EDRi paper for the Council of Europe: “Human Rights Online”

EDRi drafted an expert paper on “Human Rights Violations Online” to offer a practical backdrop to the Guide to Human Rights for Internet users adopted by Council of Europe on 16 April 2014. The Guide informs readers about what online rights and freedoms mean in practice, how they can be relied and acted upon and how to access remedies. It is meant to be actively promoted by Member States of the Council of Europe among their citizens, public authorities and private sector.

As highlighted in the Guide, it does not establish new human rights and fundamental freedoms, but builds on existing human rights standards and enforcement mechanisms. It focuses on the following fundamental rights and freedoms that must be effectively exercised online: 1) access and non-discrimination; 2) freedom of expression and information; 3) assembly, association and participation; 4) privacy and data protection; 5) education and literacy; 6) rights of children and young people; 7) effective remedies.

The paper issued by EDRi accompanies the Guide and highlights examples of challenges for human rights online by focusing on relevant case studies and issues that might affect fundamental rights and freedoms of internet users: the arbitrary and extra-judicial removal of internet access as a sanction to allegedly illegal downloading, state-imposed “self-”regulation and monitoring/filtering obligations on internet service providers, preventive surveillance measures justified by vague notions of “national security”, blocking of websites and access to cultural heritage, and blanket restrictions to the content online due to the excessive child protection measures.

The leitmotif of EDRi’s paper is the role of intermediaries in the implementation of human rights online and difficulties to redress when rights are being excessively or arbitrarily restricted by private sector. The paper argues that there appears to be a consistent problem in asserting rights when restrictions on the fundamental rights are imposed “voluntarily” (in practice by direct governmental pressure) and implemented by corporations in the absence of a clear legal obligation. States are often directly encouraging “self-regulatory” restrictions on rights outside of the rule of law that are based on vague and unclear terms of service. This situation is clearly contrary to basic principles of human rights law, particularly the requirements for restrictions to be prescribed by law, necessary in democratic society and proportionate. In practice, however, a private company, such as a social network provider or a search engine, is generally the ultimate arbiter and decision-maker over the “reasonable” balance between different fundamental rights, with its decision being dependent on the fear of facing liability or public relations damage in case of not monitoring, not filtering, not blocking or not deleting the disputed content. The outcome of such decision-making is not effective, proportionate or independent.

EDRi’s paper concludes that, states should not delegate their functions, especially their human rights obligations, to the private sector. The liability of internet intermediaries is not a solution to issues such as child abuse, child protection, terrorism, hate speech or defamation, especially when the counterbalance to the actions taken by intermediaries is absent and one interest is disproportionately prioritised over the other.

We would like to thank the Child Rights Information Network (CRIN) for the preparing the chapter on Children and Young People.

CoE Human Rights Violations Online, drafted by European Digital Rights DGI(2014)31 (4.12.2014): https://edri.org/files/EDRI_CoE.pdf

Recommendation CM/Rec(2014)6 of the Committee of Ministers to member States on a Guide to human rights for Internet users (16.4.2014): https://wcd.coe.int/ViewDoc.jsp?id=2184807

Recommendation CM/Rec(2014)6 of the Committee of Ministers to member States on a guide to human rights for Internet users – Explanatory Memorandum (16.4.2014): https://wcd.coe.int/ViewDoc.jsp?Ref=CM%282014%2931&Language=lanEnglish&Ver=addfinal&Site=CM&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383

Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (2011): http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf

(contribution by Polina Malaja, EDRi trainee)