ENDitorial: CoE – The Good, the Bad and the Ugly

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The 9th meeting of the Council of Europe (CoE) group of specialists on Human
Rights in the Information Society (MC-S-IS) was held in Strasbourg from 31
March to 2 April 2008. At the same time, on 1-2 April, another division of
the CoE was holding in a building across the street its 2008 Octopus
conference on cooperation against cybercrime. This schedule overlapping is
not the only sign that CoE’s left hand seems to ignore what its right hand
is doing: different divisions are also addressing same issues, though from
different points of view and with different results.

It happened this time with the guidelines for Internet Service Providers
(ISPs). While the Octopus conference was discussing and then adopting its
‘Guidelines for the cooperation between law enforcement and Internet service
providers against cybercrime’, the MC-S-IS group was reviewing and
finalising its ‘Practical guidelines for Internet service providers with
regard to key human rights and fundamental freedoms in the Information
Society’. While EuroISPA (the European association of ISPs) vice-president
Michael Rotert was “pushing hard”, according to press reports, to have ISPs
concerns taken into account in the Octopus conference guidelines, EuroISPA
president Kurt Einzinger was sitting next to EDRI representative at MC-S-IS
meeting, with both organizations welcoming MC-S-IS guidelines upholding
digital rights and taking into account ISPs concerns. EDRI suggested some
additional provisions on ISPs transparency and accountability with regards
to their subscribers, especially with regards to content “notice and take
down” procedure and network neutrality issues. Once adopted, the MC-S-IS
guidelines will soon be submitted to the CDMC and hopefully later adopted by
the Committee of Ministers. The status of the Octopus conference guidelines
remains unclear at this step.

Unfortunately, this is all what EDRI can report from the 2008 Octopus
conference, given that its representative is not enjoying ubiquity talent
and preferred to fully attend the MC-S-IS meeting, where, even in its simple
capacity of NGO observer, its participation might lead to concrete positive
results.

One of such very positive achievements is the adoption by the CoE Committee
of Ministers, on 26 March 2008, of its ‘Recommendation on measures to
promote the respect for freedom of expression and information with regard to
Internet filters’ (Rec(2008)6). This Recommendation was prepared by MC-S-IS,
with EDRI participation. To our knowledge, it is the best text to date that
could be expected from an intergovernmental institution on this issue,
breaking off the usual rhetoric of ‘”technical filtering panacea” to fight
illegal or harmful content.

Another CoE recently adopted document, worth mentioning although of less
normative value, is the ‘Declaration of the Committee of Ministers on
protecting the dignity, security and privacy of children on the Internet’.
This document has not been prepared by the MC-S-IS group, but is relevant to
its activities since it raises special concerns on children profiling and
the retention of their personal data for commercial purposes, as well as on
“the emerging tendency for certain types of institutions, such as
educational establishments, and prospective employers to seek information
about children and young people when deciding on important issues concerning
their lives”. The document thus declares “that, other than in the context of
law enforcement, there should be no lasting or permanently accessible record
of the content created by children on the Internet which challenges their
dignity, security and privacy or otherwise renders them vulnerable now or at
a later stage in their lives”.

On the copyright front, however, the situation is far less satisfactory.
EDRI has already reported on the heated discussion that the draft
‘Recommendation on freedom of expression and information and intellectual
property rights in the new information and communications environment’
generated during the previous MC-S-IS meeting. Although the discussion was
quieter this time (some protagonists of the previous debate were missing),
the case has not progressed, to say the least. The secretariat made the
effort to bring an external expert, after some State representatives argued
last time that the group was not knowledgeable enough on the issue. But
things got worse, as the expert, in EDRI’s opinion, proposed a new version
of the draft Recommendation which was pretty bad written and rather clumsy,
though being full of good intentions. What the group decided at this step
was thus to report to the CDMC on the difficulty to find a consensus on this
issue, and to produce a further version of the explanatory report, with
clear distinction between facts and legal cases of freedom of expression
breaches because of copyright on the one hand, and suggested measures on the
other hand. The future of the draft Recommendation itself would then be
decided in a later step.

Still on the intellectual property rights issue, but more specifically
regarding the neighbouring rights of broadcasting organisations, the MC-S-IS
has been informed of a decision made at the 6th meeting of the CDMC to
explore the need for a CoE Convention dealing with this issue, originally
brought to it by the European Broadcasting Union and some EU member States.
This initiative is a consequence of the deadlock faced at WIPO by the draft
broadcasting Treaty. While the MC-S-IS discussions on the above mentioned
draft Recommendation does not seem promising at all, the good side of the
initiative being taken at the CoE level might be found in the CoE records on
the promotion of public service values, and in particular of access to
information, culture, knowledge and scientific developments. The CoE
recently added to these good records its ‘Recommendation on measures to
promote the public service value of the Internet’. However, ‘classical
media’
business lobbies have undoubtedly more established influence on CoE member
States than ‘new media’ ones. The CDMC should decide at its next meeting in
May which of its groups of specialists (MC-S-IS or another one) will be in
charge of exploring the relevance of a new CoE Convention on neighbouring
rights of broadcasting organizations.

The last issue worth of notice in this last MC-S-IS meeting is the
ever-recurring one, that is, the harmful content hydra. One might have
thought from last meeting discussions that the group had given up on the
“standard-setting instrument which promotes a coherent pan-European level of
protection for children from harmful content when using new communication
technologies and services and the Internet, while ensuring freedom of
expression and the free flow of information”. However, the secretariat had
apparently found useful to ask yet another expert, although the previous
experience on the same subject led to an impasse, as reported two years ago.
This time, the expert came with, among other proposals, the idea to create a
CoE “trust-mark” and to use content labelling and rating systems, just like
these kind of measures and software platform were not promoted for more than
10 years now, fortunately in vain. Not to mention the fact that the Internet
has seen some developments since then, one of them being the explosion of
user-generated content and of social networking tools and services. Given
that the discussion led to mixed feelings in the group, with EDRI, together
with some member States, opposing the proposed orientation, the MC-S-IS
decided that an informal working group would explore the issue and propose
alternatives provisions. This informal working group is composed by
Switzerland, Austria (re-elected respectively MC-S-IS group chair and
vice-chair, which is good news for digital rights defenders) and EDRI as
observer, and will prepare suggestions in view of the next MC-S-IS group
meeting, which will be held on 22-24 September 2008.

CoE MC-S-IS public website
http://www.coe.int/t/e/human_rights/media/1_intergovernmental_co-operation/MC-S-IS

CoE Octopus Conference 2008 (1-2.04.2008)
http://www.coe.int/t/dg1/legalcooperation/economiccrime/cybercrime/cy%20activity%20Interface2008/Interface2008_en.asp

EDRI-gram: Enditorial: The 2001 Coe Cybercrime Conv. More Dangerous Than
Ever (20.06.2007)
http://www.edri.org/edrigram/number5.12/cybercrime-convention-dangerous

Tackling cybercrime: Guidance on sharing Internet data (2.04.2008)
http://www.iht.com/articles/2008/04/02/business/cybercrime.php

CoE Recommendation Rec(2008)6 and explanatory report (26.03.2008)
https://wcd.coe.int/ViewDoc.jsp?Ref=CM/Rec(2008)6

https://wcd.coe.int/ViewDoc.jsp?Ref=CM(2008)37&Ver=add

EDRI-gram: Enditorial: Coe – Content Regulation: Break On Through; Ipr: It’s
Tricky (21.11.2007)
http://www.edri.org/edrigram/number5.22/coe-content-regulation

CoE Declaration on protecting the dignity, security and privacy of children
on the Internet (20.02.2008)
https://wcd.coe.int/ViewDoc.jsp?Ref=Decl(20.02.2008)&Ver=0001

CoE CDMC – 6th meeting report, most notably item 10 on neighbouring rights
(7.12.2007)
http://www.coe.int/t/e/human_rights/media/1_Intergovernmental_Co-operation/CDMC/CDMC(2007)023_en.asp

EDRI-gram: The Broadcasting Treaty Resuscitated By The Council Of Europe
(19.12.2007)
http://www.edri.org/edrigram/number5.24/coe-broadcasting-treaty

CoE Recommendation Rec(2007)16 on measures to promote the public service
value of the Internet (7.11.2007)
https://wcd.coe.int/ViewDoc.jsp?id=1207291

EDRI-gram: CoE works on new instrument on children empowerment on the net
(15.03.2006)
http://www.edri.org/edrigram/number4.5/coe

(Contribution by Meryem Marzouki, EDRI-member IRIS)