Council of Europe Human Rights Commissioner Media Freedom Lectures

The Council of Europe's Commissioner for Human Rights, Thomas Hammarberg, has been hosting a series of lectures and discussions on media freedom and human rights. Lectures number 4 and 5 in the series, in partnership with ARTICLE 19 and the London Metropolitan University, took place at the Free Word Centre in London on Friday last. In a world of live blogging and Twitter it's probably a bit quaint to be writing a blog post about the event four days later. Nevertheless this is the first opportunity I've had to do so, so...

ARTICLE 19's Nabila Ramdani and Boyko Boev spoke about 'The Role of Public Service Media for Human Rights' during the morning session and Douwe Korff waxed lyrical on the subject of 'Social Media, Political Activism and Human Rights' in the afternoon. The latter paper was a joint production done with Ian Brown of the Oxford Internet Institute.

Previous lectures have focussed on 1. ethical journalism in human rights and media self regulation, 2. freedom of information and 3. the protection of journalists, particularly investigative journalists. The final lecture in the series will cover media diversity and will take place in Vienna in a couple of weeks.

Commissioner Hammarberg's plan is to use the lectures and associated discussions as the basis of a book on media freedoms and human rights due to be published later this year.

The ARTICLE 19 paper identified a series of common characteristics of public service media:

1. They should form part of a tripartite system where public service and commercial media co-exist with community media
2. they should be accessible by everyone or subject to general availabilty
3. they should have a specific public service remit (as per article 3 of the BBC Charter, for example)
4. they should be independent of both state and commercial interests
5. they should be impartial, objective and dispassionate and represent the interests of as many social groups as possible
6. they should be publicly accountable

The authors of the paper then went on to discuss the problems with migrating to public service media in many countries which don't have the benefit of a PSM set up like the BBC.  The BBC was held up repeatedly as a bastion of virtue and the model to aspire to.  Now whereas we should be grateful for what we've got in the UK in relation to the BBC and it is infinitely better than regimes where public service media is another description for government propaganda machine, we need to be pretty vigilant about successive governments' efforts to undermine the BBC and the corporation's own complicity in that regard, in addition to its less-than-public-service ethos in relation to issues like DRM on HD broadcasts.

Boyko Boev also suggested that in thinking about injecting a human rights agenda into public service media, there was a need for formal structural inputs from human rights defenders (NGOs etc) and international human rights organisations, into the usual bounded government/psm institution(eg BBC)/regulator(eg Ofcom)/viewer-listener bounded public service media system.

The subsequent discussion was wide ranging but there were a few key points worth mentioning. Firstly Commissioner Hammarberg noted that one of the major problems in this whole area is in the allocations of spectrum frequencies.  Too true and the concentrated control of the technology is something that is frequently overlooked. He also explained his serious concerns, in the decade of the "war on terror", in relation to European authoriatarian tendencies and the spread of hatred and xenophobia.

There was general concern noted by the audience and the commissioner about the way the media laws were changed in Hungary and the way that criticism of the changes was handled by the Hungarian government.  There was also a general consensus that the EU repsonse to what happened in Hungary was weak and distasteful and that the EU has failed miserably in facilitating accession to the Union by numerous states who have no effective press regulations/protections.  Four long standing member states have no press regulation at all and the prospects of enhancing human rights through public service media are virtually zero if there are no effective protections in place in such states.

Douwe Korff, in the afternoon, engaged in a simultaneously entertaining and somber legal analysis of social media, political activism and human rights, prompted by conventional media's interest in such issues in the context of the Arab spring.  He talked about social media revolutionising mainstream journalism and acting as a solvent on the control of traditional media on news production; and also as a kind of a solvent on the law and the holy grail of legal clarity and certainty.

Primarily he was concerned with internet blocking, takedown and surveillance and warned that the deep packet inspection that is fundamental to such activities is dangerous technology.  He and Ian have concluded that internet blocking:

• is ineffective at blocking illicit material (false positive)
• blocks legal content (false negative)
• sometimes assists access to illicit material - eg organised paedophile gangs find it easy to get access to "secret" lists of banned websites
• does not achieve the aim of removing illegal websites from the Net
• does absolutely nothing to protect children from abuse and on the contrary gives EU member states an excuse to ignore the problem by pretending it doesn't exist

All states, including Western liberal democracies, want to block something and internet blocking is often based on vague arbitrary laws - you only have to look at the HADOPI regulations in France or the Digital Economy Act in the UK to see that.  The blocking also often relies on secret banned lists, collated by unaccountable quangos, public or private, in dark smokey rooms (though with the anti-smoking laws now in place in the UK I guess the smokey rooms are no longer smokey. Of course we don't know, since it's done in secret).  These blocking provisions additionally tend to ignore due process - website owners get to know about the blocking after the event and it can be difficult to challenge.

Yet the blocking is pretty easy to bypass by people who know what they are doing and criminal gangs engaged in nefarious activities who have ready access to people who can facilitate such circumvention.

Professor Korff went on to warn of the power of the internet as a panopticon - the Net essentially facilitates mass surveillance of online activities and Net surveillance is linked to real world surveillance. Regardless of the relative amount of time we spend on the Net we live in the real world.

He suggested there were three key issues in relation to getting some kind of control/oversight of this ubiquitous surveillance:

1. the "margin of appreciation" doctrine of the European Court of Human Rights i.e. the leeway individual member states have to interpret human rights obligations as they see fit - hence the variation in the implemention of the convention in different countries
2. the internet is largely controlled by the private sector, their primary interest being to make money not operate in accordance with the principles of the European Convention on Human Rights, which they have no formal obligations to respect in any case
3. the rules on internet blocking are arbitrary, opaque and unchallengable - hence undermine the rule of law and due process

On the margin of appreciation, whereas this works quite well offline, respecting local cultures, laws and economies, in the online context states should no longer be given the protection of the over-generous application of the margin of appreciation. We cannot, for example, have jurisdiction shopping leading to a situation where the most restrictive laws on speech apply everywhere.  Ian and Douwe recommend that we restrict the application of the margin of appreciation doctrine to deal with the reality of the Net - the pretence that states can stop a sea of internet information at their borders is unsustainable. In a practical sense, if someone in the UK accesses smut in breach of UK obscenity laws then make them liable.  But don't hold the website owner liable if that site is hosted overseas, is not illegal in that jurisdiction and is not targetted at the UK, on the preponderance of evidence.

On the issue of private sector organisations controlling internet technologies and having no obligation to comply with human rights regulations, the authors effectively recommend that the contraints of the European Convention on Human Rights apply to such organisations in the context of internet governance.  The detail of how this would be done is not entirely clear.  But in principle it would work through these organisations agreeing to sign up to an internet charter of principles, based on the Convention and emerging constitutional-type principles of internet governance, in exchange for being able to benefit from the avoidance of intermediary liability of the kind facilitated by the ecommerce directive of 2001.

Finally they recommend that the rule of law should apply to the internet especially in relation to political activity. No secret compilations or deployment of secret blocking lists.  All restrictions of rights should be based on clear, accessible, transparent, foreseeable, proportionate, necessary, effective, regulations; no arbitrary unchecked authority, no bypassing of due process; absolutely no excuses for mass, suspicionless, warrantless surveillance e.g. data retention; and these rules should not be limited to government and public sector activities but also apply to the private sector that effectively controls the technologies of the internet and, in a real practical sense, the control of the governance of the internet is inherent in the control of that  technological architecture.

Nice to round off the day with some high principled idealism!

And thanks to ARTICLE 19 for inviting me.