Explanatory Memorandum

Hereby it is stated a key principle of the Council of Europe's Internet-related standards, that is fundamental rights and freedoms apply equally to online and offline environments. This approach has also been affirmed by the United Nations Human Rights Council in its Resolution of 2012 on "The Promotion, Protection and Enjoyment of Human Rights on the Internet". Promoting the application of the Guide will reinforce the protection of human rights and fundamental freedoms in compliance with existing human rights standards.

Action 1 recommends to member States that the Guide should be promoted not only by public authorities but also via the private sector. This could include its publication and dissemination in printed formats or adaptations in electronic formats. Relevant public authorities could also make it available on their websites. The private sector could be encouraged to do the same.

Action 2, reaffirms that the exercise of human rights and fundamental freedoms on the Internet may be subject to restrictions which pursue legitimate aims and are necessary in a democratic society as stipulated in the relevant articles of ECHR. In order to ensure compliance with these conditions the Committee of Ministers recommended to its member States to assess, regularly review and where appropriate remove restrictions with human rights and fundamental freedoms on the Internet.

Action 3 calls on member States to enhance their efforts to guaranteeing the right to an effective remedy, inter alia, by ensuring enhanced co-ordination and co-operation among existing relevant institutions, entities (including regulators for electronic communications) and communities which offer redress mechanisms, such as in the context of processing complaints lodged by Internet users. The recommendation also acknowledges that there is a diversity of redress mechanisms available in different member States, such as data protection authorities, ombudspersons, court procedures, or hotlines. Member States could also conduct an audit of existing redress mechanisms in their jurisdictions and compile the relevant information in a user-friendly inventory of redress mechanisms. Such information could be disseminated together with the Guide, for example in the form of an appendix. This is one of the follow-up actions which may be taken further to the adoption of the recommendation.

By its very nature, the Internet operates by sending and receiving requests for information across borders and therefore regardless of frontiers. This means that human rights and fundamental freedoms on the Internet in member States may be exposed to action by State or non-State actors beyond the Council of Europe's borders; for example freedom of expression and access to information, as well as privacy with regard to personal data can be interfered with. Therefore, action 4, recommends co-ordination between Council of Europe member States and non-Council of Europe member States as well as non-State actors.

Action 5 recommends to member States to encourage genuine dialogue between the private sector and relevant State authorities as well as civil society as regards the exercise of the latter's social responsibility. A foundational principle of the Guiding Principles on Business and Human Rights is that business enterprises should respect human rights, which means that they should avoid infringing on the human rights of others and address adverse human rights impact with which they are involved. The transparency and accountability of private sector actors is emphasised as an important means of demonstrating their responsibility as is actively promoting and disseminating it. For example, Internet service providers and content access providers could make references to the Guide in the terms and conditions of use of their services.

Action 6 acknowledges the key contribution that the civil society can give in promoting the Guide and compliance with it. Therefore, it is recommended that member States encourage civil society organisations and activists to help in the dissemination and application of the Guide and rely on it when advocating for the implementation of human rights standards and compliance with them.

Please see here the full text of the Explanatory Memorandum.