This case-study undertaken by the Danish Institute of Human Rights in Copenhagen and the European Training and Research Centre for Human Rights and Democracy in Graz is part of the FP7 project Fostering Human Rights among European Policies (FRAME), and a follow-up to the report (D 2.1) on ‘factors which enable or hinder the protection of human rights’. The first report assesses a wide range of factors – historical, political, legal, economic, social, cultural, religious, ethnic and technological – and their impact on the protection of human rights in EU internal and external policies. The purpose of this case-study is to zoom in on the technological factors and to examine some of the challenges that were identified in the first report.
The first part of the study focuses on the EU’s internal policies in the field of online content regulation. Drawing on case-studies of three EU directives – Directive 2000/31/EC on e-commerce, Directive 2011/93/EU on combating the sexual abuse and sexual exploitation of children and child pornography and Directive 2004/48/EC on intellectual property rights enforcement – the study seeks to illustrate how dealing with alleged illegal content through blocking, filtering and take-down of content within co- and self-regulatory frameworks shaped around ‘Internet intermediaries’ challenge freedom of expression and information. The directives presuppose, accept or encourage self-regulation and, combined with schemes of limited liability, subject the intermediaries to an increasing pressure to implement public policy in the online domain. However, these practices and their limitations to freedom of expression are rarely framed as human rights issues, nor do they have the required safeguards. Based on analysis of the EU directives, the study explores the weaknesses – seen from a human rights perspective – of the European approach towards tackling illegal content on the Internet.
The study provides a number of suggestions to ensure that the EU addresses the human rights implications of co- and self-regulation, including the strengthening of safeguards and guidance for Member States and intermediaries to implement the said EU policy. Also, the study calls for a comprehensive EU freedom of expression and information framework, covering both its internal and external policy. In line with this, the EU should consider the freedom of expression and information implications of current and new policies when reviewing them according to the Digital Single Market Strategy.
The second part addresses the external policies of the EU with a focus on the protection and support of Human Rights Defenders using digital means (‘Digital Defenders’). For this purpose, EU policies and instruments of relevance for Digital Defenders are analysed, including the implementation of the Internet Freedom Strategy and the No Disconnect Strategy. The programmes under the European Instrument for Democracy and Human Rights are reviewed with respect to their relevance for human rights activities online, taking into account the recent EU Guidelines on Freedom of Expression Online and Offline. This part of the study also explores the related issues of the safety of journalists (which are often citizen journalists), export control of surveillance technology by the EU Member States and the cooperation with other international organisations active in the field of online rights. Proposals are offered on how to improve the general environment for Digital Defenders and their right to freedom of expression and information, and how to improve the coherence of EU action in this field. The newly created Human Rights Defenders Mechanism can play a pivotal role in this regard, as could updated EU Guidelines on human rights defenders.
Authors: Rikke Frank Jørgensen, Anja Møller Pedersen, Wolfgang Benedek and Reinmar Nindler
Lead Beneficiary: Danish Institute for Human Rights