By EDRi

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Deutsch: [ENDitorial: Europarat – Eine neue Begriffsbestimmung für Medien | http://www.unwatched.org/EDRigram_9.8_ENDitorial_Europarat]

The fourth meeting of the Council of Europe (CoE) Committee of experts on
new media (MC-NM) was held on 28-29 March 2011 in Strasbourg, with two main
points on its agenda. The first one was a discussion on comments received in
response of its public consultation on two draft recommendations on the
protection of human rights with regards, to search engines and to social
network services, respectively. This MC-NM work is led by The Netherlands
representative (Sjoera Nas), with the help of the Secretariat. Both draft
recommendations are accompanied by guidelines for providers of such
services. The second agenda item was the discussion on a draft
recommendation on a new notion of media. Discussions on both points started
during previous meetings, in March and September 2010.

The public consultation on social networks and on search engines will be
allowed some more time, since only few responses have been received so far,
mainly from civil society organizations, since only one main industry actor
from the sector provided its comments. Unsurprisingly, the former confirmed
that the main concerns of the civil society are to ensure a better data
protection for citizens using this kind of services, as well as stronger
legal protection of their freedom of expression and information, especially
when they are threatened by content filtering and blocking practices.
Unsurprisingly too, the fact that personal data are the major currency of
so-called free services – especially when used for behavioral profiling and
advertising purposes – is perfectly reflected in the Industry actor
response.

The simple fact that a single response was received from the web 2.0
industry reveals the need to regulate this sector – at least to make it
healthier – for a better respect of fundamental rights. As a matter of fact,
since the EU and some European countries at the national level started to
deal with – and even to fine – a major US search engine company, it has led
to understand that when a company operates in a given region or country, it
has to abide by its law. Most probably, it would take the same process for
social network services to “learn by example”.

At least, one would have expected some responses from European social
networks, but they might not yet have understood that such process of
jointly defining human rights guidelines with institutions like the Council
of Europe – as the European association of Internet service providers
(EuroISPA) and the Interactive Software Federation of Europe (ISFE, online
games providers), respectively, did – would prove a better strategy for them
than the vague development of “ethical codes of conduct” through a so-called
self-regulation process.

Most part of the March 2011 MC-NM meeting was however dedicated to the
discussion of the draft recommendation on a new notion of media. As
previously reported, this work is examining to which extent and under which
conditions web 2.0 services should be considered as part of a “media
ecosystem” (rather than the brave old traditional “media landscape”) and
consequently be regulated, partly or totally, by media laws, with all the
issues at stake in terms of fundamental rights, democracy and the rule of
law.

After the intense discussions during the last MC-NM meeting in September
2010, the project has now developed into both a draft ‘”Recommendation on a
new notion of media” and its draft “Appendix” providing two “Toolkits” with
the purpose to help deciding whether and to which extent a web 2.0 service
should be considered as a media. The first toolkit defines a set of
criteria, each being qualified by numerous indicators. The second one gives
directions on how to use and apply these criteria, accompanied by a list of
examples.

This “unorthodox presentation'” as it was acknowledged during the meeting,
in addition to the rather unorthodoxically high amount of employed effort to
define these criteria, indicators, and “policy maker manual” (it took the
MC-NM Chair, Thomas Schneider, the Switzerland representative, a retreat in
the Swiss mountains together with the Serbian and Bulgarian representatives
and the Secretariat to come up with these documents!), are enough to show
how tricky the issue is.

The major difficulty is indeed to ensure that web 2.0 services would be
considered as media and their use be protected as such, through provisions
on freedom of the press and protection of journalism, in view of public
interest and pluralism of opinions, and more generally speaking the
protection of democratic values (an approach that EDRI would commend and
advance) At the same time, to ensure that they would not be considered as
media when this means that industry owners of these services would retain
editorial control on their users’ expression and information and would
benefit from exemptions or derogations to, say, data protection obligations
“to reconcile the right to privacy with the rules governing freedom of
expression” as set forth ( though “solely for journalistic purposes or the
purpose of artistic or literary expression”) in article 9 of the European
Data Protection Directive (an approach of web 2.0 services that EDRI would
stand against and strongly fight). The current draft documents suggest a
dual response to this dilemma.

First, they recommend the adoption of a new and broad notion of media that
considers a whole “media ecosystem” where media actors in the traditional
sense coexist and interact with actors performing a whole set of functions.
These would include, in addition to media production and distribution
actors, not only users turned into ubiquitous prosumers, application
designers and content aggregators, but also a number of “intermediaries” or
“auxiliaries” (including from the Telecommunications sector) providing and
operating infrastructures, networks and platforms. The recognition of such a
media ecosystem would need to acknowledge that some of these new actors have
become essential pathfinders to information, to the extent that they have
the power to act as its gatekeeper. Not to mention that this ecosystem is
also a market, where the dominant position at the national or global level
that some actors have acquired should also be looked at as a media
concentration issue with its democratic consequences and the related
question on whether public service obligations should be imposed on these
industry actors.

Secondly, they advocate the adoption of a graduated and differentiated
approach in terms of media policy when applied to such different actors,
depending on their performed functions, their kind of interactions, keeping
in mind that this media ecosystem develops in a fluid and multidimensional
reality. To this end, a list of “media indicators” is suggested, and grouped
under six criteria: (1) editorial control or oversight or moderation, (2)
purpose, (3) intent, (4) outreach, (5) professional standards, and (6) third
party expectation. For each criterion, a detailed list of indicators has the
purpose of precising the media character (is a given web 2.0 service truly a
media?) and of defining the appropriate scale of graduated and
differentiated media policy to be applied (to which extent a given web 2.0
service performs a media function?).

The discussion on the draft recommendation itself has rather quickly led to
consensus within the group on the relevance of this new notion of media as
an “ecosystem”, reflecting this proteiform universe with the diversity and
fluidity of its actors, their functions and interactions, although EDRI
unsuccessfully opposed the now unfortunately unavoidable mention of
“self-regulatory tools, including codes of conduct” that obviously go much
further than the sole “journalist deontological codes” given such an
extended notion of media.

The discussion on the toolkits and especially the criteria and their sets of
indicators was harsher, since it debated the practical issue of which media
policies should be applied to which web 2.0 services, in which way and to
which extent. EDRi made clear its position that, first and foremost, the
document must clearly set what is NOT a media, and should NOT be considered
as such in any circumstances, but rather as a pure communication service.
This is needed to avoid the temptation by some governments, when it comes to
media policy implementation at national level, to use the Council of Europe
Recommendation and Toolkits for unintended purposes, or even to hijack them.
This could result in repressive policies with regards to freedom of
expression and freedom of information, that the Council of Europe
institutions would not be able to oppose since these policies would have
been “blessed” by its own recommendations!

While EDRi acknowledges and commends the Council of Europe best intentions
to uphold fundamental rights, freedom of the media and democracy in the new
media sector with this work, it has to advocate serious caution with regards
to the unintended consequences that might – or rather would probably –
derive from such a process, and do its best to ensure that strong guaranties
are provided to avoid their occurrence. To only take the first criterion as
an example, its extended definition as “editorial control or oversight or
moderation” rather than being restricted to “editorial control”, is an issue
in itself.

The very difference between a traditional notion of media and such a new
notion is mainly characterized by an ex-ante editorial control in the former
case and an ex-post moderation (or more generally speaking an “oversight and
capacity to act” on the content public availability) in the latter. The
simple fact to group these functions, abilities and powers into a single
criterion carries the risk of equating the role of a technical intermediary
to that of an editorial board, which summarizes the whole issue of Internet
content regulation by technical intermediaries through devolved regulation
(sometimes called private censorship) that EDRi, together with many other
digital rights organizations, has been fighting for more than 15 years!

A revised version of the documents is expected for the next MC-NM meeting,
but as the situation now stands, it is unlikely that such a clear
distinction advocated by EDRi and supported almost only by The Netherlands
representatives will be introduced, unless this Council of Europe activity
gains more attention and stirs a strong controversy in the mean time.

This new notion of media will be further discussed during the next European
Dialogue on Internet Governance (EuroDIG) to be held in Belgrade on 30-31
May 2011, and will be again on the agenda of the next MC-NM meeting
scheduled on 20-21 September 2011, only some days before the next Internet
Governance Forum (IGF) to be held in Nairobi on 27-30 September 2011.

CoE CDMC website
http://www.coe.int/t/dghl/standardsetting/media/

CoE MC-NM group website
http://www.coe.int/t/dghl/standardsetting/media/MC-NM/

EDRi-gram: Enditorial: Council Of Europe: Bad News As It Happens
(06.10.2010)
http://www.edri.org/edrigram/number8.19/council-of-europe-expert-groups

EDRi-gram: New Media, Search Engines And Network Neutrality On 2010 CoE
Agenda (07.04.2010)
http://www.edri.org/edrigram/number8.7/coe-new-media-working-group

CoE-EuroISPA “Human Rights Guidelines for Internet Service Providers” (2008)
http://www.coe.int/t/dghl/standardsetting/media/Doc/H-Inf(2008)009_en.pdf

CoE-ISFE “Human Rights Guidelines for Online Games Providers” (2008)
http://www.coe.int/t/dghl/standardsetting/media/Doc/H-Inf(2008)008_en.pdf

EuroDIG 2011 session on “New media” (30-31.05.2011)
http://www.eurodig.org/eurodig-2011/programme/plenary/new-media

IGF 2011 – Nairobi, Kenya (27-30.09.2011)
http://www.intgovforum.org/

(Contribution by Meryem Marzouki, EDRI-member IRIS – France)