Organization for Security and Co-operation in Europe The Representative on Freedom of the Media Dunja Mijatović
Communiqué No.1/2016 3rd Communiqué on Open Journalism
During the previous working meetings of the project, the presence and role of intermediaries in Open Journalism was raised on several occasions as a relevant issue for further discussions. The notion of intermediaries includes several different actors of the Internet value chain, particularly those who play a direct and effective role in the distribution of and access to journalistic content. Intermediaries have become one of the main platforms facilitating access to media content as well as enhancing the interactive and participatory nature of Open Journalism. The progressive establishment of different terms of use or community standards by social media platforms has increased their influence in the way content is distributed. There is also a risk of intermediaries automatizing decisions with clear human rights implications. On the other hand, the emerging importance of intermediaries as content hubs has also caused, in some cases, a higher level of intervention by state authorities. Intermediaries are often faced with requests and requirements by law enforcement and regulators. Previous debates focused on how journalism has changed and the way the public debate is now also shaped by other actors, as well as how traditional and well-established media legal statutes should be applied or re-interpreted to protect innovation and media plurality. In the latest expert meeting, discussions referred to the role of intermediaries in Open Journalism as well as principles and rules governing their activities. As a conclusion to this session the OSCE Representative on Freedom of the Media issues the following recommendations to the participating States:
Public authorities should protect freedom of expression, media freedom and the free flow of information in all the facets and areas of the online world. The important presence and role of intermediaries should not endanger the openness, diversity and transparency of Internet content distribution and access. Excessive and disproportionate provisions regarding content takedown and intermediaries’ liability create a clear risk of transferring regulation and adjudication of Internet freedom rights to private actors and should be avoided. States should also discourage intermediaries from automatizing decisions with clear human rights implications1. International documents on human rights responsibilities for non-state actors,, as well as multi-stakeholder debates and initiatives such as the Manila Principles2, should be given due consideration in this area. The legitimate need to protect privacy and other human rights should not undermine the principal role of freedom of the media and the right to seek, receive and impart information of public interest as a basic condition for democracy and political participation. Making private intermediaries more transparent and accountable is a legitimate aim to be pursued by participating States through appropriate means. However, this must not lead to excessive control by public authorities over online content. Decisions addressed to intermediaries establishing restrictions or ordering the takedown of Internet content should be adopted according to law, by judicial or other independent adjudicatory authorities, following due process and with full respect to the principles of necessity and proportionality.
Dunja Mijatović OSCE Representative on Freedom of the Media Vienna, 29 January 2016
1 For example, not expecting or pushing intermediaries to write algorithms to find terrorists or automatically be able to identify hate speech. 2 https://www.manilaprinciples.org/principles