New Media, Search Engines and Network Neutrality on 2010 CoE Agenda

By EDRi · April 7, 2010

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Deutsch: [Neue Medien, Suchmaschinen und Netzneutralität auf der Tagesordnung des Europarates |]

The Council of Europe (CoE) Committee of experts on new media (MC-NM) held
its second meeting on 25-26 March 2010 in Strasbourg. This group is a
follow-up to the previous CoE Group of specialists on Human Rights in the
Information Society (MC-S-IS), which 5 years mandate expired end 2008, and
to which EDRI was an observer.

The new architecture of CoE Media and Information Society Division working
groups includes this MC-NM Committee and 3 Ad hoc advisory groups on,
respectively: Public Service Media Governance (MC-S-PG), Cross-border
Internet (MC-S-CI), and the Protection of Neighbouring Rights of
Broadcasting Organisations (MC-S-NR). All 4 groups mandate ends on December
2010. EDRi applied for and was granted observer status to MC-NM, MC-S-CI and

MC-NR definition is similar to that of former MC-S-IS: the group is made up
of representative of member States and of observers. Its Chair is Thomas
Schneider (Switzerland) and Vice-Chair is Michael Truppe (Austria), in
continuity with MC-S-IS situation. The main change relies in the terms of
reference, focusing on new media.

The group is thus exploring the challenges to human rights, especially to
the right to freedom of expression and to privacy, with social network
services (SNS) and search engines, and working on CoE Recommendations to
member States in order to protect and promote these rights. Guidelines to
other stakeholders, especially the providers of these services, will
complement the Recommendations.

MC-NM is at the same time addressing the new notion of media, in order to
examine whether the understanding of media and mass communication services
remains valid in the new information and communications environment: the
challenges here relate to issues such as defining online journalism,
ensuring freedom of expression, freedom of the press, democracy and
pluralism, etc.

Considering the challenges to human rights, democracy and the rule of law
raised by the network neutrality discussions in many member and non member
States, as well as at the EU level and in international fora, such as the
Internet governance forum, the MC-NM group has also decided to explore the
network neutrality issue in order for the CoE to take a stand in this hot

The second MC-NM meeting was busy with examining three draft Recommendations
on, respectively, the definition of new media, on SNS and on search engines,
prepared by ad hoc subgroups.

The first document still needs to take into account a variety of
intermediary actors, such as news aggregators, that introduce main
challenges to a revised definition of media in that they drastically change
the media landscape. The criteria defining a media also need to be further
explored: while the chosen approach to focus on media functions rather than
on media actors is right from a methodological point of view, the draft
doesn’t show, at this step, a fair account of new functions. Moreover, a
self-definition of media by the ‘intention’ to act as a media might prove
not adequate, and the factors determining the level of impact of a given
media also need further examination. From EDRi’s point of view, the notion
of editorial function is particularly missing in this definition, while it
is crucial to define the role as well as the rights and responsibilities of
the given media with respect to human rights, democracy, and freedom of the
press. A new version of the draft Recommendation, taking into account the
discussion, will be submitted to the group at its next meeting.

The draft Recommendations and guidelines on social networks and search
engines both focus on the transparency issue with regards to the conditions
and terms of services as well as the decisions made by the service provider,
taking into account the impact they could have on the user’s rights,
especially freedom of expression and privacy. They stress the need for media
literacy for a responsible use of these services. They also insist on
measures to ensure users’ control over their data. The draft text on search
engines is particularly welcome with this regard, especially since it builds
on the works of the EU Article 29 Working Group on the protection of
personal data.

EDRi underlined that the draft recommendation on search engines is also most
welcome when it addresses the issue of transparency of ownership and the
challenges of concentration in this sector. It stressed the need to further
address full transparency in the presentation of search results, clearly
identifying and separating sponsored results from non sponsored ones, as
this has a direct impact on freedom of expression but also on democracy and
the diversity of opinions. While acknowledging that there could not be pure
‘neutral search’, since search algorithms obviously use criteria which as
business method remain undisclosed, EDRi advocated to recommend the
availability of a ‘default search mode’ for users who disagree on their
search history being kept and further used to ‘improve’ their search
results. This ‘default search mode’ should be considered as the equivalent
of ‘default parameter settings’, which exist and are recommended in view of
better privacy protection by various services. Furthermore, noting the
essential role of search engines which are even replacing direct URL
requests for a large amount of users, EDRi started a discussion on
recommending governments to explore ways of funding public service, public
interest search engine, using free and open source software. While opinions
are mixed in the group on this issue, this might at least end with a
recommendation to promote alternatives in such a sector where a single actor
dominates the market.

Both draft recommendations also address the tricky issue of content
regulation, in terms of filtering and blocking content, as well as in terms
of self- and co-regulation. Pointing the numerous risks of content blocking
with respect to human rights, democracy and the rule of law, EDRi insisted
that content should be dealt with at source, if needs be and in full
compliance with European human rights instruments. In addition, for the
specific case of search engines, there shouldn’t be any filtering or
blocking process recommended, as this would be a second level of filtering
or blocking content. Generally speaking, EDRi underlined that the language
used in both Recommendations should not legitimize any blocking process, and
should make clear the centrality of freedom of expression, which only admit
limited exceptions when they are necessary, proportionate and appropriate in
a democratic society, and could by no mean be ‘outweighed’ by other rights.

The last examined document was a draft report on network neutrality. A
fruitful discussion was introduced by expert guest Vladimir Radunovic
(DiploFoundation’s coordinator of the Internet Governance Capacity Building
Programme), who made an excellent, very pedagogical and complete
presentation on the issue without neglecting any of its dimensions,
contrarily to what unfortunately often happens in this debate. As a first
result of this discussion and while MC-NM members intend to pursue their
work in view of producing a network neutrality report, a draft Declaration
of the CoE on network neutrality was prepared and discussed in view of its
submission to the Committee of Ministers. A second round of comments by
MC-NM members and observers will take place before end April.

Next meeting of the MC-NM group is scheduled in September 2010.

CoE MC-NM, MC-S-CI and MC-S-NR public websites

EDRi-gram: ENDitorial: Undead WIPO treaty resurrected in Council of Europe

(Contribution by Meryem Marzouki, French EDRI-member IRIS)