Explanatory Memorandum

1. This section concerns the right to freedom of expression as enshrined in the ECHR. The Court has affirmed in its jurisprudence that Article 10 is fully applicable to the Internet. The right to freedom of expression includes the right to freely express opinions, views, ideas and to seek, receive and impart information regardless of frontiers. Internet users should be free to express their political convictions as well as their religious and non-religious views. The latter concerns the exercise of the right to freedom of thought, conscience and religion as enshrined in Article 9 of the ECHR. Freedom of expression is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.

2. The exercise of the right to freedom of expression by Internet users' must be balanced with the right to protection of reputation. The Court has held in a number of cases that this is a right which is protected by Article 8 of the ECHR concerning the respect for private life. The Court has found that, as a matter of principle, the rights guaranteed under Articles 8 and 10 deserve equal respect. It considers that where the right to freedom of expression is being balanced with the right to respect for private life, the relevant criteria in the balancing exercise include the following elements: contribution to a debate of general interest, how well known the person concerned is, the subject of the report, the prior conduct of the person concerned, the method of obtaining the information and its veracity, the content, form and consequences of the publication, and the severity of the sanction imposed. Therefore, the Guide specifies that the Internet user should have due regard to the reputation of others, including their right to privacy.

3. There is expression that does not qualify for protection under Article 10 of the ECHR such as hate speech. The Court has found that certain forms of expression which amount to hate speech or which negate the fundamental values of the ECHR are excluded from the protections afforded by Article 10 of the Court. In this connection the Court applies Article 17 of the ECHR. Although there is no universally acceptable definition of hate speech, the Council of Europe's Committee of Ministers has stated that the term "hate speech" shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin." Paragraph 2 of the section on freedom of expression provides concise information which is formulated in simple language for the user with regard to the point that hate speech is not dealt with under Article 10 of the ECHR. This paragraph does not attempt to explain in legal terms the different ways in which article 10 and article 17 of the ECHR might apply to hate speech. Given the legal nature of this distinction it was considered that information on this point is more appropriate for the explanatory memorandum.

4. Users have the right to receive and impart information on the Internet, in particular to create, re-use and distribute content using the Internet. The Court has examined the relationship between intellectual property protection and freedom of expression in relation to cases of criminal conviction for copyright infringements. The Court has considered such convictions as interferences with the right to freedom of expression which in order to be justified must prescribed by law, pursue the legitimate aim of protecting the rights of others, and be considered necessary in a democratic society. The sharing or allowing others to share files on the Internet, even copyright-protected material and for profit-making purposes, is covered by the right to receive and impart information as provided in Article 10 of the ECHR. This is a right which is not absolute and so there is a need to weigh, on the one hand, the interest of sharing information with, on the other hand, the interest in protecting the rights of copyright holders. The Court has stressed that intellectual property benefits from the protection afforded by Article 1 of Protocol to the ECHR. Thus, it is a question of balancing two competing interests which are both protected by the ECHR.

5. The Committee of Ministers recommendation to its member States to promote the public service value of the Internet includes specific guidance on measures and strategies regarding freedom of communication and creation on the Internet regardless of frontiers. In particular, measures should be taken to facilitate, where appropriate, "re-uses" of Internet content, which means the use of existing digital content resources to create future content or services done in a manner that is compatible with respect for intellectual property rights.

6. Paragraph 4 provides a general overview of the requirements that restrictions of the right to freedom of expression should meet. Member States have a primary duty, pursuant to Article 10 ECHR not to interfere with the communication of information between individuals, be they legal or natural persons. The Court has affirmed that the effective exercise of the right to freedom of expression may also require positive measures of protection, even in the sphere of relations between individuals. The responsibility of the State may be engaged as a result of failing to enact appropriate domestic legislation. A violation of the ECHR can also be established where a national court's interpretation of a legal act, be it a private contract, a public document, a statutory provision or an administrative practice, appears unreasonable, arbitrary, discriminatory or, more broadly, inconsistent with the underlying principles of the ECHR.

7. Freedom of expression is not an absolute right and can be subjected to restrictions. Interferences with freedom of expression must be seen as any form of restriction coming from any authority exercising public power and duties or acting in the public service, such as courts, prosecutors' offices, police, any law-enforcement body, intelligence services, central or local councils, government departments, army decision-making bodies, and public professional structures.

8. In compliance with Article 10, paragraph 2, of the ECHR, any interference must be prescribed by law. This means that the law must be accessible, clear and sufficiently precise to enable individuals to regulate their behaviour. The law should provide for sufficient safeguards against abusive restrictive measures, including effective control by a court or other independent adjudicatory body. An interference must also pursue a legitimate aim in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. This list is exhaustive yet its interpretation and scope evolves with the case law of the Court. An interference must also be necessary in a democratic society which means that it should be proven that there is a pressing social need for it, that it pursues a legitimate aim, and that it is the least restrictive means for achieving that aim. These requirements are summarised in a language that is accessible for the user i.e. any restrictions to the freedom of expression must not be arbitrary and must pursue a legitimate aim in accordance with the ECHR such as among others, the protection of national security or public order, public health or morals and must comply with human rights law.

9. More detailed information about guarantees that should be afforded to Internet users when there are restrictions to the right to freedom of expression online are contained in the following paragraphs of the explanatory memorandum. Blocking and filtering are examples of such restrictions which may amount to violations of freedom of expression. Some general principles with regard to blocking and filtering are based on the Court case law or other relevant standards adopted by the Committee of Ministers.

10. Nationwide general blocking or filtering measures might be taken by State authorities only if the filtering concerns specific and clearly identifiable content, based on a decision on its illegality by a competent national authority which can be reviewed by an independent and impartial tribunal or regulatory body in accordance with the requirements of Article 6 of the ECHR. State authorities should ensure that all filters are assessed both before and during their implementation to ensure that their effects are proportionate to the purpose of the restriction and thus necessary in a democratic society, in order to avoid unjustified blocking of content.

11. Measures taken to block specific Internet content must not be arbitrarily used as a means of general blocking of information on the Internet. They must not have a collateral effect in rendering large quantities of information inaccessible, thereby substantially restricting the rights of Internet users. They should be prescribed by law. There should be strict control of the scope of blocking and effective judicial review to prevent any abuse of power. Judicial review of such a measure should weigh-up the competing interests at stake, strike a balance between them and determine whether there a less far-reaching measure could be taken to block access to specific Internet content. The requirements and principles mentioned above do not prevent the installation of filters for the protection of minors in specific places where minors access the Internet such as schools or libraries.

12. Filtering and de-indexation of Internet content by search engines entails the risk of violating the freedom of expression of Internet users. Search engines have freedom to crawl and index information available on the World Wide Web. They should not be obliged to monitor their networks and services proactively in order to detect possibly illegal content and should not conduct any ex-ante filtering or blocking activity unless mandated by a court order or by a competent authority. De-indexation or filtering of specific websites at the requests of public authorities should be transparent, narrowly tailored and reviewed regularly subject to compliance with due process requirements.

13. This section also identifies some of the guarantees that Internet users should be afforded when restrictions apply, focusing notably on information to the user and possibilities to challenge these restrictions. This is referred to in the Council of Europe's Committee of Ministers recommendation on filtering and blocking measures. Internet users should be given information about when filtering has been activated, why a specific type of content has been filtered and to understand how, and according to which criteria, the filtering operates (for example black lists, white lists, keyword blocking, content rating, de-indexation or filtering of specific websites or content by search engines). They should be given concise information and guidance regarding the manual overriding of an active filter, namely who to contact when it appears that content has been unjustifiably blocked and the means which may allow a filter to be overridden for a specific type of content or website. Users should be afforded effective and readily accessible means of recourse and remedy, including the suspension of filters, in cases where users claim that content has been blocked unjustifiably.

14. It is possible that companies, such as social networks, remove content created and made available by Internet users. These companies may also deactivate users' accounts (e.g. a user's profile or presence in social networks) justifying their action on non-compliance with their terms and conditions of use of the service. Such actions could constitute an interference with the right to freedom of expression and the right to receive and impart information unless the conditions of Article 10, paragraph 2 of the ECHR as interpreted by the Court, are met.

15. According to the United Nations Guiding Principles on Business and Human Rights Business (which are not a binding instrument) enterprises have a responsibility to respect human rights, which requires them to avoid causing or contributing to adverse impacts on human rights and to provide for or cooperate in the remediation of such impacts. The duty to protect and to provide access to effective remedy is essentially incumbent on States. This is echoed in paragraph 5 of the section on freedom of expression. The corporate social responsibility of online service providers includes a commitment to combating hate speech and other content that incites violence or discrimination. Online service providers should be attentive to the use of, and editorial responses to, expressions motivated by racist, xenophobic, anti-Semitic, misogynist, sexist (including as regards Lesbian Gay Bisexual and Transgender people) or other bias. These providers should also be ready to help Internet users report content or expression of views and/or behaviour that may be considered illegal.

16. The Guide alerts Internet users that online service providers that host user-created content are entitled to exercise different levels of editorial judgment over the content on their services. Without prejudice to their editorial freedom, they should ensure that Internet users' right to seek, receive and impart information is not infringed upon in accordance with Article 10 of the ECHR. This means that any restriction on user-generated content should be specific, justified for the purpose it is restricted, and communicated to the Internet user concerned.

17. The Internet user should be able to make an informed decision as to whether to use the online service or not. In practice, the Internet user should be fully informed about any foreseen measures to remove content created by her/him or to deactivate her/his account before these are taken. Internet users should also be provided with accessible (in a language that the user understands), clear and precise information on the facts and grounds for taking measures on content removal and account deactivation. This includes the legal provisions on which they are based and other elements used to assess the proportionality and legitimacy of the aim pursued. They should also be able to request a review of the content removal and/or account de-activation, done within a reasonable time and subject to the possibility to complain against the decision to a competent administrative and/or judicial authority.

18. The sixth sub-paragraph concerns the issue of anonymity. This is based on the case law of the Court, the Budapest Convention and other instruments of the Committee of Ministers. The Court considered the issue of confidentiality of Internet communications in a case involving the failure of a Council of Europe member State to compel an Internet service provider to disclose the identity of a person who placed an indecent advertisement concerning a minor on an Internet dating website. The Court held that although freedom of expression and confidentiality of communications are primary considerations and users of telecommunications and Internet services must have a guarantee that their own privacy and freedom of expression will be respected, such guarantee cannot be absolute and must yield, on occasion, to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others. The State has a positive obligation to provide a framework which reconciles those competing interests.

19. The Budapest Convention does not criminalise the use of computer technology for purposes of anonymous communication. According to its Explanatory Report, "the modification of traffic data for the purpose of facilitating anonymous communications (e.g. activities of anonymous remailer systems) or the modification of data for the purposes of secure communications (e.g. encryption) should in principle be considered a legitimate protection of privacy, and, therefore, be considered as being undertaken with right. However, Parties [to the Budapest Convention] may wish to criminalise certain abuses related to anonymous communications, such as where the packet header information is altered in order to conceal the identity of the perpetrator in committing a crime."

20. The Council of Europe's Committee of Ministers affirmed the principle of anonymity in its Declaration on Freedom of Communication on the Internet. Accordingly, in order to ensure protection against online surveillance and to enhance freedom of expression; Council of Europe member States should respect the will of Internet users not to disclose their identity. However, respect for anonymity does not prevent member States from taking measures in order to trace those responsible for criminal acts, in accordance with national law, the ECHR and other international agreements in the fields of justice and the police.

Please see here the full text of the Explanatory Memorandum.