|1 An earlier and longer version of this paper was published as Walker, C. and Yaman Akdeniz (1998). "The Governance of the Internet in Europe with Special Reference to Illegal and Harmful Content", Criminal Law Review, December Special Edition, pp.519. A more recent version of this paper was presented at the Computers, Freedom, and Privacy Conference: The Global Internet (CFP99), Washington D.C., 68 April, 1999. All the EU related documents that are cited within this article can be accessed at http://www.cyberrights.org/euwatch.
|The European Union relative to the Internet
Placing these developments within Western Europe amplifies the discourses of fragmentation. The European aspect of Internet governance involves consideration of the impact of political movements upwards in terms of regional supranational governmentality, as represented by the European Union, as well as downwards and outwards. Supranationality involves a developing tier of governmentality, which is at odds with traditional nationstatehood in Western Europe but which potentially plays an important role in regulation of transnational commerce and social affairs. The downward and outward trends may be represented by the cultural heterogeneity of Europe and are given a constitutional recognition in terms of the doctrine of "subsidiarity" in the Maastricht Treaty of European Union of 1992. In this way, fragmentation in order to preserve rather than to regiment social and cultural texture has become a constitutional article of faith within the European Union.
At Member State level within the European Union, there is no doubt that there is a strong commitment, based on global economic competition but equally political populism, to embrace in principle the Information Age. Yet, because of cultural, historical and sociopolitical diversity, there will inevitably be divergent approaches to the growth and governance of the Internet in different European societies. For example, while the German government has political fears and sensitivities about the use of the Internet by NeoNazis, the United Kingdom takes a more relaxed attitude to the dangers of racism but conversely has a long cultural tradition of repression towards the availability of sexually explicit material. It is then for the European Union to try to reflect these differences. The legitimate and predominant constitutional concerns of the European institutions are the working and openness of the internal market. The regulation (or nonregulation) of the Internet by individual member states may create risks of distortions of competition (such as through the potential liabilities of the Internet Service Providers) and thereby hamper the free circulation of these services, and lead to a distortion and loss of competivity externally of the internal market producers.
Faced with the fragmentation of both the Internet and the allpurpose nation state, and having regard to the cardinal principles of respect for difference and subsidiarity, it is not surprising that both nation Member States within Western Europe and the European Union have each avoided domineering stances and the imposition of monopolistic forms of governmentality. This does not mean that the Internet is a "lawless place" (Reidenberg 1996: 911). Rather, in the current stage of modern, or late modern society, one can expect a trend towards "governance" rather than the "government", in which the role of the nation state is no longer ascendant. The nation state must abjure the traditional monopolization of the policing function not only on political and philosophical grounds associated with growth of neoLiberalism or new Conservatism, but also because of the pragmatic difficulties in doing otherwise in a situation of instantaneous, mass participation and global modes of Internet communication. It therefore seeks further sustenance by the activation of more varied levels of power at second hand. In this way, laws, regulations, and standards will affect the development of the Internet (and, one might say, selfreflexively, vice versa), and this is also true for selfregulatory solutions introduced for the availability of certain types of content on the Internet. So "rules and rulemaking do exist. However, the identities of the rule makers and the instruments used to establish rules will not conform to classic patterns of regulation" (Reidenberg 1996: 911).
The result is that there appears not to be a single, harmonized solution for the regulation of illegal and harmful content on the Internet. Even where the formal mechanisms for harmonization exist in an enforceable and sanctionable form (in other words within the European Union), the approach has been discursive rather than directive. This hesitancy is understandable since the condemnation of content is itself culturally and politically specific and even where there is some commonality, such as with the outlawing of child pornography, one finds that the exact definition of offences varies markedly from one country to another2. The European Commission issued a Communication Paper in which it concurred that "each country may reach its own conclusion in defining the borderline between what is permissible and not permissible"3. This "margin of appreciation" between Member States is of course very much in line the approach fostered by the European Court of Human Rights4.
Therefore, a multilayered solution seems a suitable response to the altered states of virtual reality, though many of the proposed levels of governance entail their own problems, so that the effect is often to localize rather than to solve disputes about state coercive powers. Nevertheless, one might predict that the framework of multilayered governance of the Internet, at least in so far as it applies in Western Europe, will eventually comprise a neocorporatist (Habermas 1989: 61) mixture of:
|2 A good example is the tolerance of the English law offence of blasphemy which protects only the Christian religion: Gay News & Lemon v U.K., Application no. 8710/79, D.R. 28, p.77.
3 See European Commission Communication to the European Parliament, The Council, The Economic and Social Committee and the Committee of the Regions, Illegal and Harmful Content on the Internet (COM(96)487), Brussels, 16 October 1996.
4 Handyside v UK, App. no. 5493/72, Ser A vol.24, (1976) 1 EHRR 737. See Jones 1995: 430.
5 Despite the self regulatory initiatives, the manager of CompuServe Germany, Felix Somm was successfully prosecuted in May 1998 for the dissemination of child pornography to its customers in Germany. See the Criminal case of Somm, Felix Bruno, File No: 8340 Ds 465 JS 173158/95, Local Court (Amtsgericht) Munich. An English version of the case is available at http://www.cyberrights.org/isps/sommdec.htm. See further European Commission, "Proposal for a European Parliament and Council Directive on certain legal aspects of electronic commerce in the internal market," COM(1998) 586 final, 98/0325 (COD), Brussels, 18.11.1998.
|Legislative History of the EU Initiatives
|The foregoing model of a mixed political economy has been recognized by the European Commission, which suggested that:
"the answer to the challenge [of illegal and harmful content] will be a combination of selfcontrol of the service providers, new technical solutions such as rating systems and filtering software, awareness actions for parents and teachers, information on risks and possibilities to limit these risks and of international cooperation."6
The Communication Paper emanated as a response to calls for the regulation of the Internet within the European Union in early 1996 and was launched together with a Green Paper on the Protection of Minors and Human Dignity in Audiovisual and Information Services in October 19967. While the Communication gave policy options for immediate action to fight against harmful and illegal content on the Internet, the Green Paper set out to examine the broader challenges that society faces in ensuring that these issues of overriding public interest are adequately taken into account in the rapidly evolving world of audiovisual and information services. It suggested that:
"If such mechanisms of international governance and reregulation are to be initiated then the role of nation states is pivotal. Nation states are now simply one class of powers and political agencies in a complex system of power from world to local levels but they have a centrality because of their relationship to territory and population" (Hirst and Thompson 1995: 430).
Member States welcomed the European Commissions initiatives and adopted or followed from the Commissions approach to illegal and harmful content over the Internet8.
In November 1997, the European Commission adopted a new proposal for an Action Plan, promoting the safe use of the Internet9. The European Commission, having considered the global nature of the Internet, preferred a selfregulatory environment for the regulation of illegal and harmful content. The Action Plan, therefore, encourages the creation of a European network of hotlines to report illegal content such as child pornography by online users, the development of contentmonitoring schemes by access and content providers for combating illegal content. It also seeks the development of internationally compatible and interoperable rating and filtering schemes to protect users (especially children at risk from harmful content), and measures to increase awareness of the possibilities available among parents, teachers, children and other consumers to help these groups to use the networks whilst choosing the appropriate content and exercising a reasonable amount of parental control.
On 21 December, 1998, the Council of the European Union approved the Action Plan on promoting safer use of the Internet10. This is the final adoption of a European Commission proposal for a number of initiatives from 1 January, 1999 to 31 December, 2002 with a total budget of EURO 25 million. While the Action Plan was finalized, its title changed slightly from "safe use of the Internet", into "safer use of the Internet". Members of the European Parliament thought that the use of the words "safer use" would be more appropriate since the EU legislation did not cover criminal law, and it would not be an easy task to promote safe Internet use. Furthermore, according to the Ministers of the European Parliament (MEPs), it was illusory to believe that this action plan alone could stop illegal and harmful content on the Internet. Only worldwide agreements between the EU, the USA, Japan and other states would really help according to the MEPs. However, during the discussions of the adoption of the Action Plan, the MEPs thought that the Action Plan was a step in the right direction.
|6 European Commission Communication on Illegal and Harmful Content on the Internet cited above.
7 European Commission Green Paper on the Protection of Minors and Human Dignity in Audovisual and Information Services (COM (96) 483 final, 16 October 1996).
8 For example the UK Governments position in House of Commons Select Committee on European Legislation Fourth Report, (199697 HC 36) para 14.8.
9 European Commission Communication Action Plan on Promoting Safe Use of the Internet, November 1997.
10 Action Plan on Promoting Safer Use of the Internet: Decision No/98/EC of the European Parliament and of the Council of adopting a Multiannual Community Action Plan on promoting safer use of the Internet by combating illegal and harmful content on global networks, December 1998.
|Critique of the EU Initiatives
|While all these initiatives appear attractive to concerned users, there are certain matters which should be carefully addressed before developing the suggested solutions.
First, although the new EU Action Plan suggests that "harmful content needs to be treated differently from illegal content", what is "illegal" or "harmful" is not clearly defined. The Action Plan states that illegal content is related to a wide variety of issues such as instructions on bombmaking (national security), pornography (protection of minors), incitement to racial hatred (protection of human dignity) and libel (protection of reputation). But none of those issues listed is necessarily "illegal content", nor even considered as "harmful content" (a concept probably undefinable in a global context) by many European countries. Such laxity in the use of language was at the core of the successful challenge to the USA Communications Decency Act 1996 in the USA Supreme Court, and states within Western Europe should especially avoid pandering to the lowest common denominator where the least tolerant can set the pace11. The European Court of Human Rights in its judgment in Handyside stated that the steps necessary in a democratic society for the protection of morals will depend on the type of morality to which a country is committed12. Therefore, "harm" is a criterion which will depend upon cultural differences. This emphasis on freedom of transfrontier expression is prescient, especially if territorial expressions about rights or otherwise are under attack.
Second, as well as concerns about standards to be enforced, one should also examine closely the viability of the chosen mechanism. The creation and use of hotlines for reporting illegal content is encouraged by the EU Action Plan. However, it is difficult to assess how successful the existing European hotlines have been so far as the actual amount of child pornography or other illegal activity on the Internet is unknown13. Another downside is that the efforts of the hotlines are normally concentrated on the newsgroups carried by the national ISPs. This means that while illegal material is removed from the servers of a local ISP, the same material will continue to be available on the Internet carried by the foreign ISPs in their own servers.
While the EU Action Plan seeks the development of rating and filtering systems as far as harmful Internet content is concerned, these may result in the privatized censorship of "controversial speech by banishing it to the farthest corners of cyberspace" (Steinhardt 1997). Rating and filtering products claim to empower users to block unwanted material from their personal systems and European governments have been especially enthusiastic about this projected selfregulatory solution to Internet content. But according to a recent American Civil Liberties Union paper, thirdparty ratings systems pose significant free speech problems, creating a "cloud of smoke"14. Therefore, with few thirdparty rating products currently available, the potential for arbitrary censorship increases.
In July 1998, the Economic and Social Committee of the European Commission published its opinion on the EU Action Plan15. Although favorably disposed in general, the Committee noted that very little attention has been given to illegal content. Furthermore, the Committee was not convinced that the technological solution proposed by the Commission on harmful Internet content is the most effective way of tackling a social problem. One of the dangers noted by the Committee with this approach is that, the use of filtering tools may create a false sense of security for parents and teachers, while children will quickly find any loopholes. The Committee further questioned the claim that rating systems will turn the Internet into an environment free of harmful content. More importantly, the Committee was worried that the possibility of Internet Service Providers using filtering and rating systems at the level of entry would render these systems, dubbed as "user empowering", an instrument of control, "actually taking choice out of citizens hands"16.
Overall, the Committee felt that the Action Plan was overambitious. The Committee considered it highly unlikely that the proposed measures will in the long term result in a safe Internet with the rating and classification of all information on the Internet being "impracticable". The Committee, therefore, "sees little future in the active promotion of filtering systems based on rating"17.
A third point of critique of the Commissions initiatives is that there are some overarching principles which are in danger of being lost from sight.
In political terms, firstly these include respect for national sensitivities and difference, so that most regulation must be pursued, if at all, at a localized level (the principle of subsidiarity). One might compare here the European standardsetting in the field of data protection, where the problem was much narrower and where regional harmonization was seen to be in furtherance of rights and mainly in conflict with other interests (economic or governmental) rather than other rights18.
A second political principle tends in the opposite direction towards universalization. This consideration is the constant demand for respect for individual rights, which, as expressed through the Council of Europes European Convention on Human Rights and Fundamental Freedoms of 1950. Amongst its many provisions relevant to criminal law and process is a strong (though not absolute) statement in favor of free expression in Article 10(1):
"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers."
According to a European Commission working party report, "respect for the principles of the protection of minors and human dignity is a sine qua non for the development of the new services"19. But there are problems related to the use and development of rating systems and filtering software not necessarily addressed by the EU initiatives20. Far from empowering individual users or supervisors, systems such as PICS are reliant upon a centralized system of classification of material content. But this classification process clearly takes control away from endusers and imposes standards which most do not have the time, inclination or knowledge to question (or even notice). The classification process also imposes forms of cultural hegemony which are most undesirable. What is illegal and harmful depends on cultural differences, and there are significant variations in different societies. There is even diversity in the most common example of child pornography. The definition of a "child" varies in different countries and also the creation and possession of computer generated (pseudophotographs) images of children are not always a crime. It is therefore imperative that international initiatives take into account different ethical standards in different countries in order to explore appropriate rules to protect people against offensive material. In this context it might be useful to quote from one of the more recent judgments of the European Court of Human Rights at Strasbourg stating that:
"freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress. Subject to paragraph 2 of Article 10 [of the ECHR], it is applicable not only to information or ideas that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance or broadmindedness without which there is no democratic society."21
Next, there are also economic groundrules. It is often the commercial exploitation of the Internet which predominates in governmental thinking. However, inappropriate regulation of content may threaten the growth of the information technology and result in loss of market share and investment to competitors such as the USA or in the Far East.
|11 ACLU v Reno 117 S. Ct. 2329 (1997).
12 Handyside v UK , App. no. 5493/72, Ser A vol. 24, (1976) 1 EHRR 737.
13 But see the survey in the (Irish) Department of Justice, Equality and Law Reform Illegal and Harmful Use of the Internet (Pn.5231, Dublin, 1998) pp.3435, which suggests that 0.07% of the 40000 newsgroups carry "child erotica" or "pornography", plus 238 (out of around 50 million web pages) "girlrelated child pornography or erotica" web sites (an unspecified larger number were boyrelated). The definitions used are far from tight (see p.30), and claims that this source of child pornography is either "major" or "increasing" are unsubstantiated in the absence of earlier measures or measures of other forms of trafficking.
14 "Filters and Free Speech", The Washington Post, November 24, 1997.
15 Economic and Social Committee of the European Commission, Opinion on the Proposal for a Council Decision adopting a Multiannual Community Action Plan on promoting safe use of the Internet, (OJEC, 98/C 214/08), BrusselsLuxembourg, 10 July, 1998, pp.2932.
16 Ibid para 3.2.1. and 3.4.
17 Ibid para 4.1.1.
18 Council of Europe Convention on Data Protection 1980; European Communities, Directive on Data Protection, 95/46/EC, OJ L281, 23 November 1995.
19 European Commission Working Document, Protection of Minors and Human Dignity in AudioVisual and Information Services: Consultations on the Green Paper (SEC(97) 1203, 13 June, 1997).
20 CyberRights & CyberLiberties (UK) (1997). Who Watches the Watchmen: Internet Content Rating Systems, and Privatised Censorship. http://www.cyberrights.org/watchmen.htm.
21 Castells v. Spain, App. no.11798/85, Ser.A vol.236, (1992) 14 EHRR 445, ß 42.
|By providing quick and cheap access to any kind of information, the Internet is the first truly interactive "mass" medium. It should not be surprising that governments around the globe are anxious to control this new medium, and the Internet seems to be sharing some patterns common to the regulation of any new media22. Most of the people concerned about the Internet are nonusers of it, and there is exploitation of their concerns both by politicians and by the mass media (Akdeniz 1997). The full potential of the development of the Internet will depend upon society accentuating its opportunities for speech, information and education, whilst empowering, but not demanding, very localized forms of policing (often at the level of individual user) to permit or block any message according to content. The political and social diversity of Europe and the innovative technical openness and boundlessness of the Internet make other approaches virtually impossible and certainly undesirable.
|22 Human Rights Watch (1996). "Silencing The Net: The Threat to Freedom of Expression Online", Monitors: A Journal of Human Rights and Technology 8(2).
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AKDENIZ, Yaman (1998)."Child Pornography on the Internet", New Law Journal 148.
BARLOW, J.P. (1996). "Thinking Locally, Acting Globally", CyberRights Electronic List, 15 January.
HABERMAS, J. (1989). The New Conservatism. Cambridge: Polity Press.
HIRST, P. and G. THOMPSON, G. (1995). "Globalization and the Future of the Nation State", Economy and Society 24(3).
JONES, T.H. (1995). "The Devaluation of Rights Under the European Convention", Public Law.
LOADER, B.D. (1997) (ed.). The Governance of Cyberspace. London: Routledge.
REIDENBERG, J.R. (1996). "Governing Networks and Cyberspace RuleMaking", Emory Law Journal 45.
RHODES, R.A.W. (1994). "The Hollowing Out of the State: The Changing Nature of the Public Services in Britain", Political Quarterly 138.
STEINHARDT, B. (1997). Fahrenheit 451.2: Is Cyberspace Burningð How Rating and Blocking Proposals May Torch Free Speech on the Internet. Washington D.C.: American Civil Liberties Union. http://www.aclu.org/issues/cyber/burning.html