CoE to address the impact of technical measures on human rights
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With its seventh meeting held on 26-27 March 2007 in Strasbourg, the Council of Europe Group of Specialists on Human Rights in the Information Society (CoE MC-S-IS) is pursuing its mandate for another two-years period, as affirmed in its revised terms of reference. There are little changes in the group composition among voting members (member states of the CoE). EDRI remains a non governmental observer to the MC-S-IS group. For 2007, the group elected as chairman Thomas Schneider (Swiss federal office of communications), who, inter alia, has been active in the Swiss delegation to WSIS and then to IGF, and as vice-chairman Michael Truppe, from the Austrian Federal Chancellery.
According to its revised terms of reference, directly derived from the Kyiv Action Plan adopted at the 7th European Ministerial Conference on Mass Media Policy (Kyiv, 10-11 March 2005), an important part of the MC-S-IS group mandate in 2007-2008 deals with technical measures and their impact on human rights. On content regulation, the group is asked to analyse "the use and impact of technical filtering measures for various types of content in the online environment, with particular regard to Article 10 of the European Convention on Human Rights and, if appropriate, make concrete proposals". On intellectual property, the mandate is to "prepare a report on emerging issues and trends in respect of, on the one hand, the protection of intellectual property rights and the use of technical protection measures in the context of the development of new communication and information services (and the Internet) and, on the other hand, the fundamental right to freedom of expression and free flow of information, access to knowledge and education, the promoting of research and scientific development and the protection and promotion of the diversity of cultural expressions and artistic creation and, if appropriate, make concrete proposals for further action in this area".
The formulation of these terms of reference is encouraging in itself, especially on IP issues in that it states the context and limits within which IPR should be (re?)considered and implemented. This view is in line with the general CoE background of respect for and upholding of human rights. In the same way, first exchanges during the March 2007 meeting of the MC-S-IS group on the technical filtering of content seem promising, as a large majority of participating member states expressed strong doubts on both the usefulness of technical filtering measures and their compatibility with Article 10 of the ECHR. Here again, this is in line with the general profile of the state representatives, most of them coming from a media/justice/human rights rather than technical/business/ industry background. Thus, in principle, CoE and its MC-S-IS group is likely to be a more "human rights friendly" forum than many other regional or international arenas as regards information society regulation.
However, when it comes to practical recommendations or guidelines, the CoE and its MC-S-IS group face the risk to fall into the "multistakeholder governance syndrome" on these matters. Be it the influence of WSIS and its follow-up processes, most notably the Internet Governance Forum (IGF), or be it part of the general neoliberal globalization trend affecting almost any international organisation or forum, and characterized, inter alia, by a shift from binding and accountable public policy making and ex-post legislation to a rather opaque, private interests driven, soft law and ex-ante regulation implemented through technical mechanisms, it remains that the respect for human rights and the promotion of the public interest may become rather thetorical in practice.
Here lies the crucial role of observers like EDRI on digital rights issues, or others on more "classical" mainstream medias, to only mention those who actively participate in MC-S-IS meetings. Here also lies the importance of participating in such working groups as MC-S- IS, at the very early stages of policy making, to have any chance of successful - though limited - action. Through its experience as an observer to both CoE CAHSI and MC-S-IS groups of specialists since 2005, EDRI, while far from entirely satisfied by the group outcomes, may attest that documents (Recommendations, Declarations or Guidelines) on Human Rights in the Information Society, eventually submitted for adoption to the CoE Committee of Ministers, have successfully been deeply modified from initial draft versions which, in many other fora, would have left little expectations to digital rights defenders.
CoE MC-S-IS public website
EDRI-gram: Council Of Europe Draft Statement On Human Rights And
EDRI-gram: EDRI Granted Observer Status In CoE HR Group (29.06.2005)
EDRI-gram: CoE Works On New Instrument On Children Empowerment On
The Net (15.03.2006)
(Contribution by Meryem Marzouki, EDRI-member IRIS - France)