CoE study: Blocking content has to respect fundamental rights

Several European countries lack clear legal provisions and transparent procedures when it comes to blocking and removal of online content. A comparative study published by the Council of Europe stresses that any restriction on the right to freedom of expression must be provided for by law, be proportionate and follow legitimate objectives. Blocking should only be a measure of last resort and applied with great caution. Furthermore, if a state endorses voluntary blocking measures by private companies, the authors of the study ascribe full responsibility to the state for not placing such a system on a legislative basis, accepting insufficient judicial review and the possibility of overblocking.

Your fundamental right to freedom of expression online can be interfered with in two ways: First, your social media platform or website operator can remove your post, tweet or website content on their servers. They delete the content, either voluntarily (on the basis of their Terms of Service) or ordered by authorities. Second, your Internet Service Provider (ISP) can block your access to specific online content by technical measures, mostly when content is hosted abroad or in an unknown jurisdiction.

The legal provisions and practices of such measures vary across Europe. A study of the Council of Europe (CoE), undertaken by the Swiss Institute of Comparative Law, compared the state of play in the 47 Member States of the CoE. It applies an “Article 10-test” to all measures undertaken: Article 10 of the European Convention on Human Rights (ECHR) states that any restriction of your freedom of expression (as well as any other human right) has to be (1) “prescribed by law”, (2) has to pursue legitimate objectives, protected by Article 10 (2) of the ECHR, and (3) needs to be proportionate. The EU Charter of Fundamental Rights offers a similar wording.

European states remove or block content belonging to four categories, corresponding to the interests protected under Article 10 of the ECHR: public health and morals, national security and public safety, “intellectual property rights”, privacy and personal data. Hate speech is not clearly defined and can fall under any of the categories, the report adds, strengthening EDRi’s critique on a recent Code of Conduct in the EU. Especially concerning the protection of public safety, most Member States broadly delineate what is unlawful; France and Russia even allow its administrative and police bodies to block or remove content without a court order. These measures are neither provided for by law nor do they clearly state which objective is to be protected by the measure.

In many states, the blocking or removal of material infringing intellectual property and privacy rights is authorised under a court order only. This permits interested parties to be given the opportunity to challenge restrictions of their fundamental rights through criminal procedure laws. On the other hand, so-called “self-“regulation by private actors as for example in Switzerland lacks a sound legal basis and encourages companies to remove also legal content (over-removal). The study recognises that these actors should be rather facilitators of the exercise of your right to freedom of expression and your right to freedom of assembly and association. When failing to legislate, the authorities should not try outsourcing the competence of courts to those private companies.

If the removal of content (at servers abroad) is not possible, blocking of content can be an option. However, this option is not very effective, the study stresses. Furthermore, the EU Regulation on open internet access explicitly bans any non-legally mandated blocking in the Member States. Therefore, the CoE welcomes international cooperation for removal across borders, while respecting the prerequisite of the ECHR and the EU Charter of Fundamental Rights.

Council of Europe study on “Filtering, blocking and take-down of illegal content on the Internet”, Comparative considerations (01.06.2016)
https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016806575b4

Council of Europe study on “Filtering, blocking and take-down of illegal content on the Internet”, Country reports (01.06.2016)
https://www.coe.int/en/web/freedom-expression/country-reports

Guide to the Code of Conduct on Hate Speech (03.06.2016)
https://edri.org/guide-code-conduct-hate-speech/

Human rights and privatised law enforcement (25.02.2014)
https://edri.org/wp-content/uploads/2014/02/EDRi_HumanRights_and_PrivLaw_web.pdf

(Contribution by Fabian Warislohner, EDRi intern)