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Strasbourg, 11 March 2010

MC-NM(2010)004_en
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COMMITTEE OF EXPERTS ON NEW MEDIA

(MC-NM)

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2nd Meeting
25 – 26 March 2010
Agora Building
Room G 05

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

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1. Search engines play a central role as intermediaries in the information society by enabling a worldwide public to seek, impart and receive information and ideas, in particular to gain access to knowledge and expressions, engage in debate and participate in a democratic society.

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 stressed that the Internet and other ICT services have high public service value in that they serve to promote the 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 for the public and the World Wide Web and considers it important that search engines are allowed to freely index the information that is openly available on the Web. This activity needs to take due account of fundamental rights.

3. The operation of search engines may challenge the right to freedom of expression and information and the right to privacy and protection of personal data, and possibly other human rights and fundamental freedoms. This may stem inter alia from the design of algorithms, blocking and discrimination of content, market concentration and lack of transparency about both the process of selecting and ranking results and also the purposes for processing user data, including the retention periods of personal data.

4. There is a need to protect and promote the values of access, diversity, security and transparency in the context of search engines. It is equally important to foster media literacy and the acquisition of skills that enable users to have access to the greatest possible variety of information and services.

5. In certain member states, co- and self-regulatory mechanisms have been set up to regulate the accessibility of illegal and harmful content through search engines.

6. The Committee of Ministers therefore recommends that member states, in co-operation with 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 (ETS No. 5), especially Article 8 (Right to respect for private and family life) and Article 10 (Freedom of expression) and the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108), in particular by:

– fostering transparency about the way in which access to information is provided, in particular according to which criteria search results are selected, ranked or prioritised as well as whether certain search results have been removed in order to ensure access to and pluralism and diversity of information and services;

– encouraging transparency about the way in which personal data are being collected and the legitimate purposes for which they are being processed;

– promoting the further development of tools to minimise the personal data collected from and about users, including enforcing limited retention periods for personal data, adequate anonymisation as well as tools for the deletion of data;

– allowing users to easily access, and, where appropriate to correct or delete data collected by the search engine providers from and about them;

– ensuring that the principle of due process is adhered to when search results are removed from search indexes, ensuring also that access to redress mechanisms is provided, regardless whether the origin of removal requests is governmental, co-regulatory or private;

– promoting the development of specific knowledge in the field of media literacy about the functioning of search engines, in particular on the processes of selecting, ranking and prioritising of search results;

– taking measures with regard to search engines in line with the guidelines set out in the appendix to this recommendation;

– bringing this recommendation and its appended guidelines to the attention of all relevant private and public sector stakeholders.

Appendix to the Recommendation

GUIDELINES

I. Transparency on the selection and ranking of information

1. Search engines play a crucial role as a first point of contact to freely seek and access information, opinions, facts and ideas on the global internet. Such free access to information is essential to build one's personal opinion and participate in social, political, cultural and economic life. The process of seeking information is strongly influenced by the arrangement of the information, the selecting and ranking of search results.

2. Most search engines provide very little or only general information about the way results are being selected and ranked, and what values are being used to qualify a given result as the ‘best’ answer to particular queries. Thus users’ right to freely exercise and enjoy the right to freedom of expression and information might be challenged.

3. While recognising that full disclosure of business methods may not be appropriate, given that the precise algorithms used may have a high relevance for competition, and might also result in increased vulnerability of search engine services to abuse of their services (search manipulation), member states, in cooperation with the private sector and civil society, are encouraged to:

– ensure transparency about the process of selecting and ranking results to allow the public to make informed decisions about their use of search engines.

II. Transparency of ownership and the challenge of concentration in the search engine market

4. There is concern that concentration in the search engine market could challenge access to a diversity of information, in particular if one considers that the display and ranking of information by search engines is not exhaustive or neutral. As first points of access to information and ideas, particular forms of bias in search results of major search engines may limit choice, challenge the freedom to access information of one’s choice, diversity of sources and threaten pluralism. The public’s right to receive and impart information and ideas and pluralism of information may be challenged by search engine bias, opaque prioritisation and the blocking of content.

5. The general dependence on a small number of well-known search engines increases the concern that major search engines may be in a position to abuse their power. Member states should:

– promote ongoing research into the dynamic search engine market, to address issues such as the increasing concentration of the search engine market, to what extent this leads or might lead to abuse of market power and whether and to what extent search results are biased, in particular as a result of advertising or search engine manipulation.

III. Transparency about the use of personal data and the respect of data protection regulation

6. Search engines process large amounts of personal data about the search behaviour of individuals, varying from cookies and IP addresses to individual search histories. An individual's search history contains a footprint which may include the person's interests, relations, and intentions, and should therefore be treated as sensitive data. The treatment of personal data by search engines is becoming even more crucial given the explosion and proliferation of audiovisual data (digital images, audio and video content) and the increasing popularity of mobile internet access. Specialised people search engines, 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 privacy and freedom of expression.

7. Given the sensitivity of the data already processed by search engines and foreseeable developments in the near future, it is vital to ensure compliance with the applicable data protection regulation. Personal data may only be processed for legitimate purposes, as outlined in Article 9 of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108) and search engine providers must delete or irreversibly anonymise personal data once they no longer serve the specified and legitimate purpose they were collected for. With respect to the retention of personal data collected by and through searches, a maximum retention period of 6 months should not be exceeded.

8. Cross-correlation of data originating from different services/platforms belonging to the search engine provider may only be performed if consent has been granted by the user for that specific service. The same applies to user profile enrichment exercises. Search engines must clearly inform the users upfront of all intended uses of their data and respect all user rights to readily access, inspect or correct their personal data.

9. Member states (through the designated authorities) should:

– enforce compliance with the applicable data protection regulation;

– in particular, encourage search engine providers to further develop tools that allow registered users to gain access to, and correct and delete data that have been collected in the course of the use of services, including a possible profile created for example for direct marketing purposes.

IV. Filtering and blocking

10. A prerequisite for the existence of effective search engines is the freedom to crawl the available information on the Web. There may be legitimate grounds for the blocking or filtering of certain types of content on specific web sources, for example in cases where other rights outweigh the right of freedom of expression and information. In many countries, search engine providers block or filter specific websites at the request of the government (or of public authorities), to meet the requirements in the legal framework or at their own initiative, for example in the case of websites spreading spyware.

11. In many other cases requests for the blocking or filtering of specific web sources are filed by private parties and individuals. It is important that any law, policy or single request on blocking or filtering is done with full respect of the right to freedom of expression and to seek information. The principles of due process and access to redress mechanisms should also be respected in this context. Member states should:

– ensure the freedom of search engines to crawl the available information on the Web and ensure that possible legislation on mandatory filtering and blocking of content by general purpose search engines is in accordance with Recommendation (2008)6 of the Committee of Ministers to member states on measures to promote the respect for freedom of expression and information with regard to Internet filters and its guidelines;

– guarantee that blocking or filtering mechanisms, in particular that nationwide general blocking or filtering measures are only introduced by the state if the conditions of Article 10, paragraph 2, of the European Convention on Human Rights are fulfilled. Member states should avoid the general blocking of content that has been defined in a democratic process as harmful for users who are not part of the groups for which a filter has been activated to protect. In many cases, encouraging search engines to offer adequate voluntary individual filter mechanisms may suffice to protect those groups.

V. Self and co-regulation

12. Examples of self regulatory initiatives by search engine providers exist for example in Germany and in France. Such initiatives should be welcomed. It is important to recall that all co- and self-regulation, as a form of interference, should be transparent, independent, accountable and effective. Member states should:

– ensure that all self regulatory arrangements meet the minimum requirements of the European Convention on Human Rights, in particular the right to due process. Complaints mechanisms have to be transparent, effective, independent and accountable.

VI. Media literacy

13. Users must be educated and made aware of 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 does not necessarily reflect the importance, relevance or trustworthiness of the source. As search engines play a more and more important role with regard to the accessibility of media and information online, media and information literacy strategies should accordingly be adapted. Member states should ensure that:

– search engine literacy becomes part of the national media literacy curricula;

– media literacy is considered a priority for national education strategies both in formal and informal education.