Council of Europe declaration on human rights and Internet

By EDRi · May 24, 2005

On 13 May 2005 the Council of Europe’s Committee of Ministers adopted a declaration on human rights and Internet that was prepared by a special committee of academic experts and government representatives. According to the press release, “the declaration is the first international attempt to draw up a framework on the issue and breaks ground by up-dating the principles of the European Convention on Human Rights for the cyber-age.”

Indeed the declaration contains a very reassuring confirmation of the fact that “all rights enshrined in the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) remain fully valid in the Information Age and should continue to be protected regardless of new technological developments” and a firm statement that “Both the content and traffic data of electronic communications fall under the scope of Article 8 of the ECHR and should not be submitted to restrictions other than those provided for in that provision.”

But from a digital civil rights point of view, on close reading the declaration doesn’t offer any specific new rights to internet users when it comes to privacy, freedom of speech and access to knowledge. Though these rights and freedoms are all mentioned and reaffirmed repeatedly in the declaration, they are balanced against ‘challenges’ posed by the Internet, such as violation of intellectual property rights, access to illegal and harmful content and “circumstances that lead to the adoption of measures to curtail the exercise of human rights in the Information Society in the context of law enforcement or the fight against terrorism.”

A good example of such an ambivalent statement is the following: “They (Member States) should also seek, where possible, to put the political, social services, economic, and research information they produce into the public domain, thereby increasing access to information of vital importance to everyone. In so doing, they should take note of the Council of Europe’s Convention on Cybercrime, in particular Article 10 on offences related to infringements of copyright and related rights.”

Most remarkable are the paragraphs on e-voting and freedom of assembly. With regards to e-voting member states “shall take steps to ensure transparency, verifiability and accountability, reliability and security of the e-voting systems”. The text also contains an explicit warning about some current practices: “(…) improper use of ICTs may subvert the principles of universal, equal, free and secret suffrage, as well as create security and reliability problems with regard to some e-voting systems.”

With regards to freedom of assembly the declaration calls on member states “to adapt their legal frameworks to guarantee freedom of ICT-assisted assembly and take the steps necessary to ensure that monitoring and surveillance of assembly and association in a digital environment does not take place, and that any exceptions to this must comply with those provided for in Article 11, paragraph 2, of the ECHR.”

Under ‘no punishment without law’ the Council much more hesitantly addresses the problem of states exercising jurisdiction beyond their borders. The declaration calls on Member States “to consider whether there is a need to develop further international legal frameworks on jurisdiction to ensure that the right to no punishment without law is respected in a digital environment.”

The declaration was initiated by the Dutch ministry of the Interior and Kingdom Relations, after attempts to modernise the constitution to include secrecy of electronic communication failed. The highest legal council advised government to wait for the development of international standards. The ministry now seems to get in gear for a new attempt.

Press release Council of Europe (13.05.2005)

Full text declaration on human rights and Internet (13.05.2005)

Earlier report in EDRI-gram 3.8 (20.04.2005)