Print
See related documents
Resolution 1877 (2012) Final version
The protection of freedom of expression and information on the Internet and online media
1. The Parliamentary Assembly recalls
the universal right to freedom of expression and information under Article
10 of the European Convention on Human Rights (ETS No. 5, hereafter
“the Convention”) and Article 19 of the United Nations International
Covenant on Civil and Political Rights. This right is typically
exercised through the media and, nowadays in particular, through
media based on new information and communication technologies (hereafter
“ICTs”) such as the Internet and online media, including mobile
communication devices.
2. Aligning itself with the United Nations Millennium Declaration
of 8 September 2000, the Assembly welcomes the fast growth in access
to ICT-based media by the general public globally. Hence, it seems
much more difficult for non-democratic regimes to deprive their
population of information and an exchange of opinions necessary
for any popular control of government. The Assembly strongly condemns
the restrictions of access to the Internet and online media applied
by the governments of China, Belarus and other countries.
3. The Assembly also welcomes the new possibilities for individuals
to share publicly, through the Internet and online media, information
which is of public concern, such as information about misgovernment,
corruption and organised crime as well as human rights violations.
In this respect, the Assembly appreciates the efforts of journalists
and media to collect, analyse and disseminate in a professional
manner the raw information provided by Internet sources.
4. Recalling its Resolution
1729 (2010) on the protection of “whistle-blowers”, the
Assembly reaffirms the right of everyone to disclose information
of public concern which corresponds to the right of the public to
be informed under Article 10 of the Convention. Member States must
not curtail the right of the public to be informed by restricting
the right of individuals to disclose information of public concern,
for example by applying defamation and insult laws as well as national
security and anti-terrorist laws in an overly broad and non-proportional
manner.
5. Referring to Articles 10, paragraph 2, and 17 of the Convention,
the Assembly recalls, however, that no State, group or person may
exercise freedom of expression and information for the destruction
of any rights and freedoms set forth in the Convention, in particular
the right to life, the right to a fair trial, the right to respect for
private life and the right to protection of property. The Assembly
puts strong emphasis on Article 20 of the United Nations International
Covenant on Civil and Political Rights which stipulates that any
propaganda for war and any advocacy of national, racist or religious
hatred that constitutes incitement to discrimination, hostility
or violence shall be prohibited by law.
6. Recalling its Recommendation
1543 (2001) on racism and xenophobia in cyberspace, the
Assembly regrets that some member States have not yet signed and
ratified the Additional Protocol to the Convention on Cybercrime,
concerning the criminalisation of acts of a racist and xenophobic
nature committed through computer systems (ETS No. 189). This protocol
may be applicable, for example, in cases of incitement through the
Internet to violence and terrorism based on racist or religious
extremism.
7. Referring to the wide criticism and concerns over the restriction
of fundamental rights and freedoms, most notably the freedom of
expression and communication privacy, raised by Internet stakeholders
and governments as regards the Anti-Counterfeiting Trade Agreement
(ACTA) of 1 October 2011, the Assembly invites member States which
are signatories to ACTA to pursue public consultations about future
domestic legislation resulting from ACTA, taking into account Assembly Resolution 1744 (2010) on
extra-institutional actors in the democratic system. Such domestic
legislation must respect in particular Articles 6, 8 and 10 of the European
Convention on Human Rights and Article 1 of its first Protocol (ETS
No. 9). ACTA parties which are also Parties to the Convention on
Cybercrime (ETS No. 185) or the Convention for the Protection of
Individuals with regard to Automatic Processing of Personal Data
(ETS No. 108) should not derogate from the latter conventions, in
accordance with Article 1 of ACTA.
8. Article 10 of the European Convention on Human Rights prohibits
public authorities from restricting freedom of expression and information,
but also provides the obligation for member States to ensure that
this fundamental freedom is not threatened by any non-governmental
or private sector participants. In this context, the Assembly refers
also to Committee of Ministers Recommendation CM/Rec(2007)16 on
measures to promote the public service value of the Internet and
the Declaration of the Committee of Ministers of 29 September 2010
on network neutrality.
9. The Assembly notes that access to ICT-based media for each
individual and the public at large is mainly determined by private
intermediaries. Many of them, such as Internet access or service
providers and mobile phone or telecommunications companies, have
a dominant position vis-à-vis individual users because they are system-relevant
or exercise significant market power. In this context, the Assembly
welcomes Resolution 17/4 on human rights and transnational corporations
and other business enterprises adopted by the United Nations Human
Rights Council on 16 June 2011.
10. The Assembly is concerned that the intermediaries of ICT-based
media might unduly restrict the access to, and dissemination of,
information for commercial and other reasons without informing their
users and in breach of user rights. Due to the complex corporate
and technical structures of such intermediaries, their often unclear
corporate localisation and their co-operation with corporate partners
in other countries, users may have difficulties in determining court
jurisdiction in such cases.
11. In order to protect freedom of expression and information
on the Internet and online media, the Assembly calls on the member
States of the Council of Europe to:
11.1. ensure, in accordance with Article 10 of the Convention
and the case law of the European Court of Human Rights, respect
for freedom of expression and information on the Internet and online
media by public as well as private entities, while respecting the
protection of privacy and personal data;
11.2. encourage intermediaries of ICT-based media to set up
self-regulatory codes of conduct for the respect of their users’
right to freedom of expression and information, and to create or
join commercial associations with such codes of conduct and the
power to implement them against non-compliant members;
11.3. ensure that intermediaries of ICT-based media are transparent
to the public and inform users of any measures which may impact
their right to freedom of expression and information; such transparency may
include the requirement to publicise corporate policies affecting
the dissemination of, or access to, information and opinions;
11.4. implement Committee of Ministers Recommendation CM/Rec(2007)16
on measures to promote the public service value of the Internet;
particular attention should be paid to the obligation not to refuse their
services, not to provide their services in a discriminatory manner,
or terminate services to users without the right to do so;
11.5. hold intermediaries of ICT-based media responsible for
unlawful content, if they are the author of such content or have
the obligation under national law to remove unlawful third-party
content; particular emphasis should be paid to child pornography
and content which incites racist and xenophobic discrimination,
hatred, violence or terrorism;
11.6. seek to ensure that intermediaries of ICT-based media
can be held accountable for violations of their users’ right to
freedom of expression and information; this shall include ensuring
the jurisdiction of domestic courts in case of violations, in accordance
with Articles 10 and 13 of the Convention;
11.7. review, if need be, the mandate of their national regulatory
authorities for audiovisual media and telecommunications in order
to reinforce freedom of expression and information on the Internet
and online media in accordance with this resolution.