The Council of Europe has published a Recommendation to Member States on the roles and responsibilities of Internet intermediaries. The Recommendation declares that access to the Internet is a precondition for the ability effectively to exercise fundamental human rights, and seeks to protect users by calling for greater transparency, fairness and due process when interfering with content. The Recommendation also calls for greater respect for user privacy.
The Recommendations’ key provisions aimed at governments include:
- Public authorities should only make “requests, demands or other actions
addressed to internet intermediaries that interferes with human rights and fundamental freedoms” when prescribed by law. This means they should therefore avoid asking intermediaries to remove content under their terms of service or to make their terms of service more restrictive.
- Legislation giving powers to public authorities to interfere with Internet content should clearly define the scope of those powers and available discretion, to protect against arbitrary application.
When internet intermediaries restrict access to third-party content based on a State order, State authorities should ensure that effective redress mechanisms are made available and adhere to applicable procedural safeguards.
When intermediaries remove content based on their own terms and conditions of service, this should not be considered a form of control that makes them liable for the third-party content for which they provide access.
- Member States should consider introducing laws to prevent vexatious lawsuits designed to suppress users free expression, whether by targeting the user or the intermediary. In the US, these are known as “anti-SLAPP laws“.
The Recomendations’ provisions aimed at service providers include:
- A “plain language” requirement for terms of service.
- A call to include outside stakeholders in the process of drafting terms of service.
- Transparency on how restrictions on content are applied, when, and detailed information on how algorithmic and automated means are used.
- Transparency reporting
- Effective remedies and complaints mechanisms for users who wish to dispute restriction of their service or content. “all remedies should allow for an impartial and independent review of the alleged violation [of users’ rights to expression]. These should – depending on the violation in question – result in inquiry, explanation, reply, correction, apology, deletion, reconnection or compensation”.
The Council of Europe is an intergovernmental body entirely separate from the European Union. With 47 member states, it seeks to promote democracy, human rights and the rule of law, including by monitoring adherence to the rulings of the European Court of Human Rights. Its Recommendations are not legally binding on Member States, but are very influential in the development of national policy and of the policy and law of the European Union.