“Intermediaries have demonstrated a growing trend of awareness of their position of power and their positive role in taking up rights. However, to protect freedom of expression and privacy they need to be more attentive with respect to the international standards of transparency, necessity, proportionality, legitimate purpose and due process.”
OBSERVACOM Staff/December 2015
The role of intermediaries is a central issue of the digital environment. The report on “World Trends in Freedom of Expression and Media Development: Special Digital Focus 2015″ published by UNESCO, devotes a considerable section towards discussing the importance of intermediaries and their implications for freedom of expression, given that they can act as bottle necks, arbitrators or defenders of certain expressions.
This document takes up from the contributions made by the 2014 report: Fostering Freedom Online: The Role of Internet Intermediaries, providing examples of the sustained work undertaken by the organization on these issues.
According to the 2015 UNESCO report, Intermediaries have demonstrated a growing trend of awareness of their position of power and their positive role in taking up rights. However, to protect freedom of expression and privacy they need to be more attentive with respect to the international standards of transparency, necessity, proportionality, legitimate purpose and due process “The power of intermediaries can only be fully understood in the context of state power,” states the document.
A synthesis of the main conclusions of the report are as follows:
1. The duty of states to protect human rights by facilitating and supporting respect for the intermediaries of freedom of expression. In this sense, limiting the liabilities of intermediaries for content published or broadcast by third parties is essential in terms of fostering flourishing Internet services that facilitate freedom of expression.
The laws, policies and regulations of various jurisdictions that require that intermediaries undertake practices that restrict, block and filter content, are not compatible with international standards of freedom of expression.
Licensing agreements may affect the ability of intermediaries to respect freedom of expression. For their part, governments are often ambiguous regarding the instructions issued to companies in terms of restricting content, provision of user data, and other surveillance requirements. This makes it difficult for citizens to control the practices of both governments and companies.
2. As a counterpart to the duties of the state, the report highlights the requirement for companies to respect privacy. Despite a tendency for media companies to publish transparent news reports, these are not consistent as it is not clear what information is being revealed or how it is being communicated. Companies lack transparency in terms of how they enforce terms of service and respond to private requests.
3. The UNESCO report found that access to a solution for users is a fundamental pillar that places an obligation on governments and companies to provide individual access to remedy situations of abuse. While some companies have made efforts to provide complaints mechanisms and communicate their existence to users, compliance with regulations is inconsistent and lacks due process.
4. UNESCO highlights some issues of concern for the future in terms of the liabilities of intermediaries:
- Very comprehensive laws and hefty liability regimes can cause intermediaries to be “over-compliant” with government orders, leading them to compromise the right of users to freedom of expression or restrict content, this as a way of anticipating the demands of governments even if such orders are never actually issued.
- Intermediaries may be subject to different legal rules, running the risk of being punished by authorities who disagree with a particular content that has been shared by their services.
- Companies decide to allow or prohibit certain content based on their internal policies, as well as being influenced by legal obligations imposed by courts, governmental orders, civil claims, the instructions of third parties, and requests from monitoring groups with which intermediaries cooperate. This large number of actors involved, and such ambiguous legal frameworks, makes it unclear for users as to what content is allowed, who takes the relevant decisions, and what are the potential consequences for its expression.
Given this scenario, UNESCO proposes a series of recommendations:
Generate adequate legal frameworks and policies. This means that legal and policy frameworks affecting freedom of expression and privacy must be adapted contextually without violating international standards. They must also be consistent with human rights standards including the right to freedom of expression, and contain a commitment to the principles of due process and fairness. These legal frameworks must also be accurate and based on a clear understanding of the technology that they address.
Develop policies involving multiple actors: both with respect to government and corporate policies, they are more likely to be compatible with the standards of freedom of expression if they are developed in consultation with all stakeholders.
Transparency is another key issue. The report highlights two types of transparency: qualitative and quantitative. Qualitative transparency involves governments making publicly available the laws, legal interpretations, administrative procedures and other measures related to content restriction and surveillance. For companies, qualitative transparency involves communicating with users about processes for responding to government requests and for enforcing internal company rules and processes. For its part, quantitative transparency refers to the publication of aggregate data about government requests and compliance rates, as well as other data that helps internet users understand what types of content are being removed, under what auspices and for what reason.
The right to privacy is central to freedom of expression. Consequently, this concerns the generation of policies for users in terms of what data is being collected and stored and under what circumstances the authorities may access it.
Another recommendation is for governments to create impact assessments so as to understand how a regulation or policy may affect the freedom of expression of users and their privacy.
Furthermore, the report notes that the mechanisms of self-regulation of companies (usually reflected in the terms of service) should follow the principles of due process and accountability, as well as being consistent with human rights standards.
UNESCO also recommends that users should have the right to a solution when their rights are violated or restricted by intermediaries, states or a combination of both. This does not necessarily mean that a user resorts to some form of legal action, rather that the means to resolve or correct distortions should be publicly available, that people are aware of them, that they are easily accessible and able to provide an appropriate rectification.
UNESCO also considers it important to provide education and information, along with media and information literacy, in order to cover the necessary skills required by citizens to participate in an information society.
Lastly, a recommendation is made regarding the implementation of accountability mechanisms at both local and global level for states and companies. In the case of companies, a possible mechanism is certification by independent multi-stakeholder organizations.