Committee of Ministers of Member States on Internet Freedom (Adopted by the Committee of Ministers on 13 April 2016 at the 1253 meeting of Deputy Ministers) 1. The European Convention for the Protection of Human Rights (ETS No. 5, hereinafter referred to as the Convention) applies both offline and online. Member States of the Council of Europe have negative and positive obligations to respect, protect and promote human rights and fundamental freedoms online. 2. Internet freedom is understood as the exercise and use of human rights and fundamental freedoms on the Internet, as well as their protection in accordance with the Convention and the International Covenant on Civil and Political Rights. Member States of the Council of Europe should take an active approach to the implementation of the Convention and other Council of Europe standards on the Internet. An understanding of Internet freedom must be comprehensive and firmly grounded in these standards.3. The governance mechanisms of the Internet, whether at the national, regional or global level, must be based on an understanding of Internet freedom. States have rights and obligations regarding international policies related to the Internet. In exercising their sovereign rights, States shall, in accordance with the rules of international law, refrain from any action that may directly or indirectly harm natural or legal persons within or outside their jurisdiction. Any national decision or action to restrict human rights and fundamental rights on the Internet must comply with international obligations and, in particular, be based on law. Fully respecting the principles of proportionality and guaranteeing access to legal remedies, as well as the right to be heard and to have due process safeguards, must be essential in a democratic society.4. As part of their obligation to ensure everyone under their jurisdiction the rights and freedoms enshrined in the Convention, States must create favorable conditions for Internet freedom. To this end, it is recommended that States conduct a regular assessment of the Internet freedom environment at the national level, in order to ensure that the necessary legal, economic and political conditions for Internet freedom exist and develop. Such assessments contribute to a better understanding of the application of the Internet Convention in Member States and its more effective implementation by national authorities. 5. The Convention and other Council of Europe standards are the main guidelines and recommendations for national assessments of Internet freedom. They can be considered as indicators that guide and enable Member States to identify existing or potential problems in the area of Internet freedom, as an analytical basis for assessing the implementation of human rights standards on the Internet and as a reference material for the development of international policies and approaches relating to the Internet. The Council of Europe must play a key role in promoting Internet freedom in Europe and around the world. Based on the national assessments of the Member States, the Council of Europe can monitor the evolution of the regulatory framework and other developments in the Member States and provide regular reviews on the challenges of Internet freedom in Europe. This would be a good basis for further development of the Council of Europe's policy on the Internet. 7. The Committee of Ministers, in accordance with the provisions of Article 15.b of the Charter of the Council of Europe, recommends that Member States: - periodically assess the level of respect for and implementation of human rights and basic standards in the field of Internet freedom, using the indicators annexed to this Recommendation, in order to develop national reports, where appropriate; - ensure participation all stakeholders from the private sector, civil society, academia and the technical community in assessing the state of Internet freedom and preparing national reports;
- consider sharing information or national reports on Internet freedom with the Council of Europe on a voluntary basis; - guide and promote these indicators when participating in international dialogue and international policy on Internet freedom; - take appropriate measures to promote “Business and Human Rights Guidelines: Implementing UN Framework Programme “Protection, Respect and Remedies”. Supplement to Recommendation CM/ Rec (2016) 5 Internet Indicators
Internet freedom is understood as the exercise and possession on the Internet of human rights and fundamental freedoms and their protection in accordance with the Convention. These indicators of Internet freedom focus on the right to freedom of speech, the right to freedom of assembly and association, the right to privacy and the right to an effective remedy. They are based on existing and established standards in the field of human rights and mechanisms of coercion. An integrated approach to Internet freedom takes into account all indicators, as they are intended to provide guidance in conducting a qualitative and objective assessment and presentation of reports on Internet freedom in the member states of the Council of Europe. They are not intended to assess the level of Internet freedom or as a means of comparing countries.1. Creating favorable conditions for Internet freedom 1.1. The protection of human rights and fundamental freedoms on the Internet is guaranteed by law, in full compliance with the Convention. 1.2. Any interference by a State in the exercise of human rights and fundamental freedoms on the Internet complies with the requirements of the Convention. 1.3. Laws and policies on the Internet are evaluated at their development stage, taking into account the impact that their implementation can have on the use of human rights and fundamental freedoms. 1.4. Internet laws and policies are developed by public authorities in a comprehensive and transparent process that allows participation by all stakeholders, including the private sector, civil society, academia and the technical community. 1.5. Any State, body with regulatory or other jurisdiction over the Internet carries out its activities in a transparent manner free from political or commercial interference, protects and promotes Internet freedom. 1.6. The state protects people from cybercrimes through effective criminal justice or other measures. Where such measures involve a risk related to the right to privacy, the right to freedom of expression or the right to freedom of peaceful assembly and association, they shall be subject to conditions and safeguards against abuse. These measures comply with Articles 8, 10 and 11 of the Convention. Moreover, they are established by legislation that is accessible, precise, clear and predictable; pursue a legitimate aim; are necessary and proportionate in a democratic society and provide effective remedies. 1.7. The State conducts policies and takes measures for the implementation of the “Guidelines on Business and Human Rights: Implementation of the UN Framework Programme “Protection, Respect and Remedies”. 1.8. The state provides media and digital literacy programs to users to promote their ability to make informed decisions and respect the rights and freedoms of others. It promotes the access and use of educational, cultural, scientific, educational and other content. 2. The right to freedom of expression 2.1. Freedom of access to the Internet 2.1.1. The Internet is accessible to all groups of the population without any discrimination. 2.1.2. The public has access to the Internet in institutions supported by government agencies (Internet access points), educational institutions or private owners (universal service community). 2.1.3. The State shall take reasonable measures to ensure access to the Internet for persons with low income levels, in rural or geographically remote areas and persons with special needs, such as persons with disabilities. 2.1.4. There is no general, nationwide restriction on access to the Internet, except where it complies with Article 10 of the Convention. 2.1.5. The State recognizes in law and practice that the disconnection of people from the Internet generally constitutes an inappropriate restriction of the right to freedom of expression. 2.1.6. Any restriction of access to the Internet, including in penitentiary institutions, is provided for by the terms of Article 10 of the Convention on the legality, legitimacy and proportionality of restrictions on freedom of expression and the positive obligation of the State to protect the right to freedom of expression. 2.1.7. Before applying restrictive measures to access the Internet, a court or independent administrative body determines that disconnection from the Internet is the least restrictive means to achieve a legitimate goal. The ongoing need for a precautionary measure is assessed by these bodies on an ongoing basis. These terms do not apply to cases of non-payment by users for Internet services. 2.1.8. Where restrictive measures are applied, the person concerned shall have the right to due process before a court or an independent administrative body whose decisions are subject to judicial review, in accordance with Article 6 of the Convention. 2.2. Freedom of opinion and the right to receive and disseminate information 2.2.1. Any measures taken by public authorities or private sector entities to block or otherwise restrict access to the entire Internet platform (social media, social networks, blogs or any other website) or information and communication technologies (ICT) (instant messaging or other applications), or any request from governments bodies to carry out such actions, complies with Article 10 of the Convention on the Lawfulness, Legitimacy and Proportionality of Restrictions. 2.2.2. Any measures taken by public authorities or private sector entities to block, filter or remove Internet content, or any request by public authorities to take such action, subject to the terms of Article 10 of the Convention on the legality, legitimacy and proportionality of restrictions. 2.2.3. Internet service providers generally treat Internet traffic equally and without discrimination based on sender, recipient, content, applications, service, or device. Internet traffic management measures shall be transparent, necessary and proportionate to the achievement of important public interests in accordance with Article 10 ECHR 2.2.4. Internet users or other interested parties may apply to the courts in accordance with Article 6 of the Convention in respect of any measures taken to restrict their access to the Internet or their ability to receive and distribute content or information. 2.2.5. The State shall, in a timely and appropriate manner, provide the public with information on restrictions relating to the freedom to obtain and disseminate information, for example, indicating websites that have been blocked or from which information has been removed, including detailed information on the legal basis, necessity and justification of such restrictions, the court issues an order allowing them and the right to appeal .2.3. Media Freedom 2.3.1. The editorial independence of the media that operate on the Internet is guaranteed by law, politically and practically. It is not pressured to include or exclude information from their reports, or to adhere to a certain editorial direction. 2.3.2. Media do not need to obtain permission or license from the government or government agencies, other than to register a business, in order to be able to work on the Internet or blog. 2.3.3. Journalists and other media participants who use the Internet are not subject to threats or harassment from the state. They do not practice self-censorship out of fear of punishment, intimidation or attack. 2.3.4. The confidentiality of journalists and new participants of the media market is protected by law and applied in practice. 2.3.5. Media sites and sites of new media market participants are not dependent on cyber attacks or other actions that disrupt their functioning (for example, denial of service attacks). 2.3.6. There is a rapid and effective investigation of threats and crimes against journalists and new entrants of the media market. There is no atmosphere of impunity. 2.4. Legality, legitimacy and proportionality of restrictions 2.4.1. Any restriction of the right to freedom of expression on the Internet in accordance with the requirements of Article 10 of the Convention: punishable by a law that is accessible, clear, unambiguous and precise enough to enable people to regulate their conduct. The law provides strict control over the scope of restrictions and effective judicial control to prevent abuse of power. The law specifies with sufficient clarity the scope of discretion, public authorities regarding the exercise of restrictions and the procedure for exercising that discretion; pursues a legitimate aim, as exhaustively enumerated in Article 10 of the Convention; is necessary in a democratic society and proportionate to the legitimate aim. There is an acute social need for restriction, which is carried out on the basis of a decision of a court or an independent administrative body, which is the subject of judicial proceedings. The decision must be targeted and specific. In addition, it should be based on evaluating the effectiveness and limiting the risks of excessive blocking. This assessment should determine whether the restriction may lead to an inappropriate prohibition of access to Internet content, or to certain types of content, and whether it is the least restrictive means of achieving the legal objective set. 2.4.2. The state does not impose excessive restrictions on freedom of expression on the Internet in its legislation. Laws on diphamation are specific and detailed for the scope of their application. They do not suppress public debate or criticism of public bodies, and do not impose excessive fines or disproportionate damages or legal costs. Serious sanctions, such as imprisonment, apply only when the fundamental rights of others have been seriously violated, for example in cases of incitement to violence or hatred. 2.4.3. Laws on hate speech or the protection of public order, public morality, minors, national security, or official laws on secrecy and data protection are not applied in a way that suppresses public debate. Such laws impose restrictions on freedom of expression only in response to questions of public interest, are defined as narrowly as possible to satisfy the public interest, and include proportionate sanctions. The right to freedom of peaceful assembly and association 3.1. Individuals are free to use online platforms such as social media and other ICTs in order to communicate with each other and create associations, to define the objectives of such associations, to create professional associations, and to carry out activities within the limits provided by legislation that complies with international standards. 3.2. Associations may freely use the Internet in order to exercise their right to freedom of expression and to participate in political and public debate. 3.3. Individuals are free to use online platforms such as social media and other ICTs in order to organize peaceful gatherings. 3.4. State measures applied in the context of the exercise of the right to peaceful assembly, which relate to the blocking or restriction of Internet platforms such as social media and other ICTs, comply with Article 11 of the Convention. 3.5. Any restriction on the exercise of the right to freedom of peaceful assembly and the right to freedom of association on matters of the Internet in accordance with Article 11 of the Convention, namely: - punishable by law which is accessible, intelligible, unambiguous and precise enough to enable people to regulate their conduct; - pursues a legitimate aim which is exhaustively listed in Article 11 of the Convention; - necessary in a democratic society and proportionate to the legitimate aim.
There is an acute social need for restraint. There is a fair balance between the exercise of the right to freedom of assembly and freedom of association and the interests of society as a whole. If a less intrusive measure achieves the same goal, it applies. The restriction is narrowly interpreted and applied, and does not affect the essence of the right to freedom of assembly and association. 4. The right to privacy and family life 4.1. Protection of personal data 4.1.1. The right to privacy and family life is guaranteed in accordance with Article 8 of the Convention. Any restriction of this right pursues one of the legitimate aims which are exhaustively listed in Article 8 of the Convention, are necessary in a democratic society and are proportionate to the legitimate aim. 4.1.2. The Act ensures that all personal data are protected in accordance with Article 8 of the Convention and the Convention on the Protection of Individuals with regard to Automated Processing of Personal Data (ETS No. 108) in the States that have ratified it. 4.1.3. Personal data is processed on a lawful basis (with the unambiguous consent of the data subject or on the basis of law) for legitimate purposes and does not exceed such purposes, accurately and reliably. These terms also apply to profiling (automatic methods of processing personal data that collect and use information about a person in order to identify, analyze and predict his or her personal preferences, behavior and attitudes). 4.1.4. Individuals are not subject to a decision that significantly affects their interests solely on the basis of automated data processing, without their opinion taken into account. There are effective ways that allow each person to obtain information on request about the processing of their personal data, as well as the reason for such processing; to object to the processing; to request the correction or destruction of personal data; to give consent, deny or withdraw consent to the processing of personal data or profiling. There is an effective remedy when these rights are violated. The legal bases for the protection of personal data provide appropriate safeguards to ensure access to information and freedom of expression. 4.1.5. The law defines the obligations of public and private persons regarding the processing of personal data. 4.1.6. The supervisory authority, which operates in conditions of complete independence and impartiality, ensures compliance with the data protection regulatory framework. 4.1.7. The State does not prohibit, by law or practice, the anonymity, pseudonymity, confidentiality of personal messages, or the use of encryption technologies. Interference with the anonymity and confidentiality of communications is subject to compliance with the requirements of legality, legitimacy and proportionality of Article 8 of the Convention. 4.2. Observation 4.2.1 . Surveillance measures adopted by public authorities (e.g. security services) comply with the requirements of Article 8 of the Convention and are subject to effective, independent and impartial supervision. 4.2.2. Surveillance measures are carried out in accordance with the law, which is accessible, clear, accurate and predictable. The law contains guarantees for the exercise of the powers of public authorities and, thus, determines with sufficient clarity and accuracy: - the nature of crimes that may lead to surveillance measures; - the competent authorities carrying out surveillance measures, the right of such bodies to act at their own discretion and the legality of the purpose of carrying out this measure; - categories of persons subject to surveillance measures; - time limits for carrying out surveillance measures; - procedure for the study, use and storage of the data obtained
by surveillance; - precautions to be taken when exchanging data obtained through surveillance measures with other parties and measures applied during communication to ensure data security; - circumstances for the destruction and erasure of data obtained by surveillance; - authorities responsible for monitoring the exercise of surveillance. 4.2.3.
Surveillance measures pursue a legitimate objective, exhaustively listed in Article 8 of the Convention, and are necessary in a democratic society and proportionate to the legitimate objective. 4.2.4. Surveillance measures are carried out by public authorities either directly or with/in cooperation with private sector enterprises, authorized by an independent and impartial court established on the basis of law or other public authority which is independent of both supervisory and executive bodies. 4.2.5. Surveillance measures are carried out by public authorities either directly or through/in cooperation with private sector enterprises that are not related to activities that weaken encryption systems and the integrity of communication infrastructure (e.g. embedded flaws and bypasses of security, information and communication systems). 4.2.6. Surveillance measures are subject to effective review, guaranteed by a judicial authority or control by another public body, offering better guarantees of impartiality and independence from supervisory and executive authorities. 4.2.7. The law guarantees the right of the supervisory authority to have access to all information that is relevant to the fulfillment of its mandate, regardless of the level of classification of the information. Access to the information of the supervisory authority shall extend to all relevant information at the disposal of public authorities, including information provided by foreign bodies. 4.2.8. Supervisory authorities shall exercise their powers, including the search and processing of confidential information and personal data, professionally and exclusively for the purposes for which they are provided in accordance with the law, while ensuring that the information is protected from use or disclosure for any purpose beyond the mandate of such authorities. 4.2.9. Supervisory authorities shall carefully examine, within their competence, human rights monitoring measures taken by public authorities, including those arising from cooperation with foreign bodies through the exchange of information or joint operations. 4.2.10. Judicial and supervisory authorities shall have the right to cancel and terminate surveillance measures where such measures are deemed unlawful and shall have the right to request the deletion of any information obtained through the use of such measures. 4.2.11. State bodies that carry out surveillance measures, as well as their supervisory bodies, are not exempt from the provisions of freedom of information legislation. Decisions not to provide information are made on an individual basis, must be properly substantiated and be under the supervision of an independent information or data protection officer. Supervisory authorities shall make the information versions of their periodic and investigative reports available to the public. 5. Remedies 5.1. The State shall ensure that persons have access to judicial or administrative procedures which can fairly determine their claims relating to violations of human rights on the Internet, in accordance with Article 6 of the Convention. 5.2. The State shall ensure the right to an effective remedy in accordance with Article 13 of the Convention. This includes effective extrajudicial mechanisms, administrative or other remedies, for example through national human rights institutions. There are no legal, procedural, financial or other practical obstacles that people face in seeking an effective remedy. 5.3. The State, as the principal responsible person, takes appropriate measures to protect violated human rights with respect to the Internet through the private sector and ensures that persons whose rights have been violated have access to effective remedies. 5.4. The State shall implement policies and take measures to encourage all private sector actors to respect human rights online within the scope of their activities, in particular through the establishment of effective complaint mechanisms and remedies for persons whose human rights and fundamental freedoms on the Internet may be adversely affected. These mechanisms are legal (promote trust, responsible for the fair conduct of complaints processes), accessible (without barriers for interested parties), predictable (provide a clear and known procedure with indicative timeframes for each stage, clarity of process and results, and means of monitoring), fair (access to sources of information, advice and expert knowledge necessary to participate in the complaints process), transparent (inform the parties of the progress of the complaint) in accordance with Article 13 of the Convention.
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