Council of Europe declaration on freedom on the internet

By EDRi · June 4, 2003

The Council of Europe Committee of Ministers has adopted a Declaration on freedom of communication on the internet. The text contains 7 principles that underline the principle of freedom of expression and condemn practices aimed at restricting or controlling internet access, especially for political reasons. Remarkably, the 7th principle is the right of anonymity. “In order to ensure protection against online surveillance and to enhance the free expression of information and ideas, member states should respect the will of users of the Internet not to disclose their identity.”

The declaration also deals with the freedom to provide services via the internet and the liability of providers. The provision of services via the internet should not be made subject to specific licence schemes, as still is the case in many countries outside of the European Union, nor should providers be obliged to monitor content on the internet. Closely following articles 12, 13 and 14 of the E-Commerce Directive (2000/31/EC), the Council states that service providers should not be held liable for data they are merely transporting. In case of hosting, liability should only begin after the provider has become aware of the illegality of hosted material (to be defined in national law) and does not remove or disable access. Much clearer though than in the E-Commerce Directive, the Council of Europe underlines the need to protect the freedom of expression and the right of users to information.

In practice, the E-Commerce Directive has not brought much clarity in the responsibility of internet providers. The self-regulatory approach causes providers to be split between the opposing interests of freedom of expression and copyright holders. Many civil rights activists and providers have argued for a more formal approach, where only an order from a judge would constitute actual knowledge of infringing material.

Attempts to develop a standardised notice and takedown (NTD) procedure have failed miserably so far. The parties involved, citizens, service providers and copyright holders have been unable to achieve agreement about the exact meaning of terms like ‘expeditiously’ and ‘apparently illegal’.

“Any self-regulatory regime within the context of NTD procedures cannot be truly effective without some form of legislative underpinning”, was the conclusion of Rightswatch, a 2 year program of EU-sponsored debates about provider liability between citizens, providers and rightholders in North-Europe, South-Europe and the UK/Ireland. However, the European Commission has made it clear that the E-Commerce Directive will not receive a review of its text until, at the earliest, 2006. This leaves it up to national governments to choose the level of protection for the freedom of expression.

Council of Europe Declaration (28.05.2003)

Final report of the Rightswatch Program (20.02.2003)