Strasbourg, 7 December 2011

CDMC(2011)027Rev4
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STEERING COMMITTEE ON THE MEDIA
AND NEW COMMUNICATION SERVICES

(CDMC)

15th meeting
from 29 November to 2 December 2011
Council of Europe, Agora building, Strasbourg
(Room G01)

Abridged meeting report

The Steering Committee on the Media and New Communication Services (CDMC) held its 15th and last meeting, chaired by Andris Mellakauls (Latvia), from 29 November to 2 December 2011.

Gender distribution: 55 attendants, 22 women (40%), 33 men (60%).

During the meeting, the CDMC

For Committee of Ministers’ decision

- finalised the following standard setting texts and agreed to submit them to the Committee of Ministers for possible adoption:

    - Draft Recommendation of the Committee of Ministers to member states on the protection of human rights with regard to search engines (Appendix II);
    - Draft Recommendation of the Committee of Ministers to member states on the protection of human rights with regard to social networking services (Appendix III);
    - Draft Declaration of the Committee of Ministers on the desirability of international standards dealing with forum shopping in respect of defamation or (“libel tourism)1(Appendix IV);

- finalised the following sets of comments on Parliamentary Assembly Recommendation:

    - Recommendation 1980 (2011) – “Combating “child abuse images” through committed, transversal and internationally co-ordinated action” (Appendix VI);
    - Recommendation 1983 (2011) - “Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations (Appendix VII);
    - Recommendation 1984 (2011) – “The protection of privacy and personal data on the Internet and online media” (Appendix VIII);

- having regard to the background set out in Appendix I, invited the Committee of Ministers to:

    - support and encourage the active participation of all Council of Europe member states in relevant local, national, regional and global Internet governance dialogue;
    - call on member states to protect and encourage respect for rights and freedoms in cyberspace mindful of Internet governance dialogue and the public service value of the Internet;   
    - invite the Secretary General to:

        - make the necessary arrangements to support and facilitate Internet governance dialogue, in particular the development of national initiatives, and to ensure through adequate Secretariat support and, if necessary, fundraising the sustainability of the European Dialogue on Internet Governance (EuroDIG);
        - mainstream multi-stakeholder dialogue in Council of Europe working methods through an open multi-stakeholder platform permitting to connect with different stakeholder groups and associating them to relevant parts of the Organisation’s work.

For information

Draft Recommendation on gender aspects of Council of Europe Recommendations and Declarations in the media and freedom of expression fields, including addenda to certain Declarations and Recommendations
- decided to pursue work on this text with the aim of finalising the draft recommendation before the end of its mandate or, failing that, encouraged the CDMSI to pursue this important task (already in its terms of reference as adopted by the Committee of Ministers);

Draft CDMC comments on PACE Recommendation 1981 (2011) - “Violent and extreme pornography”
- decided to finalise and adopt this text by e-mail exchange and to forward it to the Committee of Ministers within the due by date;

End-of-operations stocktaking report
- in view of the end of its terms of reference on 31 December 2011 and replacement by a new steering committee, adopted a stocktaking report on its work over its six and a half years of existence and decided to forward it to the Committee of Ministers for information (Appendix V);

Committee of Ministers thematic debate on freedom of expression and freedom of the media – 15 December 2011
- expressed the view that member states experts and/or the CDMC might have usefully been consulted on the shaping and content of the proposed debate given their specific role in working out and proposing common policy approaches in respect of freedom of expression and media;
- noted the proposal by delegations that the Chairperson be invited to attend the debate;
- requested that a background note be prepared before the thematic debate on positive obligations of member states in respect of Article 10 of the European Convention of Human Rights identified in the case law of the European Court of Human Rights;

Subordinate bodies
- held an exchange of views with the chairpersons of the Committee of Experts on New Media (MC-NM) and of the Ad hoc Advisory Group on Cross-border Internet (MC-S-CI) and thanked the groups for the excellent work accomplished in the course of their mandates;

Internet governance and Information society
- took note of the Council of Europe participation in the UN Internet Governance Forum, and of the preparation of the next edition (in September 2012 in Baku), of the preparation of the next edition of EuroDIG (14-15 June in Stockholm)as well as of the outcomes of the conference "Our Internet - Our Rights, Our Freedoms, Towards the Council of Europe strategy on Internet governance 2012-2015” which took place in Vienna, on 24 and 25 November 2011;

Future work programme of the Steering Committee on Media and Information Society (CDMSI)
- welcomed the adoption of the terms of reference of the CDMSI;
- noted the unanimous request by CDMC observers to have like participation in CDMSI work and suggested that this request be brought to the attention of the Secretary General (having regard to paragraph 8.a of Committee of Ministers Resolution CM/Res(2011)24 on intergovernmental committees and subordinate bodies, their terms of reference and working methods); it expressed full support for this request, underlining the desirability that they be all invited to the CDMSI first meeting to ensure continuity and preserve this aspect of the multistakeholder dimension of the work (see also CDMSI Terms of Reference in fine);
- the CDMC considered that, in the light of a fast evolving Internet environment as well as activities in other international organisations, it is imperative that the Council of Europe continue to play a leading role in developing Internet-related policies from a human rights, democracy and rule of law perspective;
- noting that other institutions pursue work in this field from other perspectives and noting that the CDMSI terms of reference build on work already carried out and with a view to maintaining momentum and not losing valuable time, the CDMC asked the Secretariat to start preparing the future work in line with the terms of reference as adopted by the CM,
- noting the crucial role of sub-bodies including govenmental and non-governmental experts in this regards, the CDMC asked the Secretariat to startpreliminary planning for the creation of CDMSI sub-ordinate groups (draft structures and terms of reference, identify possible experts, outline working plans, etc) to ensure rapid action once the CDMSI becomes active. Given that non-state actors play a central role in Internet, it is necessary that the sub-ordinate groups embrace a multi-stakeholder approach.

Next Council of Europe Conference of Ministers responsible for media and new communication services (Belgrade, 2013)
- observed that, in light of the replacement of the CDMC by the CDMSI, the title of the conference might be changed to "media and information society";
- held an exchange of views with Ren Reynolds (an Internet, virtual realities and interactive platforms academic and practitioner), and pursued discussions on possible themes for the future conference;
- to facilitate further discussions (by the CDMSI), several delegations agreed to prepare brief discussion papers by end January 2012 and by 15 January 2012 for contributions to feed in the papers:

      - on new and aggregate spaces for interaction and participation, policy and opinion making, and political activity (Armenia),
      - the question of the possible modifications of the "public watchdog" term as regards the new media environment (Austria),

- access to internet as a fundamental right (Latvia),
- consequences to be drawn from the new notion of media (Switzerland),
- the rle of intermediaries (Germany)
while other delegations agreed to reflect on whether, in the new communication environments, developing political approximation methods ensure ongoing reliability and what are the related challenges (in particular freedom of expression, privacy, right to association, and also diversity and pluralism in the media ecosystem) ; the CDMC also asked the Secretariat to explore the possibility of organising a small working meeting early in 2012 in order to advance with the discussions;

Implementation of Council of Europe standards on media and freedom of expression prepared under the authority of the CDMC
- reiterated its support for the urgent implementation of all aspects of the Declaration of the Committee of Ministers on measures to promote respect for Article 10 of the European Convention on Human Rights, recalling the concrete proposals made by the CDMC at the time of transmitting the draft to the Committee of Ministers for adoption;
- with regards to defamation, the CDMC welcomed the information transmitted by certain delegations and observers in respect of trends as regards the decriminalisation of defamation (e.g. repeal of libel and insult criminal law provisions in the Russian Federation), agreed that it would be desirable that the CDMSI take up the debate on this subject;

Other issues
- agreed on the necessity fo CDMC members to raise certain issues with national authorities and/or their Permanent Representations in Strasbourg (e.g. importance of keeping media policy on the Council of Europe agenda, CDMSI subordinate structures, gathering necessary expertise, secretariat spread thinly over a broad range of issues, exploring voluntary contributions and secondments, support for EuroDIG) and noted work of other Council of Europe bodies of interest to the CDMC as well as ongoing or proposed PACE work and the assistance and cooperation activities in the media field.
- held a fruitful exchange with the plenary T-PD on possible work streams
- invited member states to foster interaction and flow of information regarding the work of the Council of Europe and the European Union in respect of the EU digital agenda, media pluralism, Internet governance and other matters of common concern.

APPENDIX I

Background note to the proposed Committee of Ministers decisions providing support to the European Dialogue on Internet Governance (EuroDIG) and encouraging member states’ active participation in internet governance fora

1. All Council of Europe member states have undertaken to secure within their jurisdiction the rights and freedoms set out in the European Convention on Human Rights. Fundamental rights, standards and values apply to the online information and communication environment as much as they do to the offline world. Maximising rights and minimising restrictions on the Internet is a priority. The best efforts of member states necessitate measures to protect and empower users in cyberspace.

2. The Internet is a global public good which should be governed in the common interest. Growing numbers of people rely on the Internet as an essential tool for everyday activities. Actions and decisions of both state and non-state actors can have an impact on the exercise of fundamental rights in the Information society. Effective Internet governance depends on the development and application of shared principles, norms, rules and decision-making procedures as referred to in the Tunis Agenda for the Information Society.2

3. Internet governance dialogue facilitates new forms of participation, agenda setting and partnerships, ultimately developing and reinforcing democracy. Open, inclusive and transparent discussion between state and non-state actors about the political, social and economic impacts of the Internet is an opportunity to create and facilitate new forms of cooperation among and between governments, civil society, the private sector, European and international organisations.

4. Multistakeholder dialogue strengthens the development of core Internet values. It allows ideas to be launched and tested, views to be shared, and consensus to be built. It has added value at all stages of the policy development process: from inception to discussion and deliberation, through to formulation and thereafter validation, followed by implementation and follow-up. The Council of Europe’s standard-setting, monitoring and cooperation work on the Internet is and will be more fully informed and coherent because of multi-stakeholder dialogue.

5. The European Dialogue on Internet Governance (EuroDIG)3 enables member states to connect and discuss with different actors. A number of member states are increasingly supportive of the EuroDIG process and are acknowledged for playing a leading role in the development and sustainability of Pan-European multi-stakeholder dialogue. EuroDIG provides an open and inclusive platform for cross-border dialogue on Internet issues; it should be seen as an integral part of the Council of Europe’s open multistakeholder platform which underpins the Organisation’s Internet governance and information society work. EuroDIG is recognised and supported by a range of European bodies, organisations and institutions.4 Raising its profile and impact is an opportunity for Pan-European stakeholders to play more effective and cross-cutting roles in shaping the evolution and use of the Internet.

APPENDIX II

Draft Recommendation of the Committee of Ministers to member states on the protection of human rights with regard to search engines

SEARCH ENGINES PLAY A PIVOTAL ROLE IN THE INFORMATION SOCIETY
1. Search engines enable a worldwide public to seek, receive and impart information and ideas, and other content, in particular to acquire knowledge, engage in debate, and participate in the democratic processes.

2. Recommendation CM/Rec(2007)16 of the Committee of Ministers to member states on measures to promote the public service value of the Internet underlines the importance of access to information on the Internet and stresses that the Internet and other ICT services have high public service value in that they serve to promote the effective exercise and enjoyment of human rights and fundamental freedoms for all who use them. The Committee of Ministers is convinced of the importance of search engines for the realisation of the value of the Internet and the World Wide Web for the public and therefore considers it essential that search engines are allowed to freely crawl and index the information that is openly available on the Web and intended for mass outreach.

3. Suitable regulatory frameworks, compliant with human rights requirements, should be able to give adequate response to legitimate concerns in relation to reference by search engines to content created by others. Further consideration is necessary as to the extent and the modalities of application of national legislation, including on copyright, to search engines as well as related legal remedies.

HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS CAN BE CHALLENGED BY THE OPERATION OF SEARCH ENGINES
4. Search engines’ activity can impact freedom of expression and, given their enabling role as regards the right to seek, receive and impart information; similarly, they have an impact on the right to private life and the protection of personal data. Such challenges may stem inter alia from the design of algorithms, de-indexing and/or partial treatment or biased results, market concentration and lack of transparency about both the process of selecting and ranking results.

5. The impact on private life may result from the pervasiveness of search engines or their ability to penetrate and index content which, while in the public space, was not intended for mass communication (or mass communication in aggregate), and from data processing generally and data retention periods. Moreover, search engines generate new kinds of personal data, such as individual search histories and behaviour profiles.

6. There is a need to protect and promote the values and merits of access, diversity, impartial treatment, security and transparency in the context of search engines. Media literacy and the acquisition of skills that enable users to have informed access to the greatest possible variety of information, content and services should be adapted having regard to Recommendation CM/Rec(2011)7 on a new notion of media.

7. The Committee of Ministers therefore, under the terms of Article 15. b of the Statute of the Council of Europe, recommends that member states, in co-operation with the private sector actors and civil society, develop and promote coherent strategies to protect freedom of expression, access to information and other human rights and fundamental freedoms in relation to search engines in line with the European Convention on Human Rights, especially Article 8 (Right to respect for private and family life) and Article 10 (Freedom of expression) and with the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108), in particular by engaging with search engine providers to carry out the following actions:

enhancing transparency about the way in which access to information is provided, in order to ensure access to and pluralism and diversity of information and services, in particular according to the criteria that search results are selected, ranked, or removed;

reviewing search ranking and indexing of content which, while in the public space, is not intended for mass communication (or for mass communication in aggregate). This could include listing content sufficiently low in search results as search output so as to strike a balance between the accessibility of the content in question and the intentions or wishes of its producer (e.g. attaching different consequences to a distinction between content available in a public space and content published i.e. seeking broad dissemination). Default setting should be conceived taking account of this objective;

enhancing transparency in the collection of personal data and the legitimate purposes for which they are being processed;

enabling users to easily access to, and, where appropriate, to correct or delete their personal data processed by the search engine providers;

developing tools to minimise the collection and processing of personal data, including enforcing limited retention periods, adequate irreversible anonymisation as well as tools for the deletion of data;

ensuring accessibility to their services to people with disabilities thereby enhancing their integration and full participation in society.

8. In addition, member states should:

ensure that suitable legal safeguards are in place when access to users’ personal data is granted to any public or private entity, thus securing the full enjoyment of the rights and freedoms enshrined in the European Convention on Human Rights (ETS No. 5);

encourage search engine providers to discard search results only in accordance with paragraph 2 of Article 10 of the European Convention on Human Rights. In this event, the user should be informed about the origin of the request to discard the results subject to respect for the right to private life and protection of personal data;

promote media literacy with regard to the functioning of search engines, in particular on the processes of selecting, ranking and prioritising of search results and on the implications of the use of search engines on users’ right to private life and personal data;

consider offering users a choice of search engines, in particular with regard to search outputs based on public value criteria;

promoting transparent co- and self-regulatory mechanisms for search engines, in particular with regard to the accessibility of content declared illegal by a court or competent authority as well as of harmful content mindful Council of Europe standards on freedom of expression and due process rights;

taking measures with regard to search engines in line with the principles set out in the Appendix to this Recommendation;

bringing this Recommendation and its Appendix to the attention of all relevant public authorities and private actors.

Appendix to the Recommendation

I. HELPING THE PUBLIC MAKE INFORMED CHOICES WHEN THEY SEARCH

Context and challenges:
1. Search engines play a crucial role as one of the first points of contact in exercising the right to seek and access information, opinions, facts and ideas, as well as other content, including entertainment on the global Internet. Such access to information is essential to build one's personal opinion and participate in social, political, cultural and economic life. Search engines are also an important portal for citizens' access to the mass media, including electronic newspapers and audiovisual media services.

2. There is concern that users are prone to using a very limited number of dominant search engines. This may pose challenges as regards access to and diversity of the sources of information especially if one considers that the ranking of information by search engines is not exhaustive nor neutral. In this regard, certain types of content or services may be unduly favoured.

3. The process of searching for information is strongly influenced by the way that information is arranged, this includes the selection and ranking of search results and, as applicable, the de-indexing of content. Most search engines provide very little or only general information about these matters, in particular the way values are being used to qualify a given result as the ‘best’ answer to a particular query.

Action:
4. While recognising that full disclosure of business models and methods or business-related decisions may not be appropriate because algorithms are highly relevant for competition and related information might also result in increased vulnerability of search engine services to abuse of their services (e.g. in the form of search manipulation), member states, in cooperation with the private sector and civil society, should:

promote search engine providers to enhance transparency as regards general criteria and processes applied to the selection and ranking of results. This should include information about search bias, such as in presenting results based on apparent geographic location or on earlier searches;

encourage search engine providers to clearly differentiate between search results and any form of commercial communication, advertisement or sponsored output, including “own content” offers;

promote research about the dynamic search engine market, to address issues including the public value dimension of search engine services, the increasing concentration of the search engine market, and the risk of abuse and manipulation and restriction of search results.

II. RIGHT TO PRIVATE LIFE AND THE PROTECTION OF PERSONAL DATA

Context and challenges:
5. Search engines process large amounts of personal data about the search behaviour of individuals, varying from cookies and IP addresses to individual search histories, as highlighted by a number of relevant texts already adopted at both European and international level5.

6. An individual's search history contains a footprint which may reveal the person's beliefs, interests, relations or intentions. Individual search histories may also disclose sensitive data (revealing racial origin, political opinions or religious or other beliefs, or being related to health, sexual life, or criminal convictions) that deserves special protection under Article 6 of Convention 108.

7. The processing of personal data by search engines acquires an additional dimension due to the proliferation of audiovisual data (digital images, audio and video content) and the increasing popularity of mobile Internet access. Specialised search engines aiming at finding information on individuals, location based services, the inclusion of user-generated images into general purpose search indexes and increasingly accurate face recognition technologies are some of the developments that raise concerns about the future impact of search engines on fundamental rights such as the right to private life, and its potential bearing on the exercise of freedom of expression or the right to seek, receive and impart information of one’s choice.

8. By combining different kinds of information on an individual, search engines create an image of a person that does not necessarily correspond to reality or to the image that a person would want to give of her or himself. The combination of search results creates a much higher risk for that person than if all the data published on the Internet remained separate. Even long forgotten personal data can resurface as a result of the operation of search engines. As an element of media literacy, users should be informed about their right to remove incorrect or excessive personal data from original web pages, with due respect of the right to freedom of expression. Search engines should promptly respond to users’ requests to delete their personal data from (extracts of) copies of web pages that search engine providers may still store (“cache” and "snippets") after the original content has been deleted.

9. Overall, it is vital to ensure compliance with the applicable privacy and data protection principles, starting from Article 8 of the European Convention on Human Rights and Article 9 of Convention 108 that foresee strict conditions to ensure that individuals are protected from unlawful interference in their private life and abusive processing of their personal data.

Action:
10. Member states (through the designated authorities) should enforce compliance with the applicable data protection principles, in particular by engaging with search engine providers to carry out the following actions:

ensuring that the collection of personal data by search engine providers is minimised. No users’ IP address should be stored where it is not necessary for the legitimate purpose pursued and when the same results can be achieved by sampling or surveying, or by anonymising personal data. Innovative approaches promoting anonymous searches should also be encouraged;

ensuring that retention periods are not longer than strictly necessary for the legitimate and specified purposes of the processing. Search engine providers should be in a position to justify with demonstrable reasons the collection and the retention of personal data. Information in this connection should be publicly available and easily accessible;

ensuring that the most appropriate security measures are applied to protect personal data against unlawful access by third parties and that appropriate data breach notification schemes are in place. Measures should include end-to-end encryption of the communication between the user and the search engine provider;

ensuring that individuals are informed with regard to the processing of their personal data and the exercise of their rights, in an intelligible form, using clear and plain language, adapted to the data subject. Search engines must clearly inform the users upfront of all intended uses of their data (underlying that the initial purpose of such processing is to better respond to their search requests) and respect the user’s right with regard to their personal data. They should inform individuals if their personal data has been compromised;

ensuring that the cross-correlation of data originating from different services/platforms belonging to the search engine provider is performed only if unambiguous consent has been granted by the user for that specific service. The same applies to user profile enrichment exercises as also stated in Recommendation (2010)13 on the protection of individuals with regard to automatic processing of personal data in the context of profiling.

11. In addition, member states should:

encourage search engine providers to further develop tools that allow users to gain access to, and correct and delete, data related to themselves that have been collected in the course of the use of services, including any profile created for example for direct marketing purposes;

ensure that requests from law enforcement authorities to search engine providers for users’ data are based on appropriate legal and judicial procedures, and that transparent mechanism of cooperation are in place. This should include strong legal safeguards and observance of due process requirements before disclosure of individuals’ data and search records to public and private authorities. The abovementioned procedures should not represent an undue burden for the providers in question.

III. FILTERING AND DE-INDEXING

Context and challenges:
12. A prerequisite for the existence of effective search engines is the freedom to crawl and index the information available on the Web. The filtering and blocking of Internet content by search engine providers entails the risk of violation of Article 10 of the European Convention on Human Rights in respect to the rights of providers and readers to distribute and access information.

13. Search engine providers should not be obliged to proactively monitor their networks and services in order to detect possibly illegal web content nor should they conduct any ex ante filtering or blocking activity, unless mandated by court order or by a competent authority. However, there may be legitimate requests to remove specific web sources from their index, for example in cases where other rights outweigh the right of freedom of expression and information; the right to information cannot be understood as extending the access to content beyond the intention of the person who exercises her freedom of expression.

14. In many countries, search engine providers de-index or filter specific websites at the request of public authorities or private parties in order to comply with legal obligations or at their own initiative (e.g. in cases not related to the content of websites but to technical dangers as malware). Any such de-indexing or filtering should be transparent, narrowly tailored and reviewed regularly subject to compliance with due process requirements.

Action:
15. Member states should:

ensure that any law, policy or individual request on de-indexing or filtering is done with full respect of relevant legal provisions, the right to freedom of expression and the right to seek, receive and impart information. The principles of due process and access to independent and accountable redress mechanisms should also be respected in this context.

16. In addition, member states should work with search engine providers so that they:

ensure that any necessary filtering or blocking is transparent to the user. The blocking of all search results for certain keywords should not be included or promoted in co- and self-regulatory frameworks for search engines. Co- and self-regulatory regimes shall not hinder individuals’ freedom of expression and right to seek, receive and impart information, ideas and content through any media. As regards the content that has been defined in a democratic process as harmful for certain categories of users, member states should avoid the general de-indexation rendering such content inaccessible to other categories of users. In many cases, encouraging search engines to offer adequate voluntary individual filter mechanisms may suffice to protect those groups;

explore the possibility to allow de-indexation of content which, while in the public domain, was not intended for mass communication (or mass communication in aggregate).

IV. SELF AND CO-REGULATION

Context and challenges:
17. Self regulatory initiatives by search engine providers aiming at protecting individuals’ fundamental rights should be welcomed. It is important to recall that all co- and self-regulation may amount to interference with the rights of others and should therefore be transparent, independent, accountable and effective, in line with Article 10 of the European Convention on Human Rights. A productive interaction between different stakeholders, as state actors, private actors and civil society, can significantly contribute to the setting up of standards protecting human rights.

18. Member states should:

take actions to promote the protection of individuals’ fundamental rights meeting the European Convention on Human rights’ standards, in particular the right to due process, the right to freedom of expression and the right to private life, through the development of co-regulation with search engine providers, when such measures are found appropriate;

encourage the industry to develop self-regulatory codes of conduct guaranteeing the protection of individuals’ fundamental rights, in the due respect of the European Convention on Human Rights, in particular the right to due process, the right to freedom of expression and the right to privacy.

V. MEDIA LITERACY

Context and challenges:
19. Users should be informed and educated about the functioning of different search engines (search engine literacy) in order to make informed choices about the sources of information provided, in particular that a high ranking search does not necessarily reflect the importance, relevance or trustworthiness of the source. As search engines play an increasingly important role with regard to the accessibility of media and information online, media and information literacy strategies should accordingly be adapted. Users should be made aware of the implications of the use of search engines, both with regard to personalised search results, as well as to the impact on their image and reputation of combined search results about them, and of the available tools to exercise their rights.

Action:
20. Member states should:

take appropriate steps to include the topic of search engine literacy in the national media literacy strategies;

take appropriate actions to enable users to be aware of and to manage their online identity, in particular with respect to the impact that search results can have on their image and reputation and to the effective tools to exercise their rights.

APPENDIX III

Draft Recommendation of the Committee of Ministers to member states on the protection of human rights with regard to social networking services

SOCIAL NETWORKS AS HUMAN RIGHTS ENABLERS AND CATALYST FOR DEMOCRACY
1. Social networking services are an important part of growing numbers of people’s daily lives. They are a tool for expression and communication between individuals, and also for direct mass communication or mass communication in aggregate. This complexity gives operators of social networking services or platforms a great potential to promote the exercise and enjoyment of human rights and fundamental freedoms, in particular the freedom to express, to create and to exchange content and ideas, and the freedom of assembly.

2. The increasingly prominent role of social networking services and other social media services also offer great possibilities for enhancing the potential for the participation of individuals in political, social and cultural life. The Committee of Ministers has acknowledged the public service value of the Internet in that, together with other ICT services, they serve to promote the exercise and enjoyment of human rights and fundamental freedoms for all who use them. As part of the public service value of the Internet these social networking services can facilitate democracy and social cohesion.

HUMAN RIGHTS MAY BE CHALLENGED ON SOCIAL NETWORKS
3. Freedom of expression and information, as well as the right to private life and human dignity may also be challenged on social networking services, which can also shelter discriminatory practices. Threats may, in particular, arise from: lack of legal, including procedural, safeguards surrounding processes that can lead to the exclusion of users; inadequate protection of children and young people against harmful content or behaviours; breach of other people’s rights; lack of privacy-friendly default settings; lack of transparency about the purposes for which personal data are collected and processed.

4. Users of social networking services should respect other people’s rights and freedoms. Media literacy is particularly important in the context of social networking services in order to make the users aware of their rights when using these tools, and also help them acquire or reinforce human rights values and develop the behaviour necessary to respect other people’s rights and freedoms.

SOCIAL NETWORKING PROVIDERS SHOULD RESPECT HUMAN RIGHTS AND THE RULE OF LAW
5. A number of co- and self-regulatory mechanisms have already been set up in some Council of Europe member states in connection with standards for the use of social networking. It is important that procedural safeguards are respected by these mechanisms, in line with the right to be heard and to review or appeal of decisions, including in appropriate case the right to fair trial, within reasonable time, and starting with the presumption of innocence.

6. The Committee of Ministers, under the terms of Article 15. b of the Statute of the Council of Europe, recommends that member states, in cooperation with private sector actors and civil society, develop and promote coherent strategies to protect and promote respect for human rights with regard to social networking services, in line with the European Convention on Human Rights (ETS No. 5), especially Article 8 (Right to respect for private and family life), Article 10 (Freedom of expression) and Article 11 (Freedom of assembly and association) and with the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108), in particular by engaging with social networking providers to carry out the following actions:

- providing an enabling environment for users of social networks that offers opportunities to further exercise their rights and freedoms;
- raising user’s awareness, by means of clear and understandable language, of the possible challenges to their human rights and the ways to avoid having negative impact on other people’s rights when using these services;

- protecting users from harm without limiting freedom of expression and access to information;

- enhancing transparency about data processing, and refraining from illegitimate processing of personal data;

- setting up self- and co- regulatory mechanisms where appropriate, in order to contribute to the respect of the principles set out in the Appendix to this Recommendation;

- ensuring accessibility to their services to people with disabilities thereby enhancing their integration and full participation in society.

7. Member states should:

- take measures in line with the principles set out in the Appendix to this Recommendation;

- bring this Recommendation and its Appendix to the attention of all relevant public authorities and private sector actors, in particular social networking providers, and civil society.

Appendix to the Recommendation

I. ESSENTIAL INFORMATION AND MEASURES NEEDED TO HELP USERS DEAL WITH SOCIAL NETWORKS

Context and challenges:
1. Social networking services offer the possibility to both receive and impart information. Users can invite recipients on an individual basis, but in most cases the recipients are a dynamic group of people, sometimes even a “mass” of unknown people (all the members of the social network). In cases where users’ profiles are indexed by search engines, there is potentially unlimited access to parts of or all information published on their profiles.

2. It is important for users to be able to feel confident that the information they share will be processed appropriately. They should know whether this information has a public or private character and be aware of the implications that follow from choosing to make information public. In particular, children, especially teenagers, and other categories of vulnerable people need guidance in order to be able to manage their profiles and understand the impact that the publication of information of a private nature could have, in order to prevent harm to themselves and others.

Action:
3. Member states should engage in cooperation with the private sector and civil society with a view to upholding users’ right to freedom of expression, in particular by engaging with social networking providers to carry out the following actions:

helping users understand the default settings of their profiles. The default setting for users should be that access by third parties is limited to self-selected contacts identified by the user6. Users should be able to make an informed decision to grant access to a larger public, in particular with regard to the indexability by external search engines. In this connection, the social networking service should:

- inform users of the consequences of open access (in time and geographically) to their profiles and communications, in particular explaining the differences between private and public communication and the consequences of making information publicly available including unrestricted access to, and collection of, data by third parties;

- make it clear to the users – offering accessible tools – that they retain the right to limit access to their data, including removal from archives and search engine caches;

- offer adequate, refined possibilities to the user to “opt in” in order to consent to wider access by third parties;

enabling users to control their information. This includes that users are informed about the need to obtain the prior consent of other people before they publish their personal data, including audio and video content, in cases where they have widened access beyond self-selected contacts; how to completely delete their profiles and all data stored about and from them in a social networking service; how to use a pseudonym.
Users should always be able to withdraw consent to the processing of their personal data. Before terminating their account, users should be able to easily and freely move the data they have uploaded to another service or device, in a usable format. Upon termination, all data from and about the users should be permanently eliminated from the storage media of the social networking service. When allowing third party applications to access users’ personal data, the services must provide sufficiently multi-layered access to allow users to specifically consent to access to different kinds of data;

helping users make informed choices about their on line identity. The practice of pseudonymous profiles offers both opportunities and challenges for human rights. In its Declaration on freedom of communication on the Internet (adopted on 28 May 2003), the Committee of Ministers stressed that “in order to ensure protection against online surveillance and to enhance the free expression of information and ideas, member states should respect the will of users of the Internet not to disclose their identity”. The right of being able to use a pseudonym should be guaranteed both from the perspective of free expression and the right to impart and receive information and ideas and from the perspective of the right to private life. In the event that a social networking service requires real identity registration, the publication of that real identity on the Internet should be optional for users. This does not prevent law enforcement to gain access to the real identity when necessary and subject to appropriate legal safeguards guaranteeing the respect of fundamental rights and freedoms;

providing users with concise explanations of the terms and conditions of social networking services in a form and language that is geared to, and easily understandable by, the target groups of the social networking services;

providing users with clear information about the editorial policy of the social networking service provider in respect of how it deals with apparently illegal content and what he considers inappropriate content and behaviour on the network;

4. In addition, member states should:

foster awareness initiatives for parents, carers and educators to supplement information provided by the social networking service, in particular in respect of much younger children in case they participate in social networks.

II. PROTECTION OF CHILDREN AND YOUNG PEOPLE AGAINST HARMFUL CONTENT AND BEHAVIOUR

Context and challenges:
5. Freedom of expression includes the freedom to impart and receive information which may be shocking, disturbing and offensive. Content that is unsuitable for particular age groups may well also be protected under Article 10 of the European Convention on Human Rights, albeit subject to conditions as to its distribution.

6. Social networking services play an increasingly important role in the life of children and young people, as part of the development of their own personality and identity, and as part of their participation in debates and social activities.

7. Against this background, there is a need to protect children and young people because of the inherent vulnerability that their age implies. Parents, carers and educators should play a primary role in working with children and young people to ensure that they use these services in an appropriate manner.

8. While not being required to control, supervise and/or rate all content uploaded by its users, social networking service providers may be required to adopt certain precautionary measures (e.g. comparable to “top shelf” rules applicable in certain member states) or take diligent action in response to complaints (ex-post moderation).

9. Age-verification systems are often referred to as a possible solution for protecting children and young people from content that may be harmful to them. However, at present there is no single technical solution for online age verification that does not infringe on other human rights and/or is not exposed to age falsification.

Action:
10. In cooperation with the private sector and civil society, member states should take appropriate measures to ensure children and young people’s safety and protect their dignity while also guaranteeing procedural safeguards and the right to freedom of expression and access to information, in particular by engaging with social networking providers to carry out the following actions:

- providing clear information about the kinds of content or content-sharing or conducts that may be contrary to applicable legal provisions;

- developing editorial policies so that relevant content or behaviour can be defined as “inappropriate” in the terms and conditions of use of the social networking service, while ensuring that this approach does not restrict the right to freedom of expression and information in the terms guaranteed by the European Convention on Human Rights;

- setting-up easily accessible mechanisms for reporting inappropriate or apparently illegal content or behaviour posted on social networks;

- sharing best practices on ways to prevent cyber-bullying and cyber-grooming. In this connection, age-differentiated access should be treated carefully as a best effort that is based on age provided by children and young people themselves. Social networking providers should take diligent action in response to cyber-bullying and cyber-grooming complaints.

11. In addition, member states should:

- encourage the establishment of transparent cooperation mechanisms for law enforcement bodies and social networking services. This should include attention to respect for the procedural safeguards required under Article 8, Article 10 and Article 11 of the European Convention on Human Rights;

- ensure respect for Article 10, paragraph 2 of the European Convention on Human Rights. This includes refraining from the general blocking and filtering of offensive of harmful content in a way that would hamper its access by users. In this connection, the Recommendation (2008)6 of the Committee of Ministers on Internet filters should be implemented with a view to ensuring that any decision to block or delete content should be taken in accordance with such principles. Transparent voluntary individual filtering mechanisms are also to be encouraged.

III. PERSONAL DATA AND TRUST IN SOCIAL NETWORKS

Context and challenges:
12. Social networking services process large amounts of personal data, including users’ profiling data and traffic data. Publishing personal data in a profile can lead to access by third parties, including, amongst others, employers, insurance companies, law enforcement agencies and security services.

13. Social networking services should not process personal data beyond the legitimate and specified purposes for which they have collected it. They should limit processing only to that data which is strictly necessary for the agreed purpose, and for as short a time as possible.
14. Social networking services must seek the informed consent of users if they wish to process new data about them, share their data with other categories of people or companies and/or use their data in ways other than those necessary for the specified purposes they were originally collected for. As stated in Recommendation (2010)13 on the protection of individuals with regard to automatic processing of personal data in the context of profiling, users should be informed where their personal data is used in the context of profiling. The user’s decision (refusal or consent) should not have any effect on the continued availability of the service to him or her. When allowing third party applications to access users’ personal data, the services must provide sufficiently multi-layered access to allow users to specifically consent to access to different kinds of data.
Action:
15. In cooperation with the private sector and civil society, member states, in addition to the measures stated in section I of this Appendix, should take appropriate measures to ensure that users’ right to private life is protected, in particular by engaging with social networking providers to carry out the following actions:

promoting best practices for users. This includes default privacy-friendly settings that limit access to self-selected contacts, the application of the most appropriate security measures, informed consent of users before personal data is disseminated, the sharing of personal data with other categories of people or (categories of) companies and/or use their data in other new ways;

ensuring that users are able to effectively exercise their rights by offering, amongst other things, a clear user interface, and sufficiently multi-layered access for third parties;
ensuring that sensitive data have enhanced protection. The use of techniques that may have a significant impact on users’ privacy, where for instance processing involves sensitive or biometric data (such as facial recognition), requires enhanced protection and should not be activated by default;
ensuring that the most appropriate security measures are applied to protect personal data against unlawful access by third parties. This should include measures for the end-to-end encryption of communication between the user and the social networking services website. In case there is no applicable data-breach legislation, social networking services should report personal data breaches to their users, to enable them to take preventive measures, such as changing their password and/or keeping a close eye on their financial transactions (where the providers are in possession of bank or credit card details);
implementing “privacy by design”. Social networking services should be encouraged to address data protection needs at the stage of conception of their services or products and continuously assess the privacy impact of changes to existing services with a view to strengthening security and users' control of their personal data;

protecting third parties who are associated by the users of social networks.
Non-users of the social network may also be affected by the disclosures of users of social networking services or by use of their data by the social networking service itself. They should have effective means of exercise their rights without having to become a member of the service and/or otherwise provide excessive personal data. Social networking service providers should refrain from collecting and processing personal data about non-users, for example e-mail addresses and biometric data (e.g. photographs). Users should be made aware of the obligations they have towards other individuals and, in particular, that the publication of personal data related to other people must respect the rights of those individuals;

ensuring that processing of personal data stemming from social networks for law enforcement purposes respect Article 8 of the European Convention on Human Rights. Enforcing applicable data protection standards is essential. This includes ensuring that the processing of personal data stemming from the use of social networking services for law enforcement purposes is carried out only within an appropriate legal framework, or following specific orders or instructions from the competent public authority made in accordance with the law;
providing clear information about applicable law and jurisdiction. Users should be informed as to what law is applicable in the execution of the social networking services and the related processing of their personal data. Provisions in the terms and conditions of use or service involving an opportunistic or convenience choice of forum or jurisdiction should be regarded as void if there is no reasonable link to the forum or jurisdiction in question; the user’s forum or jurisdiction would be preferable in cases where a significant number of users are present in a particular territory;
ensuring that users are aware of the challenges to their human rights and able to seek redress when they have been adversely affected. Users should be informed about possible challenges to their right to private life, not only in the social networking services’ core conditions (including when changes are made to general terms of service), but every time such a challenge may arise, for example, when the users make information on their profile available to new (groups of) users or when they install a third party application.

Users should be informed about the processing of their personal data, including the existence of, and means of exercising their rights (i.e. access, rectification, erasure), in a clear and understandable manner and in language geared to the target audience.

In addition to applicable legal provisions, appropriate complaint handling mechanisms should be guaranteed against abusive behaviour of users, in particular with regard to identity theft.

APPENDIX IV

Draft Declaration of the Committee of Ministers on the desirability of international standards dealing with forum shopping in respect of defamation or (“libel tourism)7

1. The full respect for the right of all individuals to receive and impart information, ideas and opinions, without interference by public authorities and regardless of frontiers constitutes one of the fundamental principles upon which a democratic society is based on. This is enshrined in the provisions of Article 10 of the European Convention on Human Rights (ECHR). Freedom of expression and information in the media is an essential requirement of democracy. Public participation in the democratic decision-making process requires the public to be well informed and to have the possibility of freely discussing different opinions.
2. Article 10 of the ECHR further states that the right of freedom of expression “carries with it duties and responsibilities”. However, states may only limit its exercise to protect the reputation or rights of others, as long as these limitations are “prescribed by law and are necessary in a democratic society”. In this respect, the Committee of Ministers took note of the Parliamentary Assembly Recommendation 1848 (2008) –“Indicators for media in democracy” in its reply adopted on 7 October 2009, in which it further endorsed the Parliamentary Assembly’s views and called on member states to take a proactive approach in respect of defamation by examining domestic legislation against the standards developed by the European Court of Human Rights (the Court) and where appropriate, aligning criminal, administrative and civil legislation with those standards. Finally, the Committee of Ministers recalled the Parliamentary Assembly’s Recommendation 1589 (2003) on freedom of expression in the media in Europe.
3. The European Commission of Human Rights (ECnHR) and the Court have, in several cases, reaffirmed a number of principles that stem from paragraphs 1 and 2 of Article 10. The media plays an essential role in democratic societies, providing the public with information and acting as a watchdog8, exposing wrongdoing and inspiring political debate and therefore has specific rights. Its purpose is to impart - in a manner consistent with its obligations and responsibilities information and idea on all matters of public interest9. However, due to its impact and the ability to put certain issues on the public agenda, the media also have special obligations. Among these is to respect the reputation and rights of others and their right to a private life. At the same time, the media’s role is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Furthermore, “subject to paragraph 2 of Article 10 (art. 10-2), [freedom of expression] is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population"10.
4. In defamation cases, a fine balance must be struck between guaranteeing the fundamental right to freedom of expression and protecting the honour and reputation of persons. The proportionality of this balance is judged differently in different member states within the Council of Europe. This has led to substantial variations in the stringency of defamation law or case law for example different degrees of attributed damages and procedural costs, varying definitions of first publication and the related statute of limitation or the reversal of the burden of proof in some jurisdictions. The Court has established a case law in this respect - “In determining the length of any limitation period, the protection of the right to freedom of expression enjoyed by the press should be balanced against the rights of individuals to protect their reputations and, where necessary, to have access to a court in order to do so. It is, in principle, for contracting States, in the exercise of their margin of appreciation, to set a limitation period which is appropriate and to provide for any cases in which an exception to the prescribed limitation period may be permitted.”11
Libel tourism and its risks
5. The existing differences between national defamation laws and the special jurisdiction rules in tort and criminal cases have given rise to the phenomenon known as “libel tourism”. Libel tourism is a form of forum shopping when a complainant files a complaint with the court thought most likely to provide a favourable judgment (including in default cases) and where it is easy to sue. In some cases a jurisdiction is chosen by a complainant because the legal fees of the applicant are contingent on the outcome (“no win no fee”) and/or because the mere cost of the procedure could have a “chilling effect” on the defendant. The risk of “libel tourism” has been exacerbated as a consequence of increased globalisation and the growing importance of the Internet – “the substantial contribution made by Internet archives to preserving and making available news and information. Such archives constitute an important source for education and historical research, particularly as they are readily accessible to the public and are generally free”12.
6. Anti-defamation laws can pursue legitimate aims when applied in line with the case law of the Court, including as far as criminal defamation is concerned. However, disproportionate application of these laws may have a “chilling effect“ and restrict freedom of expression and information. The improper use of these laws affects all those who wish to avail themselves of the freedom of expression, especially journalists, academics and the media. It can also have a detrimental effect on the preservation of information for example, if its content is withdrawn from the internet due to threats of defamation procedures. In some cases libel tourism may be seen as the attempt to intimidate and silence critical or investigative media purely on the basis of the financial strength of the complainant (“inequality of arms”). In other cases the mere existence of small media providers has been affected by the deliberate use of disproportional damages by claimants through libel tourism. This shows that libel tourism can even have detrimental effects on media pluralism and diversity. Ultimately, the whole of society suffers the consequences of the pressure that may be placed on journalists and media service providers. The Court has developed a body of case law that advocates respect for the principle of proportionality in the use of fines payable in respect of damages and considers that a disproportionately large award constitutes a violation of Article 10 ECHR13. The Committee of Ministers also stated this in its Declaration of 12 February 2004 on freedom of political debate in the media14.
7. Libel tourism is an issue of growing concern for Council of Europe member states as it challenges a number of essential rights protected by the ECHR such as Article 10 (Freedom of expression), Article 6 (Right to a fair trial) and Article 8 (Right to respect for private and family life).
8. Given the wide variety of defamation standards, court practices, freedom of speech standards and a willingness of courts to accept jurisdiction in libel cases, it is often unpredictable where a defamation/libel claim will be filed. This is especially true for web-based publications. Therefore, “libel tourism” thereby also shows elements of unfairness. There is a general need for increased predictability of jurisdiction, especially for journalists, academics and the media.
9. The situation described in the previous paragraph has been criticised in many instances. It has led to a process for revising related EU legislation. Further, in a Joint Declaration the UN Special Rapporteur on Freedom of Opinion and Expression, OSCE Representative on Freedom of the Media, the OAS Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights Special Rapporteur on Freedom of Expression and Access to Information have stated that Jurisdiction in legal cases relating to Internet content should be restricted to States to which those cases have a real and substantial connection.15.
10. Cases where procedural costs discourage defendants from presenting a defence may lead to decisions on uncontested claims in the court of one member state being enforced in another member state, on occasion without proper scrutiny as to compatibility with domestic or possibly international law (exequatur regime). Consequently, the outcome may be disproportionate in the member state where the claim is being enforced due to the failure to strike an appropriate balance between freedom of expression and protection of the honour and reputation of persons.
Measures to prevent libel tourism
11. The prevention of forum shopping in respect of defamation (libel tourism) should be part of the reform of the legislation on libel/defamation in member states in order to ensure better protection of the freedom of expression and information within a balanced system of conflicting human rights.
12. With a view to further strengthening the freedom of expression and information in member states on the basis of the principles of the ECHR and the case law of the Court, clear international standards should be established in respect of both criminal and civil law aspects of defamation. Further, clear rules as to the applicable law and indicators for the determination of the personal and subject matter jurisdiction used would enhance legal predictability and certainty, in line with the requirements set out in the ECHR case law. Moreover, in order to ensure that member states can properly comply with their commitments and obligations under international law, in particular the ECHR, scrutiny as to compatibility of a judgment of another jurisdiction (exequatur) should not be discarded outright as it is done in some jurisdictions. Finally, clear rules as to the proportionality of damages in defamation cases should be established.
13. Against this background, the Committee of Ministers:
- alerts member states to the fact that forum shopping in respect of defamation (“libel tourism”) constitutes a serious threat to the freedom of expression and information;
- invites member states to examine the need to provide appropriate legal guarantees against awards for damages and interest that are disproportionate to the actual injury, and to align national law provisions with the case law of the ECHR;
- undertakes to pursue further standard-setting work with a view to providing guidance to member states;

APPENDIX V

CDMC end-of-operations stocktaking report

The beginning

Council of Europe standard setting work in respect of media and freedom of expression started in the 1960s; it gathered momentum in the 1980s (18 instruments over that decade; 29 during the 1990s). The first specialised ministerial conference was held in Vienna in 1986 (on the future of television in Europe). Now, in 2011, Vienna hosts a Conference on the Council of Europe internet governance strategy, giving additional impulse to the forward-looking proposals made at the Reykjavik ministerial conference in 2009, and consolidating the transversal understanding of the organisation’s information society work.

Disruption and creativity

In 2005, the Steering Committee on the Media and New Communication Services (CDMC) took over from the three decade-old Steering Committee on Mass Media (CDMM) as proposed by the seventh specialised ministerial conference (Kyiv). In Kyiv, the Ministers expressed the wish that the Council of Europe move forward and explore the new frontiers of media and communication policy. Supported by the Committee of Ministers, this opened the door to innovative cutting-edge Council of Europe work. The CDMC welcomed a wide range of participants and stakeholders (see Appendix III) with different views and idiosyncrasies, who took an active part in the discussion of serious matters while leaving bias and own agenda behind and embracing a strong human rights and democracy approach.

After just over six years of existence, the CDMC will be replaced, on 1 January 2012, by the new Steering Committee on Media and Information Society (CDMSI). This reflects the speed of change in the area of work entrusted by the Committee of Ministers to the CDMC.

CDMM, CDMC and CDMSI should not be seen as entirely distinct, but as part of the same endeavour and process, focussed on the protection and promotion of freedom of expression and the right to impart and receive information without interference and regardless of frontiers. Throughout, this work has been strongly anchored on Article 10 of the European Convention on Human Rights. These rights and the operation of media (understood in the broad sense outlined in the recent Committee of Ministers recommendation on the subject) are a cornerstone of present –and future– democracy and, because of this, fully justify the ongoing priority accorded to it by the Council of Europe.

In the transition from CDMM to CDMC, a number of members ensured the institutional memory and necessary continuity. This should be the case again in the move from CDMC to CDMSI, both as regards government representatives in the Steering Committee and also experts participating in any subordinate bodies that may be created. A few member states devoted significant resources within the national administrations to CDMC work, with both a qualitative and a quantitative impact on output. Observers, both from business and professional sectors as well as civil society, have made a most valuable and ongoing contribution throughout the CDMM and CDMC years, something that should continue with the future CDMSI.

Broad recognition

The currently envisaged change from CDMC to CDMSI also offers an opportunity to take stock of the work conducted by the CDMC over its six and a half years of existence.

Over the last few decades, the Council of Europe has been a recognised champion of freedom of expression and information, and a pioneer in freedom of the media standard-setting work. Its various ambassadors, including CDMC members and Secretariat, have been prominent human rights advocates in global fora (such as the Internet Governance Forum). Its valuable body of standards has been adapted and updated according to needs, providing member states with useful and usable guidance for maintaining national policies aligned to human rights exigencies in a rapidly changing environment. In addition, the OSCE and EU use Council of Europe standards and regularly refer to Council of Europe work. The EU provides, together with some member states, significant extra-budgetary funding for co-operation activities. Ties should be strengthened further with such organisations as the OECD, ITU and ICANN as well as other bodies sharing common interests.

Over the last six years, Council of Europe freedom of expression and media work has extended resolutely into the Internet, which is today an essential tool for the exercise of Article 10 rights and for the exercise of democratic citizenship, as recognised by the Committee of Ministers in its recommendation on the public service value of the Internet. In light of new media and internet governance standard-setting work, other organisations (EU, World Bank, OSCE, UN agencies) have expressed support for Council of Europe work and interest to be associated with its follow up.

Making a difference

In the run up to the 2nd phase of the World Summit on the Information Society (Tunis, November 2005), it was advanced in Internet governance circles that human rights discussions had been exhausted. The CDMC disagreed and it submitted a message to the Committee of Ministers underlining that human rights had to be in the forefront of any Internet governance discussions, asking the Committee of Ministers to ensure that the Council of Europe was enabled to do this.

The Council of Europe has indeed been able to deliver in this respect. These efforts have resulted in (i) human rights being now broadly recognised as an essential and integral part of Internet governance discussions and (ii) the Council of Europe being acknowledged as a main actor in this respect, evidenced by both references to our Organisation’s work and the high demand for Council of Europe participation in related events, whether organised by governments, international organisations, civil society or the private sector.

The private sector and civil society have also become keen Council of Europe partners who acknowledge that the Organisation has embraced the multistakeholder approach by providing real opportunities and spaces for meaningful participation and enabling genuine dialogue between interested parties. Examples of this are recent texts on Internet governance principles, protection and promotion of the universality, integrity and openness of the Internet (texts that were discussed openly at different stages of the process at IGFs and EuroDIGs, as well as during a dedicated conference in Strasbourg), Internet service providers, online games, social networks and search engines (which were thoroughly discussed with the business sectors concerned). Expectations are high with regard to the pursuit of this multistakeholder approach.

The CDMC has also set the example in incorporating the protection of children and mainstreaming gender equality into its work, fully embracing the Committee of Ministers May 2009, Madrid Declaration on making gender equality a reality. As in other aspects of its work, in this context too, the CDMC has taken a leading role.

Output

All of the above has not been at the expense of CDMC output; on the contrary, the CDMC expanded its area of work from traditional, or legacy media to the Internet including, for example, social media, social networks, mass communication in aggregate, and search engines, while delivering a growing number of important ground-breaking instruments (listed in Appendix I). Having a common Europe-wide understanding of needs and possible responses has been highly valued by member states’ policy makers who need to keep in pace with developments. This is particularly important in a human rights context.

Over a six year period, the Committee of Ministers has adopted 2716 instruments (recommendations, guidelines and declarations) prepared by the CDMC. These include major policy documents such as Recommendations on the remit of public service media in the information society, on media pluralism and diversity of media content, on protecting and promoting freedom of expression on the Internet, on the public service value of the Internet, on empowering children and on protecting them in the new information and communication environments; more recently, Recommendations on a new notion of media and the protection and promotion of the universality, integrity and openness of the Internet. Two further texts were prepared by the CDMC with private actors, without formal adoption by the Committee of Ministers, on Internet service providers and on online games.

Seven additional instruments will be submitted to the Committee of Ministers for adoption before the end of the CDMC’s mandate. These relate to public service media governance, search engines, social networks, the gender dimension of media related policy and libel tourism. This raises the total CDMC output in just over six years to 35 standard-setting instruments.

The CDMC has also produced a large number of reports and background documents (Appendix II), contributing to ongoing policy discussions (e.g. on the impending evolution of intellectual property rights), on occasions fuelling Parliamentary Assembly activity and feeding into other Council of Europe projects (e.g. intercultural and inter-religious dialogue, living together, children). On many occasions, it has provided comments on Parliamentary Assembly texts or taken action upon them at the request of the Committee of Ministers

The way forward

The CDMC welcomes the Secretary General’s proposal and the Committee of Ministers decision to replace it with the CDMSI. In the CDMC's view, this is the right way forward. It trusts that, subject to CDMSI proposals, the Committee of Ministers will continue to offer its support in respect of the next specialised ministerial conference which may explore the inextricable relation between freedom of expression and democracy in the light of current developments. Indeed, the CDMC considers it opportune to examine the human rights aspects of new or impending realities in the political market place, which may well take the form of Internet services or applications operated by new actors.

If the Council of Europe were to cease to deliver in these areas in a sustainable manner, there would be no guarantee that human rights would remain a priority consideration in Internet governance nor that media regulation would keep in pace with developments. The Council of Europe would fail to live up to the expectations of many who count on Council of Europe ongoing activity. Moreover, the space left would be filled by other organisations or persons with priorities other than human rights, possibly without a European vision and with no guarantee that the voice of our member states would be adequately heard.

By contrast, alongside its human rights approach the Council of Europe offers a consensus-building environment, which is essential in view of apparent trends in international Internet related policy-making (i.e. initiatives to increase multilateralism or to enhance governmental oversight of the Internet). In this respect, the Council of Europe should continue to set the example, offering real opportunities for multistakeholder participation at the inception, discussion, deliberation, formulation, implementation and monitoring stages, without prejudice to each stakeholder’s specific role and responsibilities, in particular Council of Europe member states. CDMC-style dialogue, in a friendly and constructive atmosphere of mutual trust and respect, should be pursued by the CDMSI. This may be facilitated and the current momentum preserved, if the new steering committee can rely on the demonstrated competence of the CDMC and the experts of its subordinate groups.

The CDMC is proud of its contribution to the Council of Europe’s endeavours to protect and promote freedom of expression and freedom of the media. It trusts that, building on the experience gained and achievements to date, political relevance will be preserved and the Committee of Ministers will support the CDMSI in the same way as it has supported the CDMC.

Instruments prepared by the CDMC and adopted by the Committee of Ministers

Declaration on the protection of freedom of expression and freedom of assembly and association with regard to privately operated Internet platforms and online service providers (23 September 2011)

Recommendation CM/Rec(2011)8 of the Committee of Ministers to member states on the protection and promotion of the universality, integrity and openness of the Internet

Recommendation CM/Rec(2011)7 on a new notion of media

Declaration by the Committee of Ministers on Internet governance principles (23 September 2011)

Declaration by the Committee of Ministers on the protection of freedom of expression and information and freedom of assembly and association with regard to Internet domain names and name strings

Declaration on the management of the Internet protocol address resources in the public interest (29 September 2010)

Declaration on network neutrality (29 September 2010)

Declaration on the Digital Agenda for Europe (29 September 2010)

Declaration on enhanced participation of member states in Internet governance matters – Governmental Advisory Committee (GAC) of the Internet Corporation for Assigned Names and Numbers (ICANN) (26 May 2010)

Declaration on measures to promote the respect of Article 10 of the European Convention on Human Rights (13 January 2010)

Recommendation CM/Rec(2009)5 on measures to protect children against harmful content and behaviour and to promote their active participation in the new information and communications environment

Declaration on the role of community media in promoting social cohesion and intercultural dialogue (11 February 2009)

Recommendation CM/Rec(2008)6 on measures to promote the respect for freedom of expression and information with regard to Internet filters

Declaration on the independence and functions of regulatory authorities for the broadcasting sector (26 March 2008)

Declaration on protecting the dignity, security and privacy of children on the internet (20 February 2008)

Declaration on the allocation and management of the digital dividend and the public interest (20 February 2008)

Recommendation CM/Rec(2007)16 on measures to promote the public service value of the Internet

Recommendation CM/Rec(2007)15 on measures concerning media coverage of election campaigns

Recommendation CM/Rec(2007)11 on promoting freedom of expression and information in the new information and communications environment (26 September 2007)

Guidelines on protecting freedom of expression and information in times of crisis (26 September 2007)

Declaration on the protection and promotion of investigative journalism (26 September 2007)

Recommendation Rec(2007)3 on the remit of public service media in the information society

Recommendation Rec(2007)2 on media pluralism and diversity of media content

Declaration on protecting the role of the media in democracy in the context of media concentration (31 January 2007)

Recommendation Rec(2006)12 on empowering children in the new information and communications environment

Declaration on the guarantee of the independence of public service broadcasting in the member states (27 September 2006)

Recommendation Rec(2006)3 on the UNESCO Convention on the protection and promotion of the diversity of cultural expressions

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Human rights guidelines for Internet service providers
Human rights guidelines for online games providers

Council of Europe specialised Conference of Ministers prepared by the CDMC

1st Council of Europe Conference of Ministers responsible for Media and New Communication Services
(28 and 29 May 2009, Reykjavik, Iceland)
A new notion of media?

Instruments prepared by the CDMC and submitted
to the Committee of Ministers for adoption
(as of 25 November 2011)

Draft Declaration of the Committee of Ministers on the protection of freedom of expression and freedom of assembly and association with regard to privately operated Internet platforms and online service providers
Draft Declaration on public service media governance

Draft Recommendation of the Committee of Ministers to the member states on Public Service Media Governance

Draft Recommendation on the protection of human rights with regard to search engines

Draft on the protection of human rights with regard to social networking services

Draft Declaration on Libel tourism

Draft Recommendation on gender aspects of Council of Europe Recommendations and Declarations including addenda to Declarations and Recommendations

Reports and background documents prepared under the supervision of the CDMC

Speaking of Terror - A survey of the effects of counter-terrorism legislation on freedom of the media in Europe – 2009

A new notion of media? – 2009

Internet governance and critical internet resources – 2009

Living Together – a handbook on Council of Europe standards on media’s contribution to social cohesion, intercultural dialogue, understanding, tolerance and democratic participation – 2009 (available in English, French, Albanian, Bosnian – thanks to the Association of Journalists of Bosnia and Herzegovina -, Bulgarian – thanks to the government of Bulgaria -, Russian, Turkish, Ukranian)

How member states ensure the legal, financial, technical and other appropriate conditions required to enable public service media to discharge their remit H/Inf(2009)7 - Compilation of good practices – 2009

Methodology for monitoring media concentration and media content diversity – 2009

The ways in which the public, in all its diversity, can be involved in consultative programming structures – 2009

Protecting children from harmful content – 2009

Contribution of public service media in promoting social cohesion and integrating all communities and generations Implementation of Committee of Ministers’ Recommendation Rec (97) 21 on media and the promotion of a culture of tolerance – 2008

Strategies of public service media as regards promoting a wider democratic participation of individuals H/Inf(2009)6 Compilation of good practices – 2008

Member states’ current practice regarding the democratic and social contribution of digital broadcasting – 2008

Copyright and human rights – 2008

Promoting social cohesion - The role of community media – 2008

Convergent media – convergent regulators? The future of broadcasting regulatory authorities in Southeastern Europe – 2008

The role of public service media for widening individual participation in European democracy - 2007

The Internet Literacy Handbook – 2006 (available in French, Bulgarian, Romanian, Russian, Serbian)

Young people, well-being and risk on-line – 2006

Freedom of expression in Europe - Case-law concerning Article 10 of the European Convention on Human Rights (Human rights files No. 18) – 2006

LIST OF PARTICIPANTS OTHER THAN CDMC MEMBERS

Participants

    Conference of International Non-Governmental Organisations of the Council of Europe / Confrence des organisations internationales non gouvernementales du Conseil de l'Europe
    Parliamentary Assembly of the Council of Europe / L’Assemble parlementaire
    du Conseil de l’Europe
    European Audiovisual Observatory / Observatoire Europen de l’Audiovisual

* * *

Other participants

    European Commission/Commission europenne
    Holy See / Saint Sige
    Japan
    United States of America
    OSCE (Office of the Representative on Freedom of the Media)
    United Nations Educational, Scientific and Cultural Organization (UNESCO)

Observers

    Belarus
    Article 19
    Association of Commercial Television in Europe (ACT)
    Association of European Journalists (AEJ) / Media Freedom Representative
    European Digital Rights (EDRI)
    Community Media Forum Europe (CMFE)
    Permament Conference of the Mediterranean Audiovisual Operators (COPEAM)
    European Newspaper Publishers’ Association (ENPA)
    European Federation of Journalists (EJF)
    European Broadcasting Union / Union Europenne de Radio-Tlvision (EBU)
    European Youth Forum
    Electronic Frontier Foundation
    Prix Europa
    EuroISPA
    Interactive Software Federation of Europe (ISFE)

And a long list of independent experts that contributed to the CDMC work in a personal capacity

APPENDIX VI

CDMC Comments on PACE Recommendation 1980 (2011) – “Combating “child abuse images” through committed, transversal and internationally co-ordinated action

1.The CDMC considers the Parliamentary Assembly of the Council of Europe (PACE) Recommendation 1980(2011) and the related Resolution 1834(2011) on combating child abuse images through committed, transversal and internationally coordinated action an important step towards the elaboration of a comprehensive Council of Europe strategy against child sexual abuse, child pornography and trafficking in human beings. Child sexual abuse is a hideous crime which deserves severe punishment and strong public condemnation. While there is now increased awareness about this scourge and efforts to combat it and punish criminals has redoubled, the development and expansion of the new communication services and the Internet has also provided new tools to those minded to abuse children or who engage in child trafficking.

2.The fight against sexual abuse of children off and online is a complex but indispensable undertaking which should, and can, be effective if based on the principles and values of human rights, democracy and the rule of law. Any legal framework must be firmly grounded on the European Convention on Human Rights and the relevant case-law of the European Court of Human Rights and comply with relevant procedures and safeguards. By complying resolutely with their commitments and obligations under international law, and pursuing and promoting vigorous coordinated action at national and international level as recommended by the Parliamentary Assembly, states will also help reinforce the effectiveness of the Lanzarote Convention.

3. It is of fundamental importance to underscore, at the outset, that action to protect children against abuse is undeniably necessary in a democratic society; such action responds to an incontestable pressing social need. In a balancing exercise, this objective may therefore well justify measures involving an interference with other rights, subject to fully satisfying the tests of legality and of proportionality, the latter understood as the ability to demonstrate measurable, sufficient and tangible results directly stemming from the measures in question.

4. In the context of combating child abuse, taking down illegal content wherever it is hosted or replicated should be the first objective, rather than filtering or blocking which can prove ineffective and have unwanted effects. The CDMC would caution against an overbroad or imprecise notion of “child abuse images”, which would not satisfy Article 10 and related case law requirements. In this respect, the precise terminology used in the Lanzarote Convention should be recalled (i.e. when dealing with offences concerning “sexual abuse”, “child prostitution”, “child pornography” or “participation of children in pornographic performances” etc.).

5. Despite modest resources, certain highly creative and daring anonymous individuals have demonstrated that technology can be used to reduce the offer of offending online material involving child sexual abuse. Action outside the law cannot be condoned; vigilante-like outlaw activity can easily escalate to equally unacceptable lynching. By contrast, an adequate legal framework with due regard to human rights exigencies and sufficient safeguards, including transparency and accountability guaranteed by independent scrutiny, should allow law enforcement agencies to draw inspiration from such anonymous actions with a view to preventing the distribution of or access to, or to routing out, online child abuse material.

6. Delaying action to eliminate outright child sexual abuse content may sometimes be justified by the interest of the identification, apprehension and successful prosecution of the perpetrators of such abuse. However, delay may also prolong the victim's abuse through the ongoing dissemination of the abusive content, and will give a sense of security and impunity to criminals. It is therefore desirable to strike a balance between investigation of crime and damage minimisation through prompt and energetic action, with due regard to human rights exigencies, to reduce offer, taking down or destroying content of a criminal nature. Article 8 of the European Convention on Human Rights and Convention 108 are highly relevant in this respect.

7. Against this background, the CDMC wishes to recall that the installation and the use of Internet filters should guarantee the full exercise and enjoyment of freedom of expression and the right to impart and receive information regardless of frontiers in the new digital environment. More specifically, any blocking or filtering of content should be seen as complementary to other measures and should comply strictly with the provisions of Article 10, paragraph 2, of the European Convention on Human Rights and the relevant case law of the European Court of Human Rights.

8. Reference should be made in this connection to the Committee of Ministers Recommendation on measures to promote the respect for freedom of expression and information with regard to Internet filters. It provides important guidance for policy-makers and legislators. With due regard to these standards, the CDMC supports the position advanced by the Parliamentary Assembly that member states “should strengthen their relevant national legislation, in particular by creating a strong legal basis for the intervention of law enforcement agencies according to procedures which are transparent and fully respectful of democratic principles and human rights.”

9. Another matter worth considering relates to the possible misuse of online content concerning, created or posted by children. As acknowledged by the Committee of Ministers together with many other bodies and entities, new technologies bring about considerable benefit, including in terms of economic development and positive social change; indeed, in its 2007 Recommendation, the Committee of Ministers underlined the public service value of the Internet. However, such benefit does not come without risk, especially to the most vulnerable in society, children in particular. In that connection, the Declaration of the Committee of Ministers on protecting the dignity, security and privacy of children on the Internet (adopted on 20 February 2008) signalled that, except when it is necessary for law enforcement purposes, there should be no lasting or permanently accessible record of the content created by children on the Internet which challenges their dignity, security and privacy or otherwise renders them vulnerable now or at a later stage in their lives. The Committee of Ministers further invited member states together, where appropriate, with other relevant stakeholders, to explore the feasibility of removing or deleting such content, including its traces (logs, records and processing), within a reasonably short period of time. Follow up work is desirable. Committee of Ministers Recommendation Rec(2006)12 on empowering children in the new information and communications environment is also relevant.

10. The borderless nature of the Internet itself and the technical possibilities it offers to international and organised crime call for coordinated responses including as regards child sexual abuse images disseminated and accessed via the internet. In this respect, the CDMC would draw attention to the valuable conventional texts offered by the Council of Europe (Lanzarote and Budapest Conventions) and to other relevant standards developed from a human rights perspective (Human Rights Guidelines for Internet Service Providers, Committee of Ministers declaration on net neutrality) as well as those still under preparation (recommendations on the protection of human rights with regard, on the one hand, to search engines and, on the other hand, to social networking services). In respect of search engines and social networks, the possibility of differentiated treatment of content should be explored taking account of the particular sensitivity of data, information and content created by or concerning children. Priority should be given to ratification and/or implementation of these instruments before engaging in the preparation of additional protocols.

11. To conclude, the CDMC is pleased to note that the Parliamentary Assembly implicitly recognises the value of the Committee's achievements over the years and welcomes the proposal to engage further work for the protection of children against sexual abuse within a Council of Europe framework. Subject to Committee of Ministers decisions on the terms of reference to the CDMC's successor Committee (Steering Committee on Media and Information Society - CDMSI), it would be desirable that the latter be closely associated to any additional work carried out in pursuit of this necessary objective, providing support and expert advice within its area of competence and with a view to ensuring overall consistency and full respect of human rights exigencies.

APPENDIX VII

CDMC comments on PACE Recommendation 1983 (2011) - “Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations

1. The CDMC welcomes this Parliamentary Assembly Recommendation. The withholding of information by the state, limiting access to it or restricting its dissemination may well raise issues under Article 10 of the European Convention on Human Rights which guarantees freedom of expression and the right to receive and impart information. Depending on the circumstances, this may amount to an interference with the exercise of the rights in question. In order for an interference to be legitimate, it must be prescribed by law and be a proportionate response to a pressing social need related to the limited exceptions set out in article 10 of the European Convention on Human Rights as interpreted by the European Court of Human Rights.
2. The Parliamentary Assembly Recommendation is a convincing reminder that the state is there to serve the people and not the other way round, or in other words, “government of the people, by the people, for the people”. Where the cloak of secrecy is used to cover violations of human rights not only have state authorities failed to live up to their duty to protect the rights of their citizens but also democracy and rule of law are seriously in danger. This is not less so when extensively broad assertions of the notions of state secrecy extend to information or data on which the public has a legitimate interest of disclosure.
3. In a democratic society people have the right to know how state authority is exercised and how they are governed. This is essential for their ability to form opinions, make choices and participate in deliberation and decision-making processes. State authorities’ legitimate interests to keep information secret must be weighed against the people’s right to know.
4. National security and fight against crime, on one hand, and freedom of expression, on the other hand, are not irreconcilable. The rule of law is essential for both people’s right to know and national security. This approach is part of the Council of Europe policy and should be further reinforced. The ministers of states participating in the 1st Council of Europe Conference of Ministers responsible for Media and New Communication Services, which was held in Reykjavik on 28 and 29 May 2009, agreed in the Resolution ‘Developments in anti-terrorism legislation in Council of Europe member states and their impact of freedom of expression and information’ “to review [their] 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”17
5. Judicial review of human rights violations and the punishment of those responsible are indispensible for ensuring an effective protection of human rights and fundamental freedoms. Parliamentary inquiries and other mechanisms overseeing the exercise of executive powers are essential for a political system based on checks and balances of powers. While these aspects emerge with some particular strength in the Recommendation the related Parliamentary Assembly Resolution 1838(2011) sets the contexts in a more elaborate manner, which could provide inspiration for the introductory elements of the Recommendation leading to its operative parts.18
6. However, the avenues of scrutiny elaborated in the Parliamentary Assembly Recommendation do not alone lead to better governance and stronger democracy. For the latter, it is necessary that people be empowered to make their own informed free choices and that they fully participate in governance. Therefore, public scrutiny is not only complementary but also essential to both judicial and parliamentary scrutiny of abuse of state secrecy either in the context of human rights violations or other matters of public interest and concern.
7. A well informed society is a pre-condition for people’s engagement and participation in governance. The media play an indispensable role in this respect. They enable people to exercise and give meaning to their right to seek and receive information, they provide spaces for public debate, they offer comment and opinion as part of political dialogue, they contribute to shape the public opinion and, most important in the context under consideration, they exercise a watchdog role in democratic societies.
8. Good governance in our societies requires more rather than less transparency, openness and accountability. People’s demand for these values and their expectation that public authorities will deliver on them is on the rise. Information and communication technologies, in particular the Internet, hold an ever growing promise to live up to such expectations and call on us to engage in a new thinking about transparency and openness. Against this background, the CDMC decided recently to propose to the Committee of Ministers a draft declaration to alert member states to the gravity of politically motivated pressure in connection with disclosure of information in online environments19.
9. The CDMC is convinced that states’ duty to protect fundamental rights and freedoms requires permanent efforts and it therefore fully supports and welcomes a reflection on the notion of state secrecy in relation to human rights violations as indicated in the Recommendation. While appreciating the scope of the recommendation and the conciseness of the text, the CDMC would nevertheless submit that Council of Europe’s future efforts should not be satisfied with confining the notion of state secrecy within boundaries that grow out of old dichotomies such as secrets worthy or not worthy of protection. In order to encourage and promote good governance, it is necessary to engage in a new thinking of the very scope of state secrecy, one which has people’s right to know and their legitimate expectations of transparency and openness as its underlying premise. To that effect, the CDMC would suggest that the proposal made in sub-paragraph 2.1 be extended to providing guidance with regard to enhancing public scrutiny of governance.
10. In addition, the right to access to official documents should be underlined. The exercise of this right provides a source of information to the public and helps it to form opinions as well as fosters the integrity, efficiency, effectiveness and accountability of public authorities. In this context, reference is made to the Convention on Access to Official Documents (ETS. No.205) which requires that limitations to the right to have access to official documents shall be set down precisely in law, be necessary in a democratic society and proportionate. Subject to the understanding that it is a minimum standard, the CDMC would urge the Committee of Ministers to encourage Council of Europe member states to ratify this Convention.
10. The CDMC would also suggest to address the need for member states to implement or, as appropriate, review their policy of classifying and declassifying government information, which should be transparent, proportionate to the legitimate aims pursued and take full account of Article 10 of the European Convention on Human Rights. In particular, member states should be invited to take further concrete action to implement the Reykjavik Resolution ‘Developments in anti-terrorism legislation in Council of Europe member states and their impact of freedom of expression and information’.
11. To conclude, the CDMC would advance that the state should keep less secrets and when secrets are kept, if necessary in a democratic society (respond to a pressing social need), they should be better guarded. Moreover, the media, discharging their legitimate and essential role of public watchdogs, should not be held responsible for the disclosure of information withheld from the public and which the latter are entitled to have access to; if someone has to be held to account in such cases, it should be those responsible for keeping the secret, not the journalists or media involved. The guidance provided in Recommendation No.R(2000)7 of the Committee of Ministers to member states on the right to journalists not to disclose their sources of information is of particular relevance in this context.

APPENDIX VIII
CDMC Comments on PACE Recommendation 1984 (2011) – “The protection of privacy and personal data on the Internet and online media

1. The CDMC welcomes the Recommendation 1984 (2011) of the Parliamentary Assembly of the Council of Europe on the protection of privacy and personal data on the Internet and online media. The recommendation considers the promotion of common legal standards for the protection of privacy and personal data on ICT-based networks and services throughout Europe and beyond, which is a highly topical issue in the current globalised scenario where formidable developments in information and communication networks have brought about an unprecedented proliferation of personal data.

2. ICT-based networks and services play a central role in the information society. They are a significant tool for expression and communication and have great potential to promote the exercise and enjoyment of human rights and fundamental freedoms, in particular the freedom to express, create and exchange content and ideas as well as the freedom of assembly and association. As part of the public service value of the Internet, new technology-based services can facilitate democracy and social cohesion.

3. While acknowledging the important value that ICTs play for individuals, it is also important to recognise the manifold challenges for fundamental rights coming from the same ICT based networks and services.

4. Information society developments have brought the relationship between the right to private life, on the one hand, and the right to freedom of expression, democracy and the rule of law, on the other, to the centre of attention more than any other particular media or technological developments have done before.

5. The ability of Internet intermediaries to have access to and use personal data is appealing to entities seeking to achieve particular goals or pursue specific interests which may not always have access to information and freedom of expression as their driving force. As a result, intermediaries can be become barriers for access to information and free speech.

6. The disclosure of personal data required by certain companies managing Internet resources or providing services or operating platforms may represent barriers to individuals’ ability to engage in anonymous and critical speech. In some other cases, although limited in number but not in significance, the pool of Internet users’ personal data held by new media actors risks becoming subject to blanket orders of access by law enforcement authorities which in turn entails risks of inhibiting the full exercise and enjoyment of freedom of expression and may have an impact on their participation in online environments.20

7. In its work, the CDMC has sought to address the necessary conditions in terms of the protection of personal data that bear on the exercise and protection of freedom of expression and access to information on the Internet. In this context, the CDMC wishes to recall the Declaration on the management of the Internet protocol address resources in the public interest adopted on 29 September 2010, whereby the Committee of Ministers declared that where appropriate, identification features incorporated into Internet protocol addresses assigned to Internet users or devices connected to the Internet should be regarded and treated as personal data. By offering guidance to member states on policy responses to developments in the new media landscape, the Recommendation CM/Rec(2011)7 on a new notion of media, provides a frame of reference for ensuring the protection of the right to freedom of expression and access to information in connection with new media actors. The CDMC is presently working towards the finalisation of two draft recommendations on the protection of human rights respectively in the context of search engines and social networks, where particular attention is paid to the protection of freedom of expression and the right to private life.

8. Information society developments clearly illustrate how, in an increasing number of cases, the management or handling of personal data is likely to have a direct or indirect bearing on Internet users’ ability to seek, access and impart information and to participate in democratic processes. Consequently, in addition to general support for the principles on the protection of privacy and personal data in ICT environments set out in Resolution 1843 (2011) of the Parliamentary Assembly, the CDMC particularly welcomes the first principle which emphasises the key role that the protection of private life has for the functioning of democracy.

9. The CDMC is of the opinion that modern regimes of personal data protection, which, as necessary and appropriate, may include regulatory and self-regulatory approaches or combinations of the two as indicated by the Parliamentary Assembly in Resolution 1843(2011), should pay attention to the protection of the exercise of the rights to freedom of expression, freedom of assembly and association and to the strengthening of citizens’ participation in democratic processes. The CDMC wishes to stress that, in ICT-related policy making, standard-setting and benchmarks, it is of paramount importance to pursue the aim of striking a balance between fundamental rights, as in the case of data protection and freedom of expression.

10. The CMDC is convinced that the construction of a safe ICT environment where personal data and privacy are adequately protected is ineludible. The protection of these rights, which also represent a pre-condition for the enhancement of further fundamental rights, as freedom of expression and right to assembly, must be adequately ensured in an online context as well as offline. As the Assembly rightly points out, an adequate response to the challenges posed by new technologies should preserve and in no way lower, privacy and protection of personal data standards.

11. Bearing this in mind, the CDMC supports the view that great efforts should be made to promote the signature and ratification of Convention 108 and its Additional Protocol, also by states which are not Council of Europe member states and to provide adequate budgetary resources for the further development of Convention 108. Together with its Additional Protocol, Convention 108 can play a fundamental role in responding to the increasingly urgent need for globalised standards for data protection given that, at present, they remain the only existing binding international law standards in this field.

APPENDIX IX

MEETING AGENDA

1. Opening of the meeting

2. Adoption of the agenda

3. Decisions of the Committee of Ministers of interest to the work of the CDMC

    Standards and CDMC texts
    Reform process
    Request for comments on Council of Europe Parliamentary Assembly texts

4. Draft instruments or texts for consideration by the CDMC

5. Work between meetings

6. Work of CDMC subordinate bodies

    Committee of Experts on New Media – ( MC-NM)
    Ad hoc Advisory Group on Cross-border Internet (MC-S-CI)
    Ad hoc Advisory Group on Public Service Media Governance (MC-S-PG)
    Ad hoc Advisory Group on the Protection of Neighbouring Rights of Broadcasting Organisations (MC-S-NR)

7. Discussion on the future work programme of the Steering Committee on Media and Information Society (CDMSI)

8. Stocktaking of CDMC work

9. Implementation of Council of Europe standards on media and freedom of expression prepared under the authority of the CDMC

10. Next Council of Europe Conference of Ministers responsible for Media and New Communication Services

11. Internet Governance and implementation of WSIS action lines

    - EuroDIG, Belgrade 30-31 May 2011
    - IGF, Nairobi, 27-30 September 2011
    - Conference on Political Communication in the era of new technologies, Warsaw, 22-23 September 2011
    - "Our Internet - Our Rights, Our Freedoms". Towards the Council of Europe strategy on Internet governance 2012-2015  Launching Conference . Vienna, 24-25 November 2011

12. Information on the work of, and co-operation with, other Council of Europe bodies, of interest to the CDMC

13. Cooperation activities in the field of media

14. Other information of interest to the work of the CDMC
15. Administrative and budgetary matters

16. Other business

17. Abridged report

APPENDIX X

LIST OF PARTICIPANTS

MEMBER STATES / ETATS MEMBRES

Albania/Albanie
Mr Ralf GJONI, Director General of Communications/ Spokesperson, Ministry of Foreign Affairs of the Republic of Albania
Armenia/Armnie
Mr Garegin CHUGASZYAN, Executive Director, IT Foundation
Austria/Autriche
Mr Matthias TRAIMER, Federal Chancellery
Azerbaijan
Ms Jeyran AMIRASLANOVA, Senior Consultant for Public and Political Issues, Office of the President of the Republic of Azerbaijan
Belgium/Belgique
Mr. Johan BOUCIQUE, Adviseur Media, Department Cultuur, Jeugd, Sport en Media
Bosnia and Herzegovina / Bosnie-Herzgovine
Mr Emir POVLAKIC, Head of Division for Licencing, Digitalization and Coordiation, Broadcasting Communications Regulatory Agency
Bulgaria/Bulgarie
Ms Bissera ZANKOVA, Media Consultant, Ministry of Transport and Communications, Directorate on Information Technology
Ms Nelly STOYANOVA, Head of Department, Policy and Development of Information Society, Ministry of Transport, IT and Communications
Croatia/Croatie
Mr Miroslav PAPA, Ministry of Foreign Affairs and European Integration
Czech Republic/Rpublique Tchque
Mr Artus REJENT, Ministry of Culture
Denmark/Danemark
Ms Katja JUST MAARBJERG, Head of Section, Danish Ministry of Culture
Estonia/Estonie
Mr Peeter SOOKRUUS, Ministry of Culture
Finland/Finlande
France
Mme Sophie VERRIER, Bureau des affaires europennes et internationales, Direction Gnrale des Mdias et des Industries Culturelles, Ministre de la Culture et de la Communication
Georgia/Georgie
Ms Tamar KINTSURASHVILI, Administration of the President of Georgia, Advisor
Germany/Allemagne
Ms Els HENDRIX, Federal Government Commissioner for Culture and the Media
Ms Annick KUHL
Hungary/Hongrie
Dr. Gyrgy OCSK, International Legal Adviser, National Media and Infocommunications Authority
Iceland/Islande

Ms Elfa Yr GYLFADOTTIR, Head of Division, Department of Cultural Affairs, Ministry of Education, Science and Culture
Ireland/Irlande
Mr Eanna O’CONGHAILE, Broadcasting Policy Division, Department of Communications, Energy and Natural Resources
Italy / Italie
Mr Pierluigi MAZZELLA, Professor of Information and Communication Law, University of Rome
Latvia/Lettonie
Chair
Mr Andris MELLAKAULS, Member, Head of International Relations, National Broadcasting Council of Latvia
Mrs Dace BUCENIECE, Vice-chair of the Natinal Electronic Mass Media Council of Latvia
Luxembourg
(Apologised / Excus)
Moldova
M. Andrei GALBUR, Directeur de la Division Coopration Multilatrale, Ministre des Affaires Etrangres et Intgration Europenne
Montenegro
Mr Ranko VUJOVIC, Executive Director UNEM
Netherlands/Pays-Bas
Mr Nol REIJNDERS, Senior Advisor, Ministry of Education, Culture and Science
Norway/Norvge
Mr Anders HUITFELDT, Senior Adviser, Department of Media Policy and Copyright, Norwegian Ministry of Culture
Poland/Pologne
Mrs Kamila POLIT, Deputy Director of the Presidential Department of National Broadcasting Council of Poland
Mrs Małgorzata PĘK, National Broadcasting Council of Poland
Portugal
Ms Maria Margarida RIBES, GMCS – Gabinete para os Meios de Comunicao Social
Romania/Roumanie
Ms Delia MUCICĂ, Senior Advisor to the Minister of Culture
Russian Federation/Fdration de Russie
Mr Igor EVDOKIMOV, Deputy Director, Press and Information Department, Foreign Ministry
Serbia
Ms Maja RAKOVIC, Cabinet of the Ministry of Foreign Affairs
Slovak Republic/Rpublique Slovaque
Ms Ivana LASSAKOVA, Director of Media Law and Audiovisual Unit.
Slovenia/Slovenie
Mr Skender ADEM, Undersecretary, Ministry of Culture of Republic of Slovenia
Spain/Espagne
Ms M Concepcin SOTO CALVO, Adviser of Audiovisual Services, State Secretariat for Telecommunications and the Information Society
Sweden / Suede
Mr Jerker STATTIN, Deputy Director, Swedish Ministry of Culture
Switzerland/Suisse
Mr Frdric RIEHL, Service des Affaires internationales, Office fdral de la communication, Dpartement fdral de l’environnement, des transports, de l’nergie et de la communication
Mr Thomas SCHNEIDER, Service des Affaires internationales, Office fdral de la communication, Dpartement fdral de l’environnement, des transports, de l’nergie et de la communication
Mr Pierre SMOLIK, Service des Affaires internationales, Office fdral de la communication, Dpartement fdral de l’environnement, des transports, de l’nergie et de la communication
"The former Yugoslav Republic of Macedonia"/"L'ex-Rpublique Yougoslave de Macdoine"
Ms Vesna POPOSKA, Head of International PR Department, Government of the Republic of Macedonia
Turkey/Turquie
Mr Bora SNMEZ, Radio and Television Supreme Council
Mr. Prof. Hasan Tahsin FENDOĞLU, Radio and Television Supreme Council

United Kingdom/Royaume-Uni
Ms Moira COSTELLO, Media Team, Department for Culture, Media and Sport
Mr Mark CARVELL, Media Team, Department for Culture, Media and Sport

* * *

PARTICIPANTS / PARTICIPANTS

Parliamentary Assembly of the Council of Europe/Assemble Parliamentaire du Conseil de l’Europe (PACE/APCE)
Mr Rdiger DOSSOW, Sub-Committee on the Media, Committee on Culture, Science and Education
Conference of International Non-Governmental Organisations of the Council of Europe / Confrence des organisations internationales non gouvernementales du Conseil de l'Europe
Mr Gabriel NISSIM, Confrence des OING du Conseil de l’Europe

* * *

OTHER PARTICIPANTS

European Commission/Commission europenne
Harald E. TRETTENBREIN, Deputy Head of Unit, Audiovisual and Media Policies Unit

* * *

OBSERVERS/OBSERVATEURS

Article 19
Ms Gabrielle GUILLEMIN, Legal Officer
Association of European Journalists (AEJ) / Media Freedom Representative
Mr William HORSLEY
Community Media Forum Europe (CMFE)
Mr Pieter DE WIT
European Newspaper Publishers’ Association (ENPA)
Mr Holger ROSENDAL, Chefjurist/Head of Legal Department, Danske Dagblades Forening/Danish Newspaper Publishers' Association
European Federation of Journalists / Fdration Europenne des Journalistes (EFJ)
(Apologised / Excus)
European Broadcasting Union / Union Europenne de Radio-Tlvision (EBU)
Ms Anne-Catherine BERG, Legal Adviser, Legal and Public Affairs
Chair of Ad-hoc Advisory Group on Cross-Border Internet
Mr Wolfgang KLEINWAECHTER
the Virtual Policy Network
Mr Ren REYNOLDS FRSA

* * *

INTERPRETERES / INTEPRETES

Ms Angela BREWER
Ms Alison SMITH
Ms Shhrazade HOYER
Ms Stella RAPPOSELLI

SECRETARIAT

Mr Jan MALINOWSKI, Head of Media Division, Information Society and Action Against Crime Directorate (DGI) / Chef de la Division Mdias, Direction de la socit de l'information et de la lutte contre la criminalit, Direction gnrale Droits de l'Homme et Etat de Droit (DGI)

Ms Anne BOYER-DONNARD, Principal Administrative Assistant, Media Division, Information Society and Action Against Crime Directorate (DGI) / Assistante administrative principale, Division Mdias, Direction de la socit de l'information et de la lutte contre la criminalit, Direction gnrale Droits de l'Homme et Etat de Droit (DGI)

Ms Natalia VOUTOVA, Administrator, Media Division, Information Society and Action Against Crime Directorate (DGI) / Assistante d’Administration, Division Mdias, Direction de la socit de l'information et de la lutte contre la criminalit, Direction gnrale Droits de l'Homme et Etat de Droit (DGI)

Ms Alessandra PIERUCCI, Administrator, Media Division, Information Society and Action Against Crime Directorate (DGI) / Assistante d’Administration, Division Mdias, Direction de la socit de l'information et de la lutte contre la criminalit, Direction gnrale Droits de l'Homme et Etat de Droit (DGI)

Mr Lee HIBBARD, Head of Unit, Information society, Media Division, Information Society and Action Against Crime Directorate (DGI) / Chef d’unit, Socit de l’information, Division Mdias, Direction de la socit de l'information et de la lutte contre la criminalit, Direction gnrale Droits de l'Homme et Etat de Droit (DGI)

Ms Elvana THAI, Administrator, Information society, Media Division, Information Society and Action Against Crime Directorate (DGI) / Assistante d’Administration, Socit de l’information, Division Mdias, Direction de la socit de l'information et de la lutte contre la criminalit, Direction gnrale Droits de l'Homme et Etat de Droit (DGI)

Ms Carine ROLLER-KAUFMAN, Assistant, Media Division, Information Society and Action Against Crime Directorate (DGI) / Assistante, Division Mdias, Direction de la socit de l'information et de la lutte contre la criminalit, Direction gnrale Droits de l'Homme et Etat de Droit (DGI)

Ms Julia WHITHAM, Assistant, Media Division, Information Society and Action Against Crime Directorate (DGI) / Assistante, Division Mdias, Direction de la socit de l'information et de la lutte contre la criminalit, Direction gnrale Droits de l'Homme et Etat de Droit (DGI)

1 The United Kingdom reserved its position in respect of this text due to the pre-legislative process currently underway on the subject in the UK.

2 The Tunis Agenda on the Information Society was adopted by the second phase of the United Nations World Summit on the Information Society (WSIS), held in Tunis from 16 to 18 November 2005.

3 See EuroDIG website : www.eurodig.org

4 Paragraph 42 of the European Parliament resolution of 15 June 2010 on internet governance: the next steps (2009/2229(INI)).


5 Article 29 Working Party Opinion 1/2008 (4 April 2008); the 28th International Data Protection and Privacy Commissioners’ Conference Resolution on Privacy Protection and Search Engines (London, 2 and 3 November 2006).

6 See Article 29 Data Protection Working Party Opinion 5/2009 (12 June 2009); 30th International Conference of Data Protection and Privacy Commissioners Resolution on Privacy Protection in Social Network Services (Strasbourg, 17 October 2008); International Working Group on data Protection in Telecommunications (IWGDPT) “Rome Memorandum” (Rome, 3-4 March 2008).

7 The United Kingdom reserved its position in respect of this text due to the pre-legislative process currently underway on the subject in the UK


8 ; Goodwin v. UK, ECtHR, 27 March1996, 39.

9 De Haes and Gijsels v. Belgium, ECtHR, 24 February 1997, 37.

10 Handyside v. UK, ECtHR 7 December 1976, 49.

11 Times Newspapers Ltd (Nos. 1 and 2) v UK 46.

12 Times Newspapers Ltd (Nos. 1 and 2) v UK 45.

13 Tolstoy Miloslavsky v. UK, ECtHR, 13. July 1995, 51.

14 “Damages and fines for defamation or insult must bear a reasonable relationship of proportionality to the violation of the rights or reputation of others, taking into consideration any possible effective and adequate voluntary remedies that have been granted by the media and accepted by the persons concerned”.

15 Joint Declaration on Freedom of Expression and the Internet (UN Special Rapporteur on Freedom of Opinion and Expression, OSCE Representative on Freedom of the Media, the OAS Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights Special Rapporteur on Freedom of Expression and Access to Information), 1 June 2011

16 This includes the draft declaration on privately operated internet platforms, with CM expected adoption before the CDMC meeting.


17 The Delegation of the Russian Federation made a reservation in respect of this paragraph of the Resolution. It indicated that the subject matter dealt with in it does not fall entirely under the competence of the authorities of the Russian Federation responsible for media and mass communication.

18 The first paragraph of the Resolution states that “[t]he Parliamentary Assembly considers that judicial and parliamentary scrutiny of government and its agents is of vital importance for the rule of law and democracy. This also applies especially to so-called special services whose activities are usually kept secret. State security and intelligence services, the need for which cannot be put into doubt, must nonetheless not become a “state within the state”, exempted from accountability for their actions. Such lack of accountability leads to a dangerous culture of impunity, which undermines the very foundations of democratic institutions.”

19 The CDMC decided at its 14th meeting to propose to the Committee of Ministers for possible adoption a draft Declaration of the Committee of Ministers on the protection of freedom of expression and freedom of assembly and association with regard to privately operated Internet platforms and online service providers, see appendix.

20 The CDMC refers to the Resolution of the Inter- Parliamentary Union: Iceland, Case No IS/01 Birgitta Jnsdttir, adopted on 19 October 2011, which in connection with access to personal data protection, underlines the need to protect the right to seek, receive and impart information freely as a necessary condition for democracy.