Re: [hr-wsis] Council of Europe, Internet and Freedom of expression

[Meryem Marzouki <marzouki@ras.eu.org>]

Text of the CoE Declaration:
       Declaration on freedom of communication on the Internet 
(Strasbourg, 28.05.2003)

       (Adopted by the Committee of Ministers at the 840th meeting of 
the Ministers' Deputies)

       The member states of the Council of Europe,

       Recalling the commitment of member states to the fundamental 
right to freedom of expression and information, as guaranteed by 
Article 10 of the Convention for the Protection of Human Rights and 
Fundamental Freedoms;

       Considering that freedom of expression and the free circulation 
of information on the Internet need to be reaffirmed;

       Aware at the same time of the need to balance freedom of 
expression and information with other legitimate rights and interests, 
in accordance with Article 10, paragraph 2 of the Convention for the 
Protection of Human Rights and Fundamental Freedoms;

       Recalling in this respect the Convention on Cybercrime and 
Recommendation Rec(2001)8 on self-regulation concerning cyber content;

       Recalling, furthermore, Resolution No. 1 of the 5th European 
Ministerial Conference on Mass Media Policy (Thessaloniki, 11-12 
December 1997);

       Concerned about attempts to limit public access to communication 
on the Internet for political reasons or other motives contrary to 
democratic principles;

       Convinced of the necessity to state firmly that prior control of 
communications on the Internet, regardless of frontiers, should remain 
an exception;

       Considering, furthermore, that there is a need to remove barriers 
to individual access to the Internet, and thus to complement measures 
already undertaken to set up public access points in line with 
Recommendation No. R (99) 14 on universal community service concerning 
new communication and information services;

       Convinced that freedom to establish services provided through the 
Internet will contribute to guaranteeing the right of users to access 
pluralistic content from a variety of domestic and foreign sources;

       Convinced also that it is necessary to limit the liability of 
service providers when they act as mere transmitters, or when they, in 
good faith, provide access to, or host, content from third parties;

       Recalling in this respect Directive 2000/31/EC of the European 
Parliament and of the Council of 8 June 2000 on certain legal aspects 
of information society services, in particular electronic commerce, in 
the Internal Market (Directive on electronic commerce);

       Stressing that freedom of communication on the Internet should 
not prejudice the human dignity, human rights and fundamental freedoms 
of others, especially minors;

       Considering that a balance has to be found between respecting the 
will of users of the Internet not to disclose their identity and the 
need for law enforcement authorities to trace those responsible for 
criminal acts;

       Welcoming efforts by service providers to co-operate with law 
enforcement agencies when faced with illegal content on the Internet;

       Noting the importance of co-operation between these agencies in 
the fight against such content,

       Declare that they seek to abide by the following principles in 
the field of communication on the Internet:

       Principle 1: Content rules for the Internet

       Member states should not subject content on the Internet to 
restrictions which go further than those applied to other means of 
content delivery.

       Principle 2: Self-regulation or co-regulation

       Member states should encourage self-regulation or co-regulation 
regarding content disseminated on the Internet.

       Principle 3: Absence of prior state control

       Public authorities should not, through general blocking or 
filtering measures, deny access by the public to information and other 
communication on the Internet, regardless of frontiers. This does not 
prevent the installation of filters for the protection of minors, in 
particular in places accessible to them, such as schools or libraries.

       Provided that the safeguards of Article 10, paragraph 2, of the 
Convention for the Protection of Human Rights and Fundamental Freedoms 
are respected, measures may be taken to enforce the removal of clearly 
identifiable Internet content or, alternatively, the blockage of access 
to it, if the competent national authorities have taken a provisional 
or final decision on its illegality.

       Principle 4: Removal of barriers to the participation of 
individuals in the information society

       Member states should foster and encourage access for all to 
Internet communication and information services on a non-discriminatory 
basis at an affordable price. Furthermore, the active participation of 
the public, for example by setting up and running individual websites, 
should not be subject to any licensing or other requirements having a 
similar effect.

       Principle 5: Freedom to provide services via the Internet

       The provision of services via the Internet should not be made 
subject to specific authorisation schemes on the sole grounds of the 
means of transmission used.

       Member states should seek measures to promote a pluralistic offer 
of services via the Internet which caters to the different needs of 
users and social groups. Service providers should be allowed to operate 
in a regulatory framework which guarantees them non-discriminatory 
access to national and international telecommunication networks.

       Principle 6: Limited liability of service providers for Internet 
content

       Member states should not impose on service providers a general 
obligation to monitor content on the Internet to which they give 
access, that they transmit or store, nor that of actively seeking facts 
or circumstances indicating illegal activity.

       Member states should ensure that service providers are not held 
liable for content on the Internet when their function is limited, as 
defined by national law, to transmitting information or providing 
access to the Internet.

       In cases where the functions of service providers are wider and 
they store content emanating from other parties, member states may hold 
them co-responsible if they do not act expeditiously to remove or 
disable access to information or services as soon as they become aware, 
as defined by national law, of their illegal nature or, in the event of 
a claim for damages, of facts or circumstances revealing the illegality 
of the activity or information.

       When defining under national law the obligations of service 
providers as set out in the previous paragraph, due care must be taken 
to respect the freedom of expression of those who made the information 
available in the first place, as well as the corresponding right of 
users to the information.

       In all cases, the above-mentioned limitations of liability should 
not affect the possibility of issuing injunctions where service 
providers are required to terminate or prevent, to the extent possible, 
an infringement of the law.

       Principle 7: 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. This does not prevent member states from taking measures and 
co-operating in order to trace those responsible for criminal acts, in 
accordance with national law, the Convention for the Protection of 
Human Rights and Fundamental Freedoms and other international 
agreements in the fields of justice and the police.