Realizing rights online – from human rights discourses to enforceable stakeholder responsibilities – WS 01 2017

From EuroDIG Wiki
Revision as of 16:18, 29 August 2017 by Eurodigwiki-edit (talk | contribs)
Jump to navigation Jump to search

6 June 2017 | 14:30 - 16:00 | Ballroom I, Swissotel, Tallinn, Estonia | video record
Programme overview wiki | Programme overview EuroDIG web site

Session teaser

Human rights matter in IG. Talking about them isn't enough. This workshop will explore what needs to be done in order to effectively realize human rights on the Internet: Human rights discourse must lead to an enforceable framework of rules. Special focus will be put on the role of intermediaries.

The questions everyone can participate in finding answers for are:

  • What can/should states do?
  • Can they rely on self-regulation?
  • How can they guarantee their primary duty to protect?
  • What obligations do intermediaries have (regarding hate speech/fake news)?
  • How to enforce the obligation to respect human rights?
  • And what about individuals?
  • Do we need new rights and new discourses?
  • How can we enforce existing ones?
  • Shall we rely on self-regulation or do we need more state involvement?

The workshop serves as a introduction into some of themes to be tackled in Plenary 2 on a post-truth Internet (especially regarding the 'public' or semi-public role of intermediaries regarding information.

Keywords

Human rights discourses, intermediaries, positive obligation, self-regulation, enforcement, new democracies, rule of law

Session description

Session would try to shed light on following key questions with the help of participants and speakers alike.

  • "HR in IG/Internet politics: the reality" will be analyzed by Wolfgang Kleinwächter
    • Discussing HR online and new normative approaches
    • An enhanced version of the "Charter on Digital Rights" which has been discussed in the German media and was presented during the re:publica conference in Berlin will be presented. One of the key elements of this draft is to propose mechanisms to institutionalize (human) rights and duties for non-state actors. The contribution will introduce also a new innovative mechanism for "implementation" (a European Internet Governance Ombudsman, alternative procedures for dispute resolution by neutral third parties/inspired by ICANNs UDRP).
  • "HR in IG/Internet politics: will be analyzed in the light of ICANN by Markus Kummer
    • How Human Rights found their way into the ICANN Bylaws and how the newly developed Framework of Interpretation for Human Rights could impact everyday users.
  • "HR as basis for standard-setting" will be outlined by Charlotte Altenhoener-Dion
  • "HR in IG/internet politics: Realizing Human Rights Across Stakeholders: The Example of Intermediaries " will be outlined by Matthias C. Kettemann
    • Intermediaries are key to our experience of the Internet. They have an essential structural role in enabling the exercise of human rights on the Internet. But they can also interfere with human rights. Recent judgements have not provided definitive answers as to their liability (or lack thereof) for user content. Efforts to combat hate speech have been neither effective nor fully legitimate. At the Council of Europe, a Recommendation on Internet Intermediaries is being drafted - and we will discuss it in Tallinn.

Format

Workshop with key participants

People

Focal Point:

  • Karmen Turk, Attorney-at-Law (TRINITI) and lecturer in the University of Tartu

Subject Matter Expert (SME):

  • Farzaneh Badeii (Internet Governance Project - Georgia Tech)

Key Participants

  • Charlotte Altenhoener-Dion
  • Wolfgang Kleinwächter
  • Markus Kummer
  • Matthias C. Kettemann

Moderator

  • Karmen Turk, Attorney-at-Law (TRINITI) and lecturer at the University of Tartu

Remote Moderator

  • Enrico Elefante

Organising Team (Org Team)

  • Matthias C. Kettemann
  • Charlotte Altenhoener
  • Ucha Seturi
  • Norbert Bollow
  • Markus Kummer
  • Wolfgang Kleinwächter

Reporter

  • Maarja Pild, attorney (TRINITI); lecturer at the University of Tartu

Video record

https://www.youtube.com/watch?v=RLVxjrDu4Ts

Messages

  1. Interpretation of human rights online
    There is no need to reinvent new internet specific human rights. The same rights that people have offline must also be protected online. The interpretation of human rights should be dynamic and interpretation must consider the technological revolution.
  2. Obligations of the states
    The negative and positive obligations of the states in relation to the internet must be clarified while taking into account and reminding the states the principles of multistakeholderism and legality.
  3. Obligations and rights of the internet intermediaries
    Functions to ensure human rights should not be delegated to intermediaries. Nevertheless, intermediaries should aim at respecting human rights, refrain from discrimination and aim for transparency.
  4. Education
    Informing people about their human rights online is crucially important. Media and information literacy programs should be promoted. It is also a responsibility of the intermediaries that users would be more aware of their rights.

Transcript

Provided by: Caption First, Inc., P.O. Box 3066, Monument, CO 80132, Phone: 800-825-5234, www.captionfirst.com


This text is being provided in a realtime format. Communication Access Realtime Translation (CART) or captioning are provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.


>> Hello, everybody. I think everyone has had their lunches and have had some -- a bit walking around. So not sitting all day long. If I sit, then I don't really see you. But please take a seat.

My name is Karmen Turk. I want to welcome you all in my home country. It's nice. It's not raining today. This is the number one workshop of this year's EuroDIG. And it's about realizing rights online. So, from human rights discourses to enforceable stakeholder responsibilities. In addition to being Estonian and probably bringing gender balance on the stage, I'm also a litigating lawyer from an international law firm and I teach in University of Tartu. And occasionally I'm an expert for Council of Europe.

Human rights matter. This is what we have been discussing from early morning until now. Talk about them is not enough, and this is what this workshop will be all about. We will try to explore what needs to be done in order to effectively realize human rights online. So, human rights discourse must lead to an enforceable framework on rules. And this is what we tried to discuss from very different angles.

If you use social media or Twitter, please use #netcoverer or #internetrules or #humanrights or #intermediary or something relevant to the session. Please use Twitter, because this is the way to get out of this only 600 or 700 people to the wider public anyway.

So, without any further ado, I will introduce our first participants. I have the honor to introduce the first speaker. And they will talk about human rights in Internet politics, about the reality. And this will be Dr. Wolfgang Kleinwahter. Not being able to cover all significant affiliations, he's an Americus professor. And today his main commitment goes with the Global Commission of Stability of cyberspace. Thus, please, as promised, discussion of normative approach to the Internet politics. The floor is yours.

>> WOLFGANG KLEINWACHTER: OK. The Internet is a human right. Internet access is a human right. There's a broad consensus about the community and in some countries, like in Finland. This is meanwhile part of the constitution. I think there is no doubt about it.

However, we have seen again and again, violation of human rights in the Internet daily practice. We have measured by governments that restrict freedom of expression. We have a lot of problems with privacy.

The right to freedom of association is challenged several times. That means human rights is really indeed center of the Internet governance debate. If you go back 15 years when the United Nations world summit on the information society started.

Though it was already clear that in the so-called world summit on information society, human rights has to play a crucial role. And at this time, some people came and said, OK, we have to rewrite the human rights in the digital age, because so many things are new, and we have to address the human rights declaration from 1948 to the new information age.

And in the center was Article 19 of the Human Rights Declaration, and some people argued that this right to freedom of information has to be enhanced into a freedom of communication. Because the Internet, we have to be more precise now and have to introduce a new category of human rights.

But in the process, it became clear for many participants -- and this is relevant also today, that if you have an existing right and you want to introduce a new right, the risk is high that you undermine the existing right.

And if this proposed new right is (?) among conflicting party, probably at the end of the day, you get weaker right than you had before. Finally, if you go back to the adopted documents from the world summit on the information society, you will see that the main reference is to the existing human rights declaration from 1948. Because in the three years of negotiations, it became very clear that probably if we move too strong to a new generation of human rights, the unintended side effects will destroy what we have.

And ten years later, it was very wise decision by the Human Rights Council of the United Nations, which adopted a resolution saying that the individuals have the same individual rights. They have offline, also online.

This is a very simple language. Everybody understands it and it makes very clear that there is no need to reinvent human rights for the Internet. We have it already. We have to use it.

And this brings us to the second part of our discussion, the implementation. That means while there is no need to reinvent the rights, there is indeed to guarantee that we can enjoy these rights, also independent from the space in which we operate. In particular, in the cyberspace, which is borderless. I stop here, because this will be part of our discussion. Back to you, Karmen.

>> KARMEN TURK: Thank you. We were planning to have it like this. That we are all trying to keep it quite short and say very short introductions and then really open it up for discussions. Any kind of comments, thoughts, or ideas you have, please write them down. We would really like to hear them in 15 minutes or so.

So the next panelist is going to talk about human rights from the perspective of ICANN, by Markus Kummer, who is according to World Wide Web, resides in Geneva, and is journalist hidden inside of a diplomat. He ended up with Swiss diplomatic services and ended up with ICANN and so forth.

>> MARKUS KUMMER: Good afternoon. Thank you. It's my pleasure to be here. I started my professional life as a journalist and there I learned the good old saying "don't let the facts get in the way of a good story." That was maybe the beginning of fake news.

I'm also the board liaison on human rights. There's ongoing work going on that I'm speaking here in my personal capacity, and I don't reflect the consolidated board view. But let me say at the outset that ICANN, by carrying out its mission to make sure that the Internet functions, ICANN is not the only organization that I can contribute the coordination to the good functioning of the Internet. By doing that, there's a lot actually, to promote some basic human rights like the freedom of expression beyond borders. It's like Article 19 predicted in the early '50s. We have this right now thanks to the Internet.

The human rights was not part of the discussion on ICANN to begin with. It sort of came up a few years ago, and when it was first mentioned, especially by noncommercial stakeholder group, some board members said, What's that? We have nothing to do with human rights. But then we had to be reminded, hang on. Who is privacy? This has very much a lot to do with human rights.

And obviously, freedom of expression, freedom of assembly. These are core values in the human rights field. So gradually, discussion started and took off and was part of the transition and it is now in the ICANN Bylaws as a core value. ICANN respects human rights as a core value, but obviously, ICANN does not enforce human rights.

And that's also more part of the discussion. Human rights are obligations states have, not private organizations as such.

So there was a very long discussion, and it's difficult and complicated discussion. It's not that easy, but in the U.N. context, there had been work carried out. We have U.N. Guiding Principles on Human Rights for private enterprises.

That defined the obligations and make it also clear. While private enterprises don't have the same obligations as states, they nevertheless, should aim to respect obligations. And this, in particular, relates to labor standards for big multinational companies who operate in developing countries. They should not exploit local workers, but they should respect higher standards there.

But the discussion also made it clear this U.N. Guiding Principles cannot be translated one-to-one, to ICANN. As ICANN is a slightly complex organization. Slightly different from the traditional enterprises that the U.N. guiding principles apply to. As it happens now, we have a framework interpretation that is out for comment.

And I encourage you to look at it. It's up on the ICANN website. It makes it clears what the bylaw means and what it does not mean. And again, it's not here that ICANN should be active outside its mission. But only when it relates to its mission.

But this is work in progress. We don't know yet what it will lead to. It could lead to human rights impact assessment in the policy development of ICANN. But this is, again, it's complex. It's highly specific. And there are also possible legal consequences that have to be analyzed.

So right now the ICANN community is in the process of assessing this, and we will see where it will lead to. And I will stop at that. Thank you.

>> KARMEN TURK: Thank you, Markus. So next, in order to open the floor soon, we will move on to the Council of Europe. And from there we'll discuss a bit the standard-setting for the 47 member states in Europe. With that we start with Charlotte. Charlotte Altenhoener-Dion, who is working for the Council of Europe in regards to Internet governance, freedom of expression or other human rights as well. Before that, she has done a lot of good and appreciated work for minors and vulnerable groups. Now she's been battling a lot, the subject theme of this conference. Without further ado, the floor is yours.

>> CHARLOTTE ALTENHOENER-DION: Thank you. My name is Charlotte, and I'm in the media and Internet division of the Council of Europe, which is part of the Information Society Department. Generally, for all of the Council of Europe and its work, of course central is the European Convention on Human Rights and Fundamental Freedoms. And the very rich body of case law of the European Court of Human Rights, which gives all of us binding guidance on how member states should be applying their human rights obligations.

One of the main doctrines of the court has been the doctrine of dynamic interpretation. And this means that the interpretation and application of human rights cannot be static. It evolves. Together with the evolution of society.

And society of course, there's important technological changes that we're discussing today. There are also other changes. Societies have become more diverse. Societies are grappling with much larger levels of inequality.

But when it comes to the technological evolution, the effort of the Council of Europe's standard-setting has been to inject nonbinding soft law standards to help governments, judges, national court workers to see how the fundamental principles of the Council of Europe, human rights, democracy, and rule of law can be applied to the new challenges.

When we say human rights apply online as they do offline, what does that really mean? What does it mean for the freedom of expression, for instance, to be enforced in the online space?

And here our standards are different instruments, over 60, since the '80's, recommendations, resolutions, declarations that provide guidance and help on quite specific issues to determine exactly how to live these human rights articles in daily life.

Some of the standards are general. For instance, media pluralism, digital content of media, what is the public service value of the Internet, et cetera.

Some are also very specific on Internet governance-related issues, and they really provide guidance on technical matters. There are two declarations, for instance, also related to ICANN and the important work that ICANN is doing. And they are recommendations that determine very clearly what the negative and positive obligations of member states are regarding the online space.

How to maintain an open and safe network for the Internet; how to ensure that there's no interference to the freedom of expression. For instance, unless the interference in line with Article 10 of the European Convention has a clear legal basis, is serving a legitimate aim, is necessary in a democratic society and is proportionate to that aim.

And then there are standards, of course, also reminding states of the positive obligations they have of providing an enabling environment for the freedom of expression. As we have heard already, includes also to provide an environment where private actors behave in line with human rights as well. Where private actors are aware of the responsibilities they have towards the users.

And we are differentiating between the obligations of states that stem directly from their human rights commitments, and the responsibilities of intermediaries in line with the U.N. Guiding Principles and also in line with standards developed by the committee of the ministers of Council of Europe.

And to respect human rights law and democracy in the online space, I want to mention three of many recommendations of last year. There's the Internet freedom recommendation, which provides indicators to states and helps them establish what really they should strive for in their daily policymaking in their legislative endeavors and in the application of articles in courts with respect to the different rights.

With respect to freedom of expression, privacy, right to assembly, et cetera.

Then there is the Internet governance strategy. And I think that is also important. That was adopted last year. Reminding states again of the multi-stakeholder principles that must apply to the Internet governance. And also very much again underlining the responsibilities of private sector actors.

This is really where we are today. We're currently in the process of developing a draft recommendation on the roles and responsibilities of Internet intermediaries. And this is where the next speaker will speak about more in detail. But this is important to ensure that we are reminding, really, all of ourselves that this is a multi-stakeholder environment where states have obligations. But where also intermediaries have certain responsibilities.

>> KARMEN TURK: Thank you, Charlotte. Last but in no means least, we try to look into the human rights and Internet politics from the angle of regulating intermediaries. As Charlotte just said, there's a reality that Internet is all about private persons. This will be outlined by Matthias C. Kettemann, who is a fellow in University of Frankfurt, lecturer, and studied in various educational institutions like Geneva and Harvard Law School. Self-determination. A professional I have had the honor to work with and huge person in addition. The floor is yours.

>> MATTHIAS KETTEMANN: Thank you, Karmen. What a lovely introduction. The importance of this panel is to show you how we can apply existing standards to the online world. How to realize human rights online. And one of the ways to do it is to develop on the basis of existing law, clear standards which are then communicated to states and to intermediaries. That is, to Internet companies.

One example of this approach is the Council of Europe's recommendation to member states on the roles and responsibilities of Internet intermediaries. And I have had the honor to act as reporter for this group. We're still in the process of finishing the draft, but I'm able to share some of the key points we've worked on for the last one and a half years.

We appreciate any input from your side. Let me first tell you about our approach. We do not try to invent the law. We try to establish existing legal principles and try to make them as clear as possible and as easy to understand as possible so that states and intermediaries have a clear guidance on how to regulate content, how to deal with human rights challenges.

Our recommendation has two parts. We have included a section on the duties and obligations of states and a section on the responsibilities of companies. So we acknowledge that in the Internet world, it's not only states that have an obligation to ensure that human rights are applied, but also -- and in the context of freedom of expression, for instance -- primarily it is Internet companies that have to ensure that on their platforms human rights are applicable and applied.

We acknowledge that the world is constantly evolving. The roles and responsibilities of Internet intermediaries are changing, they're going. They have, by now, become extremely important players. They connect users to the Internet. They enable the processing of enormous amounts of data. They host and store web-based services.

They develop applications. They also host index content. In doing all those things, they have to agree to certain human rights frameworks, and they have to make sure that in their actions, they do not violate the human rights, their users, we, all of us, are entitled to.

Regarding states, we want to make sure that states, in dealing with Internet intermediaries, accept and apply the principal of legality. That means, especially that any request, any demand, any action by public authorities, which is addressed to Internet intermediaries, must be prescribed by law.

The group thinks that any informal approach by governments to intermediaries leads to insecurity and can be detrimental to human rights. States also should not absolve themselves from their obligation to secure human rights and fundamental freedoms for all, by delegating those functions to Internet intermediaries. Encouraging intermediaries is OK, but delegating functions to ensure human rights to intermediaries by states is not an approach we find conducive to securing human rights.

Further, any legislation which applies to Internet intermediaries must be clear; it must be accessible; it must be predictable as to the effects. New laws, especially, have to be checked against their potential impact on human rights. The new German law on enforcing human rights online, for instance is very problematic in that respect.

We have also included clear safeguards on selected human rights such as the freedom of expression and privacy and data protection. Again, we try to point out that any demands, any requests by states which are addressed to Internet intermediaries regarding personal information, must be based on law. And those requests must pursue one of the legitimate aims for the European Convention on Human Rights, particularly Article 8.

It's not only states that need to ensure that human rights are realized online. Internet intermediaries have enormous responsibilities with regard to human rights and fundamental freedoms.

We recommend, they should in all their actions, respect internationally-recognized human rights and fundamental freedoms of their users and of all third parties who are affected by their actions. They should engage in regular due diligence assessments regarding human rights, engage in regular assessments of the possible future of human rights impacts of their policies. And they should seek to ensure that their actions, be it on a company level or through algorithms, do not have discriminatory effects on their users or other parties.

We've believe firmly Internet companies need to increase their accountability and transparency. Especially the process of developing, changing, and applying terms of service agreements, must be as transparent, as accountable, and as inclusive as possible.

Users should be actively engaging in those processes, and companies have an obligation to open up those processes and open up the discussion on how their terms of service are applied.

Internet intermediaries should respect the rights of users to receive and impart information and ideas in moderating content. They should not conduct general non-targeted filtering to detect unlawful content. All measures which are taken to restrict access to, or to remove content on behalf of a state, should be effectuate -- the Council of Europe 108 on automated processing of personal data. We also firmly believe that states -- that intermediaries, need to ensure effective access to remedies for their users. And this includes clearly designing this access to remedies in the terms of service and communicating that effectively.

And finally, intermediaries, we believe, should engage in targeted age and gender-sensitive efforts to promote the awareness for all users of their rights and freedoms online. Both vis-a-vis states and intermediaries. We'll only be able to realize human rights online when we know what these are and who's responsible for them.

>> KARMEN TURK: Thank you. People really love to hear your opinions, because these are the subject themes that interest or affect all of us. Like on Sunday, where after the horrible London bridge attack, prime minister of U.K., Theresa May, stood up and said that whatever we are doing in the future, one thing is for sure, we're going to need Internet rules in order to avoid all the safe places for terrorists and so forth.

And this went viral on Twitter. So why? Why do we all care about it? Whether it's because we can feel that it's our freedoms that are being balanced against the security of a community, or what are the reasons and how to best achieve this. This is what, in the end we would as a society and in this workshop, would like to hear your opinions on.

So any hands? I think we have microphones going on. Or remote participants? I think, yes, you have to actually walk to the microphone.

>> I just have a quick follow-up question to what Matthias was talking about earlier. You told a lot about what should be done. But in my opinion, a lot of the stuff is not about the rights itself. Maybe some users are even aware of those. But enforcing those rights and actually going after those companies where the profit motives might come in conflict with human rights. Or where they have a relationship with government which is not really following the human rights, so to say.

And on May, I think it was more just propositioning something that would look -- that she's doing something, and not really thinking clearly that cryptography should be banned and we will lose telegram and all of the things that allow communication to be done freely, securely.

>> Anyone from the panel to directly try to give an idea or remark back on how it can be actually enforced? Because the human rights are here. We all have them, online, offline. So enforceability is the number one question, yes?

>> MATTHIAS KETTEMANN: I think the relationship between states and companies is multifaceted. In certain circumstances companies need to be protected from states and they need to be protected from overreach. In certain circumstances, it is the other way around. States sometimes also need to be protected from companies which have by now, reached -- have a global reach and have a turnover that equals or surpasses the -- well, what some states have in a year. However, I think the key question we have to ask ourselves is who can effectively implement human rights.

Each actor has its specific roles and responsibilities. States need to ensure that the human rights of their citizens are protected. The citizens do not stop being citizens when they become customers of a company. That means that even if you are a customer of a company that might be headquartered outside of the territory of your home state, you still enjoy the protection of human rights that you as a citizen of that state have.

Companies need to be aware of that, and they, as responsible corporate citizens, also have to ensure that within their area of responsibility. In keeping with the ruggy approach of the United Nations they do not violate human rights. It's not on either/or question but rather the answer would be that every actor is responsible within its own sphere of influence in keeping the human rights which apply to them.

>> To add to that, and I agree with what was said. If we take rights as kind of agreed. We do have standards and we know more or less how we would like things to be. The enforcement really, I think there sometimes lose sight a bit of the rule of law and of the differentiation of original state powers, which are really legislative, adjudicative and executive. And here what we're trying to reestablish is that the legislative power clearly lies with states. And they need to develop the rules and standards of what exactly can be taken down, how and what circumstances.

The adjudicative in terms of when exactly does an individual situation require intervention, that, I believe there, we have a number of discussions ongoing. Simply because courts alone are having difficulties in playing this role. Simply because they traditionally take a lot of time.

But the enforcement part. That is taken today also by intermediaries. Because they are actually the ones that are deleting certain content or that they are sharing certain personal identification of -- they are disclosing user data.

But what we need to ensure is that we keep those different functions separate and we have those checks and balances. And to be set for the intermediaries, we're saying they need to also respect human rights. They have the terms of service agreements and they have the right to do that. We're saying simply those terms of service and community guidelines must be transparent.

It must be clear to users what exactly do they allow on their platform and what do they not allow. And in addition, those terms of service agreements also must be in line with general human rights standards. That means they cannot in themselves be discriminatory. They could for instance, not have terms of service agreements that say women can have more rights than men or something like that. Just to take a silly example.

But I think at the current moment, what needs to be done really is to dissect what exactly happens with the legislative function, with the adjudicative, and then with the enforcement. Who enforces, how, and when. And that is really how we only can come closer to finding standards on that.

>> KARMEN TURK: Thank you, Charlotte.

>> Thank you very much for the great ideas you shared. I want to be a little controversial. I know the great track record of the Council of Europe in creating soft law and creating recommendations. Considering the fact that intermediaries are something that is global, and many other people want to be part of regulating intermediaries with regard to human rights, is the Council of Europe the right place to make these kind of recommendations, or should it rather be ICANN or the U.N. or the T.U. or someone else pitching in and trying to get more voices.

Because it doesn't really help everyone on the planet. If Europeans have a right to be part of the debate about terms of service agreements, but not everyone on the planet.

>> KARMEN TURK: Thank you. Who would like to take it?

>> I can briefly react. The human rights bylaws only go to the core mission and framework of interpretation. This would clearly be outside the scope. The OBCD has already produced guidelines on intermediaries back in 2011 and there may be an interaction with the Council of Europe. As there's on overlap in membership. Not every university member is a member of Council of Europe and vice-versa. But there's a big overlap. I would be interested in hearing from those involved in the Council of Europe if there's an interplay at all between the OBCD guidelines and the ongoing work in the Council of Europe.

>> I can only echo Markus saying ICANN is not the only place for managing human rights. They have always argued ICANN is not the cyber police. So ICANN has to deliver names and numbers. And if our aspects in this process of delivering names and numbers which touch human rights, then ICANN has to be careful not to violate human rights. But it has not to be active in this field.

I see the argument of the gentleman here, I would not underestimate the role of the Council of Europe in the global debate. Because the Council of Europe has not only the human rights convention, but also the court of human rights. I think this is the only real instrument we have, the only mechanism, where you can go in a case of violation of human rights in a court and can ask for a decision.

There are some procedures how you get a decision out of the human rights court, but this is a huge achievement, because if you are as a state, member of the human rights convention of the Council of Europe. Though you have to join the human rights court, and then you are obliged to follow the decisions. We do not have such a mechanism on the global level. So this is really unique and so far what Council of Europe is doing with its member states, which is much more than the 28 members of the European Union. You should not forget that the Council of Europe includes nearly all former soviet republics as members. So this is a big achievement and we should not underestimate this.

However, I see that outside of the member states of the Council of Europe there are a lot of human rights issues which probably should be treated in a similar way. Or what we can do to bring mechanisms which are working in Europe to the rest of the world.

And here I see an interesting development in the United Nations Human Rights Council. The council was just established a couple years ago. Before it was the Human Rights Commission, and it has now an extended mandate. It can ask for reports, national reports, and can send fact-finding missions to certain countries. This is helpful what the council can do.

And even more, it's now moving in a direction where for special issues, the human rights council at points we have a reporter for the freedom of expression. And really a big instrument, because they -- it's not a court. You cannot make a decision. But in his report, he can use an instrument which is also very powerful, and it is naming and shaming. And this goes both for governments and for corporations.

Because corporations do not like if, say, have a bad image. And if they are mentioned in a report of the special reporter on freedom of expression in the United Nations context, that ignore human rights or they treat their customers in a way which is in conflict with human rights, this is a big thing for a corporation.

That means you have certain mechanisms in the reporting system under the special reporter regime in the Human Rights Council which is not the solution to the problem, but it is an important instrument you should not underestimate.

And the next step, which was taken by the Human Rights Council as the result of a German-Brazilian initiative is now a special reporter on privacy. This is the result of the revelation when became clear that both the president of Brazil and the chancellor of Germany.

Telephone were wiretapped. So the German, Brazilian government came together to the United Nations and said we have to do something more. After adoption of a resolution now, this new job of the special reporter for privacy in the Human Rights Council was established. He has just presented his first report. And if you go through this report, you see all the issues we have discussed in the last five or ten years about privacy in the digital age. They are now mentioned in the work plan on this special repertoire. That means if you have a problem, send your message to him. He is open.

He was recently in the ICANN meeting in Copenhagen and said I want to learn from you, but we will push forward. And naming and shaming is a strong instrument. I could imagine that we are looking, if we're moving forward, it's much more easier to work with such reports than to try to find legally-binding solutions for problems.

So that means you do not try to reinvent existing norms, but you use the mechanisms you have, with cases, with some problems so this can be discussed in an open manner by all stakeholders, so you have more actions which will bring governments and corporations which ignore human rights in a difficult position.

This will not be the final solution as I said. But it's an important element which should not be underestimated.

>> Yes the Council of Europe, as the guardian of the convention. This is how you do it. That you have a positive obligation for a state to create an enabling environment. So regardless of the fact that most of the cases are Mr. B. against State A., it's all about creating positive obligation for the state with the stakeholders of older convention to create responsibilities for all corporations. Now we have a question for Matthias.

>> MATTHIAS KETTEMANN:

>> I want to come back to this enforcement topic, because I think this is now one of the key issues, also for EuroDIG in the future. We celebrate, maybe tonight in a nice party, ten years of EuroDIG. And we hope that there will be another ten years of EuroDIG at least.

I think in the first ten years we spoke about a lot of the standards and the standard-setting and in the session today we heard of important things, of course. Steps in the European convention, human rights, the legal bases must be proportionate. Most of us, even the young ones, have some signs of it at least.

I think it's much more important now that in the second ten years we speak so what was the effect of all these standards. We have this also enforcement and we have, of course, the execution of judgments, for example in the court.

People read about the court cases, what the court decides that State A. has for the tenth time maybe blocked Internet access. Has done sanctions to that. Then we read it and OK, we can read OK, it was an infringement of Article 10. But we never hear what happened then.

I remember very well at one of the last IGFs that was in one of the Council of Europe member states. They had invited one of the activists of the IGF and asked this activist. And I will not tell you the name now of the country. But they have asked this activist, what was the success that we spoke about all these standards on IGF there? And he said, well, just directly when the IGF took place, after that I got even worse sanctions than I have ever got before.

So we really have to concentrate what is happening. We have to concentrate on enforcement and what is really the effect of what we are doing. And therefore, I think also companies. We spoke about, of course, the enforcement of companies. I want to hear from the big companies, from the intermediaries, not only that they put on complaint mechanisms, whatever. I want to hear concrete cases that people complain and then finally what was the solution of the companies.

So what they concretely do and how is it possible that we still have all these red fliers here. So much hate speech on the Internet. Everything cannot be solved by regulation, and not everything is blaming and shaming. But Wolfgang is very right what he said. We need these reports and they have to be discussed at a wonderful event like the EuroDIG. Thank you very much.

>> That is absolutely also what we at the Council of Europe and that's why among the standards we promulgate, have included one on the importance of transparency of those companies. If we cannot look into the black boxes of decisions that are taken on a daily basis by people and by algorithms, we are not able as lawyers, political scientists, to analyze them and to make them more human rights sensitive.

So we need a firm knowledge base. This is why transparency is so important.

>> KARMEN TURK: Yes, please.

>> I just wanted to raise a question that I think is kind of undermining all discourses that have been made and actually have been made also this morning. Because I remember, I think professor mentioned of the Cold War we should try to avoid these things. And my question is about fact that we need a long-term strategy in terms of something that we are facing, new challenges. And we need to adapt a little bit more.

>> That's why we really focus on education. We got manuals to try to eradicate this kind of thinking before it can even be born in mind. But we don't find a lot of -- many states that don't like really going to that. We got many states that are cutting education funding. So what are your opinions about that, your suggestion? How can you -- general European institution can do something more to push these steps.

>> KARMEN TURK: I'll give the floor to some of the panelists because in the end if you're looking for long-term solution, I think the rule of law is still the one benchmark that we should try to uphold. And the necessary condition for that is the court system. Transparency. Public decisions.

Of course it is understandable that in Internet you need quick remedy. So how the court system in the future to tackle this, in order to put or give the possibility to making these decisions to only private companies. This is, I think the main questions, especially for regards to vulnerable groups as minors. Charlotte maybe have any idea?

>> CHARLOTTE ALTENHOENER-DION: Thank you. I think you mentioned, absolutely crucial point. Education and awareness-raising is hugely important. I think the general understanding for that is growing. Standard-setting, just to come back quickly to that, is also in a way about preventing human rights violations. So I want to just carry the flag really for standard-setting today as one of the ways of not only helping member states implement their human rights obligations.

But also helping them do that in order so that they avoid new human rights violations. So that the court in ten years, once the case has moved through the national court system and then comes to Strasbourg, will not have to determine there has been a violation. Part of the standard-setting has indeed also been to remind member states of this enabling environment, which means very much human rights awareness. Education. Make people aware of what their rights are online and also help them develop the skills that they need in order to navigate this space.

Which is difficult. And here I want to just mention the 2014 guide, Human Rights Guide for Internet Users, which is an important document. Because it is directed at users of all ages. And going in quite some detail about what are your rights exactly. What does copyright mean, what does it mean in terms of what you can do and not do. And what are the possibilities to address intermediaries or courts when you have grievances. That is important. Also, it is important to be aware of the rights of others. And this is where the no hate speech movement comes in.

Finally, just with our recommendation that we are doing now, media and information literacy programs are also considered very important. And they're part of both states' obligations to start from school to develop these skills and to promote them in curricula and we do see yes, states do already a bit. Yes, they could do more probably. But I think the awareness of that is growing, how important that is from early age on.

>> And it is also part of the responsibilities of intermediaries. That they also have gender and age sensitive programs to ensure that users understand really what they're doing and what they need to protect their privacy in the future, for instance. Or how to protect their own freedom of expression and the one of others around them.

>> Thank you.

>> KARMEN TURK: Any other good solutions or I give the floor?

>> Rachel Pollack from UNESCO. First in response to Dennis, should it be the Council of Europe. I think we've seen a lot of the standard-setting that has come out of the Council of Europe has led the way, kind of on the frontier of many issues.

And beyond the 47 members that other countries have ratified some of the conventions such as convention 108 on data protection. Just to mention that UNESCO, we had a report out about the role of Internet intermediaries and fostering freedom online that looked at case studies of social networks and search engines and ISPs. And came up with recommendations, mainly that they should be more transparent, mainly in application of their terms of service which they tend to be less transparent. And then the removal of content.

Also, we work on media and information literacy and I think there there is a great potential not only for what governments can provide, but also in working in partnership with Internet intermediaries to integrate it into their platforms. Judges are playing more and more of a role in setting, beyond the legislative bodies, and actually creating case law. That's why we work to educate judges on standards of freedom of expression, on Internet.

So that was my UNESCO plug.

Now my question. I wonder in the course of the expert group on Internet intermediaries, it seems like public opinion has shifted a little bit. Five years ago we had the so-called Arab spring, and they were seen as this liberating force for democracy, and now everyone is very critical about the role of Facebook and Google and the spread of fake news and the spread of radical content leading to violence, extremism.

So did that affect at all your deliberations within the experts committee? Did you have one idea at the beginning that shifted along the process and were you engaged in discussions with the intermediaries themselves, and did their positions change during that period? Thanks.

>> KARMEN TURK: I think Charlotte or Matthias could apply, but very short comment. I think Council of Europe is trying to draft within the expert committees any recommendations. They are trying to get the word out as much as possible and to get all the stakeholders within the room actually, to have their say and then to actually have a discussion so that the standard-setting would actually correlate with the society.

But in your question regarding fake news and all those alternate news and let's say, contemporary issues. In my opinion the standard-setting in the field of human rights, at least, should look very, very much forward and try to not be too much intertwined with issues that happen daily. Because otherwise, it wouldn't really be a standard-setting. It would be just a reply to yesterday's news.

And I don't think this is the way the Council of Europe should make the human rights evolve for the 47 member states, which is a huge part of the world. But yes, probably has a comment? No? Charlotte?

>> Always.

>> MATTHIAS KETTEMANN: If you talk to companies you always get the answer we would love to engage more broadly, but we just don't have the time. I feel it's problematic if you do not think about the longer-term impact of applying terms of service to the development of human rights. I think companies should take a step back and think about what impact their action, their algorithms about how human rights are applied on their platforms. The Council of Europe and other organizations including ICANN, are encouraging companies to do that. To engage on a broader basis.

Just on a side note to the gentleman a couple comments before who talked about the potential colonial dimension arguing that it's a bit presumptuous of the Council of Europe or any other European organization to set standards that apply globally.

I think you should not so much look at the geographic background of one organization but rather at the normative pull of the standards which are developed. If an organization develops rules which make sense, which are based on human rights and which make the Internet a better place, I think it's not so important where those rules come from, you know?

It's about the normative pull of the rules that exist. And I think the Council of Europe, also with its convention on cybercrime has shown it has an international pull regarding the Internet.

>> Thank you. Just to add very short pieces of information. First of all, yes, very much the Council of Europe wants to engage with different stakeholders that are all very important in the whole discussion on Internet governance. And we have our expert committees that have representatives from Civil Society, from governments, and then we have observers that also include intermediaries. So we have had several sessions where we had different companies represented and also bring to the floor, their points of importance.

We also will be having an open consultation on our draft recommendation, and if you all please register with your e-mails, we will send it to you and alert you to when it is online on our website so that you can also look at it and provide your comments.

Finally, when it comes to the public expectation, yes, there's strong public expectation today on doing more, regulating more, the Internet, et cetera. And we perceive that of course. That was one of the reasons why this committee was established.

And this public expectation results in governments feeling more pressure to do something about it, but it also results in Internet companies doing more. Because they of course, don't want to lose their users. They want to maintain trust. They want to maintain an image that they're doing the right thing. And we have to be careful that they don't just do whatever.

So this rule of law framework that we're trying to establish not only just binds member states, but it also is supposed to help intermediaries to establish certain standards.

What they still also need to do so that they don't just remove content because they think it may be hate speech, et cetera.

>> I'd like to add if I may, a few words back to the U.N. guiding principles. They provide a very good conceptual framework on the roles and responsibilities of states and enterprises. It's based on three pillars. Protect, respect, and remedy. Governments have the obligation to protect human rights. Enterprises have the obligation to respect human rights. And then they have a joint responsibility, states and enterprises, to provide access to remedy.

Now this is also work in progress. But I find it's a very conceptual framework.

>> Thank you, good question.

>> As someone who is living in an Arab spring states, there is a certain dynamic here. There are some legal actions thinking about censorship and tracking politicians and political activists. Some governments using tools that are developed and sold by European companies.

So I'm not talking here about some kind of global legislation or something like that.

I'm talking about that some companies, and one of them already went public, which is hacking team. It's actually hurting the human rights elsewhere. So how we should tackle this.

>> I would say that just as we have an expert control regime for arms, we need to make sure that there's also an expert control regime for cyber weapons in the larger sense of the word. And that includes software developed by companies which is sold legally, but which can be applied in a way that is also is a tool to fight human rights defenders internally.

But in addition to that, states also need to engage their partner states and ensure that the global human rights standards are applied there. And if they are, we sort of sidestepped the problem of demand for that kind of software.

>> Thank you. We're listening about all the discussion on the responsibilities of intermediaries, whether this is a discussion on trying to find a balance between self-regulation and co-regulation, I thought about it, because at least when it comes to protecting minors online that have been, a lot of initiatives coming at the E.U. level in the past year. Thank you.

>> KARMEN TURK: Thank you. Who would like to maybe give an expert view? Because very subjectively, I always fear that over incentivized intermediaries very comparable to totalitarian regimes, but any expert opinions from the panel to that remark? Co-regulation, self-regulation.

>> Maybe just to say at the Council of Europe there is an action plan for children's rights and a strategy for that. Within that strategy that is being developed right now, a special plan for how to protect children's rights online. And that is being developed in a special expert committee as well.

>> The parents have responsibility as well. You wouldn't leave your children somewhere in town next to a place where you know they have drugs, that have access to pornography. Just like that, you wouldn't leave your children out there in the Internet to do as they please. They need to be taught how to engage with the dangers which exist. So not only a question of how to protect them from intermediaries, but also, we have to ask ourselves how to ensure that parents and schools fulfill their obligation towards children.

>> KARMEN TURK: OK.

>> Just to follow up on that. I'm Patrick from UNICEF and we're supporting the Council of Europe for developing guidelines for children's rights in a digital environment. I think it's going to be an excellent process. One of my questions is related to it. This has just come up now from the audience I think. But I go to a fair number of events both in terms of the human rights and Internet governance and children's rights rarely are featured. You hear conversations about protecting children online, but not about the more holistic understanding of children's rights. I don't think that goes to children's rights, but also to the rights of women, ethnic minorities, sexual minorities. My question is how do we fight against this?

I think certainly we would want these considerations to be mainstreamed and not be siloed so that they're considered in every process. It seems almost now as if they're being mainstreamed out of existence. I think that's sort of shown today, there is a great Council of Europe initiative, but when we think about Internet governance, we don't think about how it necessarily applies to children. If we think about children it's in the context of protecting them, but not so much in the context of their own freedom of expression and their own right to access the Internet. So my question for you is how can we move the dialogue on?

>> KARMEN TURK: I got a feeling there's been quite a numerous number of questions that are actually doubting with what Dr. Wolfgang Kleinwahter began with. That we have this very common and very dear principle to all of us, that all rights offline should be rights online. It seems to be a lot of guessing whether it really is so, that we do have the rights that we have offline. That do we really have them online, whether they are enforceable. So this is the actual question. Because children offline, we do perceive them as bearers of all the rights that there are.

>> WOLFGANG KLEINWACHTER: I think we have two different levels. One is the right as such and the other is to make for the implementation. And if it comes to the mechanism, the only way to move forward in today's world, to promote a dialogue among all stakeholders.

So where you respect the various layers. Certainly, a court decision is not made by a multi-stakeholder dialogue. But a lot of things you can achieve by promoting the dialogue that it means.

If you have the fixed rights in a convention, now law or in a treaty, then you have a criteria, and you can stimulate the discussion.

And if the body which promotes it has a certain authority it will make the outcome from the dialogue stronger. I think the work from the Council of Europe has created a legitimacy, and what comes out of this is a helpful instrument. I think also EuroDIG has already from the very first day, introduced a practice which is different from the United Nations IGF. Inform of messages. Certainly, a EuroDIG message is not a treaty, it is not a right.

But if three or four strong messages come out from such a meeting, then as are actors, including intermediaries or governments, will take note and say, oh, something is going on here. And I think this is helpful. And it's not only governments and intermediaries, it's also other constituencies. What I've seen over the last years is that within the Internet governance community, with all the differences we have, there is a common consensus. We repeat main things from year to year and have a certain agreement with some minor differences.

But the Internet is now discussed also in circles and groups which have nothing to do with Internet governance. Look in the military and they discuss questions on cyber weapons and cyber war and how to protect the public core of the Internet. How to protect electric grid and the hospitals from cyberattacks. They ignore totally the discussion here about right to freedom of expression, right to privacy.

I was in a meeting recently for the digital economy. Germany is the chair of the G-20 now. If you see all these business people around the industry 4.0 Internet of things from the various industries, they have no clue what we're discussing on the Internet governance. Security, economy, and human rights are not interlinked. That means the target of our discussion should not only be intermediaries or let's say private sector members and governments. The constituencies more active in the digital economy and it constituencies active in cybersecurity, because you can reach sustainable developments only if the security aspects, the business aspects and the human rights aspects are more or less -- I wouldn't say harmonized, but interlinked in a certain way.

I remember the British foreign minister 40 years ago, when we had a similar constellation. There was security issues. Bucket 2 was economy and bucket 3 was human rights. It was the Soviet Union who wanted security and the west who wanted to have human rights. Without acts in basket 3, no acts in basket 1. So it was a very clear deal if you want to achieve something in the security field you have to make concessions in the human rights field.

If you now translate this logic of the, let's say, the process into the cyberspace, you could argue in a similar way that you will not achieve cybersecurity if you ignore human rights. And by the way, we will not have sustainable human rights implementation if we live in an unsecure world.

So this is a process which goes in both directions and we have to take into consideration basket 2. That means the digital economy cannot be ignored. I think to broaden this understanding is important, also for EuroDIG, that we reach out more to groups which are also discussing Internet issues but had nothing to do with EuroDIG in the last ten years.

>> KARMEN TURK: Thank you. That was very entertaining. There's one more microphone there.

>> I just wanted to pick up again on children's rights and the digital environment. Because we really appreciate the initiative that the Council of Europe has undertaken on drafting these guidelines. If you look back that we have the U.N. convention of the rights of the child since 1989, I think it's high time to put now also the focus on these rights. It has taken a long time to understand that children's rights as well as human rights are relevant in all areas of life.

And the digital environment is not something separate. It's now horizontal. So we need to understand that children's rights in all areas are affected by the digital environment. And it just take the opportunity to advertise the session we have tomorrow afternoon at 4:00, the flash session, dealing exactly with children's rights in the digital environment. And we have the other opportunity to talk a little bit more about the guidelines that shall come out.

I think they shall be adopted by the minister's committee in January 2018.

And then probably at the next EuroDIG, we will have the opportunity to discuss this a little bit broader. Thank you.

>> One more question. Behind you.

>> Good afternoon. Maryanne Franklin, the Internet principal rights and Coalition. The title of this year is "Digital Futures." Hands up anyone who has seen "Planet of the Apes". Either the first version with Charlton Heston or the second one. OK. Just imagine 100 years from now a space ship crashes on an unknown planet and finds its way to what seems to be the remnants of a past civilization. I won't give away the ending for anybody who has not seen the film.

What remnants of these conversations, since at least 2003, what remnants of ATR charters Magna Cartas, principles, structures, programs, initiatives, educational outlooks, judicial rulings, various intergovernmental bodies, local organizations, schools, universities. What remnants would our -- the women who came out of the space ship and found their way to this lost civilization. What would they find and what state would it be? Would it be comprehensible, would it be in one piece? Would it be a conglomeration of many decades of declarations.

What I'm constantly missing after 15 years of conversation is the links in the conversation, in the reference lists, in the rulings that link to each other. That go backwards, sideways, that go forward. The constant erasure of what came before I final very, very trouble. So let all 82 charters of principles. Let this charter or that charter or that guidebook, let them all breathe and be visible so when that space ship lands, they will find not just one broken thing. They will find many things.

And like an archeologist they will find enough so they can reconstruct what happened before, so they do not make the mistakes of what happened in the past.

It is not an accident that it took so many years for the universal declaration of human rights to be accepted as soft law. I think we're wasting time, if we're not careful -- I'm speaking for myself as well. So in that sense, it's just think in the future for a minute so we can think horizontally and no longer in the silo thinking.

It's not just the rights of children. It's the rights of persons with a disability, and these are enshrined in international law. It's not just the rights of women, it's the rights of everyone to have a free education. We need to work together more, and let it be seen in the record. And that record is now online. People Google that record. So are we referring to each other sufficiently so that the future generations can find out where it all began? Thank you.

>> KARMEN TURK: Thank you. I think before getting our experts on the panel to their closing remarks. I think it's a very good practices of EuroDIG, as already mentioned, to have messages. In order to have messages, of course, we have to have reporters who have carefully listened in and tried to scribble down a few main points that came out as something very, very relevant for this workshop. Miss Maarja Pild, references for the planet of apes.

>> Sadly I have not seen the film yet, but this is something to expect. Thank you very much for the discussion and the content and all the thoughts. They were really interesting.

So now to conclusive remarks and four main points as such. Firstly, I would talk about interpretation of human rights online. Secondly, obligations of the states. Then obligations of the intermediaries, and lastly about education. But these all, very shortly, so you can get your coffee break soon, I promise.

So first point to interpretation of human rights online. We have heard that there is no need to reinvent new Internet-specific human rights. The interpretation of human rights should be dynamic and the interpretation must consider that technological evolution of such. Negative and positive obligations of the states in relation to the Internet must be clarified, while taking into account and reminding the states the principles of multi-stakeholders and legality.

Third, obligations and rights of the Internet intermediaries. Functions to ensure human rights should not be delegated to intermediaries. Nevertheless, intermediaries, should aim at respecting human rights. Refrain from discrimination and aim for transparency.

Lastly, education. Informing people about their human rights online is crucially important. Media and information literacy programs should be promoted. It is also a responsibility of the intermediaries that users would be more aware of their rights.

So this would conclude my conclusion and thank you for your attention.

>> If anybody feels that one or the other message has totally been neglected by the reporter, find her later and she will gladly add your message. What should the listeners leave from this workshop in mind? What would be the final conclusive idea that they should be thinking about during having a nice cup of coffee. Mr. Wolfgang would be first, probably? Or anybody else? You're free to choose the lineup.

>> WOLFGANG KLEINWACHTER: Whatever will happen in the future in cyberspace, we should put human rights on the first place.

>> KARMEN TURK: And not to repeat that, let's also not forget about the rule of law.

>> OK. So human rights, rule of law, fundamental freedoms should also have to be protected.

>> And it's a joint responsibility of states, enterprises, but also individuals.

>> I won't try to conclude. Otherwise it will become very depressive. However, actually it was very, very enlightening for me to sit here. Thank you for bearing with us. Thank you, all the panelists, for taking your time and sharing your thoughts. It was very interesting. Thank you to all the listeners. And now you can have your coffee or any other liquid of your choice. Thank you.

(Applause)


This text is being provided in a realtime format. Communication Access Realtime Translation (CART) or captioning are provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.

Retrieved from "https://eurodigwiki.org/mw/index.php?title=Realizing_rights_online_–_from_human_rights_discourses_to_enforceable_stakeholder_responsibilities_–_WS_01_2017&oldid=10345"