Doc. 10501

11 April 2005

Internet and the law

Recommendation 1670 (2004)

Reply from the Committee of Ministers

adopted at the 923rd meeting of the Ministers’ Deputies (6 April 2005)

1.       The Committee of Ministers has closely examined Parliamentary Assembly Recommendation 1670 (2004) on Internet and the law and welcomes the attention given by the Parliamentary Assembly to concerns regarding the behaviour of Internet actors and the rights and duties of Internet users with respect to the principles and standards of the Council of Europe. It has communicated the Recommendation to the governments of the member states. The Committee of Ministers has received an opinion on the Recommendation from the Steering Committee on the Mass Media (CDMM) and comments by the Project “Good Governance in the Information Society” (follow-up project to the Integrated Project 1 – Making democratic institutions work (IP 1)); these are contained in Appendices I and II, respectively.

2.       The Committee of Ministers believes that there is considerable potential for the Council of Europe to address those aspects of the Internet which are unethical and undesirable, especially as regards content accessible by, and potentially harmful to, children. However, it underlines the importance of balancing the need for “(M)ember states (to) foster and encourage access to all Internet communication and information services (…)”1 and to “encourage the establishment of organisations (of Internet actors) in order to establish regulatory mechanisms (…) with regard to the “establishment of codes of conduct and the monitoring of compliance with these codes”.2

3.       With reference to the abovementioned opinion of the CDMM, the Committee of Ministers agrees that there is a need to define what is meant by “ethical” behaviour. However, it agrees with the CDMM that this requires further examination and elaboration of the roles and responsibilities of different Internet actors and users in order to encourage – rather than to regulate – them to be as ethical and, to this end, as transparent as possible in their work. Like the CDMM, it considers it important to highlight the need to ensure that ethical conduct does not interfere with the freedom to communicate on the Internet and that the obligations and liabilities of Internet actors go no further than those prescribed in its 2003 Declaration on freedom of communication on the Internet.

4.       The Committee of Ministers notes the recommendations made by the Assembly for the drafting of a legal instrument containing basic rights and duties of Internet users, and for establishing a European Internet ethics authority, as a monitoring body, in the framework of the convention. It also notes that the Assembly suggests that this authority be backed by national cyberethics committees in all the states which have Internet technology. In this respect, the Committee of Ministers, whereas it is certainly useful to examine the basic rights and duties of Internet users, is not convinced that these should be incorporated into a legally binding enlarged convention. It refers to the CDMM’s opinion underlining that these rights and duties form an integral part of the Organisation’s existing human rights instruments. Moreover, the results of the work of CAHSI (see below), will no doubt provide useful elements for assessing the feasibility of a regulatory approach towards the rights and duties of Internet users. It follows that the Committee of Ministers does not at this stage support the idea of setting up a monitoring body of the kind proposed by the Assembly.

5.       The Committee of Ministers notes that in 2004, the Integrated project “Making democratic institutions work” (IP 1) started work on the issue of how the use of Information and Communication Technologies (ICT) can affect human rights and the rule of law, taking up a suggestion made by the Netherlands’ authorities during their Chairmanship of the Committee of Ministers. With a view to continuing this work in 2005, in the framework of the new project on “Good Governance in the Information Society”, the Committee of Ministers has adopted specific terms of reference for a Multidisciplinary Ad-hoc Committee of Experts on the Information Society (CAHSI), to which the Parliamentary Assembly, as well as a number of civil society organisations, are invited as observers.

6.       CAHSI has been given the task of reviewing how the use of Information and Communication Technologies, in particular the Internet and other electronic means of communication, can affect, positively or negatively, human rights and their protection. It will identify the principles and guidelines which might be necessary for states and other stakeholders at the national, European and/or global level to draw up, to ensure respect for human rights and the rule of law in the Information Society, taking account of the rights and responsibilities of all relevant actors. In its work, CAHSI will take due account of existing instruments, such as the Convention on Cybercrime and Recommendation (99) 5 on the protection of privacy on the Internet, as well as the ongoing work in the Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (T-PD) on the application of data protection principles to the worldwide telecommunication networks.

7.       The Committee of Ministers expects CAHSI to submit to it a draft political declaration on the principles and guidelines for ensuring respect for human rights and the rule of law in the Information Society, with a view to its use as a contribution by the Committee of Ministers at the Third Summit of Heads of State and Government of the Council of Europe (16-17 May 2005) and at the Tunis phase of the World Summit on the Information Society (WSIS, 16-18 November 2005). The draft political declaration is expected to include, in addition to a series of principles, a section on the roles of different stakeholders in the Information Society. This section may also contain proposals concerning the future work of Council of Europe bodies in this field.

8.       In this context, the Committee of Ministers wishes to draw the Assembly’s attention to the Group of Specialists on human rights in the Information Society (MM-S-IS), established by the CDMM, whose mandate will be, in particular, to set up a pan-European forum on human rights in the Information Society, comprising member states and all other interested stakeholders. The forum will examine the roles and responsibilities of different Internet actors so that guidelines may be developed to promote their ethical conduct and responsibility, while being respectful of freedom of expression, and to examine ways to promote the Council of Europe standards concerning human rights in the Information Society, for example through the setting-up of national contact points.

9.       Like the CDMM, the Committee of Ministers considers that this non-legal framework of cooperation and coordination between member states and Internet actors, including the industry and NGOs, will promote consistent and flexible dialogue in order, inter alia, to discuss and reach agreement on the understanding of key concerns raised by the Internet such as the utility of regulation, ethical behaviour, harmful (unwanted, undesirable) content, in particular in the light of their impact on the Organisation’s principles and standards.

10.       The Committee of Ministers will not fail to keep the Assembly duly informed about future developments in this field.

Appendix I to the reply

Opinion of the Steering Committee on the Mass Media (CDMM)

1. The CDMM welcomes the attention given by the Parliamentary Assembly to concerns regarding the behaviour of Internet actors and the rights and duties of Internet users with respect to the principles and standards of the Council of Europe, in particular those behaviours which impact on the right of freedom of expression protected by Article 10 of the European Convention on Human Rights.

References made to Internet ethics

2. It shares the view that there is considerable potential for the Council of Europe to address those elements of the Internet which are unethical and undesirable, especially as regards content accessible by, and potentially harmful to, children. In this regard, the CDMM underlines the importance of balancing the need for “(M)ember states (to) foster and encourage access to all Internet communication and information services (…)”3 and to “encourage the establishment of organisations (of Internet actors) in order to establish regulatory mechanisms (…) with regard to the “establishment of codes of conduct and the monitoring of compliance with these codes”.4

3. The CDMM agrees that there is a need to define what is meant by “ethical” behaviour. However, this requires further examination and elaboration of the roles and responsibilities of different Internet actors and users in order to encourage – rather than to regulate – them to be as ethical and, to this end, as transparent as possible in their work. In this connection, the CDMM highlights the need to ensure that ethical conduct does not interfere with the freedom to communicate on the Internet and that the obligations and liabilities of Internet actors go no further than those prescribed in the 2003 Declaration of the Committee of Ministers on freedom of communication on the Internet.

4. At the same time, the CDMM considers that there is a need to further examine and elaborate the meaning of “harmful content” which may impact on, and contribute to, discussions regarding ethical behaviour because such content is understood and interpreted differently in different countries and cultures.

5. The CDMM therefore believes that, as a first step, the examination and elaboration of the meanings of the above-mentioned references will promote greater understanding and more informed debate on many of the concerns raised by the Internet.

Recommendations for a legal instrument, establishment of international body and the supervision of Internet ethics

6. While the CDMM considers it useful, inter alia, to examine the basic rights and duties of Internet users, it does not share the view that these should be incorporated into a legally binding enlarged convention because it believes that these rights and duties already form an integral part of the Organisation’s existing human rights instruments. These instruments are ‘technology neutral’ and enshrine universal values which do not have to be amended in order to accommodate the concerns raised by the Internet.

7. The CDMM does not support the proposed recommendations to establish a legal instrument per se together with an international body supported by the setting up (where these do not exist) of national cyberethics committees. This is because (Internet) ethics are, by their very nature, based on accepted (moral) rules and standards of human behaviour which promote, rather than lay down in an entrenched form of law, principles of conduct.

8. The CDMM considers it more appropriate to set up a flexible non-legal framework using existing Council of Europe structures and frameworks, such as the CDMM, rather than by creating new ones. This would be easier to achieve and would enable the Council of Europe to react in a more flexible and dynamic manner to the concerns raised by the Internet. Such a framework would also allow other problematic issues to be addressed (which are not directly targeted by Recommendation 1670 (2004)) such as those concerning the liability of certain Internet actors (i.e. Internet service providers), jurisdictional conflicts as well as self and co-regulatory initiatives, all of which may indirectly and/or directly impact on the rights and duties of Internet users and the monitoring of ethical standards. Moreover, such a non-legal framework would have the added value of fostering close cooperation and necessary synergy with Industry and NGOs,5 many of whom are actively involved in a variety of initiatives and projects concerning the Internet.

9. A first concrete initiative in this direction was the pan-European Forum entitled the “Internet with a Human Face – A Common Responsibility” which the CDMM organised in Warsaw, in March 2004. Subject to the decisions which the Committee of Ministers will take on next year’s budget, the intention is to repeat the Forum in 2005, which the Parliamentary Assembly would be welcome to attend.

Conclusions

10. In conclusion, the CDMM considers that a non-legal framework of cooperation and coordination between member states and Internet actors, including the industry and NGOs, would promote consistent and flexible dialogue in order to:

a. discuss and reach agreement on the understanding of key concerns raised by the Internet such as the utility of regulation, ethical behaviour, harmful (unwanted, undesirable) content, in particular in the light of their impact on the Organisation’s principles and standards; and

b. facilitate and promote education and awareness-raising initiatives regarding the Internet;

c. promote and facilitate synergy of similar work being carried out by other institutions and organisations.

11. In this connection, the CDMM would like to inform the Parliamentary Assembly that it has just established a Group of Specialists on human rights in the Information Society (MM-S-IS) whose mandate will, in particular, be to:

12. The CDMM will keep the Parliamentary Assembly informed of the work of this Group and is willing to consider any form of cooperation which could be established with the Assembly in this context.

Appendix II to the reply

Comments by the Project “Good Governance in the Information Society” (follow-up project to IP1)

In 2004, the Integrated project “Making democratic institutions work” (IP 1) started work on the issue of how the use of Information and Communication Technologies (ICT) can affect human rights and the rule of law, taking up a suggestion made by the Netherlands’ authorities during their Chairmanship of the Committee of Ministers. With a view to continuing this work in 2005, in the framework of the new project on “Good Governance in the Information Society”, the Ministers’ Deputies adopted, at their 909th meeting (15 December 2004), specific terms of reference for a Multidisciplinary Ad-hoc Committee of Experts on the Information Society (CAHSI).

The Multidisciplinary Ad-hoc Committee of Experts, to which the Parliamentary Assembly is invited as an observer, will meet on 3-4 February and in April 2005. It will review how the use of Information and Communication Technologies, in particular the Internet and other electronic means of communication, can affect, positively or negatively, human rights and their protection. Against this background, CAHSI will identify the principles and guidelines which might be necessary for states and other stakeholders at the national, European and/or global level to draw up, to ensure respect for human rights and the rule of law in the Information Society, taking account of the rights and responsibilities of all relevant actors. In its work, CAHSI will take due account of existing instruments, such as the Convention on Cybercrime and Recommendation (99) 5 on the protection of privacy on the internet, as well as of work going on within T-PD6 on the application of data protection principles to the worldwide telecommunication networks.

At the end of its work, CAHSI will submit to the Committee of Ministers a draft political declaration on the principles and guidelines for ensuring respect for human rights and the rule of law in the Information Society, with a view to its use as a contribution by the Committee of Ministers at the Third Summit of Heads of State and Government of the Council of Europe (16-17 May 2005) and at the Tunis phase of the World Summit on the Information Society (WSIS, 16-18 November 2005).

The draft political declaration is expected to include, in addition to a series of principles, a section on the roles of different stakeholders in the Information Society. This section would also contain proposals concerning the future work of Council of Europe bodies, such as the Group of Specialists on human rights in the Information Society (MM-S-IS), which will, under the authority of the CDMM, start its work in April 2005.

As far as the recommendations in paragraph 7 of Recommendation 1670 (2004) with regard to a convention and the establishment of international and national bodies on cyberethics are concerned, the Secretariat will inform the Parliamentary Assembly on the results of the work of CAHSI, which will no doubt provide useful elements for assessing the feasibility of a regulatory approach towards the rights and duties of Internet users.

1 2003 Declaration of the Committee of Ministers on freedom of communication on the Internet, principle 4.

2 Recommendation Rec(2001)8 on self-regulation concerning cyber content (self-regulation and users protection against illegal or harmful content on new communications and information services), Chapter I. See also 2003 Declaration of the Committee of Ministers on freedom of communication on the Internet, principle 2.

3 2003 Declaration of the Committee of Ministers on freedom of communication on the Internet, principle 4.

4 Recommendation Rec(2001)8 on self-regulation concerning cyber content (self-regulation and users protection against illegal or harmful content on new communications and information services), Chapter I. See also 2003 Declaration of the Committee of Ministers on freedom of communication on the Internet, principle 2.

5 Some notable NGOs include the European Internet Service Providers’ Association, the Association of Internet Hotline Providers in Europe, the Internet Rights Observatory, the Internet Rights Forum and the European Internet Co-Regulatory Network.

6 Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data