Sunday, 8 April 2012

Council of Europe search and social media recommendations - political agendas dressed up as human rights

When human rights become just another vehicle for channelling the political agendas of the hour, you suspect that something has gone wrong.  When a group of government ministers issues, under the human rights banner, a shopping list of pet policies designed to drive government intervention - then you know it.

The recent Council of Europe “Recommendation of the Committeeof Ministers to member States on the protection of human rights with regard to search engines” and its twin Recommendation for social media platforms are just such documents. 

You might think that a human rights evaluation of search engines and social media would be primarily devoted to securing the rights of users to receive information free of government censorship and snooping.  For all the latter-day emphasis on horizontal rights between individuals, the primary role of human rights is and always will be to protect individuals from the excesses of the State.

But no, after a ritual nod in paragraph 2 to the importance of search engines in promoting freedom of expression, the game is given away in the third paragraph of the search engine Recommendation:
“Suitable regulatory frameworks, compliant with human rights requirements, should be able to give adequate responses to legitimate concerns in relation to referencing by search engines of content created by others. Further consideration is necessary as to the extent and the modalities of application of national legislation, including on copyright, to search engines as well as related legal remedies.”
So it seems this document is not going to be about securing the position of search engines as engines of free expression and the dissemination of knowledge, but about heaping as much regulation on them (to the benefit of other concentrated interests) as Ministers think they can get away with while remaining nominally human rights-compliant.
And so, in the main, it proves.  The ground is laid in paragraph 2, where the Committee of Ministers “considers it essential that search engines be allowed to freely crawl and index the information that is openly available on the Web and intended for mass outreach”.  This carefully worded sentence makes no mention of users having unimpeded access to the index. Crawling and indexing do little for the freedom of expression of users unless they can access search results.
When we move on to the meat of the recommendation it becomes clear that the omission is deliberate.  The document includes not just a list of recommended interferences with search engines’ freedom to operate their businesses (disclosure of information about search result methodologies, various requirements in the name of protecting personal data and ensuring accessibility to people with disabilities, member States apparently encouraged to offer public service search engines), but also of impediments to user access: non-indexing or de-ranking of content "not intended for mass communication (or for mass communication in aggregate)".
Even the single recommendation that might go some way to promoting freedom of expression is cast as a potential regulatory intervention:  that member States should encourage search engine providers to discard search engine results only in accordance with ECHR Art 10(2) and that users should be informed as to the origin of the request to discard the results, subject to respect for private life and protection of personal data.
One wonders whether a committee of Ministers would even have thought of this if search engines such as Google hadn’t already been doing it, in conjunction with websites such as Chilling Effects.  Anyway being informed of the origin of the request is a poor second to seeing a result that should never have been removed in the first place.
Restricting government access to user information is addressed weakly, in a way that (astonishingly for a human rights document) puts private and government access to personal data on an equal footing:  “ensure that suitable legal safeguards are in place when access to users’ personal data is granted to any public or private entity…”.
While a detailed appendix to the Recommendation pays greater attention to freedom of expression, for instance in its treatment of filtering and de-indexing and of access to data by governments, it also contains more specifics about what the Ministers expect search engines to be asked to do.  
The social media Recommendation follows a similar structure, stripped of the specifics about search results but with many additional recommendations about protecting users from harm and treatment of personal data.  However the appendix to the social media Recommendation looks much more like a detailed manual for implementation of the main recommendations than does that for search engines.
We are accustomed to reading politically driven policy agendas in documents emanating from the European Commission. What is so difficult about these documents is that they purport to be human rights recommendations, published under the auspices of the Council of Europe.
If human rights are now so debased and diluted that political agendas like these can be dressed up in the clothes of human rights, then human rights are in danger of losing their real value. 
That is perhaps not surprising, human rights having been diluted and eroded from all corners of the political compass.  What are in reality claims on others channelled via the coercive agency of the state are added to the list of rights; ever-increasing horizontality detracts from the significance of rights as protection against the state; and the specious assertion that rights and freedoms must be exercised responsibly ignores the fact that those who disagree with us will always seek to paint our actions as irresponsible. 
Still, perhaps we should expect little better when we charge a Committee of Ministers with responsibility for human rights.  We can hardly expect a bunch of politicians, even when wearing human rights hats, to do anything other than act politically.

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