EDRi identifies key challenges to freedom of expression online

By EDRi · September 9, 2015

On 13 November 2014, EDRi met with the European External Action Service (EEAS) for a civil society consultation on the EU Human Rights Guidelines on Freedom of Expression Online and Offline. The EEAS aims at improving the Guidelines in the future and was seeking input to that end. EDRi had already outlined its position in its response to the 2013 public consultation on the Draft EU Human Rights Guidelines on Freedom of Expression. In August 2015, EDRi submitted a paper to update its position (see links below).

EDRi believes that several key challenges stand in the way of the freedom of expression online. The first relates to legislative transparency and the right to access documents held by public bodies, an issue that is mentioned briefly in the Guidelines and recognised in the legislative framework of the EU. Denial of access obstructs the democratic participation and limits the ability of media and civil society actors to function. Improvements in this regard are slow to take root, and new restrictions have been introduced by EU bodies to the detriment of freedom of expression online. In the area of transparency and democratic participation, the EU should lead by example – as a global standard setter rather than going back on its own commitments.

Secondly, the question of the role and liability of internet intermediaries online is an issue of concern. According to the EU legal framework, they are not required to proactively police Internet content, a point that is mentioned in the Guidelines. According to the “safe harbour” provisions of the E-Commerce Directive, intermediaries are not liable for the conduct of third parties unless they are aware or in control of the content, nor are they required to generally monitor such conduct. And yet, privatised policing activities are frequently imposed on intermediaries by states, through coercion or, for example, public relations pressure. Obligations imposed on intermediaries must be balanced so as to not result in unpredictable, arbitrary or disproportionate restrictions on fundamental rights and freedoms.

Thirdly, an issue that needs to be addressed is that of law enforcement online, which often consists of “voluntary” measures being imposed on the private sector to help “self-regulate” (i.e. regulate their customers) or arbitrarily delete online content. Such actions can have a legitimate purpose, such as combatting child abuse, but ultimately lie outside a legal framework and, as the European Court pointed out in the Data Retention case, a legitimate purpose is not enough to prove legality under the European legal framework. Furthermore, in the absence of common definitions for “extremist” or “terrorist” views, applying similar filtering or blocking systems in pursuit of “national security” leaves room for arbitrary restrictions of universal human rights, in contradiction to all relevant international legal instruments.

In terms of EU objectives, the institutions should promote legislative transparency and the rule of law, safeguarding fundamental rights and freedoms rather than encouraging “voluntary” restrictive measures by Internet intermediaries. The Guidelines ought therefore to be developed in the spirit of an EU cybersecurity strategy which supports the promotion of access to information and freedom of expression.

EDRi Comments on Article 24 of the EU action plan on Human Rights and democracy and the EU Human Rights Guidelines on Freedom of Expression Online and Offline

EEAS Consultation on the Draft EU Human Rights Guidelines on Freedom of Expression, EDRi response (15.08.2013)

Cybersecurity Strategy of the European Union: An Open, Safe and Secure Cyberspace, JOIN(2013) 1 final (7.2.20130)

EDRi-gram: EC adopts Guidelines on Freedom of Expression Online and Offline (21.05.2014)

(Contribution by Inka Kotilainen, EDRi intern)