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Deutsch: ENDitorial: Reichlich schlechte Nachrichten vom Europarat

The third Council of Europe (CoE) Committee of experts on new media (MC-NM), held on 27-28 September 2010 in Strasbourg, is likely to dampen enthusiasm.

To start with, the current vice-chair Michael Truppe is leaving the group to hold another position on the Austrian scene. With his knowledge of the group issues and his vision of an Internet upholding Human Rights, Michael Truppe has been instrumental to many achievements of the MC-S-IS group (MC-NM predecessor), especially with regards to the 'Recommendation on measures to promote the respect for freedom of expression and information with regard to Internet filters', adopted by the CoE Committee of Ministers in 2008. During MC-NM works, he also brought a major contribution to the draft Declaration on Network Neutrality.

However, and this is the second bad news, such draft texts may see important modifications before they became adopted, since they first go through the parent body, the Steering Committee on Media and New Communication Services (CDMC) and only then are submitted to the CoE Committee of Ministers for adoption. This is what regrettably happened to the CoE Declaration on Network Neutrality (NN), adopted on 29 September 2010. While the draft, though being simply a Declaration, was an encouraging political stand from the CoE on NN, the adopted text looks like a spineless document that, actually, doesn't bring much to the issue.

Where the draft called for "unobstructed" access for users to internet-based content, applications and services of their choice, the adopted text contents itself with "greatest possible access". One might wonder what this could ever mean, when such access possibilities are confronted to both the greediness of network operators, ISPs and online service providers and the breaches of human rights and fundamental freedoms by governments! Furthermore, the CDMC added a provision in reference to the EU Telecom Package adopted in 2009, following a request from one of the EU Member States. The document was finalised some days before the end of the Spanish presidency. In summary, this dilution makes the Declaration on Net Neutrality a squandered opportunity for the CoE, as well as for all those who see the democratic issues at stake with NN, rather than simply a need to ensure transparency for consumers and fair competition in a market being, in any event, dominated by few companies.

The third bad news derives from management decisions by the CDMC leading to fewer human resources for its subordinated groups, at least the MC-NM. Concretely, this means that the MC-NM work on draft Recommendations regarding both search engines and social networks, in view of ensuring the respect for privacy and freedom of expression in these sectors, is now in stand-by mode, while the priority is given to the least advanced work, that is the draft Recommendation on a new notion of media.

This decision to postpone the completion of the almost finished work on search engines and social networks is very unfortunate, given that both issues are very timely and involve major stakes in terms of fundamental rights and freedoms, although it is granted that discussing the extension of the notion of media - and, as a corollary, of the application of the media laws - to new media and the web2.0 services is of utmost importance.

This is indeed a democratic issue, as the discussion during last MC-NM meeting has highlighted: if YouTube was considered a media, could it be blocked for more than 2 years now by a CoE Member State, namely Turkey, which has to comply with freedom of the media? If so-called 'citizen journalism' platforms were considered as media, shouldn't they operate under principles such as that of the protection of sources and the right to reply and a the same time be subject to some professional standards? Should bloggers be granted the status of journalists and under which conditions? When Google is found liable by French courts for the third time, because of its 'Google Suggest' service, on the basis that Google does indeed add a human intervention in some cases, does it exert an editorial interference or does it simply take action to protect its own interests? Should the online service market domination by a handful of vertically integrated multinational companies be considered as dangerous media concentration or as a dominant market position? In one word, should these services be regulated by media laws or by e-commerce laws?

One can easily understand that the issue is complex, should be approached with particular caution, and needs very rigorous definition of criteria to identify under which conditions web2.0 services should be considered as media. The third MC-NM meeting dedicated almost its two days to this discussion, as the necessary prerequisite to come up with any Recommendation on the status of new media. Obviously, by no mean this could be reasonably completed by the end of the year or even earlier as requested by CDMC: such haste could only be harmful when human rights, democracy and freedom of the media are at stake.

Last but unfortunately not least of the bad news series is related to the developments of the Cross-border Internet group (MC-S-CI). This group is also subordinated to the CDMC, but, contrarily to the case of MC-NM, is formed by, literally, a handful of individual experts (5 persons!) picked up by CDMC members, in view of nothing less than drafting a Convention, i.e. a Treaty... EDRi was granted the observer status to this group. However, an observer can only observe formal (i.e. announced and open) meetings, while the individual experts seem to have opted for "informal meetings", whatever this could mean.

As a matter of fact, after a single formal meeting on 1-2 March 2010, which EDRi unfortunately missed, the MC-S-CI apparently led to prolific achievements: two draft CoE Declarations on, respectively, the Digital Agenda for Europe (indicating some extensive interpretation of MC-S-CI terms of reference) and the management of the Internet protocol address resources in the public interest (both adopted by the Committee of Ministers on 29 September) and even a draft standard-setting instrument. Regarding the latter, a conceptual framework document was ready for presentation and discussion at a workshop during the 2010 EuroDIG meeting in Madrid on 28-29 April and the draft instrument itself was circulated at a 2010 IGF workshop in Vilnius on 14-17 September (where the approach and provisions faced a lot of criticism). One would certainly bow before such intense productivity, if the situation were not raising important democratic concerns in terms of transparency and accountability.

When considering, on top of this, the fact that most of the experts are ICANN insiders, the concerns can only grow, especially since the only human rights expert from the group has now resigned. As a matter of fact, the MC-S-CI group also has, in the mean time, prepared another draft Declaration on "enhanced participation in Internet governance matters - Governmental Advisory Committee (GAC) of the Internet Corporation for Assigned Names and Numbers (ICANN)" (adopted by the Committee of Ministers on 26 May 2010), and has been instrumental in having the CoE secretariat participating to the GAC's activities, first as observer and later if possible by contributing to GAC Secretariat. The diffusion of CoE values of human rights, democracy and the rule of law to IGF and ICANN would certainly improve the latter two in terms of process and substance. However, if MC-S-CI developments continue behind the scene as they currently show, there is a high risk that the contrary might happen, with the CoE being contaminated by the numerous flaws IGF and ICANN have demonstrated so far, as widely analysed in the academic and grey literature, as well as by various NGOs inside and outside these circles.

In conclusion of this list of deep concerns, the only good news is probably the fact that the MC-S-NR group (Group Protection of Neighbouring Rights of Broadcasting Organisations) has not yet started its work, waiting for the European Commission to be mandated to negotiate, within the CoE framework, a Convention on the protection of neighbouring rights of broadcasting organisations (a.k.a. the resurrection of the broadcasting Treaty, formerly killed at WIPO).

CDMC and subordinated subgroups public websites http://www.coe.int/t/dghl/standardsetting/media

Recommendation CM/Rec(2008)6 of the Committee of Ministers to member states on measures to promote the respect for freedom of expression and information with regard to Internet filters (26.03.2008)
https://wcd.coe.int/ViewDoc.jsp?Ref=CM/Rec(2008)6

EDRi-gram: ENDitorial: CoE - The Good, The Bad And The Ugly (09.04.2008)
http://www.EDRi.org/EDRigram/number6.7/coe-good-bad-ugly

CoE Declaration of the Committee of Ministers on network neutrality (29.09.2010)
https://wcd.coe.int/ViewDoc.jsp?Ref=Decl(29.09.2010_2)

EDRi-gram: New Media, Search Engines And Network Neutrality On 2010 CoE Agenda (07.04.2010)
http://www.EDRi.org/EDRigram/number8.7/coe-new-media-working-group

CoE Declaration of the Committee of Ministers on the Digital Agenda for Europe (29.09.2010)
https://wcd.coe.int/ViewDoc.jsp?Ref=Decl(29.09.2010_1)

CoE Declaration of the Committee of Ministers on the management of the Internet protocol address resources in the public interest (29.09.2010)
https://wcd.coe.int/ViewDoc.jsp?Ref=Decl(29.09.2010_3)

EURODIG workshop on "Sovereignty of states and the role and obligations of governments in the global multi-stakeholder Internet environment" (30.04.2010)
http://www.eurodig.org/eurodig-2010/programme/workshops/workshop-6

IGF workshop on "a proposal for setting a standard of care in international law for cross-border Internet" (14.09.2010)
http://www.intgovforum.org/cms/component/chronocontact/?chronoformname... (description)
http://www.intgovforum.org/cms/component/content/article/102-transcrip... (transcript)

CoE Declaration of the Committee of Ministers on enhanced participation in Internet governance matters - Governmental Advisory Committee (GAC) of the Internet Corporation for Assigned Names and Numbers (ICANN) (26.05.2010)
https://wcd.coe.int/ViewDoc.jsp?Ref=Decl(26.05.2010_1)

EDRi-gram: ENDitorial: Undead Wipo Treaty Resurrected In Council Of Europe (10.02.2010)
http://www.EDRi.org/EDRigram/number8.3/broadcasting-treaty-council-of-...

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