CoE to address the impact of technical measures on human rights

By EDRi · April 12, 2007

(Dieser Artikel ist auch in deutscher Sprache verfügbar)

With its seventh meeting held on 26-27 March 2007 in Strasbourg, the Council
of Europe Group of Specialists on Human Rights in the Information
Society (CoE MC-S-IS) is pursuing its mandate for another two-years
period, as affirmed in its revised terms of reference. There are
little changes in the group composition among voting members (member
states of the CoE). EDRI remains a non governmental observer to the
MC-S-IS group. For 2007, the group elected as chairman Thomas
Schneider (Swiss federal office of communications), who, inter alia,
has been active in the Swiss delegation to WSIS and then to IGF, and
as vice-chairman Michael Truppe, from the Austrian Federal Chancellery.

According to its revised terms of reference, directly derived from
the Kyiv Action Plan adopted at the 7th European Ministerial
Conference on Mass Media Policy (Kyiv, 10-11 March 2005), an
important part of the MC-S-IS group mandate in 2007-2008 deals with
technical measures and their impact on human rights. On content
regulation, the group is asked to analyse “the use and impact of
technical filtering measures for various types of content in the
online environment, with particular regard to Article 10 of the
European Convention on Human Rights and, if appropriate, make
concrete proposals”. On intellectual property, the mandate is to
“prepare a report on emerging issues and trends in respect of, on the
one hand, the protection of intellectual property rights and the use
of technical protection measures in the context of the development of
new communication and information services (and the Internet) and, on
the other hand, the fundamental right to freedom of expression and
free flow of information, access to knowledge and education, the
promoting of research and scientific development and the protection
and promotion of the diversity of cultural expressions and artistic
creation and, if appropriate, make concrete proposals for further
action in this area”.

The formulation of these terms of reference is encouraging in itself,
especially on IP issues in that it states the context and limits
within which IPR should be (re?)considered and implemented. This view
is in line with the general CoE background of respect for and
upholding of human rights. In the same way, first exchanges during
the March 2007 meeting of the MC-S-IS group on the technical
filtering of content seem promising, as a large majority of
participating member states expressed strong doubts on both the
usefulness of technical filtering measures and their compatibility
with Article 10 of the ECHR. Here again, this is in line with the
general profile of the state representatives, most of them coming
from a media/justice/human rights rather than technical/business/
industry background. Thus, in principle, CoE and its MC-S-IS group is
likely to be a more “human rights friendly” forum than many other
regional or international arenas as regards information society

However, when it comes to practical recommendations or guidelines,
the CoE and its MC-S-IS group face the risk to fall into the
“multistakeholder governance syndrome” on these matters. Be it the
influence of WSIS and its follow-up processes, most notably the
Internet Governance Forum (IGF), or be it part of the general
neoliberal globalization trend affecting almost any international
organisation or forum, and characterized, inter alia, by a shift from
binding and accountable public policy making and ex-post legislation
to a rather opaque, private interests driven, soft law and ex-ante
regulation implemented through technical mechanisms, it remains that
the respect for human rights and the promotion of the public interest
may become rather thetorical in practice.

Here lies the crucial role of observers like EDRI on digital rights
issues, or others on more “classical” mainstream medias, to only
mention those who actively participate in MC-S-IS meetings. Here also
lies the importance of participating in such working groups as MC-S-
IS, at the very early stages of policy making, to have any chance of
successful – though limited – action. Through its experience as an
observer to both CoE CAHSI and MC-S-IS groups of specialists since
2005, EDRI, while far from entirely satisfied by the group outcomes,
may attest that documents (Recommendations, Declarations or
Guidelines) on Human Rights in the Information Society, eventually
submitted for adoption to the CoE Committee of Ministers, have
successfully been deeply modified from initial draft versions which,
in many other fora, would have left little expectations to digital
rights defenders.

CoE MC-S-IS public website

EDRI-gram: Council Of Europe Draft Statement On Human Rights And
Internet (20.04.2005)

EDRI-gram: EDRI Granted Observer Status In CoE HR Group (29.06.2005)

EDRI-gram: CoE Works On New Instrument On Children Empowerment On
The Net (15.03.2006)

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