Council Of Europe: Access To Internet Is A Fundamental Right
<http://www.ip-watch.org/weblog/2009/06/08/council-of-europe-access-to-inter
net-is-a-fundamental-right/>
By Monika Ermert for Intellectual Property Watch, 8 June 2009
What applies offline is also valid online - an argument often used against
internet communication by legislators - has been turned around to underline
fundamental rights on the internet in a new resolution of the Council of
Europe.
The Council of Europe is a Strasbourg, France-based body of 47 members
including the member states of the European Union.
In a lengthy resolution that lays out the media and internet work of the
Council for the next five years, ministers for media and new communication
gathered in Reykjavik, Iceland on 29 May underlined that "fundamental rights
and Council of Europe standards and values apply to online information and
communication services as much as they do to the offline world."
The ministers called for universal access to the internet should be explored
as part of member state's provision of public services. Barriers to internet
access in individual countries, in cross-border flows or from possible
problems in critical internet infrastructure systems, are on the future
agenda of the Council.
Barriers to internet access do not only limit citizens' ability to shop
online. With more and more media and political content migrating online such
barriers limit citizens' fundamental rights, they said.
"It's not a game," said Jan Kleijssen, director of standard setting at the
Council of Europe. "Election campaigns like the one of [President] Obama,
or, in part, the one for the European Parliament, now take place on the
internet." Cutting access to this information clearly violated the political
and civil rights of people.
Internet Access Part of Universal Service
Legislation like the new French law allowing an administrative body to cut
internet access of alleged copyright violators therefore raises questions of
proportionality. Experts at the Council expected in fact that the so-called
French HADOPI law, which cuts internet access for three-time suspected IP
rights infringers, eventually will arrive at the European Court of Human
Rights, explained Kleijssen.
The text of the Ministers' Reykjavik resolution is more cautious and
reaffirms the "importance of copyright." But it notes nevertheless that "a
people-centred approach requires that individuals are allowed to exercise
their right to free expression and information and use new communication
services to participate in social, political, cultural and economic life and
to do so without infringing the human dignity or the rights of others."
Access to the information on the internet is placed high in all parts of the
resolution. Ministers even signed a sentence that "universal access to the
internet should be developed as part of member states' provision of public
services." A universal service obligation for internet access might well
clash with a cut of internet access as under HADOPI.
Concern on Impact of Anti-Terror Legislation
A specific resolution from Reykjavik is dedicated to the concern about the
negative effects of anti-terror legislation on freedom of expression and
information.
There is a "growing concern about the impact of terrorism, and of actions
taken by member states to combat it, on those freedoms," wrote the
ministers. "In some cases, anti-terrorism legislation restricting freedom of
expression and information is too broad, fails to define clear limits to
authorities' interference or lacks sufficient procedural guarantees to
prevent abuse," they said.
Frederick Riehl from the Swiss regulatory authority BAKOM said in Reykjavik
that the instruments to combat cybercrime and terrorism "should not lead to
state abuse or abuse by the industry." The monitoring of people, the use of
filtering of internet access and the posting of personal data must be fully
justified by law, said Riehl.
Surveillance of journalists and the broad retention of personal data by the
European data retention directive also is mentioned sceptically. In the
resolution on "a new notion of media" ministers agree "to explore whether
and to what extent data retention, the processing of personal data and
profiling techniques or practices challenge unrestricted participation and
people's rights to freedom of expression and information and other
fundamental rights. Appropriate guidance should be provided to protect
users' rights.
One of the main action items set forth by the ministers in the "terrorism"
declaration is the commitment to "to review our national legislation and/or
practice on a regular basis to ensure that any impact of anti-terrorism
measures on the right to freedom of expression and information is consistent
with Council of Europe standards, with a particular emphasis on the case law
of the European Court of Human Rights."
The Russian delegation made a reservation with regard to this commitment.
But civil rights organisations asked to take the commitment seriously.
"Member states should not spend the coming years discussing the benchmarks
for this," appealed a representative of the Open Society Institute, who
added that benchmarks are clear and form essential parts of various Council
of Europe legal instruments.
Council to be More Active in Internet Governance
One bold step was taken by the ministers with regard to cross-border flows
and freedom of expression. The Council of Europe is invited "to explore the
feasibility of elaborating an instrument designed to preserve or reinforce
the protection of cross border flow of internet traffic." Member states
could be held to account for these rights involved before the European Court
of Human Rights, ministers wrote.
"Article 10 of the European Convention on Human Rights is especially
relevant in this respect given that the rights and freedoms protected
therein are guaranteed 'regardless of frontiers'," they said
One aspect of the neutrality obligation also touches on the much-debated
topic of internet governance and management of critical internet resources
like the internet domain name system (DNS) through the Internet Cooperation
for Assigned Names and Numbers (ICANN). Ministers in the declaration called
on all state and non-state actors "to explore ways, building upon current
arrangements, to ensure that critical internet resources are managed in the
public interest and as a public asset, ensuring the delivery of public
service value, in full respect of international law, including human rights
law."
While not discussed at length in Reykjavik, new top-level domains currently
being prepared by ICANN were declared as important, and Riehl said that
users' interest in the effort must be put on top of the agenda.
The Council of Europe in the coming years will be more active in internet
governance discussions, according to the ministers, and also, "if
appropriate, promote international supervision and accountability of the
management" of critical internet resources. By putting this issue on the
table ministers touch upon the debate on future internet governance
arrangements.
In September of this year, the joint project agreement that binds ICANN to
the US Department of Commerce runs out. In their formal conclusions in
Reykjavik, the ministers noted that "while ICANN's constitutional documents
and bylaws require it to cooperate with relevant international organisations
and to carry out its activities in conformity with relevant principles of
international law and applicable international conventions and local law,
there are no related formal accountability arrangements" so far.
A New Notion of Media
Besides "enhanced cooperation", the multi-stakeholder model that brings
governments, industry and civil society to the table was declared
indispensable to solving internet issues. To the ministers, "internet
governance is an example of organisational innovation and mutual adaptation
between society and technology around the world in pursuit of the objective
of ensuring the openness and neutrality of the internet."
Cooperation of the various stakeholders, therefore, is also mentioned with
regard to other initiatives for the coming years and for the more general
deliberation about what new regulation might be necessary for the new
communication media with the internet.
So far, traditional mass media has been the benchmark for regulation, but as
new media and media-like mass communication services increasingly take over,
the conference called for an exploration of the notion of media. Aspects
like privacy protection on the internet and especially the non-traceability
and protection of children were mentioned as key aspects for possible new
legal instruments.
When questioned about the balance between freedom rights on the one hand and
the right to protection for individual interests on the other, Council
expert Kleijssen pointed to the fact that this is usual business for the
organisation. With regard to terrorism, for example, the Council has an
instrument to allow cooperation of states to catch the terrorists on one
hand. And once caught, suspects are protected by another instrument that
gives them rights which prevent a Guantanamo-style approach to detaining
them. Thirdly, there is an instrument aimed at tackling root causes for
terrorism, Kleijssen said.
The approach of looking in both directions is also obvious with regard to
media and new media. Not only did the ministers call for a redefinition and
new understanding of media and media usage, they also tried to do something
for "old-style" media by calling for a rethinking of public service media
and their problems in the financial crisis. Possible public funding for
public service media offline and online was discussed.
It remains to be seen how far the Council will move in this direction as it
remains to be seen how bold the endeavour will be to promote Article 10 on
the internet. There is no decision yet on whether the Council will work on a
convention or only non-binding guidelines or recommendations.
Monika Ermert may be reached at info@ip-watch.ch.
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