Strasbourg, 19 September 2011

MC-NM(2010)004rev2
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COMMITTEE OF EXPERTS ON NEW MEDIA
(MC-NM)
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5th Meeting
20-21 September 2011
Agora Building
Room G05
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Draft Recommendation of the Committee of Ministers to member states on the
protection of freedom of expression and information and the right to private life
with regard to search engines

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1. Search engines play a central role 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 stresses 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 and the World Wide Web for the public and considers it essential that search engines are allowed to freely crawl, index [and refer to] the information that is openly available on the Web.

3. This activity needs to take due account of fundamental rights as the operation of search engines may challenge the right to freedom of expression and information and the right to private life and protection of personal data, and possibly other human rights and fundamental freedoms. Such challenges may stem inter alia from the design of algorithms, de-indexing and [partial treatment/biased,] market concentration and lack of transparency about both the process of selecting and ranking results and about data processing and data retention periods.

4. It is a fact that search engines generate new kinds of personal data, such as individual search histories and behavioural profiles. It is important that member states adopt strong legal safeguards for access to this information by any public or private entity, taking into account the sensitivity of such personal data, securing the full enjoyment of the rights and freedoms enshrined in the European Convention on Human Rights (ETS No. 5).

5. There is a need to protect and promote the values of access, diversity, [non partiality,] 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.

6. 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.

7. Member States should ensure that any such mechanism should be transparent and be fully in line with Council of Europe obligations on freedom of expression and due process rights.

8. 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 with 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 collection and processing of personal data, including enforcing limited retention periods, adequate irreversible 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 search engine providers only discard search results in conditions that outweigh the right to freedom of expression and ensuring that they notify the user in case some search results have been discarded and inform about the origin of the request. Information about the discarded results should not contravene the right to private life and data protection.

      - 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 and on the implications of the use of search engines on users’ right to private life and personal data;

      - 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 appended principles to the attention of all relevant public authorities and private actors.

Appendix to the Recommendation

PRINCIPLES

I. 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. As media search engines, they are also likely to become an important portal for citizens' access to the mass media, including electronic newspapers and audiovisual media services.

2. The process of obtaining information is strongly influenced by the arrangement of the information, the selecting and ranking of search results and, as applicable, the de-indexing of content. Most search engines provide very little or only general information about the way results are being selected, indexed and ranked, and what values are being used to qualify a given result as the ‘best’ answer to a particular query. To enhance the users’ right to freely exercise and enjoy the right to freedom of expression and information, search engine providers should be transparent about the general criteria they apply to select and rank results, and also indicate individual bias, such as presenting results based on apparent geographic location or on earlier searches.

3. With respect to indexing, it is important that graphical presentation of content displayed on the user’s screen clearly differentiates between the search result and any commercial advertisement.

4. 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 co-operation with the private sector and civil society, are encouraged to:

    i. encourage search engine providers to be transparent about the process of selecting and ranking results to allow the public to make informed decisions about their use of search engines.

    ii. promote ongoing research into the dynamic search engine market, to address issues such as whether and to what extent search results are influenced.

[I bis. Respect and application of the legislation in place

4 bis. Member States should ensure that search engines adequately respect and apply national legislation, including on copyright.

They should also guarantee that efficient, dissuasive and timely legal and judicial procedures are in place in order to allow third party to have the possibility to seek legal remedies without obstacles.]

II. The risk of abuse of dominant market position

5. There is concern that a high degree of concentration on 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.

6. 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 market power, for example to unduly favor content or services of providers they own themselves as opposed to others or where they could gain other forms of commercial benefit.

7. Member states should:

    i. 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 a risk of abuse of market power;

    ii. ensure that market power is not abused to favor own-content offers in the search results.

III. Right to private life and the protection of personal data

8. 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 level1. An individual's search history contains a footprint which may reveal the person's beliefs, interests, relations, and 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 deserve the special protection under Article 6 of Convention 108. The processing of personal data by search engines is becoming even more crucial given 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 freedom of expression.

9. Consequently, 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. Bearing this in mind, search engines should respond to requests from law enforcement authorities for available users’ data on the basis of appropriate legal procedures.

10. The collection of personal data by search engine providers must be 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. Search engine providers must delete or irreversibly anonymise personal data once they no longer serve the specified and legitimate purposes they were collected for. Therefore each retention period should be no longer than what is strictly necessary for the purposes of the processing. In case search engine providers retain personal data longer than 6 months, where national legislation does not require earlier deletion of personal data, they must demonstrate comprehensively that it is strictly necessary for the service. This information should be publicly available and easily accessible.

11. It is key that search engine providers apply the most appropriate security measures to protect personal data against unlawful access by third parties. Such measures should include end to end encryption of the communication between the user and the search engine website.

12. Cross-correlation of data originating from different services/platforms belonging to the search engine provider may be performed only if 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. 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 users’ rights to readily access, correct or delete their personal data.

13. Consideration should be given to the fact that, by combining different kinds of information on an individual, search engines create an image of a person that does not necessarily correspond to reality. 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 be actualized by 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, in due respect of the right to information. Search engine providers should immediately respond to users’ requests to delete 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.

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

enforce compliance with the applicable data protection principles, in particular:

      a. ensuring that requests from law enforcement authorities to search engine providers for users’ data are based on appropriate legal procedures and only concern available data;

      b. ensuring that the retention period is no longer than what is strictly necessary for the legitimate purposes of the processing;

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

IV. Filtering and de-indexing

15. A prerequisite for the existence of effective search engines is the freedom to crawl [“, index and refer to”] the available information 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. Preferably, filtering or blocking should therefore take place at the end points of the network, at the request of users. Search engine providers should not be obliged to proactively monitor their services in order to detect possibly illegal web content. There may be legitimate requests however to search engine providers to remove specific web sources from their index, for example in cases where other rights outweigh the right of freedom of expression and information. In many countries, search engine providers de-index or filter specific websites at the request of public authorities, to comply with legal obligations or at their own initiative, for example in the cases unrelated to the content of websites but technical dangers as malware. Any such de-indexing or filtering should be narrowly tailored and reviewed regularly.

16. In many other cases requests for the de-indexing or filtering of specific web sources are filed by private parties and individuals. It is important that any law, policy or single request on de-indexing 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 independent and accountable redress mechanisms should also be respected in this context. Member states should:

    i. ensure the freedom of search engines to crawl [ “, index and refer to”] the available information on the Web and ensure that possible legislation on mandatory filtering and de-indexing 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;

    ii. guarantee that blocking or filtering mechanisms, in particular nationwide general blocking or filtering measures, are introduced by the state only if the conditions of Article 10, paragraph 2, of the European Convention on Human Rights are fulfilled. Any such filtering or blocking should be 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. Member states should avoid the general de-indexing 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

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, as a form of interference, should 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:

    i. ensure that co-regulatory arrangements with the respective industry meet the requirements of the European Convention on Human Rights, in particular the right to due process.

    ii. act upon the industry that it makes sure that all self regulatory arrangements meet the requirements of the European Convention on Human Rights, in particular the right to due process.

VI. Media literacy

19. 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. 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.

20. Member states should ensure that:

    i. search engine literacy becomes part of any national media literacy strategy;

    ii. media literacy is considered a priority for national education strategies whether in formal and informal education.



1 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).