This document discusses Council of Europe standards regarding freedom of expression on the Internet. It outlines that freedom of expression is a fundamental human right, especially in democratic societies, and this right applies to online communications through the Internet. Any restrictions on Internet access or online content must be prescribed by law, pursue a legitimate aim, and be proportionate. Blocking, filtering, and disconnection of individuals can restrict this right. States should guarantee editorial independence and protect journalists' sources online. Two key questions around new Internet policies are whether they are necessary and proportionate, or if they could be applied in a disproportionate way that breaches users' rights.

1. Freedom of Expression on the Internet
Council of Europe Standards
Dr Monica Horten
Visiting Fellow, London School of Economics & Political Science

2. How do we communicate?
In the 21st
century

5. Why freedom of expression applies to the Internet
• The free communication of thoughts and opinions is one of most
precious rights because it is a condition for democracy
(France 1789 Declaration of the Rights of Man, Article 11)
• In the modern State, the means of communication, and especially
the development of public online services have an importance in
democratic life and for the expression of ideas and opinions.
• This right of free speech implies the liberty of access to such
services.
(French Constutional Court June 2009)

6. The Internet, the law & human rights
• Right to freedom of expression enshrined in European
Convention on Human Rights (ECHR)Article 10
• Other important rights :
– Article 11 Right to freedom of assembly and association
– Article 8 Right to a private and family life
– Article 6 Right to due process
– European Court of Human Rights
– Internet is the way we exercise these rights in the 21st century
– Article 10 applies to blogging and social media, email and all forms of online
communications

7. Right to freedom of expression
•Two-way right to impart and receive information
•Without interference from a public authority
•Applies ‘regardless of frontiers’
•May be balanced against other rights eg property, security
• Any restriction should be prescribed by law, fulfil a legitimate
aim, and be proportionate to that aim

8. Freedom of access
- Freedom of expression relies on open access to the networks
- Creates opportunities for access to knowledge and creation
- Disconnecting individuals is a restriction
- Public networks should remain accessible at all times
- And an infrastructure that is open
- Enables people to create and build new technologies for communication,
which in turn facilitate new opportunities for free speech.
- anyone can build a new application and attach it to the network, without
needing to ask permission
- network providers should not technically discriminate between applications

9. • Technological
developments
– Blocking, filtering and
disconnection
– Traffic management practices
fast/slow lanes, deep packet
inspection
– Interception, back doors,
– Traffic analysis, big data
profiling,
Key issues for human rights and the Internet

10. Blocking

11. Filtering
ISP scans Internet traffic against database containing a
blocklist of webpages, images or specific content
• Users will be prevented from accessing content on the the
blocklist
Platforms and social media sites scan uploaded content agains
pre-determined criteria
•Files are taken down by the site owner
Risk of over-blocking or taking down of legitimate content

12. Cross-border issues
• Upstream filtering
• Technical errors such as routing error
• DNS seizures have taken websites off-line worldwide
• Possible implications for cloud services

13. Freedom from Interference
• Blocking & filtering may interfere with free speech and privacy
rights
• Blocking access to the Internet, or parts of the Internet, for whole
populations or segments of the public can never be justified, including in
the interests of justice, public order or national security.
(Yildirim v Turkey ECtHR 2012)
• Filtering indiscriminately, to all customers, as a preventative measure, for an
unlimited time, would be a disproproportionate interference.
(Scarlet Extended ECJ 2011)

14. •Take down notices - law enforcement, copyright,
defamation
•Scan and filter - copyright enforcement
•Filter search results - commercial interests
•Backdoors - law enforcement, security services,
copyright enforcement
Freedom of expression, blogs & social media

15. Essential State guarantees for online media
•Online media should be able to publish without interference
•Editorial independence
•Confidentiality of journalists sources
•May operate without permission from the State
•Not harassed or pressured by State authorities
•Without fear of restrictions imposed by State
•Regulation proactively protects media freedoms
•Applies to social networks, blogs, websites and online
applications

16. Freedom of expression & due process
• Any measures to restrict the Internet
must include a prior, fair and impartial
hearin (right to due process
•Balance against other rights eg property, security
•Any restriction should be prescribed by law, fulfil a
legitimate aim, and be proportionate to that aim

17. Two key questions:
• Is the interference with freedom of expression,
necessary and proportionate to other objectives such as
security?
• What is the potential for these powers to be applied in a
disproportionate manner which could lead to a breach
of internet users’ rights? (Source: UK Parliament, Joint Committee on
Human Rights 2010)
Respect for freedom of expression

18. Dr Monica Horten
Visiting Fellow, London School of Economics & Political Science
Blog: www.iptegrity.comTwitter: @Iptegrity
References:
Council of Europe Guide to Human Rights for Internet Users
http://www.coe.int/en/web/internet-users-rights/guide
Recommendation CM/Rec(2016)5 of the Committee of Ministers to
member States on Internet freedom
https://search.coe.int/cm/Pages/result_details.aspx?
ObjectId=09000016806415fa
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