In a previous post (The Vibe of the ECHR) I explored ways in which a regulatory policy agenda could acquire the
halo effect of association with the European Convention on Human Rights. Whilst
that was focused on a hypothetical project aimed at marginalising or
outflanking Article 10 of the Convention (freedom of expression), some of the
themes (referenced thusly below) are more generally applicable.
In April this year
the Council of Europe Committee of Ministers issued a Recommendation on Online
Safety and Empowerment of Users and Content Creators (CM/Rec(2026)4). It sets out a series of Principles that it recommends Member States,
platforms and content creators should observe.
For Member States it consists of about 50 specific recommendations. About 40 of them are regulatory measures that Member States should consider implementing. They resemble much of the EU Digital Services Act and, to a lesser extent, some of the UK Online Safety Act. Others are recommendations to abstain from certain kinds of intervention, for instance weakening or undermining encryption or imposing general monitoring obligations on online intermediaries. The Recommendation also endorses a notice and takedown-based platform liability regime.
The Recommendation contains various exhortations to Member States to comply with Article 10 when legislating in this area. Conversely, many of the Recommendation’s specific regulatory measures are said not to interfere with the Article 10 rights of users. The Explanatory Memorandum opens by stressing that:
"a human rights-based approach, with the principles of legality, necessity and proportionality at its core and safety by empowerment as a central tenet, is essential to ensuring that measures [that member States] take for the safety of users and content creators do not inadvertently or disproportionately restrict freedom of expression and other rights." (EM 3)
This piece is not
about the substantive merits of the specific recommendations. It is also far
from a discussion of everything in the Recommendation. The point of interest
here is the connection with the Convention. The Council of Europe is the
custodian of the Convention. Other than by dint of its genesis in the Committee of
Ministers, can this shopping list of regulatory measures claim the Halo Effect
of a link to the Convention? If so, on what basis? The Explanatory
Memorandum (EM 4) says that the recommended Principles are “grounded in”
the Convention.
To be sure, the
Convention has long since outstripped any lingering impression that it was
limited to policing the boundaries of state coercion in a civilised society.
Increasingly it has come to be seen as a positive instrument of social policy.
As such, it is no surprise to find it being associated with proposals for state
action: a sword as well as a shield.
Nevertheless, the
Council of Europe occupies a unique position. It is not an NGO seeking to
enlist the Convention in support of a policy agenda. Committee of Ministers
Recommendations are likely to be recited in ECtHR judgments. The Recommendation
will be seen as a product of the Convention.
All of that, I would
suggest, behoves adherence to two related precepts: a Recommendation should distinguish
actuality from aspiration in its descriptions of Convention rights and
Strasbourg jurisprudence; and it should be clear about which individual
recommendations are properly founded on Convention rights and Strasbourg
jurisprudence, as against which are bare policy proposals. The need for clarity
is perhaps accentuated by the statement in the Explanatory Memorandum (EM 4)
that the Principles "build on" ECtHR caselaw on the enjoyment and
exercise of human rights in the online environment.
The Committee of Ministers Recommendation – Principles for Member States
The Recommendation
sets out a series of Principles, starting with Principles against which Member
States are recommended to review their legislative frameworks, policies and
practices.
The Annex to this
post lists the most concrete recommendations addressed to Member States,
organised into ‘Refrain/Constrained’ (about 10 specific recommendations) and
‘Act’ (about 40). That taxonomy reflects the Convention, in that a negative
Convention obligation prohibits or constrains Member State action whereas
a positive obligation may require it to act.
The 40 or so
recommendations for state action constitute a detailed regulatory policy
shopping list. How, in principle, could those recommendations be connected
to Convention rights? That requires more than using the language of human rights:
- Might the claim be that the recommendations, if enacted, would not
breach the Convention? That would be a slender basis on which to claim a
positive association with the Convention.
- Might it be that a Convention positive obligation requires the 40 recommendations to be enacted, so that a Member State would be in breach of the Convention if it did not? On the face of it that would be an adventurous claim, to say the least.
- Might the claim be that the recommendations share some high level values
or aims in common with the Convention? That would be a Vibe of the
Convention claim, not a matter of implementing Convention rights.
- Might they reflect an aspiration as to how Strasbourg caselaw may
develop in the future? If so, that places a premium on distinguishing between
Strasbourg caselaw as it is and how some might wish it to be.
There is another,
more technical, way in which a connection to the Convention might be
claimed. Where the ECtHR has found that a positive obligation exists,
it tends to articulate it in a way that leaves Member States a wide choice
(‘margin of appreciation’) of concrete steps that they should take to fulfil
it. The role of the ECtHR is supervisory: to determine (after the event)
whether in the particular case a Member State has (if the matter falls within
the scope of the obligation) not only done something, but done enough.
On that basis, it
could be suggested that the Committee of Ministers is simply recommending its
preferred way in which Member States can go about fulfilling a mooted positive
Convention obligation to do something. However, especially for Article 10,
that argument for connection with Convention rights can only go so far – for
three reasons:
- First, precisely because the recommended measures are only one way of
fulfilling any positive obligation that may exist, it cannot be said that that
particular set of concrete measures is required by the Convention. For the same
reason, the more specific the recommended measures the more tenuous becomes any
posited connection of those measures with the Convention: a version of Vibe
of the Convention.
- Second, although the ECtHR tends to frame positive obligations in
non-concrete terms, their scope and content has to be understood in the light
of the factual contexts in which the ECtHR articulated them.
- Third, since for a qualified right the ECtHR’s initial step is to decide
whether a positive obligation of the kind asserted exists at all (see for
Article 10: Appleby, Gaši, Side by Side International), care has to be taken not to generalise so as
to expand an existing positive obligation into territory where the ECtHR has
not (yet) held a positive obligation to exist.
The final version of the Recommendation has made some changes compared with the draft Recommendation released for consultation in June 2025. Additionally, illuminating the thinking behind the Recommendation, there is now a 33,000 word Explanatory Memorandum prepared by the Steering Committee on Media and Information Society and noted by the Committee of Ministers.
The draft
Recommendation, in my estimation, had a number of problems. My submission to
the June 2025 consultation suggested that, generally speaking, it tended
to muddy vital distinctions between:
- Interferences by member States that are impermissible under the Convention
- Interferences by member States that are permissible under the Convention
- Interferences by member States that are required under the Convention as a matter of positive obligation
- Suggested responsibilities on private persons that give rise to no Convention obligation either on private persons to comply with them, or on member States to legislate for them.
It suggested that the
document would benefit throughout from tightening up and clarification in that
regard.
Despite the changes, to
my mind the final Recommendation remains problematic in some of its
descriptions of Convention rights and in how it makes connections between the
Convention and many of the policy proposals.
The aspects of the
Recommendation that are most difficult to connect to the Convention are its
recommendations for responsibilities of private persons (platforms and content
creators) and the mooted Member State positive obligations that appear to
underlie much of its regulatory shopping list. Those include a positive
obligation to effectively address the risk of harm (undefined) online and various
invocations of the need to foster an enabling online environment.
The following picks
up on some of the themes identified in my previous blogpost.
Person to person
extrapolation – platform and content creator
responsibilities
The Convention is
addressed to Member States. It places obligations on Member States. It places
no Convention obligations on private persons. The rights that it confers on
private persons are rights against Member States.
The Recommendation, in
addition to recommending Member State actions and abstentions from action,
addresses platforms and content creators (a sub-set of users) on their
responsibilities. Since, juridically, the Convention cannot impose obligations
on private persons, it provides no obvious basis on which to address private
persons as to their “responsibilities”.
The Committee of
Ministers can of course, if it thinks appropriate, give private persons the
benefit of its views on how they should behave online. Those, however, should
not benefit from the Halo effect: the authority and
credibility gained by association with the Convention.
The Explanatory
Memorandum notes that platform responsibilities “may become legal duties under
domestic law” (EM 20). The asserted responsibilities overlap to an extent with
the recommended legislation for platform accountability and user empowerment, which
encompass design-related, transparency-related, fair process and collective
action-related empowerment duties. [66]
To the extent that
Member States do not make empowerment measures obligatory (for instance because
of micro and small platform exemptions from legislation), the Recommendation
encourages platforms to implement them voluntarily as part of their responsibilities.
[69]
Unlike for platform responsibilities, the Recommendation
does not expressly state that content creator responsibilities may be
contemplated for legislation, although the Explanatory Memorandum notes various
Member State legislative initiatives in relation to online influencers (EM 72
to 75). There is also some overlap with separate recommendations for legislative
action ([53]).
What, then, is the
basis for suggesting that a private actor responsibility (whether or not it is
contemplated to lead to some kind of legal obligation enacted by a Member
State) is connected with the Convention?
A long-standing UN
international human rights project to articulate non-binding human rights
responsibilities of businesses (the Ruggie Principles) was endorsed in a previous Council of Europe Recommendation (2016/3). However, it does not follow that recommended business
responsibilities are part of the Convention or can be derived from it. They are
not and cannot.
In any event the
Recommendation makes no reference to Recommendation (2016/3). The reader has to delve into the Explanatory Memorandum
([20]) to find it, and to be told that the notion of private actor
responsibilities comes from international human rights law.
EM 20 also quotes the ECtHR judgment in Google v Russia at [79] on the duties and responsibilities of platforms. However, the Court was specifically considering the 'necessary in a democratic society' condition for state interference under Article 10(2). That does not give rise to a self-standing Convention duty (see also below under Content Creator responsibilities - Article 10 compatibility).
Moreover, platforms
and content creators as defined in the Recommendation extend beyond businesses.
What basis is there, even in the extended Ruggie view
of human rights responsibilities, for proposing responsibilities applicable to individual,
non-business users? Such users, of course, do not exist in a legal vacuum. They
are subject to the general laws of their countries.
A previous
Committee of Ministers Recommendation (CM/Rec(2022)13 on the Impacts of
digital technologies on freedom of expression) contained a preamble drawing
attention to the fact that private persons are not directly subject to Convention obligations. The
Online Safety Recommendation contains no equivalent.
My submission to the
consultation on the draft Recommendation drew attention to these points, suggesting that the Recommendation
should make clear that the proposed ‘responsibilities’ do not give rise to any
Convention obligation - either on private actors to observe them or on member
States to legislate for them. That was especially so, given that a reader who was
not familiar with the nuances of human rights law could be led by the human
rights language and context into thinking that the suggested ‘responsibilities’
embody Convention obligations.
Content creator responsibilities – Article 10 compatibility
Although, for the most part, this piece is not about the content of the recommendations, an exception has to be made for the proposed content creator responsibilities, since they are of doubtful (to say the least) compatibility with Article 10.
Strictly speaking, since the Convention cannot
impose obligations on private persons and the suggested responsibilities are
voluntary, no question of Article 10 interference arises. Nevertheless the
Committee of Ministers should not propose, even as a voluntary responsibility,
something that would violate Article 10 if a Member State were to legislate it
as framed.
Content creators are
addressed as to how they should communicate online:
“Content creators have a responsibility to contribute to a healthy,
informed and democratic public discourse which is respectful of the rights of
others. ...” [30]
The Recommendation
defines content creators as:
“users who are regularly or professionally engaged in the production and
dissemination via a platform of information and ideas, in text, audio, visual,
audiovisual or other form, with the intention of reaching an audience beyond
their private circle”. [11]
The Recommendation goes on to say that the level of responsibility may vary according to various
factors: nature and form of content, contribution to debate on matters of
public interest, and age of intended audience; with content creators who reach
a significant audience or claim professional expertise bearing a heightened
duty to act in good faith, uphold principles of accuracy, fairness and
integrity and to respect the rights of others. [30]
Content creators
whose main purpose is to inform the public or influence their opinion on
matters of public interest would have additional responsibilities to uphold the
principles of journalism, be transparent about sources of income and clearly
label paid and sponsored content, and, for a corporate content creator be
transparent about ownership. Specific responsibilities are suggested for
parents or legal representatives of children who are content creators. [31] and
[32]
This
recommendation is about more than social media influencers. It covers amateur
bloggers and ordinary regular users of social media and discussion platforms.
The ‘private circle’ limitation would not exclude bloggers. How it might apply
to social media users is unclear, but is unlikely to assist a regular user who
(for instance) adds hashtags to their online posts.
In Convention terms the content of the responsibilities, especially when the full ambit of ‘content creator’ is taken into account, is troubling. If the first sentence of paragraph 30 were legislated as drafted, it would surely fail for vagueness at the first hurdle of “prescribed by law”.
Moreover, what exactly does it mean? If it means that a content creator should only speak in a way that positively contributes to a healthy, informed and democratic public discourse, that would be an astonishing restriction on their freedom of expression for which there could be no justification under the Convention. It would be patently open to subjective interpretation and abuse by Member States. Alternatively, if the Principle permits content creators to engage in other kinds of expression, but also requires them to make that kind of contribution, that would be objectionable compelled speech.
These points were made in my submission to the consultation on the draft Recommendation.
The
Explanatory Memorandum’s justification for paragraph 30 is an example of the Duties
and Responsibilities theme discussed in my previous blogpost:
“In line with the text of Article 10, paragraph 2,
of the Convention, content creators, like everyone who exercises their right to
freedom of expression, have duties and responsibilities.” [72]
It goes
on the describe the different responsibilities attributed in Strasbourg caselaw
to journalists and others. It observes that the protection afforded by Article
10 to bloggers and popular social media users acting as public watchdogs is
subject to the condition that they comply with the duties and responsibilities
traditionally connected with the function of journalist.
However,
none of that is to the point. First, the fact that some bloggers and popular
social media users may choose to comment on matters of public interest does not
mean that they can or should be required to do so. If they do so, their Article
10 protection may be judged by the standards applicable to journalists.
Second,
the ‘duties and responsibilities’ language in Article 10 comes into play only
in the context of assessing the proportionality of a state restriction on
someone’s right of freedom of expression. It is not, and cannot be translated
into, a self-standing Convention responsibility of any kind, let alone one that
might to be reflected in state action such as legislation. To do so would be to
turn Article 10 against itself and Destroy the village in order to
save it.
That
point was made in the Dissenting (but on this point unimpeachable) Opinion of
Judges Sajó and Tsotsoria in Delfi:
“The protection of freedom of expression cannot be turned into an exercise in imposing duties. The “duties and responsibilities” clause of Article 10§2 is not a stand-alone provision: it is inserted there to explain why the exercise of the freedom in question may be subject to restrictions, which must be necessary in a democratic society. It is only part of the balance that is required by Article 10§2.”
Person to
person extrapolation – online
risks
Paragraphs
13 and 14 of the Convention describe various online risks (supplemented by a
lengthier list of examples in the Explanatory Memorandum (EM 38 to 44)):
“13. However, some online risks may adversely
affect users and content creators by infringing on their rights or otherwise
inhibiting their willingness, ability and determination to freely express
themselves, out of concern for their well-being and safety.
Online risks can also restrict the public’s ability
to access reliable information, encounter a diversity of perspectives and
develop informed opinions on matters of public interest. They may also have
wider societal consequences, including the erosion of social cohesion, trust in
institutions, threats to public health and the weakening of democratic
processes.
14. Online risks that are related to freedom of
expression include:
a. risks to personal and community safety and
well-being associated with content and communication that users may be exposed
to, interact with or be targeted by;
b. risks to the democratic process, information
integrity and informed public discourse;
c. risks associated with the systems deployed by
providers which may interfere with the rights to freedom of expression, privacy
and personal data protection and other rights of users.”
Paragraph
13 is self-evidently about the risks associated with behaviour of private
persons online, including users. The Explanatory Memorandum contends that the
recommended Principles, “while reaffirming robust protection for expression,
recognise that the online environment also generates risks that can undermine
or deter the very exercise of this right, as well as other rights.” [39]
It goes
on to give examples (coordinated harassment of journalists, doxxing of
activists’ personal details and posting of non-consensual intimate images) of
person-to-person behaviour that may result in people being intimidated and
pulling back from expressing themselves on issues of public interest in the
future. It concludes that: “The fear of reputational or physical harm, legal
trouble or sheer emotional exhaustion can stifle their willingness and capacity
to speak openly, especially on controversial topics.”
The point
here is not to debate whether any given kind of behaviour provides reasons for
a Member State to legislate against it in a Convention-compliant manner. The
issue, from the point of view of establishing a connection between the Recommendation and the Convention,
is that a private person’s behaviour towards someone else is not juridically capable
of infringing someone’s Convention rights. At most a positive obligation on a
Member State could exist and be triggered.
As to the
possibility of such a positive obligation, when the Recommendation refers to
online risks in the abstract it appears to mean risks of consequent harm:
“… there is growing concern over risks to the
online safety of users and content creators that can result in serious harm to
individuals, groups, society or societal interests such as democracy, the rule
of law and the free flow of information.” (Paragraph 1)
As to the
kind of Member State action contemplated, paragraph 18 of the Recommendation
observes:
“18. Not all online risks necessitate the
introduction of measures interfering with the exercise of human rights, in
particular freedom of expression. Measures taken should be proportionate to the
risk of harm.”
The
Explanatory Memorandum takes the position that the proposed platform
accountability and user empowerment measures do not interfere with users’
Article 10 rights (EM 85) (see below).
Person to
person extrapolation –
infringement of Convention rights
Under the
scheme of the Convention only Member States are juridically capable of
violating someone’s Convention rights. A private person is not capable of doing
so. The distinction matters in this context because Person to
person extrapolation of Convention rights is a juridically unsound
basis on which to benefit from the Halo effect of
association with the Convention.
The
distinction can become lost in the universal practice of referring to private
persons interfering with someone else’s enjoyment or exercise of their
Convention right, or having an impact on their human rights. Occasionally it is
asserted that someone infringes someone else’s human rights. As a matter
of a Convention right that is conceptually impossible.
The
Recommendation occasionally ventures into this territory. For example, the
Preamble says:
“Acknowledging that measures taken by platforms,
including through content organisation, curation and moderation, may also
interfere with the enjoyment of the right to freedom of expression, including
the right to receive information and other rights, and disproportionally affect
the exercise of these rights;”
The
Explanatory Memorandum (EM 11) commentary on this passage does not refer to the
Convention, citing only a previous Committee of Ministers Recommendation (Remember
Lord Denning).
The ECtHR
does occasionally create a horizontal positive obligation: a
Convention duty on a Member State to intervene in relations between private
persons by creating, in its domestic law, a particular kind of legal liability
as between them. As with any other positive obligation in relation to a
qualified right (as to which, see below), such a horizontal positive obligative
does not exist automatically.
Horizontal
positive obligations are frequently described as a means by which the
Convention is applied indirectly as between private persons. However, when the ECtHR does hold such an
obligation to exist, the juridical relationship remains vertical. No Convention
rights or obligations are created as between the private persons. If the Member
State fails to intervene as required, the complaint is against that Member
State.
If the
Preamble were perhaps understood to contemplate that states have a horizontal
positive obligation to legislate a user’s right to a forum, that would be
contrary to the ECtHR decision in Appleby. The recent concurring
judgment of Judge Pavli in Google v Russia, whilst suggesting that
in his opinion the Court should ‘in the long run’ revisit Appleby,
confirms that Appleby is the law today. Unless and until the
ECtHR were to decide differently there is no Convention ‘right to a forum’.
Rule-exception
inversion: the Convention status of positive obligations
One theme
identified in my previous blogpost was rule-exception inversion:
treating the exception as the rule and vice versa. That could result from generalisation:
taking a limited exception or proposition and elevating it into a rule of
general application.
Qualified
Convention rights such as Article 10 are, first and foremost, negative: they
require States to abstain from arbitrary or over-reaching action. Negative
Convention obligations apply automatically. Exceptionally, however, the
Strasbourg Court may find that in a particular kind of factual situation a
positive state obligation to secure a Convention right exists. The effect of a
Convention positive obligation is not just to permit a Member State to take
action, but to require it to do so. Positive obligations are the means by which
the Convention can be fashioned into a policy sword.
That
hierarchy is reflected in a time-honoured ECtHR formula, one example of which
is found in Tierfabriken (2001), an Article 10 case:
“… in addition to the primarily negative
undertaking of a State to abstain from interference in Convention guarantees,
“there may be positive obligations inherent” in such guarantees. The
responsibility of a State may then be engaged as a result of not observing its
obligation to enact domestic legislation.” [45] (quoting Marckx v
Belgium (1979))
The words
“may be” are significant. The ECtHR formula bears comparison with Preamble (e)
of the draft Recommendation:
“Emphasising that member States have a positive
obligation to guarantee the enjoyment of freedom of expression and other
rights, both offline and online, but that they are also under a negative
obligation…”
My consultation
submission identified two problems with Preamble (e): it asserted the existence
of a general positive obligation in relation to freedom
of expression (Generalise) and also reversed the
Strasbourg hierarchy (Rule-exception inversion).
The final
Recommendation has been amended, but still stops short of acknowledging the conceptual
primacy of negative obligations versus the exceptional, non-automatic nature of
positive obligations:
“Emphasising that member States have a positive
obligation to guarantee the enjoyment of the right to freedom of expression
(Article 10 of the Convention) and other Convention rights, such as the right
to respect for private and family life (Article 8 of the Convention), both
offline and online, and a negative obligation not to impose any restrictions on
rights except those prescribed by law and necessary in a democratic society in
pursuit of a legitimate aim;” (Preamble)
The
Explanatory Memorandum comments:
“The Court has increasingly addressed the
responsibilities of States in this respect, emphasising the obligations of
States to protect users from harmful interference by both public authorities
and private entities, as well as their obligations to refrain from imposing
restrictions on rights other than those that are prescribed by law and
necessary in a democratic society in pursuit of a legitimate aim.” [4]
The direction
of the Court has certainly been towards finding that more positive obligations
exist. That is not, however, the same as generalisation and
elevation of positive obligations to equivalence with (or, in the draft
Recommendation, primacy over) automatically applicable negative obligations.
A
similar generalisation of positive
obligations and implied equal footing with automatically
applicable negative obligations is apparent in paragraph 10 of the final
Recommendation. It is essentially unchanged from the consultation draft:
“Empowerment and safety engage both the positive
obligation of the State to take steps to secure the enjoyment of human rights
and the negative obligation of the State not to interfere with them beyond what
is necessary in a democratic society for the achievement of a legitimate aim.
…”.
The Explanatory Memorandum (EM 23 et seq) clarifies that by human rights paragraph 10 means Convention rights. It concludes that, subject to proportionality:
"In the context of online safety, this dual obligation implies that States must take active measures to appropriately respond to content that carries risk of harm, including abuse, intimidation and discrimination that may inhibit the full participation of individuals, in particular those belonging to categories at heightened risk..."
The lack of any definition or bounding of 'harm' is discussed in the next section.
The positive
obligation formulated in paragraph 10 implicitly alludes to Article 1 of the
Convention: “The High Contracting Parties shall secure to everyone within their
jurisdiction the rights and freedoms defined in Section I of
this Convention”.
To be
sure, on occasion the ECtHR will cite Article 1 in support of a decision to
create a given positive obligation. It does not follow that, for qualified
rights, Article 1 creates universal positive obligations of general application
– least of all for Article 10.
Divide by
zero: safety, harm and positive
obligations
My
previous blogpost suggested that the linguistic equivalent of an illegal
mathematical ‘divide by zero’ operation was to insert an undefined, infinitely
malleable term into a proposition of law.
Paragraph 33 of the Recommendation (in this respect unchanged from paragraph 27 of the draft Recommendation) commences:
“States have a positive obligation to effectively address the risk of harm online.”
The Recommendation declines to define or place any limit on either harm or safety. The result is that the scope of the asserted positive obligation is unascertainable. It fails in its own terms.
The lack
of any definition or limitation on safety or harm has its origin in a decision
taken by the Experts Committee in April 2024:
“The draft recommendation will not aim to identify
what constitutes illegal or harmful content/behaviour.” [11]
The
malleability of concepts of ‘safety’ and ‘harm’ was recognised in the same
meeting:
“It was observed that the issue of online safety is
potentially all-encompassing, and there is a need for the Committee to narrow
down the scope of the draft recommendation. The members generally recognised
that concepts like “safety” and “harmful content/behaviour” are broad and
culturally dependent and change over time.” [9]
Paragraph
14 of the Explanatory Memorandum comments:
“The Recommendation moves from the assumption that
safety is not a static concept. It varies significantly across time and space,
as it may be influenced by both technological development and societal values.”
Whilst
the decision not to define or limit safety and harm may be understandable as a
practical matter, it has consequences for scope and clarity that permeate
throughout the Recommendation.
The
asserted positive obligation is also problematic for two other reasons. One is
the objection that a generalised positive obligation does not automatically exist (see e.g. Appleby [40], Halet [111] and Side by Side International [13] – [14]). Another is that even were a positive obligation to exist, it would be an
obligation on a Member State to secure a Convention right, not to address some
independent notion of harm.
The need
to link a positive obligation to a Convention right reflects the text of
Article 1 of the Convention (above). It ties the scope of any mooted positive
obligation to the Strasbourg jurisprudence on the Convention right in question,
such as the caselaw on positive obligations under Article 8.
The
Explanatory Memorandum comments on paragraph 33:
“79. The positive obligation of States to address
the risks of harm online arises from their broader duty to protect human
rights, including the rights to private life and freedom of expression, all of
which can be impacted by online activities. Increasingly, these risks are being
addressed through national or supranational legislative frameworks, such as the
EU Digital Services Act or the United Kingdom Online Safety Act.”
Assuming
that the reference to human rights means Convention rights, this suggests that
a generalised positive obligation to address risks of
undefined, unbounded harm can be derived from identified Convention rights.
That is Vibe of the Convention territory. It is
exacerbated by the suggestion that Convention rights are juridically capable of
being impacted by the online activities of another private person (Person
to person extrapolation).
The
reference to EU and UK legislation may be intended to illustrate how Member
States are, in their very different ways, discharging the asserted positive
obligation. However, the mere existence of that legislation does not
create a positive obligation on other Member States to legislate, certainly
when the Convention compatibility of such legislation has not been tested and
cannot be assumed.
Devil-speech and No-value speech
My
previous blogpost discussed how some speech could be excluded from the
protection of Article 10 by virtue of Article 17 of the Convention (prohibition
of abuse of rights) or the separate ECtHR caselaw on wanton denigration where the only intention is to insult. One
avowed rationale for excluding speech of that kind from protection is that it has no essential role in the expression of ideas (Rujak (2012) [30]).
The
Explanatory Memorandum discusses these in its comments on the Preamble to the
Recommendation. Citing Rujak, it suggests that:
“A similar line of reasoning might be applied to
the dissemination of content that bears no reasonable relationship to the
expression of ideas, such as child sexual abuse material or non-consensual
private sexual materials shared with the purpose of causing distress to a
person. These restrictions, however, must be narrowly circumscribed and be used
only in relation to speech that is clearly incompatible with the Convention
system itself.” (EM 9)
However “no reasonable relationship to the
expression of ideas” might be interpreted, the issue here is not whether a Member State would be
justified in legislating against such material in a Convention-compliant manner
(clear and precise rules, legitimate public aim, necessity and
proportionality), or even obliged to do so (e.g. Volodina (No 2)),
but whether the rule of law protections of Article 10 should be denied.
Generalise,
Vibe of the Convention and Remember
Lord Denning - enabling online environment
My
previous blogpost discussed the theme of abstract principles being generalised
from the Convention or Strasbourg jurisprudence and applied out of context.
Where those principles are values or aims rather than Convention rights, that
is a Vibe of the Convention claim to connection. Remember
Lord Denning alludes to the famous judge’s habit of citing his own
previous judgments in support of his view.
The
Recommendation’s references to the need to foster an enabling online
environment have elements of all three themes: generalisation from the ECtHR decision
in Dink, enabling online environment treated as a desirable goal more
than as a Convention right, and the Committee of Ministers relying for support
on its own previous Recommendations.
It is
noteworthy how many of the Recommendation’s regulatory policy prescriptions
(six in the Recommendation itself, 14 in the Explanatory Memorandum) are hung
on the hook of a species of enabling online or other environment. Some references
are couched in the abstract, some in terms of enabling freedom of expression,
others are tied to different goals.
Enabling
online environment for freedom of expression
The
Preamble to the Recommendation speaks of: “…creating an enabling environment
for the online exercise of the right to freedom of expression and other
rights;” which it then ties to safety (undefined): “…a safer online space can
create an enabling environment for the enjoyment of freedom of
expression”
Similarly
it stresses the need for: “…measures to protect both the right to freedom of
expression of users sharing content and the safety of users at risk of being
silenced by content carrying the risk of harm, allowing for the full
participation of all;”
The
Explanatory Memorandum identifies a Convention positive obligation as
the source of the ‘enabling environment’ doctrine:
“The emphasis on creating an enabling online
environment reflects a long-standing principle in the jurisprudence of the
European Court of Human Rights and in documents of the Committee of Ministers:
under Article 10 of the Convention, States have positive obligations to promote
conditions in which freedom of expression can be exercised effectively and by
all.” (EM 60)
The
principle mooted in EM 60 has its origin in Strasbourg caselaw (such as Özgür Gündem (2000), Dink (2010), Ismayilova (2019) and Gaši (2022)), developing a positive
obligation on Member States under Article 10 to protect
journalists and activists from violence, intimidation and harassment. It is an
example of the ECtHR seeking to secure Practical, effective rights.
The
Explanatory Memorandum (EM 63) notes that the Recommendation and its Principles
“build on” the acquis represented not just by ECtHR caselaw,
but also previous Committee of Ministers Recommendations.
My
consultation submission suggested a need for caution when applying the language
of an “enabling environment for the online exercise of the right to freedom of
expression” to unbounded, undefined, notions of safety. That had the potential
to go far beyond established notions of safety: violence to journalists being
the main context (other than employment relations) in which Strasbourg caselaw
had held this positive obligation to exist .
That
formulation, the submission went on, could also carry an implication that one person’s
reaction to another person’s speech which they find subjectively objectionable
or repugnant should outweigh the freedom of expression rights not only of the
speaker, but of other recipients of the same information whose subjective
reactions were different; whereas Strasbourg caselaw emphasises that an
enabling environment extends to enabling speech that may be irritating or
shocking to a significant part of public opinion.
The
Explanatory Memorandum (EM 60) cites Dink as the source of the
Article 10 “enabling environment” positive obligation. However, the Dink formulation
merits close attention:
“to create, while establishing an effective system
of protection of journalists, a favourable environment for participation in
public debate by all the persons concerned, enabling them to express their
opinions and ideas without fear, even if they run counter to those defended by
the official authorities or by a significant part of public opinion, or even
irritating or shocking to the latter” (Ismayilova [158], citing the
original French text of Dink.)
The
qualifying words ‘without fear’ are important. If they are ignored, the scope
of the positive obligation is radically increased. Moreover, the positive
obligation is an integrated whole. Just as ‘without fear’ cannot be omitted,
neither should the formulation’s components be separated and treated as
self-standing (although the concurring Opinion of Judge Koskelo in Gaši comes
close to doing so).
The
significance of ‘without fear’ can be better appreciated within the factual
context of Dink.
The ECtHR
held that the state had breached a positive Article 10 obligation as the result
of its unjustified prosecution and conviction of a journalist in respect of a
series of articles that angered Turkish ultra-nationalists (who instigated the
prosecution), combined with failure to take steps to prevent his subsequent
assassination when the authorities were aware of a plot. The Court also found a
breach of the automatic Article 2 positive obligation to protect the right to
life.
The Court
considered that in the particular circumstances, the failure of the security
forces to fulfil their duty to protect Dink's life against attack by members of
an ultra-nationalist group, together with the guilty verdict handed down by the
criminal courts in the absence of any pressing social need, led to the
Government failing to comply with its positive obligations with regard to the
applicant's freedom of expression.
Granted,
the Dink court’s formulation of the positive obligation leaves
something to be desired. It is not ideal to frame the positive duty in terms of
‘without fear’ without specifying ‘fear of what?’ A minority concurring Opinion
in a later ECtHR case (OOO Memo v Russia) suggested that it could extend to fear of civil
defamation proceedings brought by state entities.
Nevertheless,
the factual context of Dink was assassination of a journalist.
That can hardly be equated to fear of, for instance, reading a factually
incorrect social media post.
The 2022
case of Gaši suggests that the ECtHR was conscious of the
limits of the Dink positive obligation where, although the
claimants said they had felt threatened following various media articles and
broadcasts, there had been no actual physical violence. It also endorses the
conventional non-automatic general approach to Article 10 positive obligations
found in, for instance, Appleby: the Court will consider a series
of factors in order to determine the existence or otherwise of a positive
obligation. A positive obligation is not automatic.
Although
the Explanatory Memorandum does not mention Gaši, it quotes the
full Dink formulation and recognises that its positive
obligation has some limits:
“The same principle [as for journalists] holds true
for online safety: States have a duty to promote conditions for everyone to
contribute to public discourse without fear of intimidation or reprisals.” (EM
62)
However,
it goes on to recite previous Committee of Ministers Recommendations (Remember
Lord Denning) and then to say that the present Recommendation and its
principles “build on” the Committee of Ministers acquis, asserting
that:
“safety, inclusiveness, pluralism and user
empowerment are essential to a rights-compliant online environment.” (EM 63;
see also EM 4)
While the
Recommendation acknowledges the long-established Handyside principle
regarding disturbing, offensive and shocking speech, it qualifies it in
unbounded terms of safety and well-being:
“13. However, some online risks may adversely
affect users and content creators by infringing on their rights or otherwise
inhibiting their willingness, ability and determination to freely express
themselves, out of concern for their well-being and safety.”
The point
here is not that online harms do not exist, nor that Member States cannot
legislate in an Article 10-compliant way. It is that a specific regulatory shopping
list should not, via generalisations of a limited
Article 10 positive obligation, combined with undefined,
unbounded notions of safety, risk and harm, acquire a Halo effect of
association with the Convention.
It would
be an act of heroic generalisation to elevate the Dink positive
obligation from the case of an assassinated journalist (or other ECtHR cases
involving actual or threatened violence, or a campaign of unlawful harassment
and intimidation, against journalists, authors or activists) into a broad
principle applicable to undefined and unbounded online harms – at least, unless
and until the Strasbourg Court chooses to do so.
User
empowerment measures and an enabling online environment for freedom of
expression
Much of
the Recommendation is taken up with its list of legislative user empowerment
and platform accountability measures. How are these connected to the
Convention? The answer appears to be a mixture of the mooted generalised positive
obligation to address risk of harm, together with emphasis on fostering an
enabling environment for freedom of expression. The latter is said to have
its source in the Dink positive obligation (discussed
above), but is presented as an aim (Vibe of the Convention).
Finally, the measures are said not to interfere with Article 10 rights of
users.
In its
own terms, at paragraph 33(c), the Recommendation proposes that the measures
are a way of acting on the Member State positive obligation to
effectively address the risk of harm online. The problems with that asserted
positive obligation are discussed above.
The
Explanatory Memorandum, however, relates paragraph 33(c) to an enabling online
environment:
“Paragraph 33, letter (c), comprises rules that
follow a systemic rather than content-based approach to responsibilities of
intermediaries in fostering an enabling online environment.” (EM 83)
EM 83
goes on to cite the Council of Europe’s previous work (CM/Rec(2022)11 and its
Explanatory Memorandum, CM/Rec(2022)13, and the Council of Europe’s Guidance
note on countering the spread of online mis- and disinformation).
Later on
the Recommendation itself ties the legislative platform accountability and user
empowerment recommendations to a generalised notion of promoting
an enabling online environment for freedom of expression:
“Legislative frameworks for platform accountability
and user empowerment are essential to promoting an enabling online environment
that furthers freedom of expression.” [57]
The
Explanatory Memorandum elaborates:
“An enabling online environment is one that
supports meaningful user participation, protects individuals from harm, and
provides users with agency and control over their online experiences. Such an
environment is essential for the realisation of digital rights, including
freedom of expression, access to information and participation in public
discourse. ...” (EM 149)
As
discussed above, the Explanatory Memorandum (EM 60) says that the source of the
“enabling online environment” language is the Dink positive
obligation. Perhaps conscious of the potential for a broadly
constructed positive obligation to upend Article 10, the Explanatory Memorandum
(EM 85) notes the recommendation at paragraph 35 that States should address
lawful content only through risk mitigation, such as platform accountability
and user empowerment measures. That, says the Explanatory Memorandum, reflects
that such measures do not interfere with users’ Article 10 rights.
Enabling
environment in the abstract
On
occasion the Recommendation refers to an ‘enabling online environment’ in the
abstract, disconnected from any more specific notion of a positive Convention
obligation.
Thus para
20 (see above), introducing ‘Principles for States’, is cast in broader and
more abstract terms than freedom of expression:
“The aim of governance of online safety and the
empowerment of users by States and internet intermediaries, including
platforms, should be to create an enabling online environment as described in
paragraph 2.”
Paragraph
2 says:
“2. Online safety should be understood as a
component of an enabling online environment. This environment should be
accessible without discrimination, it should be safe, inclusive, pluralistic
and trustworthy. It should allow users to enjoy and exercise their human rights
without unjustified interference, and it should maximise their autonomy and
ability to participate and engage.”
The
Explanatory Memorandum (EM 14) comments that this means that:
“Online safety is a component of a wider concept of
an enabling online environment that is conducive to human rights.”
Paragraph
7 of the Recommendation refers to guiding States in the adoption,
implementation and enforcement of policy and legal frameworks, as well as other
measures, that “foster an enabling online environment that promotes the
enjoyment of human rights”.
Paragraph
58 of the Recommendation says that:
“Platform accountability and user empowerment
legislation should focus on the systemic duties and responsibilities that
platforms should assume in order to create an enabling online environment….”
The
Explanatory Memorandum says, in its commentary on para 58, that:
“… legislation should establish overarching
obligations addressing how the structural and operational features of platforms
… contribute to various risks of online harm. Embedding systemic duties and
responsibilities into the platform governance framework aligns with the
principle of fostering an enabling online environment, as this approach places
responsibility on them to proactively identify, assess and mitigate such risks,
both current and evolving, including through measures that empower users and support
their agency.” (EM 152)
From a
Convention perspective this is well into Vibe of the Convention territory;
perhaps beyond that, given the lack of specificity about whether the human
rights being spoken of are Convention rights.
Other
varieties of enabling environment
The
Recommendation relies on four other varieties of enabling online environment,
all distant from the Dink positive obligation: encryption;
meaningful participation and scrutiny; online safety in a democratic society; establishment
and professionalisation of independent user groups
For encryption,
the Recommendation counsels Member States to abstain from measures that would
“introduce new weaknesses or vulnerabilities into technical features of online
services that constitute vital safeguards for the enjoyment of privacy and
other human rights online”. [22] This reflects the Podchasov v.
Russia decision based on the negative Article 8 Convention right. The
Explanatory Memorandum (EM 64) sees it also as an aspect of a safe and enabling
online environment. Whilst Podchasov refers to encryption as contributing to the enjoyment of freedom of expression, there was no discussion of a positive obligation to foster such an environment.
The Explanatory
Memorandum refers to “the positive obligation of States to foster an
enabling environment for meaningful participation and scrutiny.” (EM 162) This
is said to underlie the recommendation in paragraph [63] that States should
“support the public, experts and researchers in their effort to identify
priority risk areas on various online services and effective risk mitigation
strategies. States should proactively empower the public to be able to
scrutinise, provide input and comment on how risk assessments and mitigation
measures in such rules and regulations are implemented.”
Meaningful
participation initiatives are to be found in, for instance, EU and OECD policy
papers. Many will think that mandating or encouraging consultation with civil
society is a good idea. It is a different matter to suggest (if EM 162 means to
refer to a Convention positive obligation) that a Member State that does not
provide for this is in breach of the Convention.
Paragraph
65 recommends that States “should aim to share responsibility over online
safety by entrusting roles to non-state actors, such as researchers, user
groups, professional notifiers and flaggers, out-of-court dispute settlement
bodies and third-party labellers, in the public interest.” The Explanatory
Memorandum (EM 166) ties this to a posited collective endeavour of promoting an
enabling environment that is conducive to online safety in a democratic
society, “in which civil society and other non-State actors acting in the
public interest play a fundamental role.” The Explanatory Memorandum does not
say if this is intended to reflect a Convention positive obligation.
Paragraph
96 recommends that States “should encourage the formation of professional user
groups who can act as independent experts in defending the interests of users
and content creators before platforms or public authorities. States can grant
these user groups privileges such as priority appeals, financing, better access
to technical interfaces or a right of collective action against infringement of
the rights of users.”
The Explanatory
Memorandum reformulates this recommendation in terms of an enabling
environment: “States should also foster an enabling environment for the
establishment and professionalisation of independent user groups or
associations that can act collectively on behalf of users and content
creators.” [224]
By this
point it is difficult to see “enabling environment” language as much more than a hook for policy advocacy.
Halo effect
- Lack of Convention basis for responsibilities addressed to platforms and content creators.
- If such responsibilities could be based on international human rights Ruggie principles, that the asserted responsibilities extend beyond businesses.
- That the content creator responsibilities are, from an Article 10 perspective, questionable.
- Convention status of Member States versus private persons.
- Status and scope of Member State positive obligations.
- Unascertainable scope of a posited Convention positive obligation to address risks of (undefined and unbounded) harm online.
- Invocation of generalised and extended kinds of ‘enabling environment’.
Ultimately, much of the regulatory shopping list is in Vibe of the Convention territory.
However, I would contend that it matters that Convention rights should not be confused with values. It matters that the Convention imposes obligations on states, not on private persons. It matters how far the ECtHR has and has not gone in creating positive state obligations. It matters that the Convention is not a UN, EU or OECD instrument, differently constituted and conceptualised. It matters that the halo should not just be the vibe of the thing.
Bibliography
These texts were of particular assistance in preparing this and the previous blogpost (The Vibe of the ECHR):
Books
J. Gerards General Principles of the European Convention on Human Rights (C.U.P. 2nd ed, 2023)
A. Kucs Freedom of Expression and Positive Obligations of the State in Social Media Chapter in ‘Human Rights in the Digital Domain – Core Questions’ ed. T. Pajuste (C.U.P., 2025)
C. Loven Fundamental Rights Violations by Private Actors and the Procedure before the European Court of Human Rights (Intersentia, 2022)
V. Stoyanova Positive Obligations under the European Convention on Human Rights (O.U.P., 2023)
Papers
N. Alkiviadou Positive Obligations, Hate Speech, and the Reconfiguration of Free Expression at the European Court of Human Rights Journal of Free Speech Law, Volume 6, Issue 4 (2026) 1339.
K. Pentney States' positive obligation to create a favourable environment for participation in public debate: a principle in search of a practical effect? Journal of Media Law, 16:1, 146-177 (2024)
C. E. Lewis The European Court of Human Rights and its Search for Common Values European Convention on Human Rights Law Review 4, 179 - 219 (2023)
A. Nieuwenhuis The Concept of Pluralism in the Case-Law of the European Court of Human Rights European Constitutional Law Review 3, 367-384 (2007)
Annex
List of recommendations addressed to Member States
The Recommendation urges Member States to take some actions and refrain from others. Some other actions are expressly permitted but constrained. The most specific recommendations to Member States, sorted into ‘Refrain/constrained’ and ‘Act’ are set out in below.
In some instances resort has been had to the Explanatory Memorandum to clarify whether a recommendation is addressed to States for action or is merely an exhortation to the private actors concerned. Less specific recommendations and general exhortations to act in compliance with the Convention have been omitted.
Refrain/Constrained
1. Avoid measures that would introduce new weaknesses or vulnerabilities into technical features of online services that constitute vital safeguards for the enjoyment of privacy and other human rights online (i.e. encryption). [23]
2. Distinguish clearly between measures relating to legally restricted and lawful content. Lawful content should be addressed only through platform accountability and user empowerment measures. Those should not be used to circumvent rule of law requirements for legally restricted content. [35], [36]
3. Blocking or banning of an entire online service, domain or website should be ordered only by a judicial authority or other independent public authority whose decisions are subject to judicial review. [37]
4. Not to exert pressure on internet intermediaries and content creators to take action that could affect the availability of online content other than through means prescribed by law. [38]
5. Not, directly or indirectly, to impose a general obligation on intermediaries to monitor content which they merely give access to or which they transmit or store, be it by automated means or not. [42]
6. Content rules prescribed in law by Member States should be based on evidence gathered transparently. [45]
7. The material, remedial and geographic scope of legally restricted content should be proportionate to avoid collateral removal of lawful content. [45]
8. Member States may compel platforms to publish on their services specific information of public interest, but only in compliance with Article 10(2) of the Convention. [52]
9. Refrain from imposing disproportionate liability on internet intermediaries for user content, which may incentivise or result in overblocking of lawful content. [54] States should adopt a knowledge-dependent notice and takedown model for hosting of legally restricted content. [55]
10. Ensure that regulatory authorities tasked to supervise, implement or enforce the legislative framework for platform accountability and user empowerment are independent in law and practice, equipped with adequate resources and expertise, rely on evidence and always carefully consider the types of risks that they are supervising. Decisions of such regulatory bodies should be subject to judicial review. [64]
Act
11.
Adopt:
-
Educational initiatives to foster digital citizenship;
strategies and policies to strengthen media literacy; community empowerment
initiatives
-
Measures aimed at promoting free, independent,
responsible and pluralistic media and quality journalism
-
Effective mechanisms to safeguard the physical and
mental safety and well-being of users
- Measures to investigate technology-facilitated criminal offences and ensure accountability with the law [22]
12. To
adopt and enforce legal frameworks that:
-
Specify what content is legally restricted and when
such restrictions apply. ‘Legally restricted’ content includes both illegal
content and ‘legal but regulated’ content (i.e. which is restricted to a
particular kind of audience (e.g. children) or in a particular context (such as
elections).
-
Specify the exceptional cases and conditions in which
internet intermediaries may be held liable for users’ legally restricted
content.
-
Impose systemic duties and responsibilities on
intermediaries, such as platforms, to improve their accountability, online
safety and user empowerment. [33]
o
Those should address systems and processes including
overall design, procedures, governance and operation; and covering
transparency, systems and processes of content organisation, curation and
moderation, design practices and risk management.[57], [58].
o
Platforms should be required to design their services
in a manner that incorporates user safety considerations by default and design.
Risk mitigation measures include tackling amplification of content and
behaviour which carry clear risks of harm. [59]
o
Platforms of significant influence should be required
to carry out risk assessments, and to mitigate identified risks before
introducing design changes. [60] States should ensure that those risk
assessments are carried out in consultation with affected stakeholders and
provide participation opportunities for the general public. [61], EM [158].
o Platforms of significant influence should be required to produce and publish documentation on their assessment of risks and human rights and democracy impacts. [62]
13. Adopt evidence-based legislative frameworks to impose on platforms the empowerment duties set out below (subject to proportionality and some exemptions for micro and small platforms): [66], [68], [69] Note: It is evident from these paragraphs that although some duties are expressed as if addressed to platforms, the recommendation is that these duties should be imposed on platforms. However, see also below as to platform ‘responsibilities’ where a platform is not obligated to implement empowerment measures.
Design-related
-
Design of automated systems for the organisation,
curation or moderation of lawful content should allow users to personalise
their online experience based on their preferences. This should be done through
easily accessible and user-friendly tools allowing users to opt out of specific
types of recommendations, hide types of content or block users.[71]
-
Platform design should enhance the ability of users to
make informed choices about the content they engage with. This could include
facilitating third-party labelling of lawful content by experts, factcheckers
or communities. Users should then be allowed to further personalise their
online experience by hiding or prioritising content corresponding to specific
labels. [72] States should explore options for opening platforms of significant
influence to third party tools. [73]
-
Platform design should proactively promote user
empowerment and safety online for persons with impairments, including through
third-party tools. [74]
-
States should, subject to various safeguards, require
the use of effective systems of age assurance to ensure children are protected
from products, services and content which are legally restricted with reference
to specific ages. In particular, such systems should be required for platforms
that predominantly provide services or content that is legally restricted to
protect children. [75]
-
States should require the development, production and
regular updating by platforms of other age appropriate and effective tools to
mitigate risks for children in the online environment. [76]
-
Platforms of significant influence should ensure that
content creators have the option to implement age labels for their content,
where these creators choose or are under a legal obligation to do so. [77]
- Platforms should not obstruct the ability of their users, including content creators, to move their online profiles to other complementary or competing platforms. States should require platforms to adopt design choices and technical standards that support profile portability. [79], EM [192]
Transparency-related
-
Platforms should meaningfully explain how they design
their algorithmic systems for content organisation and curation so that users
can understand what information is given priority or is demoted. [80]
-
Platforms should disclose to the public the details of
their content moderation practices and periodically publish aggregate
statistics about the number and types of content moderation decisions on their
services. [81]
-
Platforms should describe the automated systems they
rely on for content moderation and in which areas of content and publish
qualitative reports on the accuracy of, and the safeguards applied to, such
tools. [82]
-
Platforms should be transparent about the identity of
their advertisers, the use of advertisement targeting techniques and spending
for each advert. [83]
-
Platforms should be transparent about the
user-generated content that is monetised on their services and by whom, and
about the basic principles used to allocate resources to content creators. [84]
-
Platforms of significant influence should provide
tools to content creators to ensure transparency about how their content is
monetised. [85]
-
Independent researchers should (subject to vetting by
an external independent body in some cases) have effective access to data held
by platforms, without discrimination and in ways that are secure, legal and
privacy compliant, to conduct, in an ethical and responsible way, research that
pursues a public interest. [86]
- Independent researchers should be technically and legally allowed, without discrimination, to use platforms to conduct research that is carried out within established principles of research integrity and ethics and in compliance with applicable data protection safeguards. [87]
Fair process (a.k.a. Procedural rights)
-
Platforms should state clearly and unambiguously, in
meaningful and accessible terms, the contractual policies and rules under which
they offer their services to the public. Any significant changes to such rules
should be notified in advance to the affected users and the effects on their
future activity meaningfully explained. [88]
-
Rules applicable to user content and behaviour, and
changes thereto, should be sufficiently predictable to avoid arbitrariness of
potential sanctions. [88]
-
Contractual policies and rules applicable to children
should be explained in a way which children can understand, and which is
appropriate to their age, maturity and circumstances. [88]
-
Users and content creators should be able to
effectively challenge content moderation decisions of platforms that affect
their right to freedom of expression, including their right to receive
information, or other rights. [89]
- Any content moderation decisions of platforms that target or affect specific users, including restrictions imposed on the visibility of user content, monetisation and account privileges, should be swiftly notified and explained to the users who have created the content or accounts affected by the decision. Such a notification must specify the grounds for the decision, explain the decision-making process and specify any possibilities of appeal, in a non-technical, clear and age-appropriate language. [90]
- Platforms should notify also any other identifiable user who is directly concerned or affected by the content and who has opted to receive such notifications. [91]
- Content moderation decisions of platforms that have a significant impact on users should be subject to external independent appeals, such as out-of-court dispute settlement bodies or another form of independent oversight. Such appeals should be accessible, transparent and heard swiftly within transparent time frames, and should provide effective remedies. This should not prevent users or platforms from having recourse to judicial or other legal remedies available under domestic law. [92]
Collective action-related
-
Platforms should ensure that users have the
possibility to easily flag breaches of contractual policies and rules by other
users and provide flaggers with sufficient feedback about follow-up to their
flags. [93]
- Platforms should ensure that users have the possibility to submit a notice relating to potentially legally restricted content and provide notifiers with sufficient feedback about follow-up to their notice. If the content moderation decision of a platform is not satisfactory, notifiers should be given the possibility to appeal the decision, including in accordance with paragraph 92. [94]
There then follows a set
of ‘collective action’ recommendations which, although under the general
heading of duties that should be imposed on platforms, are unclear as to the
extent (if at all) to which they are intended to be obligatory:
- States should encourage the identification of professionals to act as independent experts in notifying legally restricted content or flagging breaches of contractual policies and rules on platforms. States should incentivise the recognition of such professionals by granting them certain privileges, such as priority treatment of their flags, notices and appeals, financial support or better access to technical interfaces. [95]
- States should encourage the formation of professional user groups who can act as independent experts in defending the interests of users and content creators before platforms or public authorities. [96]
- States can grant these user groups privileges such as priority appeals, financing, better access to technical interfaces or a right of collective action against infringement of the rights of users. [96]
14. Support the public, experts and researchers in their effort to identify priority risk areas on various online services and effective risk mitigation strategies.[63]
15. Aim to share responsibility over online safety by entrusting roles to non-state actors, such as researchers, user groups, professional notifiers and flaggers, out-of-court dispute settlement bodies and third-party labellers, in the public interest. Such non-state actors should be subject to transparency and accountability mechanisms. States should explore ways to incentivise and compensate such non-state actors for their efforts through measures that do not depend on political or commercial discretion. [65]
16. That accountability requirements on platforms and intermediary liability rules should be graduated according to technological capabilities and economic resources. [40]
17. Ensure that platforms fully assess the impact of their contractual restrictions for lawful user-generated content and behaviour on the human rights of users. Such contractual policies and rules should be transparent, clearly communicated and drawn up in consultation with users and communities of users. They should be applied consistently and in a non-arbitrary manner [50], EM [120] – [121].
18. Require professional content creators to be transparent about how their content is monetized; and encourage the development of transparent, inclusive and human rights-based self-regulatory frameworks for content creators for whom such frameworks do not yet exist.[53]
19. Require platforms when implementing State instructions and lawful orders to provide users with sufficient information to challenge decisions. [56], EM [143], [144]]
20. Require platforms by law to provide the necessary information for regulatory authorities’ monitoring activities in a timely manner, subject to proportionate sanctions for non-compliance with such obligations. [64]
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