CoE Internet Texts Include Recommendations on Net Neutrality, Domain Names

In a declaration on freedom of expression and assembly in regard to domain names, the CoE said moves by some of its members to outlaw the use of certain words or characters “are a source of concern” because they might raise human rights issues or affect content accessible in other nations’ territories. Prohibiting domain names could also “set negative precedents” that could “thwart the vitality of Internet expression” and devastate Internet freedom, it said. The declaration urged CoE members to recognize the need to apply fundamental rights safeguards to domain name management, and alerted them to the “risk which over regulation of the domain name space and name strings entails” to free speech.

Asked whether government concerns over a lack of voice in ICANN policies on top-level domains surfaced in CoE discussions, Malinowski said no. CoE ministers as far back as 2005 asked the organization to explore ways to provide advice to the various transnational entities that manage critical Internet resources to ensure that human rights are upheld, he said. In response, the Committee of Ministers in May 2010 called for more participation of CoE countries in ICANN’s Governmental Advisory Committee in order to promote CoE values and standards, he said. The CoE now participates in the GAC as an observer, he said.

Officials also approved Internet governance principles, including universality, security, decentralized management and open networks. Users should have the “greatest possible access to Internet-based content, applications and services,” whether or not offered free of charge, using suitable devices of their own choice, the text said. “Traffic management measures which have an impact on the enjoyment of fundamental rights and freedoms … must meet the requirements of international law on the protection for freedom of expression and access to information and the right to respect private life,” it said.

There was full agreement, even before adoption of the Internet governance principles, that, given a September 2010 CoE declaration committing to net neutrality, any exceptions should comply with the requirements in that statement, Malinowski said. The earlier document also said the subject “should be explored further” with a view to giving member countries guidance and/or helping to develop guidelines with and for private-sector actors to define acceptable management measures and minimum quality-of-service requirements, he said. That declaration “had the support of all member states,” he said.

In its recommendation on a new notion of media, the Committee of Ministers urged CoE countries to embrace a broader idea of media that encompasses all actors involved in producing and disseminating content to potentially large numbers of people, and applications designed to enable interactive mass communication such as social networks or online games, “while retaining (in all these cases) editorial control or oversight.” It urged members to determine if rules are needed to guarantee people’s right to information and listed criteria for considering a “graduated and differentiated response” for actors that fall within the new concept of media. CoE member policymakers and regulators have “repeatedly underlined the need for a notion of media that permits to translate media standards,” such as the freedom of expression, media privileges, duties and responsibilities provided for in human rights law, into the new ecosystem, Malinowski said.

Another recommendation addresses the protection and promotion of Internet universality, integrity and openness. It calls for CoE countries to cooperate against Internet disruptions and safeguard free speech.

Malinowski said the recommendation was the first “formal acknowledgment” that there was “a need to cooperate, a need for due diligence and a need for concerted action” in Internet emergencies. He underlined that there’s a responsibility by countries to prosecute hackers in their jurisdiction in general, including those who were attacking third countries, but the recommendation was not about “more policing the Internet or controlling the Internet” to avoid such hacking attacks. Countries would be expected to have “reasonable tools in order to address such cases.” The question of a potential national liability for damage done from their jurisdiction to the Internet in other countries had sparked controversial debates at the Internet Governance Forum 2011. Liability is already part of international law, said Malinowski. The new recommendation postpones a decision on liability for reasonable infrastructure protection while inviting further dialogue about it.

Also on the CoE’s plate are recommendations on human rights matters related to search engines and social networks, and updating its convention on personal data protection for the new communication environments, Malinowski said. Follow-up on previous work on the public service value of the Internet and child online protection depends on Committee of Ministers priorities and future activities, he said. A CoE 2012-2015 Internet governance strategy is being considered and will be discussed by the Austrian government and CoE at a November 24-25 meeting in Vienna, he said.

Doubts about the future of the IGF, which has been criticized as being only “a talking shop,” are not shared by Malinowski. The Council of Europe was supportive of the forum and the discussions there, he said. One of the workshops in Nairobi will discuss “if we are in a sort of a constitutional process for the Internet,” he said.