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The 9th meeting of the Council of Europe (CoE) group of specialists on Human Rights in the Information Society (MC-S-IS) was held in Strasbourg from 31 March to 2 April 2008. At the same time, on 1-2 April, another division of the CoE was holding in a building across the street its 2008 Octopus conference on cooperation against cybercrime. This schedule overlapping is not the only sign that CoE's left hand seems to ignore what its right hand is doing: different divisions are also addressing same issues, though from different points of view and with different results.
It happened this time with the guidelines for Internet Service Providers (ISPs). While the Octopus conference was discussing and then adopting its 'Guidelines for the cooperation between law enforcement and Internet service providers against cybercrime', the MC-S-IS group was reviewing and finalising its 'Practical guidelines for Internet service providers with regard to key human rights and fundamental freedoms in the Information Society'. While EuroISPA (the European association of ISPs) vice-president Michael Rotert was "pushing hard", according to press reports, to have ISPs concerns taken into account in the Octopus conference guidelines, EuroISPA president Kurt Einzinger was sitting next to EDRI representative at MC-S-IS meeting, with both organizations welcoming MC-S-IS guidelines upholding digital rights and taking into account ISPs concerns. EDRI suggested some additional provisions on ISPs transparency and accountability with regards to their subscribers, especially with regards to content "notice and take down" procedure and network neutrality issues. Once adopted, the MC-S-IS guidelines will soon be submitted to the CDMC and hopefully later adopted by the Committee of Ministers. The status of the Octopus conference guidelines remains unclear at this step.
Unfortunately, this is all what EDRI can report from the 2008 Octopus conference, given that its representative is not enjoying ubiquity talent and preferred to fully attend the MC-S-IS meeting, where, even in its simple capacity of NGO observer, its participation might lead to concrete positive results.
One of such very positive achievements is the adoption by the CoE Committee of Ministers, on 26 March 2008, of its 'Recommendation on measures to promote the respect for freedom of expression and information with regard to Internet filters' (Rec(2008)6). This Recommendation was prepared by MC-S-IS, with EDRI participation. To our knowledge, it is the best text to date that could be expected from an intergovernmental institution on this issue, breaking off the usual rhetoric of '"technical filtering panacea" to fight illegal or harmful content.
Another CoE recently adopted document, worth mentioning although of less normative value, is the 'Declaration of the Committee of Ministers on protecting the dignity, security and privacy of children on the Internet'. This document has not been prepared by the MC-S-IS group, but is relevant to its activities since it raises special concerns on children profiling and the retention of their personal data for commercial purposes, as well as on "the emerging tendency for certain types of institutions, such as educational establishments, and prospective employers to seek information about children and young people when deciding on important issues concerning their lives". The document thus declares "that, other than in the context of law enforcement, there should be no lasting or permanently accessible record of the content created by children on the Internet which challenges their dignity, security and privacy or otherwise renders them vulnerable now or at a later stage in their lives".
On the copyright front, however, the situation is far less satisfactory. EDRI has already reported on the heated discussion that the draft 'Recommendation on freedom of expression and information and intellectual property rights in the new information and communications environment' generated during the previous MC-S-IS meeting. Although the discussion was quieter this time (some protagonists of the previous debate were missing), the case has not progressed, to say the least. The secretariat made the effort to bring an external expert, after some State representatives argued last time that the group was not knowledgeable enough on the issue. But things got worse, as the expert, in EDRI's opinion, proposed a new version of the draft Recommendation which was pretty bad written and rather clumsy, though being full of good intentions. What the group decided at this step was thus to report to the CDMC on the difficulty to find a consensus on this issue, and to produce a further version of the explanatory report, with clear distinction between facts and legal cases of freedom of expression breaches because of copyright on the one hand, and suggested measures on the other hand. The future of the draft Recommendation itself would then be decided in a later step.
Still on the intellectual property rights issue, but more specifically regarding the neighbouring rights of broadcasting organisations, the MC-S-IS has been informed of a decision made at the 6th meeting of the CDMC to explore the need for a CoE Convention dealing with this issue, originally brought to it by the European Broadcasting Union and some EU member States. This initiative is a consequence of the deadlock faced at WIPO by the draft broadcasting Treaty. While the MC-S-IS discussions on the above mentioned draft Recommendation does not seem promising at all, the good side of the initiative being taken at the CoE level might be found in the CoE records on the promotion of public service values, and in particular of access to information, culture, knowledge and scientific developments. The CoE recently added to these good records its 'Recommendation on measures to promote the public service value of the Internet'. However, 'classical media' business lobbies have undoubtedly more established influence on CoE member States than 'new media' ones. The CDMC should decide at its next meeting in May which of its groups of specialists (MC-S-IS or another one) will be in charge of exploring the relevance of a new CoE Convention on neighbouring rights of broadcasting organizations.
The last issue worth of notice in this last MC-S-IS meeting is the ever-recurring one, that is, the harmful content hydra. One might have thought from last meeting discussions that the group had given up on the "standard-setting instrument which promotes a coherent pan-European level of protection for children from harmful content when using new communication technologies and services and the Internet, while ensuring freedom of expression and the free flow of information". However, the secretariat had apparently found useful to ask yet another expert, although the previous experience on the same subject led to an impasse, as reported two years ago. This time, the expert came with, among other proposals, the idea to create a CoE "trust-mark" and to use content labelling and rating systems, just like these kind of measures and software platform were not promoted for more than 10 years now, fortunately in vain. Not to mention the fact that the Internet has seen some developments since then, one of them being the explosion of user-generated content and of social networking tools and services. Given that the discussion led to mixed feelings in the group, with EDRI, together with some member States, opposing the proposed orientation, the MC-S-IS decided that an informal working group would explore the issue and propose alternatives provisions. This informal working group is composed by Switzerland, Austria (re-elected respectively MC-S-IS group chair and vice-chair, which is good news for digital rights defenders) and EDRI as observer, and will prepare suggestions in view of the next MC-S-IS group meeting, which will be held on 22-24 September 2008.
CoE MC-S-IS public website
http://www.coe.int/t/e/human_rights/media/1_intergovernmental_co-opera...
CoE Octopus Conference 2008 (1-2.04.2008)
http://www.coe.int/t/dg1/legalcooperation/economiccrime/cybercrime/cy%...
EDRI-gram: Enditorial: The 2001 Coe Cybercrime Conv. More Dangerous Than
Ever (20.06.2007)
http://www.edri.org/edrigram/number5.12/cybercrime-convention-dangerou...
Tackling cybercrime: Guidance on sharing Internet data (2.04.2008)
http://www.iht.com/articles/2008/04/02/business/cybercrime.php
CoE Recommendation Rec(2008)6 and explanatory report (26.03.2008)
https://wcd.coe.int/ViewDoc.jsp?Ref=CM/Rec(2008)6
https://wcd.coe.int/ViewDoc.jsp?Ref=CM(2008)37&Ver=add
EDRI-gram: Enditorial: Coe - Content Regulation: Break On Through; Ipr: It's
Tricky (21.11.2007)
http://www.edri.org/edrigram/number5.22/coe-content-regulation
CoE Declaration on protecting the dignity, security and privacy of children
on the Internet (20.02.2008)
https://wcd.coe.int/ViewDoc.jsp?Ref=Decl(20.02.2008)&Ver=0001
CoE CDMC - 6th meeting report, most notably item 10 on neighbouring rights
(7.12.2007)
http://www.coe.int/t/e/human_rights/media/1_Intergovernmental_Co-opera...(2007)023_en.asp
EDRI-gram: The Broadcasting Treaty Resuscitated By The Council Of Europe
(19.12.2007)
http://www.edri.org/edrigram/number5.24/coe-broadcasting-treaty
CoE Recommendation Rec(2007)16 on measures to promote the public service
value of the Internet (7.11.2007)
https://wcd.coe.int/ViewDoc.jsp?id=1207291
EDRI-gram: CoE works on new instrument on children empowerment on the net
(15.03.2006)
http://www.edri.org/edrigram/number4.5/coe
(Contribution by Meryem Marzouki, EDRI-member IRIS)