C Explanatory memorandum by Mr Boriss
Cilevičs, rapporteur for opinion
1. I can only congratulate Ms Adele
Gambaro on her report, which rightly highlights the challenges posed by
the growing presence and usage of online media and the effect this
has on journalism. Whilst internet journalism provides easy access
to a huge range of information and news that would be otherwise
unavailable, it also increases the possibility that such information
may be wrongly reported, manipulated or altered. The variety in
the types of internet news platforms presents complex considerations
for member States in deciding how to tackle these issues. I should,
therefore, like to propose some amendments to the draft resolution,
with a view to completing it from a legal perspective.
2. It seems to me useful to complement the report presented by
the Committee on Culture, Science, Education and Media with some
definitions as well as with further reference to the relevant recent
case law of the European Court of Human Rights (“the Court”).
1 Definitions
3. Throughout the report, the
term “service provider” is used. It is useful to recall that Article
1.
c of the Council of Europe
Convention on Cybercrime (
ETS
No. 185) defines it as follows:
“‘service provider’ means:
i. any public or private entity
that provides to users of its service the ability to communicate
by means of a computer system, and
ii. any other entity that processes
or stores computer data on behalf of such communication service or
users of such service.”
4. Furthermore, the report and the draft resolution often refer
to “professional journalists”. For obvious reasons, it would be
difficult to provide a precise definition of such a “professional”
journalist and it might not be advisable either. However, I would
like to recall an existing broad definition which ought to be taken
into account in this context.
5. Recommendation
No. R (2000) 7 of the Committee of Ministers on the rights of journalists
not to disclose their sources of information defines the term “journalist”
as follows: “the term ‘journalist’ means any natural or legal person
who is regularly or professionally engaged in the collection and
dissemination of information to the public via any means of mass
communication” (see Appendix to Recommendation No. R (2000) 7).
While recalling that the Court has not specified the requirements
for being considered a journalist under Article 10 of the European
Convention on Human Rights (ETS No. 5, “the Convention”), the Explanatory
memorandum to Recommendation No. R (2000) 7 adds that “the Recommendation
uses the terms ‘regularly or professionally engaged’. This must
not exclude, however, journalists who work freelance or part-time,
are at the beginning of their professional career, or work on an
independent investigation over some time. Professional accreditation or
membership is not necessary. Nevertheless, individuals who otherwise
would not regard themselves as being journalists shall not qualify
as journalists for the purposes of this Recommendation”.
2 The Strasbourg
Court’s relevant case law
6. The European Court of Human
Rights found in a number of cases that the right of the public to
receive information falls under the protection of Article 10 in
the same way as the right to impart information. Furthermore, in
the case
Times Newspapers Ltd v. the
United Kingdom, the Court emphasised the importance of
the internet and its vital role “in enhancing the public’s access
to news and facilitating the dissemination of information in general”.
Note It
described the internet as a one-of-a-kind medium, because of its
capacity to store and communicate vast amounts of information and
its general accessibility to the public. Internet archives and their
maintenance also fall under the protection of Article 10. Moreover,
the Court expressed in detail how far the scope of Article 10 reaches
in the case
Ahmet Yıldırım v. Turkey,
Note by noting that Google
Sites, as a service that facilitates the creation and sharing of
websites within a group, constitute a means of exercising freedom of
expression.
7. In this context, the question arises as to how to define when
liability can be imposed on intermediary websites for user-generated
content, and to what extent they can remove offensive or defamatory
material without infringing on the right to freedom of expression,
as enshrined in Article 10 of the Convention. Currently, there exist
differing legal regimes as to what extent owners of internet sites
should monitor the content and information that is posted or provided
by users.
Note
8. Directive
2000/31/EC of the European Parliament and of the Council on certain
legal aspects of information society services, in particular electronic
commerce, in the Internal Market (“Directive on electronic commerce”)
excludes, under certain conditions, liability of service providers
for information stored on their websites, and prevents member States
from imposing a general obligation to monitor the information that
they transmit or store. The European Court of Human Rights, on the
other hand, ruled in
Delfi AS v. EstoniaNote and
Magyar Tartalomszolgáltatók Egyesülete And
Index.Hu Zrt v. HungaryNote that
website owners may be liable for hate speech or incitement to violence
posted by third parties, even if they do not have notice of it.
Data protection considerations also come into play, and as noted
by Ms Gambaro in her report, the Court of Justice of the European
Union, referring to
Data
Protection Directive 95/46/EC of the European Parliament and of the Council on the
protection of individuals with regard to the processing of personal
data and on the free movement of such data, recently ruled that
personal information about users cannot be stored without a time limit,
and all users have the “right to be forgotten”.
Note
9. In the case Delfi AS v. Estonia,
the Court was able to provide certain clarifications. It had to
examine a complaint about liability for comments made by users on
an internet news portal. Delfi, one of the biggest news portals
in Estonia, ran a story that generated some offensive responses,
including threats directed against an individual. Even though Delfi
removed the offending comments, the individual facing threats was
awarded damages. The question before the Court was whether Delfi’s
freedom to impart information was breached, because it was held
liable for comments posted by third parties. For the first time,
the Court was confronted with such an innovative issue and emphasised
the important role the internet plays in society, as it does not only
provides the public with a range of benefits, especially with regard
to the freedom of expression, it also involves a whole series of
dangers. As stressed by the Court, “[d]efamatory and other types
of clearly unlawful speech, including hate speech and speech inciting
violence, can be disseminated like never before, worldwide, in a
matter of seconds, and sometimes remain persistently available online”.
(paragraph 110). The Court
had to balance two conflicting realities in this case: the violation
of personality rights according to Article 8 and the internet as
a medium facilitating the freedom of expression according to Article
10. It found that holding Delfi liable is a justified and proportionate
restriction on freedom of expression communicated by its portal,
taking into account the lucrative nature of the internet news portal
and, most importantly, that the incriminated comments amounted to
hate speech or incitement to violence.
10. In the case Magyar Tartalomszolgáltatók
Egyesülete and Index.hu Zrt v. Hungary, the Court was
also faced with liability of a self-regulatory body of internet
content providers and an internet news portal for comments posted
on their websites. The Court made a direct comparison between the
two cases and followed the same approach in the Delfi Case. However,
it came to the conclusion, while taking into account the economic
interest of the applicants and the consequences of the comments,
that this case was in fact different. It held that there had been
a violation of freedom of expression under Article 10 and noted
“although offensive and vulgar, the incriminated comments did not
constitute clearly unlawful speech; and they certainly did not amount
to hate speech or incitement to violence” (paragraph 64). Most importantly, however, the
Court reiterated that internet portals assume duties and responsibilities
under Article 10.2 and can be held liable for user-generated comments
which contain clearly unlawful expressions, amounting to hate speech
and incitement to violence.
3 Amendments
3.1 Amendment A (to
the draft resolution)
Explanatory note:
This amendment emphasises the importance and special responsibility
of public media and its obligations in a democratic society while
referring to Committee of Minister Recommendation CM/Rec(2012)1 on public service media governance which states that
“public service media play a specific role with regard to [the respect
of the right to seek and receive information] and the provision
of a varied and high-quality content, contributing to the reinforcement
of democracy and social cohesion, and promoting intercultural dialogue
and mutual understanding”.
3.2 Amendments B,
C and G (to the draft resolution)
Explanatory note:
These amendments aim to recall the role of the press in a
democratic society, as described by the European Court of Human
Rights in its case law and by adding a specific reference to its Delfi AS v. Estonia landmark decision,
whose relevance is described above.
3.3 Amendment D (to
the draft resolution)
The amendment is self-explanatory.
3.4 Amendment E (to
the draft resolution)
Explanatory note:
The Council of Europe Convention on Cybercrime is the first
international treaty on crimes committed via the internet and other
computer networks, dealing particularly with infringements of copyright,
computer-related fraud, child pornography and violations of network
security. Its main objective, set out in the preamble, is “to pursue
… a common criminal policy aimed at the protection of society against
cybercrime, inter alia, by adopting
appropriate legislation and fostering international co-operation”.
The scope of the Cybercrime Convention has been extended via
its Additional Protocol concerning the criminalisation of acts of
a racist and xenophobic nature committed through computer systems
(ETS
No. 189). As is pointed out in the Explanatory Report to the
Additional Protocol, “[t]he emergence of international communication
networks like the internet provide certain persons with modern and
powerful means to support racism and xenophobia and enables them
to disseminate easily and widely expressions containing such ideas”.
Both instruments are therefore relevant in this context, especially
with regard to defining terms such as “service provider” or legally
unacceptable content, and deserve to be mentioned in the resolution.
3.5 Amendment F (to
the draft resolution)
Explanatory note
Code of conducts can become instrumental tools in preventing
the spread of illegal hate speech, which is so easy and quick via
the internet. The Code
of conduct countering illegal hate speech online agreed upon by the European Commission and major internet
companies on 31 May 2016 should serve as an inspiration.
