Greater clarity on intermediary liability may not be a win for free expression online

The Delfi v. Estonia decision, issued in June of 2015 by the European Court of Human Rights, marked a low point in that court’s caselaw regarding freedom of expression on the Internet. This week, a new European Court ruling slightly qualifies and narrows the scope of Delfi. The outcome of the new decision is not as detrimental as one could have anticipated; however, it looks to be another step toward requiring European Internet intermediaries to monitor user-generated content on their sites.

Background: The Delfi decision of 2015

In Delfi, the Grand Chamber ruled that holding an online news portal liable as the publisher of unlawful comments posted by its users was consistent with the right to freedom of expression enshrined in Article 10 of the European Convention on Human Rights. It distinguished a similar ruling by the First Section of the Court, which upheld the imposition of liability for comments that were deemed defamatory. For the Grand Chamber, the comments rose to the level of hate speech and incitement to violence, which were clearly unlawful and particularly harmful forms of speech.

The Grand Chamber declined to inform its Delfi analysis with caselaw interpreting the EU E-Commerce Directive and other relevant international instruments on the right to freedom of expression. According to these materials, a broad range of intermediaries should be shielded from liability for content that they transmit or host. The E-Commerce Directive and other materials indicate that intermediaries should not have a duty to monitor user-generated content on their sites, and decisions regarding liability should examine whether the intermediary had actual knowledge of unlawful material.

Although the European Court’s jurisdiction is limited to interpreting the European Convention and its protocols, I have argued in a forthcoming piece that the Delfi decision undermines legal certainty regarding intermediary liability in Europe and is problematic for the right to freedom of expression (see similar views here, here and here). The Court specified that its reasoning in Delfi only applied to “a large professionally managed Internet news portal run on a commercial basis which published news articles of its own and invited its readers to comment on them,” excluding most social networking services. Nevertheless, it is increasingly difficult to distinguish intermediaries on the basis of whether they provide or “edit” content.

The Court’s latest decision on the liability of an online intermediary

In Magyar Tartalomszolgaltatok Egyesulete and Index.hu Zrt v. Hungary (MTE), the Fourth Section of the European Court qualified Delfi and explained that Internet content providers will be held to the highest standards of conduct when hate speech or incitement to violence is posted on their sites. Because the comments in question in this case were merely defamatory, Hungary’s decision to hold the applicants – a self-regulatory body of Internet content providers and a major Internet news portal – strictly liable constituted a violation of Article 10 of the European Convention (a welcome contrast to the First Section’s holding in the 2013 Delfi decision).

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Join the ASIL New Professionals in DC on Thursday

This Thursday, January 14th, join the American Society of International Law’s New Professionals Interest Group for Getting Started in International Law: What I Wish I Had Known at the Start.  A short, interactive panel discussion will feature insights into preparing for a career in international law. Bring questions, share perspectives, and trade insights into building a successful career in international law. Panelists at this event will share their perspectives as experienced professionals with diverse backgrounds. The moderator will pose questions to highlight professional development advice.

PANELISTS:

  • Lisl Brunner, Global Network Initiative and co-chair of the NPIG (moderator)
  • Anneliese Fleckenstein, counsel, International Center for the Settlement of Investment Disputes
  • Brian Israel, attorney-adviser, Office of the Legal Adviser, U.S. Department of State
  • Alexandra Meise, associate, Foley Hoag
  • Sarah St. Vincent, human rights and surveillance fellow, Center for Democracy and Technology

A networking reception will follow the event.   Here are more details and registration information.

 

The European Court of Human Rights rules on surveillance in Russia

On December 4, the Grand Chamber of the European Court of Human Rights unanimously ruled that the SORM system of direct access to communications networks in Russia violated the right to privacy enshrined in Article 8 of the European Convention on Human Rights. Zakharov v. Russia is the most recent judgment on the proper limits of communications surveillance powers, and its release at a time when the United Kingdom’s Draft Investigatory Powers Bill is under consideration is not likely to be coincidental.   This post will focus on three noteworthy aspects of the judgment: its clarification of requirements for standing when challenging communications surveillance laws, its treatment of data retention standards, and its conclusions regarding direct access systems.

At the heart of the Zakharov case is the SORM system of surveillance which is present in Russia and several former Soviet states. It allows law enforcement authorities to intercept the content of communications and to obtain non-content data by means of a direct connection to the networks of communications service providers (CSPs). According to the European Telecommunications Standards Institute, CSPs should facilitate the transfer of data to authorities when an order for interception is presented, but law enforcement should not have direct access to networks. European telecommunications companies and Privacy International have disclosed that direct access is employed by a range of states beyond the Eurasia region.

In his application to the European Court, the chair of a civil society organization alleged that the system of covert interception of mobile communications in Russia did not comply with Article 8, despite the fact that judicial authorization of surveillance was required by law. The case reached the Grand Chamber when the First Section relinquished jurisdiction pursuant to Article 30 of the European Convention, which may be applied when a case “raises a serious question affecting the interpretation of the Convention or the protocols thereto.” The Grand Chamber held that several aspects of Russian law were incompatible with the Convention, including that communications surveillance was permitted for a broad range of criminal offenses (including pickpocketing), surveillance was not limited to those suspected of having committed offenses, and robust oversight mechanisms and effective remedies were lacking. Continue reading

International Law Happy Hour in Washington, DC, Thursday, October 1

If you are in the Washington, DC area, please join the American Society of International Law New Professionals Group for a fall happy hour for international law professionals on Thursday, October 1 from 5:00 – 7:00.  There will be a cash bar and happy hour specials until 7, but the conversations can continue beyond that.  All are welcome, so bring a colleague and expand your network!

Details:

Thursday, October 1 from 5:00 – 7:00

Fire & Sage (inside the Marriott at Metro Center)

775 12th Street NW

Washington, DC

Where the UN rapporteur on the right to privacy can have the most impact

Two years after the first revelations of Edward Snowden, the UN Human Rights Council has decided to appoint a special rapporteur on the right to privacy, with a particular focus on issues arising in the digital age. The key issues and human rights standards regarding surveillance of digital communications have been the subject of numerous reports, resolutions and cases in recent times (some of which I explored in an earlier post), possibly creating the impression that there is little new ground for the rapporteur to cover when preparing reports and conducting other monitoring activities.

There are a number of timely and emerging issues that the new special rapporteur might address, but the circumstances that gave rise to the mandate’s creation continue to be those that merit exploration the most. The resolution recognizes “the need to further discuss and analyse . . . procedural safeguards, effective domestic oversight and remedies, . . . as well as the need to examine the principles of non-arbitrariness and lawfulness, and the relevance of necessity and proportionality assessments in relation to surveillance practices” and mentions the enhanced “capacity of governments, companies and individuals to undertake surveillance, interception and data collection.” International standards on these points seem to be clear – the European Court of Human Rights, the UN High Commissioner and others have developed guidelines for drafting clear, precise, and accessible laws governing the interception of communications – yet states continue to introduce laws that would expand rather than limit the circumstances under which surveillance can take place. Consequently, reinforcing these standards and highlighting specific examples of good policy practice would not be a redundant task.

The special rapporteur on the right to privacy could similarly elucidate standards on effective oversight of surveillance programs. The UN High Commissioner and special rapporteurs Scheinin and La Rue have indicated that effective oversight should involve the judiciary, the legislature, and independent civilian agencies. In cases involving Germany and the United Kingdom, the European Court has held that while review by an independent judiciary is ideal, oversight by the legislature and independent commissions can be consistent with Article 8 of the European Convention. But over the past two years, questions have been raised about the independence and effectiveness of entities that develop close ties with intelligence agencies on the basis of classified information, receive evidence and input from only one side of the investigation, and may not have a clear mandate to consider the impact of surveillance programs on the privacy rights of persons beyond the state’s borders.   Along the same lines, whether and how individuals might be notified that their communications were intercepted after surveillance has ceased in order to facilitate access to remedy – a principle that the European Court has recommended but not required and that UN rapporteur La Rue embraced – also merits further exploration. Continue reading

The UN creates a new rapporteur on the right to privacy in the digital age

In a highly anticipated resolution passed on March 26, 2015, the UN Human Rights Council decided to appoint a special rapporteur on the right to privacy, with a particular focus on issues arising in the digital age. The resolution was welcomed by international civil society organizations, which have been advocating for the creation of a special mandate from the months following the revelations of Edward Snowden. Spearheaded by Germany and Brazil and passed by consensus, the resolution is an affirmation that government communications surveillance continues to concern the international community nearly two years after the first disclosure.

Despite the validation from the United Nations that this issue merits continued focus, the flurry of recent international reports, resolutions, and legal challenges involving the right to privacy in digital communications may lead observers to question what new contributions a rapporteur can add to the international debate. This post contains an overview of the international legal developments around this issue to date, and a second post will offer some thoughts as to where the new rapporteur might direct her or his focus.

The right to privacy is established in Article 17 of the International Covenant on Civil and Political Rights and Article 12 of the Universal Declaration of Human Rights, as well as in the regional human rights treaties. Since the Klass and others v. Germany case of 1978, the European Court of Human Rights has issued the greatest number of relevant precedents on privacy and communications surveillance. The UN Human Rights Committee’s brief General Comment 16 of 1988 on the right to privacy predates most of the technologies that occupy current headlines, and it is not consistent with the standards being applied at the time by the European Court. The comment maintains that “[s]urveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire‑tapping and recording of conversations should be prohibited.”

In 2009, the report of special rapporteur on counter-terrorism and human rights Martin Scheinin dealt with communications surveillance and marked an increasing interest in issues arising in the digital age on the part of the UN human rights system. Human Rights Council Resolution 20/8 of July 5, 2012, while not specifically mentioning the right to privacy, affirmed that the same rights that people have offline must also be protected online. The 2013 report of UN special rapporteur for freedom of expression Frank La Rue, released publicly days before the first Snowden revelation, explored the key issues and standards related to the right to privacy and communications surveillance. Continue reading