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Unofficial translation

Recommendation CM/Rec (2016) 1

Committee of Ministers to Member States for the Protection and Promotion of the Right to Freedom of Expression and the Right to Privacy in relation to Net Neutrality

(Adopted by the Committee of Ministers on January 13, 2016 at the 1244 meeting of Deputy Ministers)

1. In the information society, the exercise and realization of the right to freedom of expression, including persons, the right to receive and exchange information and ideas, as well as their participation in democratic life, depends more and more on the availability and quality of the Internet connection.

2. Internet access service providers have the technical ability to manage information and the transit of data flow (Internet traffic) through the networks they operate. They can participate in the management of Internet traffic for specific legitimate purposes, for example, to maintain the integrity and security of the network. They may also take steps to prevent access to, or dissemination of, illegal or harmful content, for example through self-regulatory systems in cooperation with government agencies. However, other interferences with Internet traffic may affect the quality of services provided to Internet users and may lead to blocking, discrimination or prioritization of specific types of content, applications and services. Moreover, some of the methods used in this context of permission to supervise, or monitor messages, can undermine the trust of users on the Internet.

3. These issues raise concerns with regard to the protection and promotion of the right to privacy and the right to freedom of expression guaranteed in accordance with Articles 8 and 10 of the European Convention on Human Rights (ETS No 5), and in the light of the Convention on the Protection of Individuals with regard to the automated processing of personal data (ETS № 108). There are also implications for access to diverse and pluralistic information and the retention of public media online, which are fundamental to democracy and cultural diversity. The right to freedom of expression, including the right to receive an exchange of information, is not an absolute right. However, any restrictions on the exercise of this right must comply with the requirements of Article 10 (2) of the Convention.

4. The principle of net neutrality reinforces the non-discriminatory regime of Internet traffic and the right of users to receive and exchange information and use services of their choice. This strengthens the widespread exercise and exercise of the right to freedom of expression, since Article 10 of the Convention applies not only to the content of information, but also to the means of its dissemination. In addition, the principle of net neutrality supports technological innovation and economic growth.

5. The Committee of Ministers recalls Article 1 of the Statute of the Council of Europe (ETS No. 1) and the relevance of the Council of Europe documents, in particular in the Declaration of the Committee of Ministers on the Protection of the Role of the Media in Democracy in the Context of Media Concentration (31 January 2007), Recommendations CM/ Rec (2007) 3 on Competence public media in the information society, Recommendations CM/Rec (2007) 16 on measures to increase the promotion of the importance of the Internet as a public service, Recommendation CM/Rec (2008) 6 on measures to promote the observance of freedom of expression and information in connection with Internet Filters, Declaration of the Committee of Ministers on Net Neutrality (September 29, 2010), Declaration of the Committee of Ministers Guidelines for Internet Governance (September 21, 2011) and Recommendation CM/Rec (2014) of 6 Member States - Human Rights Guide for Internet Users. With a view to protecting and promoting the right to privacy and freedom of expression in full compliance with Articles 8 and 10 of the Convention, as well as facilitating the dissemination of public services via the Internet, the Committee of Ministers, in accordance with the terms of Article 15b of the Charter of the Council of Europe, recommends that Member States:

- Take all necessary measures, in cooperation with all stakeholders, to guarantee the principle of net neutrality within its policy, with due regard to the principles set out in the Annex to this Recommendation;

- To disseminate these principles in other international and regional forums dealing with this issue of net neutrality.

Appendix 1 to the CM/ Rec Recommendation (2016)

Guidelines for Net Neutrality

1. General principles

1.1. Internet users have the right to freedom of expression, including the right to receive and exchange information, through the services, applications and devices of their choice in full compliance with Article 10 of the Convention. These rights must be exercised without discrimination on any grounds, such as sex, sexual orientation, race, color, language, religion, political or other beliefs, national or social origin, belonging to national minorities, property status, birth or other status.

1.2. The right of Internet users to receive and exchange information shall not be limited by blocking, slowing, impairing or discriminating Internet traffic or be dependent on specific content, services, applications and devices, or traffic related to services provided under exclusive agreements or tariffs.

1.3. Internet users should have the right to access the Internet with the characteristics specified in the contractual agreements they have concluded with Internet access service providers based on specific and adequate information provided to users, taking into account all aspects that could affect their access to the Internet and the right to receive and exchange information.

2. Equal Internet Traffic Procedures

2.1. Internet traffic must be the same, without discrimination, restriction or interference, regardless of the sender, recipient, content, applications, services or devices. This is understood as net neutrality principles for the purposes of this Recommendation. The principle of net neutrality applies to all Internet access services, regardless of the infrastructure or network used to connect to the Internet and regardless of the technology used to transmit signals.

2.2. This does not exclude measures to manage Internet traffic that are necessary and proportionate:

- Execution of a court decision or order of a regulatory body;

- Maintaining the integrity and security of the network, services provided through the network and terminal equipment of end users;

- Prevent network overload and optimize traffic management when overload occurs.

2.3. Internet traffic management measures must be non-discriminatory, transparent and not maintained for longer than strictly necessary. Traffic management policies shall be subject to periodic review by the competent authorities in each Member State.

3. Pluralism and diversity of information

3.1. Internet service providers should not discriminate against providers of content, applications and services that compete with their own products. It is required that decisions regarding traffic management are strictly separated from decision-making processes related to content operators in accordance with the 2007 Declaration of the Committee of Ministers on the Protection of the Role of the Media in Democracy in the Context of Media Concentration.

3.2. As an exception to the principles of net neutrality, priority processing of traffic based on agreements between providers of Internet services and providers of content, applications and services may be permitted only if there are sufficient safeguards for the ability of users to access, use and exchange information on the premises. In particular, the priority processing of traffic should not decrease or affect the availability, performance and quality of user access to the Internet. Internet users should have a real ability to choose an Internet connection without traffic preferences. They should also be made aware of the consequences that such processing may have on their ability to access, use and share information of diverse and pluralistic content that is publicly available, as well as programs and services of their choice.

3.3. Where a physical connection to the Internet is shared with Internet traffic and other services, States may consider introducing reasonable, transparent and appropriate obligations for ISPs to deliver content that meets common goals and aspirations.

4. Protection

4.1. Internet traffic management measures should include the processing of personal data only to the extent necessary and proportionate to achieve the objectives set out in the second section of these Recommendations. Such measures shall be in accordance with Article 8 (2) of the Convention for the Protection of Individuals with regard to the Automated Processing of Personal Data (ETS No. 108) and the applicable legislation on the right to privacy and the protection of personal data.

4.2. The use of Internet traffic management methods that are able to evaluate the content of messages is an interference with the right to respect for private and family life. Such use must therefore be fully verified in accordance with Article 8 of the Convention for compliance with applicable law on the right to privacy and the protection of personal data and reviewed by the competent authority in each Member State, with a view to assessing compliance with the law.

5. Transparency

5.1. Internet service providers should provide users with clear, complete and publicly available information on any traffic management practices that could affect users' access to the distribution of content, applications and services. Internet users should be able to obtain information from Internet providers about managing Internet traffic and Internet speed.

5.2. Competent authorities within each Member State shall monitor and report on Internet traffic management practices. Reports must be prepared in an open and transparent form, and are available to the public free of charge.

6. Liability

6.1. Internet providers should establish appropriate, clear, transparent and effective procedures for responding within a reasonable time to complaints from Internet users about violations of the principles included in the above provisions. Internet users should be able to communicate this issue directly to the competent authorities in each Member State and have the right to correct it in a timely manner.

6.2. States should ensure, as part of their policies, the responsibility of Internet providers for compliance with the principle of net neutrality. Responsibility also requires the existence of appropriate response mechanisms in response to complaints about net neutrality.