Towards an internet ombudsman institution
- Author(s):
- Parliamentary Assembly
- Origin
- Text
adopted by the Standing Committee, acting on behalf of
the Assembly, on 15 September 2020 (see Doc. 15085, report of the Committee on Culture, Science, Education
and Media, rapporteur: Mr Frédéric Reiss).
1. With the emergence of social media
platforms, harmful content on the internet has become more and more
widespread. In some cases, such content is clearly illegal, for
instance incitement to terrorism, hate speech or harassment, while
in others, it is more difficult to determine whether internet content
is legal or illegal. On the one hand, there are legitimate calls
on social media to take greater responsibility for the content they publish,
with the ruling of the Court of Justice of the European Union on
the “right to be forgotten” being a perfect example of the growing
pressure on internet intermediaries. On the other hand, the idea
of controlling content published on social media poses a serious
challenge in terms of preserving freedom of expression, in particular
since the internet is a global medium connecting people with different
histories, traditions and legal cultures.
2. In order to avoid freedom of expression being limited in a
discriminatory manner while at the same time making efforts to fight
against illegal content on the internet, the Parliamentary Assembly
is proposing that consideration be given to establishing an ombudsman
institution (or equivalent) with the requisite independence, powers
and authority to assess whether internet content is legal or illegal.
Internet intermediaries could submit questionable cases to the institution
for its recommendations on how to deal with them.
3. The damage caused by the dissemination of harmful content
on the internet can quickly become irreversible. The establishment
of an ombudsman institution responsible for issues related to the
internet should speed up the removal of such content. Moreover,
by complying with the ombudsman’s recommendations, internet intermediaries
could avoid possible criminal penalties. They would therefore have good
reason to support the ombudsman institution financially.
4. Given the transnational nature of the web, ombudsman institutions
set up in the member States should co-operate and network. In spite
of the wide range of legal frameworks and sociocultural traditions
among member States, the European Convention on Human Rights (ETS
No. 5, in particular Article 10 on freedom of expression) and the
case law of the European Court of Human Rights offer a sound basis
for useful co-operation between ombudsman institutions in the various
countries and for harmonised, if not uniform, approaches to resolving
disputed cases.
5. While recognising the difficulties involved in setting up
such an institution, the Assembly believes that it could play a
key part in the online communication process by maintaining a balance
between freedom of expression and other fundamental rights.
6. The Assembly therefore calls on member States to consider
establishing in their domestic legal orders an internet ombudsman
institution, either as a separate body or by expanding the remit
of an existing body such as a data protection agency, a media regulator
or a conventional ombudsman institution responsible for the protection
of human rights.
7. The member States should,
inter
alia identify the mechanisms, procedures and measures
for guaranteeing:
7.1 the political
independence of the internet ombudsman institution;
7.2 constructive interaction between the institution and the
legislature, executive and judiciary, as well as the national data
protection authority;
7.3 the economic independence of the institution, by examining
various funding arrangements and, in this context, through discussion
with representatives of the major social media platforms on the
issue of the financial support which these operators could provide
to ensure the sustainability of the ombudsman institution;
7.4 the transparency of the ombudsman’s opinions and of the
decisions taken by intermediaries on the basis thereof;
7.5 the specific legal, technical or other skills required
for the effective operation of the ombudsman institution and its
administration;
7.6 forms of co-operation between the institution and pre-screening
agencies, which could help with the swift detection of manifestly
illicit content.
8. In the context of this reflection, the Assembly calls on member
States to study:
8.1 the co-ordination
mechanisms and measures that should be put in place to ensure close
co-operation and, if possible, networking by national ombudsman
institutions;
8.2 the establishment of an insurance-type mechanism to provide
compensation for internet users adversely affected by unlawful decisions
and enable internet intermediaries to avoid unnecessary legal proceedings.
9. The Assembly calls on the European Union, following Commission
Recommendation (EU) 2018/334 on measures to effectively tackle illegal
content online, to consider whether an internet ombudsman institution should
be set up at European Union level and, while respecting the competences
of its member States, to foster harmonisation of legislation on
internet content.
10. The Assembly calls on the major internet technology platforms
and other internet intermediaries concerned to:
10.1 indicate their support for the
idea of setting up an internet ombudsman institution and their willingness
to support it financially, given the advantages it would bring;
10.2 develop co-operation to expand online communication that
is both unfettered and free of illegal content;
10.3 pool resources in terms of teams of moderators and scientific
researchers;
10.4 co-operate in the area of developing algorithms capable
of helping moderators effectively with their task of detecting illegal
content.
