Ministers' Deputies
    CM Documents

    CM(2003)67revised 20 May 2003
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    840th Meeting, 28 May 2003
    5 Media


    5.1 Steering Committee on the Mass Media (CDMM)

    a. Abridged report of the 58th meeting (26-29 November 2002)

    b. Draft recommendation Rec(2003)… of the Committee of Ministers to member states on measures to promote the democratic and social contribution of digital broadcasting
    c Declaration on freedom of communication on the Internet
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    1. The Steering Committee on the Mass Media (CDMM) held its 58th meeting from 26 to 29 November in Strasbourg. The meeting was chaired by Mr Frithjof BERGER (Germany). The agenda, as adopted, appears in Appendix I.1

    2. The CDMM reviewed the work carried out by its various subordinate bodies and gave them orientations for the continuation of their work. In this connection, it approved a draft Recommendation on measures to promote the democratic and social contribution of digital broadcasting. The Committee of Ministers is invited to adopt this Recommendation (see Appendix II).

    3. The CDDM also approved a draft Declaration of the Committee of Ministers on freedom of communication on the Internet. The Committee of Ministers is invited to adopt this Declaration (see Appendix III).

    4. The CDMM also discussed the future World Summit on the Information Society (Geneva, 10-12 December 2003) and, in this context, adopted the Declaration contained in Appendix IV, which recommends that the Council of Europe should play an active part in preparing the Summit and during the Summit itself, for the purpose of ensuring that full account was taken of its values, concerns and achievements.

    5. The CDMM further discussed questions that might be included in its work programme for 2004, following completion of the implementation of the Action Plan entrusted to it at the 6th European Ministerial Conference on Mass Media Policy (Cracow, June 2000). In this connection, the CDMM agreed in principle that a further Ministerial Conference would be held at the end of 2004 or the beginning of 2005, to provide political orientations for the Council of Europe's future work in the media field, having regard, in particular, to the forthcoming enlargement of the European Union.

    6. The CDMM examined applications for observer status with the CDMM itself and one of its subordinate bodies (MM-S-DB) submitted by two professional organisations (the International Federation of the Phonographic Industry/IFPI and the European Association of Cable Communications/ECCA) which were interested in its work. After this examination, the CDMM decided to admit ECCA as an observer within its subordinate committee MM-S-DB. However, the CDMM decided not to admit IFPI and ECCA as observers within the Steering Committee, given that these two professional bodies were not interested by the whole range of activities of the CDMM, it being understood that the CDMM reserved the possibility of consulting them on an ad hoc basis in the future if it considered it so useful.

    7. The CDMM also took note of measures taken in its sphere of competence to reinforce information exchange and co-operation between the European Commission and the Council of Europe; held elections to its Bureau; took note of a number of recent legal and technical developments in the media field, particularly in connection with the Danish Presidency of the European Union; adopted the timetable for its meetings and those of its subordinate bodies for 2003; approved a list of items for inclusion on the agenda for its next meeting; took note of the work carried out by the Standing Committee on Transfrontier Television, the results of a Conference on the media organised on 30 September - 1 October 2002 by the Luxembourg Chair of the Committee of Ministers, as well as a Declaration adopted at a Conference of Heads of State and Governments of French-speaking countries, in particular as concerns the preparation of an international Convention on Cultural Diversity.

    APPENDIX I

    Agenda

    1. Opening of the meeting

    2. Adoption of the agenda

    3. Exchange of views on the results of the Conference on freedom of expression and information and the fight against terrorism (25 November 2002)

    4. Information on the decisions of the Committee of Ministers of interest to the CDMM

    5. Group of Specialists on on-line services and democracy (MM-S-OD)

    (i) Work concerning illicit and harmful content on the Internet
    (ii) Work concerning Internet literacy
    (iii) Work concerning the democratic potential of new communication services
    (iv) Draft Declaration of the Committee of Ministers on freedom of communication on the Internet

    6. Group of Specialists on freedom of expression and other fundamental rights (MM-S-FR)

    (i) Draft Declaration of the Committee of Ministers on freedom of political debate in the media
    (ii) Draft Recommendation and draft Declaration of the Committee of Ministers on the provision of information through the media in relation to criminal proceedings
    (iii) Work concerning the balance between freedom of expression and the right to private life
    (iv) Work concerning freedom of expression and information and the fight against terrorism

    7. Advisory Panel on media diversity (AP-MD): Report on media diversity in Europe

    8. Group of Specialists on the democratic and social implications of digital broadcasting (MM-S-DB)
    (i) Draft Recommendation of the Committee of Ministers on the democratic and social impact of digital broadcasting
    (ii) Future work of the MM-S-DB

    9. Definition of orientations for the work programme of the CDMM in 2004 and beyond
    (i) Content of the work programme for 2004 and beyond
    (ii) Possible holding of a Ministerial Conference in the media field in 2004

    10. Request for the granting of observer status within the CDMM submitted by IFPI and request for observer status within the CDMM and the MM-S-DB submitted by ECCA

    11. Advisory Panel on convergence (AP-CV)

    12. World Summit on the Information Society

    13. Co-operation with the European union in the media field

    14. Progress of work and recent technical and legal developments in the media field of interest to the CDMM

    15. Report on the Danish Presidency of the European Union

    16. Elections to the Bureau of the CDMM

    17. Dates of forthcoming meetings

    18. Items to be included on the agenda of the 59th meeting of the CDMM

    19. Other business

    (i) Standing Committee on Transfrontier Television
    (ii) Conference on the media organised by the Luxembourg Presidency of the Committee of Ministers of the Council of Europe (Luxembourg, 30 September-1st October 2002)
    (iii) IXth Conference of the Heads of State and Government of French-speaking countries (Beyrout, 18-20 October 2002)

    APPENDIX II

    Draft Recommendation Rec(2003)…
    of the Committee of Ministers to member states
    on measures to promote the democratic and
    social contribution of digital broadcasting

    (Adopted by the Committee of Ministers on ...
    at the ... meeting of the Ministers' Deputies)

    The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,

    Considering that the aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles that are their common heritage and fostering economic and social progress;

    Recalling that the existence of a wide variety of independent and autonomous media, permitting the reflection of diversity of ideas and opinions, as stated in its Declaration on the freedom of expression and information of 29 April 1982, is important for democratic societies;

    Bearing in mind Resolution No.1 on the future of public service broadcasting adopted at the 4th European Ministerial Conference on Mass Media Policy (Prague, 7-8 December 1994), and recalling its Recommendation No R (96) 10 on the guarantee of the independence of public service broadcasting;

    Stressing the specific role of the broadcasting media, and in particular of public service broadcasting, in modern democratic societies, which is to support the values underlying the political, legal and social structures of democratic societies, and in particular respect for human rights, culture and political pluralism;

    Noting that the development of digital technology opens new possibilities in the field of communication, which may have a certain impact on the audiovisual landscape, both as regards the public and broadcasters;

    Considering that the transition to the digital environment offers advantages, but also presents risks, and that adequate preparations must be made for it so that it is carried out in the best possible conditions in the interest of the public, as well as of broadcasters and the audiovisual industry as a whole;

    Noting that in parallel with the multiplication of the number of channels in the digital environment, concentration in the media sector is still accelerating, notably in the context of globalisation, and recalling to the member states the principles enunciated in Recommendation No R (99) 1 on measures to promote media pluralism, in particular those concerning media ownership rules, access to platforms and diversity of media content;

    Stressing the potential of digital television for bringing the information society into every home and the importance of avoiding exclusion, notably by the availability of free-to-air services and transfrontier television services;

    Conscious of the need to safeguard essential public interest objectives in the digital environment, including freedom of expression and access to information, media pluralism, cultural diversity, the protection of minors and human dignity, consumer protection and privacy;

    Noting that the governments of the member states have special responsibilities in this respect;

    Convinced that the specific role of public service broadcasting as a uniting factor, capable of offering a wide choice of programmes and services to all sections of the population, should be maintained in the new digital environment;

    Recalling that the member states should maintain and, where necessary, establish an appropriate and secure funding framework that guarantees public service broadcasters the means necessary to accomplish the remit which is assigned to them by member states in the new digital environment;

    Conscious of the risk of democratic and social deficit which technological and market developments may entail, and agreeing that in the digital environment, a balance must be struck between economic interests and social needs, clearly taking a citizen perspective;

    Recommends that the governments of the member states, taking account of the principles set out in the appendix:

    a. create adequate legal and economic conditions for the development of digital broadcasting that guarantee the pluralism of broadcasting services and public access to an enlarged choice and variety of quality programmes, including the maintenance and, where possible, extension of the availability of transfrontier services;

    b. protect and, if necessary, take positive measures to safeguard and promote media pluralism, in order to counterbalance the increasing concentration in this sector;

    c. be particularly vigilant to ensure respect for the protection of minors and human dignity and the non-incitement to violence and hatred in the digital environment, which provides access to a wide variety of content;

    d. prepare the public for the new digital environment, notably by encouraging the setting-up of a scheme for adequate information on and training in the use of digital equipment and new services;

    e. guarantee that public service broadcasting, as an essential factor for the cohesion of democratic societies, is maintained in the new digital environment by ensuring universal access by individuals to the programmes of public service broadcasters and giving it inter alia a central role in the transition to terrestrial digital broadcasting;

    f. reaffirm the remit of public service broadcasting, adapting if necessary its means to the new digital environment, with respect for the relevant basic principles set out in previous Council of Europe texts, while establishing the financial, technical and other conditions that will enable it to fulfil that remit as well as possible;

    g. bring the basic principles contained in the appendix to this recommendation to the attention of the public authorities and the professional and industrial circles concerned, and to evaluate on a regular basis the effectiveness of the implementation of these principles.

    Appendix to Recommendation Rec (…) …

    Basic principles for digital broadcasting

    General principles

    1. Given that, from a technological point of view, the development of digital broadcasting is inevitable, it would be advantageous if, before proceeding with the transition to digital environment, member states, in consultation with the various industries involved and the public, were to draw up a well-defined strategy that would ensure a carefully thought-out transition, which would maximise its benefits and minimise its possible negative effects.

    2. Such a strategy, which is particularly necessary for digital terrestrial television, should seek to promote co-operation between operators, complementarity between platforms, the interoperability of decoders, the availability of a wide variety of content, including free-to-air radio and television services, and the widest exploitation of the unique opportunities which digital technology can offer following the necessary reallocation of frequencies.

    3. Given that simultaneous analogue and digital broadcasting is costly, member states should seek ways of encouraging a rapid changeover to digital broadcasting while making sure that the interests of the public as well as the interests and constraints of all categories of broadcasters, particularly non-commercial and regional/local broadcasters, are taken into account. In this respect, an appropriate legal framework and favourable economic and technical conditions must be provided.

    4. When awarding digital broadcasting licences, the relevant public authorities should ensure that the services on offer are many and varied, and encourage the establishment of regional/local services that meet the public's expectations at these levels.

    1. Transition to the digital environment: the public

    1.1 Safe transition to digital broadcasting

    5. In order to guarantee the public a wide range of programme content, member states should take measures aimed at a high degree of interoperability and compatibility of reception, decoding and decrypting equipment and of systems granting access to digital broadcasting services and related interactive services.

    6. Given that for consumers, the changeover to digital broadcasting means acquiring new equipment to decode and decrypt digital signals and, therefore, a certain amount of expense, and in order to avoid any form of material discrimination and any risk of “digital divide” between different social categories, member states should pay particular attention to ways of reducing the cost of such equipment.

    7. With a view to bringing forward the date of the digital switch-over, member states should facilitate the public's change over to digital broadcasting. For example, they could encourage the industry to make available to the public a variety of decoding devices, including a basic decoding apparatus giving access to a range of minimum services.

    8. Media literacy is a key factor in reducing the risk of a “digital divide”. Hence, the public should be provided with wide-ranging information on the media. Suitable training courses in the use of digital equipment and new services are another appropriate measure to reduce the aforementioned risk. In particular, steps should be taken to enable the elderly and the less advantaged sectors of the population to understand and use digital technology. All these measures should be taken by the member states, broadcasters, regulatory authorities or other public or private institutions that are concerned with the transition to digital broadcasting.

    9. The protection of minors and human dignity, and non-incitement to hatred and violence, notably that of racial and religious origin, as well as the impartiality of information and the protection of consumers, should continue to receive particular attention in the digital convergence environment.

    10. Specific measures should be taken to improve access by people with hearing and visual disabilities to digital broadcasting services and their related content.

    11. Member states should take all necessary measures to protect the privacy of individuals in the digital environment, notably by forbidding the misuse of personal data collected via the use of broadcasting and related interactive services.

    1.2 Finding one's way in the digital environment

    12. In order to help the public find its bearings in the new digital environment, member states should encourage broadcasters to produce information on their services for electronic programme guides (EPGs), as well as encourage manufacturers of digital set-top-boxes to include functions allowing information concerning programmes and services to be displayed, so as to give television viewers the basic information they need to make an informed choice among the myriad of programmes/channels and services available to them via digital platforms.

    13. Without prejudice to complementary EPGs provided by broadcasters to present their own programming offer, providers of EPGs should propose to all service providers who so request, under fair, reasonable and non-discriminatory terms, a position on the EPGs which they operate. However, public service channels should be prominently displayed and easy to access. Providers of EPGs should also offer a clear classification of programme services by subject, genres, content and so on.

    14. EPGs and digital decoders should be designed to be user-friendly for consumers, notably allowing them to decide on the display of programmes and services according to their preference. Particular attention should be paid to the specific needs of people with disabilities or people who lack knowledge of foreign languages. The use of EPGs as an advertising medium should prejudice neither their functionalities nor the integrity of programmes.

    2. Transition to the digital environment: the broadcasters

    2.1 General principles

    15. When framing their policies on copyright and neighbouring rights, member states should ensure that these policies establish a balance between, on the one hand, the protection of rights owners' rights and, on the other hand, access to information, as well as the circulation of protected works and other content on digital broadcasting services.

    16. The economic interests of broadcasters, platform operators and service providers should also be taken into account in the general context of combating piracy in the digital environment, in particular via measures on the legal protection of services based on, or consisting of, conditional access.

    17. Access to many national, and even regional, broadcasting services is of great benefit to people who work, live or travel abroad, and contributes to the free flow of information and to a better understanding among cultures. In view of people's increased mobility in Europe and the deepening of European integration, it is important in the digital environment that the availability of free-to-air services and the accessibility of transfrontier audiovisual services are maintained and, where possible, extended.

    18. In view of the fact that digital convergence favours the process of concentration in the broadcasting sector, member states should maintain regulation which limits the concentration of media ownership and/or any complementary measures which they may decide to choose to enhance pluralism, while strengthening public service broadcasting as a crucial counter-balance to concentration in the private media sector.

    2.2 Principles applicable to public service broadcasting

    a. Remit of public service broadcasting

    19. Faced with the challenges linked to the arrival of digital technologies, public service broadcasting should preserve its special social remit, including a basic general service that offers news, educational, cultural and entertainment programmes aimed at different categories of the public. Member states should create the financial, technical and other conditions required to enable public service broadcasters to fulfil this remit in the best manner while adapting to the new digital environment. In this respect, the means to fulfil the public service remit may include the provision of new specialised channels, for example in the field of information, education and culture, and of new interactive services, for example EPGs and programme-related on-line services. Public service broadcasters should play a central role in the transition process to digital terrestrial broadcasting.

    b. Universal access to public service broadcasting

    20. Universality is fundamental for the development of public service broadcasting in the digital era. Member states should therefore make sure that the legal, economic and technical conditions are created to enable public service broadcasters to be present on the different digital platforms (cable, satellite, terrestrial) with diverse quality programmes and services that are capable of uniting society, particularly given the risk of fragmentation of the audience as a result of the diversification and specialisation of the programmes on offer.

    21. In this connection, given the diversification of digital platforms, the must-carry rule should be applied for the benefit of public service broadcasters as far as reasonably possible in order to guarantee the accessibility of their services and programmes via these platforms.

    c. Financing public service broadcasting

    22. In the new technological context, without a secure and appropriate financing framework, the reach of public service broadcasters and the scale of their contribution to society may diminish. Faced with increases in the cost of acquiring, producing and storing programmes, and sometimes broadcasting costs, member states should give public service broadcasters the possibility of having access to the necessary financial means to fulfil their remit.

    APPENDIX III

    Draft Declaration on freedom of communication on the Internet

    (Adopted by the Committee of Ministers on …
    at the … 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 No. 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.

    APPENDIX IV

    Explanatory note

    1. Introduction

    New communications and information technologies, commonly referred to as the “Internet”, have opened up new horizons of public access to information, education and cultural resources. At the same time, the Internet provides an amazing tool for individual and group expression with possibilities of reaching a much larger audience than before at a low cost.

    In recent years, the Council of Europe has adopted several legal and political instruments, which provide answers to the regulatory challenges posed by the Internet. The Convention on Cybercrime, opened for signature in 2001, enables mutual assistance between states regarding certain computer-related crimes. Another example is Recommendation Rec(2001) 8 on self-regulation concerning cyber content (self-regulation and user protection against illegal or harmful content on new communications and information services), which deals with the issue of illegal and harmful Internet content in general, advocating a self-regulatory approach, with a view to protecting freedom of expression and information as well as other fundamental values.

    Over the past few years, there has been a marked tendency by some governments to restrict and control access to the Internet in a manner which is incompatible with international norms on freedom of expression and information. Against this background, the Steering Committee on the Mass Media (CDMM) of the Council of Europe decided to draw up a Declaration where such practices, especially when politically motivated, would be strongly condemned. It was considered appropriate to deal in the same text with other aspects of the Internet where freedom of expression and information is particularly at stake, namely regarding the removal of barriers to the participation of individuals in the information society, the freedom to provide services via the Internet, the liability of intermediaries, as well as anonymity.

    A first draft of this Declaration was made available for public comment on the web site of the Council of Europe in April 2002. Several organisations and individuals sent in their comments and they have been duly taken into account during the finalisation of the draft.

    2. Commentary on the principles of the draft Declaration

    Principle 1 Content rules for the Internet

    This principle stresses that member states should not apply prohibitions to Internet content which go further than those applied to other means of content delivery; content which is legal off-line should also be legal on-line.

    This principle was advocated in a joint statement of the UN Special Rapporteur on freedom of opinion and expression, the OSCE Representative on freedom of the media and the OAS Special Rapporteur on freedom of expression, dated 22 November 2001.

    Principle 2 Self-regulation or co-regulation

    As already underlined in Recommendation Rec(2001) 8, member states should favour self-regulation or co-regulation regarding content disseminated on the Internet rather than regulation by the State. The need for setting up specific Internet regulatory bodies has not been demonstrated. However, it could happen that some member states decide to set up such bodies, or entrust an existing regulatory body with the legal competence to regulate Internet content. In this event, such bodies would have to meet the requirements of Recommendation Rec(2000) 23 on the independence and functions of regulatory authorities for the broadcasting sector, in particular with regard to their independence from political and economic powers and the possibility to subject their decisions to judicial review.

    Since such regulatory bodies would deal with issues affecting freedom of expression and information, it is necessary to recall that they should also respect Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

    Principle 3 Absence of prior state control

    This principle underlines the importance of no prior state control over what the public can search for on the Internet. In some countries, there is a tendency to block access by the population to content on certain foreign or domestic web sites for political reasons. This and similar practices of prior State control should be strongly condemned.

    Although the State should by no means take broad measures to block undesirable content, exceptions must be allowed for the protection of minors. Where minors have access to the Internet, for example in schools or libraries, public authorities may require filters to be installed on computers to block access to harmful content.

    The absence of prior control by the State does not of course rule out measures being undertaken to remove content from the Internet or block access to it following a preliminary or final decision of the competent national authorities on its illegality, not only under penal law, but also under other branches of law such as civil or administrative law. This would typically be the case when injunctions are sought to prevent the publication on the Internet of content which is illegal. Such measures, which could entail some sort of prior control, would have to fulfil the requirements of Article 10, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms and they would have to be directed at a clearly identifiable Internet content.

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

    This part of the Declaration builds on principles already established in Recommendation No. R (99) 14 on universal community service concerning new communication and information services. It is stressed that member states should foster and encourage access for all to Internet communications and information services on a non-discriminatory basis, at an affordable price. In this Declaration, “access for all” is taken to mean access via public access points. Member states may of course go further, if they so wish, by encouraging individual access.

    An active participation of the public in the information society, such as setting-up and running individual web sites, should also be encouraged. This means in practice that public authorities should not issue regulations which complicate the setting-up and running of individual web sites, for example licensing or registration systems or any other requirements having a similar effect. A requirement, for instance, to notify the authorities of any changes to a web site might violate this part of the principle.

    Principle 5 Freedom to provide services via the Internet

    While Principle 4 deals with access by private persons, Principle 5 focuses on the situation of service providers.

    The aim of this principle is to underline that the provision of services via the Internet should not be subject to prior authorisation by the State on the sole ground that this service is provided through the Internet. This is without prejudice to authorisation schemes which govern the provision of services regardless of the means of delivery used (for example, regarding access to certain regulated professions), since these procedures do not address specifically and exclusively the Internet.

    This principle is based on Article 4 of 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 (hereinafter referred to as the “Directive on electronic commerce”).

    Principle 6 Limited liability of intermediaries for Internet content

    Here it is established that as a general rule intermediaries in the communication chain should not be held liable for content transmitted through their services, except in certain limited circumstances. Along the lines of Articles 12 - 15 of the Directive on electronic commerce, the exemptions to liability take into account the different types of activities of the intermediaries, namely providing access to communication networks, transmitting data and hosting information. The degree of liability depends on the possibilities of service providers to control the content and whether they are aware of its illegal nature. The limitations on liability do not apply if intermediaries intentionally disseminate illegal content.

    1st paragraph no general obligation to monitor

    This paragraph is based on Article 15 of the Directive on electronic commerce. Member states should not impose any general obligation on service providers to monitor the information on the Internet to which they give access that they transmit or store. Nor should they be subject to a general obligation to actively seek facts or circumstances indicating illegal activity, since this might have the effect of curbing freedom of expression.

    This paragraph of Principle 6 does not prevent public authorities in member states from obliging service providers in certain cases, for example during a criminal investigation, to monitor the activities of their clients.

    2nd paragraph “mere conduit”

    In the case of mere transmission of information or providing access to communication networks, intermediaries should not be held liable for illegal content. When the role of intermediaries goes beyond that, in particular when they initiate the transmission, select the receiver of the transmission or select or modify the information transmitted, their liability may be invoked.

    The activity of the intermediary which is at stake here, and which should be exempt from liability, is sometimes referred to as “mere conduit” (cf. Article 12 of the Directive on electronic commerce).

    3rd paragraph “hosting”

    In the case of hosting content emanating from third parties, intermediaries should in general not be held liable (cf. Article 14 of the Directive on electronic commerce). This does not apply, however, when the third party is acting under the control of the intermediary, for example when a newspaper company has its own server to host content produced by its journalists. However, if the host becomes aware of the illegal nature of the content on its servers or, in the event of a claim for damages, of facts revealing an illegal activity, it may reasonably be held liable. The precise conditions should be laid down in national law.

    4th paragraph “notice and take down” procedures and freedom of expression and information

    As stipulated in paragraph 3 of Principle 6 of the Declaration, service providers may be held liable if they do not act expeditiously to remove or disable access to information or services when they become aware, as defined by national law, of their illegal nature. It is to be expected that member states will define in more detail what level of knowledge is required of service providers before they become liable. In this respect, so-called “notice and take down” procedures are very important. Member states should, however, exercise caution imposing liability on service providers for not reacting to such a notice. Questions about whether certain material is illegal are often complicated and best dealt with by the courts. If service providers act too quickly to remove content after a complaint is received, this might be dangerous from the point of view of freedom of expression and information. Perfectly legitimate content might thus be suppressed out of fear of legal liability.

    5th paragraph the possibility of issuing injunctions remains intact

    It is highlighted here, in line with Articles 12-14 of the Directive on electronic commerce, that despite the above-mentioned limitations of liability, the possibility of issuing injunctions where service providers are required to terminate or prevent, to the extent possible, an infringement of law, remains intact.

    Principle 7 Anonymity

    The aim of this principle is first and foremost to underline that the will of users to remain anonymous should be respected. There are two aspects to this principle. Firstly, users may have a valid reason not to reveal their identity when they have statements published on the Internet. Obliging them to do so could restrict excessively their freedom of expression. It would also deprive society of potentially valuable information and ideas.

    Secondly, users need protection against unwarranted on-line surveillance by public or private entities. Member states should therefore, for example, allow the use of anonymity tools or software which enable users to protect themselves.

    This principle has, however, its limitations. Member states should have the possibility of obtaining information about persons responsible for illegal activities within the limits laid down under national law, the Convention for the Protection of Human Rights and Fundamental Freedoms, in particular Article 8, and other relevant international treaties such as the Convention on Cybercrime.

    APPENDIX V

    Statement on the World Summit on the Information Society

    The Steering Committee on the Mass Media (CDMM) is of the firm opinion that the Council of Europe should be actively involved in the preparations for the World Summit on the Information Society (WSIS) based on its commitment to human rights, pluralistic democracy and cultural diversity. The WSIS, which is to achieve the development goals set by the United Nations Millennium Declaration, will be an event of major international importance adopting a Declaration and an Action Plan in areas which have a direct relevance for the work of the Council of Europe.

    In the light of its long-standing experience in protecting human rights and its work in the field of new information and communication technologies, the Council of Europe can make a valuable contribution to the preparation and final result of the WSIS. This contribution should highlight the human and democratic dimension of communications and should promote e-inclusion and citizen empowerment in a democratic information society in such a way as to take advantage of opportunities and prevent risks which may result from the new information and communication technologies.

    The Council of Europe should make an active contribution to the preparatory process leading up to the WSIS, inter alia through contacts with its Executive Secretariat and participation in the PrepComs. Furthermore, the Council of Europe should liaise with other international organisations and civil society representatives so as to co-ordinate substantive issues.

    The CDMM supports the principles formulated in the attached Secretariat Memorandum (cf. document CDMM (2002) 22) and considers that they should be at the core of the contribution which the Council of Europe Secretariat will submit to the 2nd PrepCom in February 2003.

    The CDMM believes furthermore that the Committee of Ministers should rapidly appoint an intersectoral drafting group, which would prepare the text of a political Declaration to be submitted by the Committee of Ministers in good time before the World Summit in order to ensure the highest political impact.

Note 1 The complete list of participants appears in the meeting report prepared by the Department (cf. document CDMM(2002)25add).


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