Bissera Zankova, Media 21 Foundation, Bulgaria May 2 2018
Nowadays we are constantly witnessing how diverse Internet intermediaries are rapidly evolving to perform a variety of important social and economic functions. Some facilitate users’s access to the Internet, enable the processing of information and data, or host web-based services, including for user-generated content. The different types of online intermediation services, harnessing the opportunities of the new technologies, aim to make easy the initiating of direct transactions between business users and consumers, irrespective of whether the ultimate transactions are executed online or offline. Intermediary services may be also offered by legacy media to support freedom of expression and particiaption.
Urged by the alarming situation that the Internet and the related technological developments have created substantial challenges for the maintenance of human rights and privacy and data protection in particular, on the one hand, and that European businesses cannot fully exploit the power of the online platform economy due to the application of potentially harmful trading practices and the emerging fragmentation of the single market, on the other, the Council of Europe and the European Commission have taken steps towards the appropriate regulation of the Internet intermediaries.
On April 27 2018 the European Commission made a proposal for the adoption of Regulation of the European Parliament and Council on promoting fairness and transparency for business users of online intermediation services. (COM(2018) 238 final ) This newly tabled proposal can be compared to the Council of Europe recommendation on the roles and responsibilities of internet intermediaries (Recommendation CM/Rec(2018)2of the Committee of Ministers to member States on the roles and responsibilities of internet intermediaries (Adopted by the Committee of Ministers on 7 March 2018at the 1309th meeting of the Ministers’ Deputies) passed earlier this year and treating similar issues. If adopted the EC regulation will be legally binding for the EU member states while the Council of Europe instrument is not legally binding for its addressees. However, the latter has the advantage to signal the problems of the Internet intermediaries to its 47 member states some of which are not members of the EU club and potentially the act may have wider repercussions in the European policy and legislative areas.
The Council of Europe recommendation deals with the functions of the Internet intermediaries predominantly from a human rights’ perspective in accordance with the profile of the organization drawing attention to both their non-commercial and commercial activities. It supports also initiatives promoting media and information literacy skills. It provides for the regulatory framework governing the services of intermediaries being diverse, multi-tiered and continuously evolving and stresses that the rules, developed by the Internet intermediaries usually in form of terms of service or community standards that often contain content-restriction policies may interfere with, among other rights, the users’ rights to privacy and freedom of expression. “Effective reporting and complaints mechanisms may be lacking, be insufficiently transparent and efficient, or be provided only through automated processes” is the conclusion thereof.
Similar observations have led to the requirement in the EU proposal that providers of online intermediation services shall ensure that their terms and conditions are drafted in a clear and unambiguous language, are easily available for business users at all stages of their commercial relationships and set out the objective grounds for decisions to suspend or terminate the provision of online intermediation services. Further to this the terms and conditions should envisage the main parameters determining ranking and the reasons for the relative importance of those main parameters. They should provide a description of any differentiated treatment which they give, or may give, in relation to, on the one hand, goods or services offered and, on the other to other business users. Further to this a description of the technical and contractual access (or absence), of business users to any personal data or other data, or both, which business users or consumers provide for the use of the online intermediation services concerned or which are generated through the provision of those services, will be set out.
Introducing an internal system for handling the complaints of business users is another essential requirement of the proposal. This system shall be easily accessible for business users and shall allow them to lodge complaints directly with the provider concerned regarding alleged non-compliance with any legal obligations, technological issues which relate directly to the provision of online intermediation services, and which negatively affect the complainant and measures which negatively affect the complainant in a non-negligible manner. Terms and conditions should also provide for one or more mediators with which they are willing to engage to attempt to reach an agreement on the settlement, out of court, of any disputes, including complaints that could not be resolved by means of the internal complaint-handling system.
The Council of Europe recommendation contains guidelines of a more general nature to all relevant actors who are faced with the complex task of protecting and respecting human rights in the digital environment. They encourage self-regulatory frameworks or co-regulatory mechanisms, taking due account of the “role of intermediaries in providing services of public value and facilitating public discourse and democratic debate, as protected by Article 10 of the European Convention on Human Rights (ECHR)”. The implementation of the guidelines should be evaluated on a regular basis by the relevant subjects. The act provides guidance to member states and other players to promote “a regular, inclusive and transparent dialogue with all relevant stakeholders, including from the private sector, public service media, civil society, education establishments and academia, with a view to sharing and discussing information and promoting the responsible use of emerging technological developments related to internet intermediaries that impact the exercise and enjoyment of human rights and related legal and policy issues” which can serve as a basis of comprehensive policy and regulation. It mainly refers to the proper application of principles enhancing human rights protection, transparency and accountability providing instructions in this regard.
Under the framework of the recommendation the Internet intermediaries are obliged to respect human rights and fundamental freedoms, privacy and data protection in particular, and restrict access (including blocking or removing content) as a result of a State order or request using the least restrictive means in content moderation. They should also make available – online and offline – effective remedies and dispute resolution systems that provide prompt and direct redress in cases of user, content provider and affected party grievances. The Council of Europe instrument also warns about excessive concentration on the web as the existence of a number of larger entities dominating the market may ‘jeopardise the opportunities for smaller intermediaries or start-ups and places them in positions of influence or even control of principal modes of public communication”.
The obligation for introducing a special internal system for handling the complaints of business users is an important aspect of the EC proposal. It hall be easily accessible for business users and shall allow them to lodge complaints directly with the provider concerned regarding alleged non-compliance with any legal obligations, technological issues which relate directly to the provision of online intermediation services, and which negatively affect the complainant and measures which negatively affect the complainant in a non-negligible manner. Terms and conditions should also provide for one or more mediators with which they are willing to engage to attempt to reach an agreement on the settlement, out of court, of any disputes, including complaints that could not be resolved by means of the internal complaint-handling system.
Organisations and associations that have a legitimate interest to provide representation to business or corporate website users, as well as public bodies set up in Member States, shall be entitled to take action before national courts to stop or prohibit any non-compliance by providers of online intermediation services or by providers of online search engines with the relevant requirements the regulation lays down.
Counting on the opportunities of self-regulation the Commission proposes the drawing up of codes of conduct by providers of online intermediation services and by organisations and associations representing them, intended to contribute to the proper application of the regulation provisions, taking account of their specific features. Self-regulation is construed broadly and the provision does not preclude using any possible technique of drafting professional codes including co-regulation.
Moreover with a view to support the consolidation of the digital single market it stipulates a group of experts for the Observatory on the Online Platform Economy to be set up tasked to monitor the opportunities and challenges in the online platform economy which strengthens the opportunities for successful implenentation of the proposal on an expert level.
Three years after the date of entry into force and subsequently every three years, the Commission will evaluate how the regulation is put into parctiece and report to the European Parliament, the Council and the European Economic and Social Committee. In line with this Member States are obliged to provide any relevant information for the report. In the process of evaluation the Commsiion will consult the group of experts for the Observatory on the Online Platform Economy as well as any codes of conduct, where appropriate.
Analyzing the regulatory potential of the proposal it can be concluded that the new EC Regulation envisages a concrete enforcement mechanism which is a guarantee to ensure effective monitoring and control of its conditions through the EU members states for the establishment of a secure business environment.
Though there are some overlaps in the content the approach of the two acts vary. The recommendation is of a more general complexion and states the importance of an array of rights including not only privacy and data protection but also freedom of expression and creative rights. In comparison the proposal pays keen attention to economic rights. It also emphasizes the Union commitment to high standards of fundamental rights relating explicitly to the human rights that underpin the creation of a fair, predictable, sustainable and trusted online business environment and particulalry to the freedoms to conduct a business by service providers and their business users (Art. 16 of the Charter of Fundamental Rights of the European Union).
However, these two instruments may complement each other to assist states in the setting up of workable regulatory frameworks by stressing different aspects of the regulation of the Internet intermediaries in a complex environment. Both of them underline the role of self-regulation ( including co-regulation) to structure an improved space of exchange of ideas and services. The online platforms remain free, in principle, to set the general policies for their activities and have the possibility to devise their voluntary industry codes of conducts within a principles-based legal framework.
The documents are available at: https://ec.europa.eu/digital-single-market/en/news/regulation-promoting-fairness-and-transparency-business-users-online-intermediation-services and https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=0900001680790e14
This material has been prepared within the COMPACT project.
COMPACT: FROM RESEARCH TO POLICY THROUGH
RAISING AWARENESS OF THE STATE OF THE ART ONSOCIAL MEDIA AND CONVERGENCE
Project Number 762128