The organizations and individuals listed below offer the following comments on the Draft 2015 Recommendation of the Committee of Ministers to member states on Internet freedom.
Beginning with the title of the draft recommendation, the choice of the phrase “Internet freedom” has unfortunately become a problematic one for a significant number of civil society groups. Although human rights are universal and apply equally online as offline (and in this respect we certainly support paragraph 1 of the recommendation), for some the history of the use of the phrase “Internet freedom” has a more specific connotation, at best involving the incautious imposition of a very particular configuration of global North based deregulatory and self-regulatory norms and practices to the rest of the world, and at worst referencing the hypocritical stance of the governments that advanced this concept while simultaneously engaging in the most egregious mass infringement of users’ privacy in history. It would be better if the Council of Europe could transition to the use of a more neutral phrase such as “human rights on the Internet”.
The recommendation focuses on the rights to freedom of expression, freedom of association and assembly and the right to a private life. However, there are a range of other rights that apply online as offline, also recognised in the UCHR. The are also certain cultural rights that are absent from the ECHR, that could nevertheless be referenced, such as by citing the UNESCO Convention on Cultural Diversity, to reflect the importance of a multilingual and culturally diverse Internet.
We continue by offering some more specific textual suggestions.
The statement in paragraph 5 states, “Laws and policies relating to the Internet are developed by State authorities in an open process which enables the participation of all stakeholders”. This leaves open a possible misinterpretation that states have sovereignty in making policies not having the force of law. In fact this is not the case, as other documents such as the NETmundial Principles recognise. We suggest language from the NETmundial Principles could substitute for this provision, eg. “Internet governance should be built on democratic, multistakeholder processes, ensuring the meaningful and accountable participation of all stakeholders, including governments, the private sector, civil society, the technical community, the academic community and users. The respective roles and responsibilities of stakeholders should be interpreted in a flexible manner with reference to the issue under discussion”.
Addressing paragraph 7 on page 3, on digital literacy, we note that according to Article 27 of the UDHR “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits”. This underlines that the right to culture is not only about a passive access to cultural, educational etc. resources as described in this paragraph, but also a right to actively use these.
We are concerned about paragraph 8 on page 3, “The State promotes Internet self-regulation and the development and existence of ethical standards for Internet users”, for several reasons. First, although the Internet has thrived with a light touch regulatory approach, it is not useful to assume that self-regulation is appropriate as a default position for every regulatory problem. Therefore this is not something that the state should promote across the board, devoid of context. Second, the assertion that states should promote ethical standards for Internet users is vague and could be interpreted to justify unwarranted intrusions into their private lives, for example by exerting soft pressure for them to comply with culturally specific norms of conduct. Unless a more specific case can be made for this provision, we recommend its deletion.
Paragraph 1.1 on page 3 contains a double-negative, and we recommend rewording it to eliminate this, perhaps as “The availability, accessibility and affordability of Internet access for all groups of population without any discrimination is facilitated by the absence of infrastructural limitations or financial barriers.”
Paragraph 1.4 on page 4 acknowledges that disconnection of individuals from Internet access is a disproportionate restriction on the right to freedom of expression, yet it goes on to authorise this restriction so long as due process and a right of appeal exists. This seems inconsistent—if it is intended to refer to the measure of withholding Internet access from those who are incarcerated, then we suggest it limit the authorisation of the measure to this specific case, or otherwise to remove it.
Paragraph 1.5 on page 4 reads as requiring private Internet service providers to maintain service even in cases of turmoil. This could place independent service providers at the risk or physical and financial harm. We recommend that it be limited to the obligation of states not to require or pressure ISPs to suspend service.
Paragraph 2.1 seems to define ‘surveillance on the Internet’ as inherently ‘bulk’, which doesn’t really make sense. It has the additional adverse effect of presupposing that bulk surveillance can be ok as long as it’s transparent / foreseeable, while some might argue that bulk is inherently disproportionate (depending on how ‘bulk’ is ultimately defined, which is left open here). That’s not good at all. It should just say ‘any surveillance measure’ like all the other clauses. Or it should just say ‘which consists of access to, collection, etc.’ and cut the ‘bulk’.
Also, it shouldn’t be ‘access to, collection and retention of’. At the very least, this needs to be ‘or’ not ‘and’, because each of those actions (access to, collection of, retention of) raise their own problems. Limiting it to ‘and’ is a problem because it sounds like there’s no issue if data is accessed and collected, but not retained, etc. Finally, we should add ‘monitored’ to the list because there’s a tendency to disregard monitoring of communications stream is irrelevant in some jurisdictions. So in all it should become:
2.1. Surveillance on the Internet, which consists of access to, monitoring, collection or retention of communications data (content and metadata including information on individuals, their location and online activities) is done in accordance with the law which is accessible, clear and precise and foreseeable.
Point 2.7 (on page 4) partly recognises that States should have an obligation to inform users of the imposition of and justification for legitimate restrictions of their rights. However it only covers impingements upon freedom of expression. It is not covered with respect to any of the other rights. The recommendation should broaden this point to cover other human rights infringements, or duplicate it with an equivalent provision in the sections on other rights.
Paragraph 4.2 on page 5 singles out defamation laws, specifying that they should be specific and narrowly defined. We suggest that this be broadened at least to include laws on sedition and lèse majesté.
Paragraph 5 on page 8 allows Internet intermediaries to be held liable for content uploaded onto their systems by Internet users or other parties when they do not act expeditiously to remove or disable access to information or services as soon as they become aware of their illegal nature. We find this to be inconsistent with paragraph 2.3 which does not require intermediaries to remove content without a court or administrative order, and is similarly inconsistent with the Manila Principles on Intermediary Liability to which many civil society organisations have subscribed (see http://www.manilaprinciples.org/) which require a court order in such cases.
Endorsements of joint comments on draft 2015 Recommendation of the Committee of Ministers of the Council of EuropeRead the petition
Please note that Access (accessnow.org) has submitted its own comments, which are largely consistent with the comments contained in this joint submission.The submission be found here: https://www.accessnow.org/blog/2015/04/28/internet-freedom-access-submits-input-to-the-council-of-europe
|3||Bangladesh NGOs Network for Radio and Communication||Bangladesh||Sep 22, 2015|
|2||Electronic Frontier Foundation||USA||May 04, 2015|
|1||Access||Belgium||Apr 29, 2015|
|3||Maria Świetlik||Poland||May 04, 2015|
|2||Michał Woźniak||Poland||May 03, 2015|
|1||Jeremy Malcolm||United States||Apr 30, 2015|