that the German legislative framework
arguably shifts the powers/obligations to censor content from the
public sector to the private sector. Concerns of over-blocking or “collateral
filtering” have been raised as a consequence, since intermediaries
are left to make the – often – difficult judgment calls.Note
During the first 100 days of enforcement
of the act, 253 complaints regarding content were received. The
office under the Ministry of Justice also commenced ex officio
the total number up to approximately 300 cases. Five complaints
were received by intermediaries. Most concerned insults, defamation,
hate speech and Holocaust denial.
issue of application of media laws to the internet
The issue of whether media
law as such should apply to the internet and intermediaries has
been raised several times over the years. Media laws in most countries
contain strict liability rules on content, providing for personal
criminal and civil penalties against editors and directors of newspapers,
impose penalties on the basis of vicarious or secondary liability,
which is rarely found in other areas of law. The dynamics of the
internet as it has converged with classic media functionality in
terms of content generation and dissemination mean that the principles
of content liability as developed under media law are increasingly
being cited in litigation and in policy debates around the world,
thereby underlining the importance of clear definitions of “the
editor” and “the publisher” of online content.
39. The inherent difficulties of the direct transposition of the
liability structure of media law to the internet lie in the fact
that content is generated by third parties rather than by the intermediaries
themselves. It seems that it would be preferable to develop a sui generis legal framework for
intermediaries rather than applying media law.
Companies like Google, Twitter, Facebook, etc., are usually
viewed as “mere conduits” of content; hence they are privileged
under the Safe Harbour Rules (which exclude accountability for content)
in the Communications Decency Act in the United States (1996), the
e-commerce directive in the European UnionNote
in some national legislation. In general terms, the American approach
may be described as “absolute immunity” and the European as “relative
immunity”. However, the e-commerce directive is ambiguous as to
the scope of the immunity and does not employ the term “manifestly
illicit”. A study conducted by the European Parliament’s Directorate
General for Internal Policies in 2017 already highlighted the need
to clarify the scope of the immunity.
to set up an Internet Ombudsman institution
Over the last three years,
the idea of setting up an Ombudsman institution tasked with assessing whether
online content is legal or illegal has emerged. It stems from a
report submitted to UNESCO by Mr Dan Shefet,Note
which highlighted (in the section
on policy recommendations) the need for a fast-track dispute resolution
procedure or “content qualification procedure” so as to protect
freedom of expression online. The report concluded that the power
to issue content qualification assessments could be assigned to
an Ombudsman institution in each country.
This idea was taken up by the senator, Ms Nathalie Goulet,
who tabled a bill in the French Senate on setting up an Internet
Ombudsman. Under the bill,Note
the Ombudsman would be an independent
administrative authority comprising members of the French Data Protection
43. Content qualification assessments would be treated neither
as judgments nor as arbitration awards. The assessments would not
be legally binding but would provide authoritative guidance on the
interpretation or lawfulness of online content. The parties would
be free to choose whether to follow the assessments made by the
44. The Ombudsman’s opinion on the content would be accessible
to internet intermediaries and end users. Intermediaries who had
doubts about the nature of particular content or users who came
across content they believed was illegal could refer the matter
to the Ombudsman. The Ombudsman would have to issue its opinion on
the suspected illegal content within seven working days, failing
which the content would be deemed legal.
45. To date, the bill has not been acted upon. Nevertheless, the
establishment in each member State of an Internet Ombudsman institution
could prove useful, given, firstly, the pressing need to introduce
some form of regulation of online content and, secondly, the wide
range of community standards drawn up by internet intermediaries
46. At their request and following examination of questionable
content, the Ombudsman institution would provide intermediaries
with recommendations on how to deal with it. Referrals could also
be made to it by users who felt their right to freedom of expression
had been infringed or who had reported suspected illegal content but
had not received replies from the intermediaries concerned.
47. With regard to the practical arrangements for the operation
of the Ombudsman institution, some member States might choose to
set up new institutions, while others might assign the Ombudsman’s
functions to existing bodies such as data protection agencies, media
regulators or human rights Ombudsman institutions.
advantages for the public
48. The damage caused by the dissemination
of harmful content online may quickly become irreversible: online
communication is instantaneous and global, and any harmful content
can be downloaded by a whole host of users. Remedies against this
type of content must be effective and swift. Late justice would
be neither appropriate nor efficient.
49. Against this background, the Ombudsman institution should
enable the trickiest cases to be resolved more quickly, relieving
intermediaries of the burden of making the decisions, while speeding
up the removal of disputed content that was harmful to an individual,
groups of individuals or the public as a whole – the aim being to
improve their protection.
50. At the same time, the Ombudsman institution would provide
greater protection for users’ right to freedom of expression by
reducing the risk of intermediaries wrongfully removing content
they deemed “objectionable” or “provocative”.
advantages for social media
51. Currently, users report content
which they believe to be illegal or in breach of the relevant community standards
to platforms, after which the platforms’ staff (sometimes subcontracted)
review the content and decide whether or not to remove it. Users
also submit reports to NGOs, e.g. Internet
Watch Foundation in the United Kingdom and the Internet-Beschwerdestelle in Germany,
to other members of INHOPE, to government agencies like Pharos in France or directly to
law enforcement agencies. In addition, intermediaries are making increasing
use of artificial intelligence to detect illegal content.
52. Nevertheless, making a final decision as to the lawfulness
of content may be extremely difficult. Some cases involving hate
speech, for example, are even brought before the United Nations
Human Rights Committee, while others are brought before the European
Court of Human Rights. When processing requests for removal or dereferencing,
intermediaries do not always possess the necessary legal skills
to determine whether content is illegal or not. The entry into force
of the GDPR increases the pressure on intermediaries, which face
harsh penalties of up to 4% of turnover.
53. Intermediaries (in particular, start-ups, which cannot afford
big legal departments) could apply to the Ombudsman to take informed
decisions in relation to specific removal or blocking requests.
The Ombudsman would issue opinions, and compliance with them would
mean the intermediaries would avoid any criminal penalties.
liability, civil liability and judicial review of decisions concerning
54. The following are various scenarios
involving potential liability on the part of the main stakeholders, namely
the Ombudsman, intermediaries and users: 1) intermediaries detect
and remove content which they deem to be illegal; 2) users report
content which they believe to be illegal and intermediaries remove
it or, on the contrary, fail to do so; 3) suspected illegal content
is removed upon the recommendation of the Ombudsman; 4) suspected
illegal content is kept online upon the recommendation of the Ombudsman;
5) victims of harmful content that was not removed lodge complaints;
6) authors of deleted content lodge complaints.
55. In accordance with European Union legislation and also Council
of Europe standards, intermediaries must react swiftly and take
appropriate action when they detect potentially illegal content
online. They must remove the information concerned or disable access
to it. Where there are no questions about the unlawfulness of content,
intermediaries simply remove it in accordance with their own standards
and the applicable legislation. In less clear-cut cases, however,
the Ombudsman could be asked to give an opinion on whether content
was legal or illegal and hence on whether or not it had to be deleted.
56. By complying with the relevant (non-binding) opinions, intermediaries –
who would be acting in good faith – would no longer be liable to
57. In all circumstances, users who had suffered harm would retain
the right to take legal action to have the intermediaries’ decisions
altered and seek damages for the harm suffered. This right is recognised
(including at constitutional level) in domestic legal orders and
is also protected under Article 6 of the European Convention on
58. The question therefore arises as to how to deal with cases
(probably infrequent, but nevertheless possible) in which the Ombudsman’s
opinions were overturned by decisions of domestic courts.
59. It seems clear that there should be no possibility of the
Ombudsman institution being held liable under civil law (except
probably in cases of serious misconduct or malicious intent). In
terms of the civil liability of intermediaries, a practical solution
might involve the establishment of a system of risk coverage, such
as the setting up of a fund to pay damages to the users concerned.
challenges in setting up an Internet Ombudsman institution
issue of jurisdiction regarding the internet
There are three main schools
of thought on the issue of the territorial reach of content regulation.
The first school of thought subscribes to the idea that the internet
is a maze of national and regional laws and that cyberspace is a
mere extension of sovereign States and therefore subject to their
laws and regulations. China in particular has adopted a legislative
policy of the strict extension of State sovereignty to cyberspace.
The second school of thought advocates an internet governed by no
laws other than its own according to the theory of universalism.
The United States champions this approach. The third school, which
is represented by the European Union, promotes extraterritorial
reach. At the time of drafting this report, we are awaiting the
Court of Justice of the European Union’s (CJEU) preliminary ruling
on the request lodged by the Conseil
(France’s highest administrative court) in the
case of Google v. CNIL,Note
will have a major impact on the future delimitation of national
jurisdiction and extraterritorial effects.
61. An Internet Ombudsman would not currently be required to resolve
jurisdictional disputes. However, given the European Union’s approach,
it would seem logical for Council of Europe member States to develop the
legal and sociocultural traditions regarding freedom of expression
62. It is true that every member
State has its own legislation and its own definitions concerning
harmful or illegal content and that each State can strike a slightly
different balance between freedom of expression and other fundamental
rights. Given the wide range of sociocultural and legal traditions,
it is possible for content to be deemed illegal in one country and
legal in another. If the Ombudsman classified given content as illegal,
the intermediary would probably remove the content, which might
come from a country where it was deemed legal. In some specific
circumstances, that might pose a problem from the point of view
of freedom of expression. For instance, content relating to homosexuality
might be classified as illegal in countries such as the Russian Federation,
where the Federal Law for the Purpose of Protecting Children from
Information Advocating for a Denial of Traditional Family Values
provides that information containing “homosexual propaganda” can
be blocked or removed.
63. All Council of Europe member States have ratified the European
Convention on Human Rights. The case law of the European Court of
Human Rights on the right to freedom of expression is a harmonising
factor that should make it possible to overcome the sociocultural
and legal differences between member States. There might still,
however, be concerns in member States which required intermediaries
to comply with the strictest rules on illegal content.
up a new institution or expanding the remit of an existing body
64. The various national contexts
mean that some States may set up separate ombudsman institutions
from scratch while others delegate “internet ombudsman” functions
to existing institutions. In France, for instance, such functions
could be assigned to a high-level independent authority such as
the audiovisual regulator (CSA) (as is actually provided for in
the Conseil d’État’s opinion
on the bill to combat online hate speech).
for networking at European level
65. Given the transnational nature
of the web, taking down harmful content in one country is ineffective
if it remains available in others. Yet that situation is what may
happen pending greater legislative harmonisation in this area. Close
consultation or collaboration between national Ombudsman institutions
based on common principles for classifying various types of content
and on uniform approaches to implementing them could reduce the
risk of given content being treated in different ways, while at
the same time fostering legislative harmonisation.
66. Member States should agree on the regulatory and practical
basis for enabling the institutions to operate in a network by expanding
co-ordinated and synchronised action, notwithstanding the potential
differences concerning national legal systems and the remits of
67. Looking ahead, it would be useful to harmonise the legal frameworks
governing the various bodies so that individual cases are dealt
with more effectively and quickly. It is also necessary to consider
the need for a focal point or even an Ombudsman at European level,
like the data protection commissioners who exist both at national
and at European level. A European Ombudsman with a comprehensive
database of national legislation and the statutes of national Ombudsman
institutions could be most useful, especially in the event of legal
differences between countries regarding online content.
problem of the (probably) substantial number of complaints concerning
the (potentially) illegal nature of content
68. It may be assumed that the
possibility of obtaining authoritative content assessment will give
rise to a substantial number of requests, at least initially, and
that some of those requests may be unwarranted. Article 12.5 of
the GDPR dealing with excessive requests made by data subjects could
serve as the basis for similar penalties against intermediaries
submitting requests for opinions from the Internet Ombudsman in
69. Over time, the Internet Ombudsman would likely be able to
establish a certain level of categorisation of requests and content
types. This could be facilitated through co-operation between Internet
Ombudsman institutions in different member States (while retaining
the specificities of national law). Consideration might also be
given to pre-screening and a centralised approach along the lines
of the Internet Watch Foundation in the United Kingdom, Pharos in
France or the “Internet-Beschwerdestelle”
70. This would necessarily restrict the remit of the Internet
Ombudsman to oversight with regard to notices issued by these pre-screening
agencies. During the initial or running-in phase of the Internet
Ombudsman’s activities, it would be wise to limit requests for content
assessment submitted by intermediaries to notices issued by such
agencies. It would likewise be appropriate during the initial phase
to limit the ambit of assessment to manifestly illegal content,
where the risk of over-blocking is greatest.
of the funding of the Ombudsman institution
71. The issue of the funding of
the Ombudsman institution is crucial. Without sufficient and steady
funding, it will not be possible to ensure that it operates properly
or to recruit the highly skilled staff which it will need, while
bearing in mind that it is vital to preserve its independence at
72. Any Ombudsman institution set
up at the level of the European Union would have to be funded from
its budget, but consideration could, for instance, be given to applying
charges for the use of the Ombudsman’s services by intermediaries
so as to provide at least some of the funding needed for the operation
of the institution. In the case of national institutions, given
the state of public finances in several member States, it may be
assumed that the resources available would be relatively limited.
One option would be to introduce a specific tax on the intermediaries’
sector, which would be earmarked for funding the operation of the Ombudsman
institution. However, this could be unnecessarily controversial
given the current EU proposal on a general revenue-based tax scheme
for the sector.
73. Clearly, the ideal approach would be to set up an Ombudsman
institution at the Council of Europe. However, that seems unrealistic,
at least at present; I would like to be proven wrong in that respect
and if the political will was there, it would probably be the best
option. Consideration could even be given to an enlarged partial
agreement that was open to non-member countries of the organisation.
74. It seems difficult to discuss a special tax until the issue
of the general tax has been clarified. The idea of charging for
the use of the service should also be taken into consideration but
there is a risk of it discouraging requests from users.
through voluntary contributions by internet intermediaries
75. When it comes to funding national
Ombudsman institutions, consideration could be given to voluntary financial
contributions from the major internet operators. However, they would
need to have sufficient grounds for contributing.
76. One practical ground could, for instance, be the ability to
avoid possible criminal penalties. Tech giants might be receptive
to that consideration because they like to maintain a “squeaky clean”
brand image as a marketing and sales tool. From this point of view,
even intermediaries with big teams of moderators might be interested
in contributing to the funding of Ombudsman institutions. Nevertheless,
it is clear that they would be more interested in an institution
shared by the largest possible number of States than in funding
a whole host of national institutions. In any case, it would have
to be ensured that the voluntary contributions were paid on a steady
basis and care would have to be taken to prevent the related financial
dependency giving internet intermediaries a stranglehold over Ombudsman
institutions, causing them to lose both their independence and also
issue of the civil liability of internet intermediaries
77. As indicated above, even if
intermediaries followed the Ombudsman’s recommendations, they would
still be liable under civil law and if that liability was established,
they would have to pay damages to injured parties. In this connection,
I wonder whether it might not be possible to consider a solution
similar to that which exists for other activities involving risks,
such as car driving, by introducing compulsory liability insurance
for internet intermediaries or at least providing for them to set
up a guarantee fund which would be used to settle disputes amicably
if possible. The prompt payment of damages to users would probably
obviate the need for costly legal proceedings.
78. The big social media platforms have large teams of moderators
whose task is to make constant checks online to avoid any litigation;
it may therefore reasonably be assumed that there would not be huge
number of users to be compensated. Such a system could therefore
prove to be a wise investment, while at the same time better protecting
injured parties, relieving intermediaries of the need to deal with
time-consuming disputes and possibly reducing the number of cases
brought before domestic courts.
79. In short, by funding the operation of Ombudsman institutions
and taking part in the insurance system, operators would no longer
have to include provisions in their budgets for possible litigation
concerning online content.
80. Intermediaries would nevertheless still have to bear their
share of responsibility for online content. They should be encouraged
to co-operate in the research field with a view to developing algorithms
capable of assisting experts to detect illegal content more and
more effectively. Through a smart co-operation mechanism, they could
pool some or all of the resources dedicated to combating illegal
content and employ the same teams of expert online moderators and
research engineers, etc.
and practical aspects regarding the operation of the Internet Ombudsman
political, legal and economic independence of the Internet Ombudsman
81. Each member State would be
free to set up an Internet Ombudsman institution in accordance with
its own legal culture. The principles of independence and impartiality
are the two mandatory aspects of such an institution. The safeguards
here should be the same as those for “conventional” ombudsman institutions.
of issues to be addressed: terrorism, hate speech, harassment, cyber
82. The Internet Ombudsman’s remit
should cover the following issues: hate speech/incitement (including xenophobia,
racism, anti-Semitism, sexism, etc.); extremist content/radicalisation;
the right to be forgotten; cyber bullying; harassment; defamation.
False news and propaganda should not be part of the Ombudsman’s remit;
these issues concern facts rather than assessment of whether content
83. The Ombudsman’s remit should be confined to the assessment
of offences as inchoate crimes (not requiring analysis of causation).
The aspect of intent is not decisive. Analysis of content legality
should be as objective as possible, taking account both of semantics
and of context.
84. Darknet content should not be covered since intermediaries
have little or no control over it. The same applies to blockchains,
where the decentralised nature of the technology raises serious
challenges in terms of secondary liability.
would the Internet Ombudsman fit in with the GDPR?
85. The GDPR is not a content regulation
instrument as such. It does not, for instance, regulate subjects
like hate speech. It is limited (as its title indicates) to the
processing, collection, transfer, etc., of personal data. It does,
however, contain certain content regulation provisions backed up
by substantial criminal and civil penalties, for instance in Article 82
on the “Right to compensation and liability” and in Article 83.6
regarding 4% administrative fines.
86. It is therefore essential also to review whether the GDPR
contains sufficient safeguards in terms of collateral filtering
to the extent that it may result in content regulation (for instance,
Article 16 on the “Right to rectification” and Article 17 on the
“Right to erasure” (also called the “Right to be forgotten”)). On
this particular point, the GDPR refers to concepts which are not
always clearly defined: “no longer necessary” or “overriding legitimate
grounds”, “freedom of expression”.
87. In addition to the above reservations regarding Articles 16
and 17, other difficulties with application of the GDPR may arise
in relation to Article 3.2 on territorial scope, where the intention
to process data on subjects within the European Union has to be
proven, and Article 5 (purpose, adequacy and accuracy), Article 6
(lawfulness and necessity of processing) and Article 7 (consent),
Article 21 (“compelling legitimate grounds for the processing”)
and, indeed, Article 44 (“transfer across borders”).
88. The Internet Ombudsman’s remit should not include these questions.
The Internet Ombudsman should only provide opinions assessing content
lawfulness, not on procedures surrounding the GDPR as such (for instance
whether consent is legitimately obtained).
89. We need to accommodate new
technologies for better or for worse and at the same time protect
both free speech and other values which are put at risk by abuse
of the internet.
90. As a consequence of the pervasive impact of online content
on offline behaviour and the gatekeeper function of intermediaries,
we have no option but to impose a certain degree of liability on
intermediaries for content disseminated on their infrastructure.
91. However, it will not be easy to apply current media laws directly
to intermediaries, given the nature and enormous volume of third-party-generated
content produced on an uninterrupted basis. A sui generis accountability
theory must therefore be developed.
92. Although current efforts at State and at regional level to
regulate content are relatively uncoordinated, the various initiatives
are converging on some sort of platform liability (differences mainly
appear in terms of enforcement, remedies and penalties).
93. The penalties could significantly infringe free speech by
inducing intermediaries to take measures which could lead to over-blocking,
especially in the light of the difficulties of classifying content
as illegal. Unfortunately, content legislation like that concerning
hate speech or the right to be forgotten is vague and entails a
difficult balancing act between concepts such as free speech, public
interest and other values.
94. The role of the Internet Ombudsman would precisely be that
of enhancing legal certainty, preventing over-blocking and thereby
strengthening effective enforcement of the regulations on online
content, while relieving the workload of the courts.
95. If the Internet Ombudsman is to function optimally, transparency
and independence must be ensured. This applies both to the opinions
of the Ombudsman and to the decisions of intermediaries to comply
or not comply with the Ombudsman’s opinions. Such transparency would
allow public debate and create awareness. It would also provide
information to advertisers and thereby enlist the intermediaries’
business model in attaining the desired result while not restricting
96. The key proposals are included in the draft resolution. Although
the report has more suggestions, I did not want to set a framework
that might seem too inflexible, as this is a subject with many aspects
that remain unexplored, where solutions will need to be tried out