A Submission by Cyber-Rights & Cyber-Liberties (UK)

to

House of Lords Select Committee on the European Union by Sub-Committee B (Energy, Industry and Transport) on e-Commerce: Policy Development and Co-ordination in the European Union

May 2000

(1) Cyber-Rights & Cyber-Liberties (UK) (http://www.cyber-righs.org), which was founded in January 1997 with the aim of promoting free speech and privacy in regard to the Internet, welcomes the opportunity to make a written submission to the House of Lords Select Committee on the European Union by Sub-Committee B (Energy, Industry and Transport) on its inquiry into e-Commerce: Policy Development and Co-ordination in the European Union.

(2) We addressed issues relating to the first question of the Select Committee, namely, What needs to be done to create confidence and to stimulate e­commerce?, in a written submission made to the HC Trade and Industry Select Committee on Electronic Commerce Inquiry during last year. The board members of Cyber-Rights & Cyber-Liberties (UK) also gave oral evidence in relation to that inquiry.(1) We pointed out that national government access to encryption keys would undermine and hold back both the development of e-commerce and would be harmful to individual rights of privacy and free speech. The development of the Internet requires the instillation of trust in Internet users and affirmation that their expectation of privacy in correspondence is legitimate. But it seems to be the government which has no trust and instead seeks to develop intrusive surveillance systems. It is also very debatable whether the UK Government’s encryption policy approach is compatible with that of the European Union or with other member states of the European Union.

(3) This submission will concentrate on specific issues which reflect our current research into the protection of individual rights and liberties in the Information Age. Therefore, the submission will deal with the third question of the HL Select Committee, namely, will codes of conduct and co-regulation provide sufficient protection? Is there a case for intervention by national governments and the EU?

(4) Internet content regulation, with an emphasis on the existence of sexually explicit content, remains one of the greatest concerns for governments, supranational bodies and international organisations. The 1990s witnessed the proliferation of the Internet and the current concerns by the regulators mainly concentrate on the existence of illegal content such as child pornography over the Internet, and the access of (mainly) sexually explicit content over the Internet by children. The September 1999 e-commerce@its.best.uk, the Cabinet Office report(2) stated that "there are worries about the content of the Internet,"(3) and according to the report this remains as one of the major issues that "lead to lack of confidence for the development of e-commerce within the UK."

(5) Therefore, this submission will address this issue in relation to Internet content regulation with specific reference to the availability of illegal and harmful content and the self-regulatory (or co-regulatory) approach that has been adopted by the UK government as the issue is relevant to the overall purpose of the inquiry of this House of Lords Select Committee.

(6) The self-regulatory model that has been adopted and supported by the UK Government is the Internet Watch Foundation scheme ("IWF") - <http://www.internetwatch.org.uk>. This model and the activities of this UK organisation is also supported at the European Union level by the European Commission.(4)

(7) Cyber-Rights & Cyber-Liberties (UK) has been monitoring the activities of the IWF since its inception in September 1996. So far, we have produced two critical reports in relation to the activities of the IWF, namely, Who Watches the Watchmen: Internet Content Rating Systems, and Privatised Censorship, (November 1997);(5) and Who Watches the Watchmen: Part II - Accountability & Effective Self-Regulation in the Information Age, (September 1998).(6)

(8) We believe fundamental principles should be observed when decisions are taken by government and other quasi-regulatory bodies relating to public matters especially if the IWF scheme will be part of the self-regulatory (or co-regulatory) approach that has been adopted and supported by the UK Government. Therefore, it is important to consider the good governance/regulation principles in relation to regulators and quasi regulators based upon the Nolan Committee principles on good standards in public life(7) and the Cabinet Office Regulatory Impact Unit’s principles of good regulation.(8)

(9) In general principles for a good regulatory action should:

• be based on clearly defined policy objectives and should be easy to understand,
• be the minimum necessary to meet those objectives,
• further enhance legal certainty in a dynamic market,
• aim to be technologically neutral,
• have broad public support,
• be enforceable, and transparent
• be balanced and avoid impetuous knee-jerk reaction
• avoid unintended consequences
• balance risk, cost and practical benefit
• reconcile contradictory policy objectives
• have accountability
• be relevant

(10) However, we have not witnessed these principles being adequately observed by the Internet Watch Foundation since its inception, even though it remains a "private organisation" with important public duties; namely, (a) acting as a hotline for reporting Internet content deemed to be illegal, and (b) as a policy setting body in relation to the availability of Internet content which may be considered as harmful or offensive but not illegal.(9) Transparency, openness and more importantly "accountability" are important features of a healthy society. Without "accountability", the IWF will never become a transparent policy-making organisation. Therefore, if this is the way forward for the future of "Internet content regulation", then the mechanics of this system should observe the above principles.

(11) Furthermore, procedures can only be properly designed within a legal context which take due account of individual rights and liberties (especially freedom of expression within this context). Such procedures are a matter of legitimate public interest, especially to Internet users. It should not be forgotten that the European Convention on Human Rights is now part of the UK legislation through the enactment of the Human Rights Act 1998. As the European Court of Human Rights stated "... freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress."(10) The result of the incorporation should be "the beginning of the strong development of a human rights culture in this country,"(11) rather than the development of a privatised cyber-censorship culture.

(12) In January 2000, the IWF announced that it will try to apply its self-regulation (hotline and illegal content activity) approach to racism on the Internet. Removal of objectionable though legal content from the Internet without due process would certainly amount to censorship and this may be the case in relation to hate speech on the Internet. Although it is an offence to use threatening, abusive or insulting words or behaviour intended or likely to stir up racial hatred under Part III of the Public Order Act 1986, (section 18) or to publish such materials, by written materials, in theatre plays, by video or in a cable broadcast (sections 19 to 22) or to possess such materials (section 23), "No proceedings for an offence under this Part may be instituted in England and Wales except by or with the consent of the Attorney General" according to section 27(1). So, it is very much doubtful whether the IWF should be in a position to make these judgments without due process. Privatised policing organisations are not acceptable bodies to judge the suitability or illegality of Internet content and there is a serious risk that hotline operators will act as "self-appointed judges" and that the hotlines will "violate due process concepts that are also enshrined in international, regional, and national guarantees around the world."(12)

(13) If the UK is to become the best place for e-commerce, it should also offer the best protection for individual rights and liberties. If bodies like the IWF are to exist, then they must more clearly be subjected to standards of constitutionality and good government. They must also have greater regard to legal standards, especially those standards which serve to protect liberty. Furthermore, any co-ordinated policy initiative at a supranational level (e.g. the European Union or within the Council of Europe in relation to the adoption of the draft Convention on Cyber-crime),(13) or at an international level (e.g. within the OECD) should also offer the best protection for individual rights and liberties.

Endnotes

1. See generally House of Commons Select Committee on Trade and Industry, Report on Building Confidence in Electronic Commerce (1998-99 HC 187) and Cyber-Rights & Cyber-Liberties (UK) Memorandum to the House of Commons Trade and Industry Select Committee on Electronic Commerce Inquiry, February 1999, at http://www.cyber-rights.org/reports/crcl-hc.htm.
2. Cabinet Office Performance and Innovation Unit Report, e-commerce@its.best.uk: The Government’s Strategy, September 1999, at http://www.cabinet-office.gov.uk/innovation/1999/ecommerce/index.htm.
3. Ibid at para 10.6.
4. 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.
5. See http://www.cyber-rights.org/watchmen.htm.
6. This second report is submitted to the Committee as an appendix and is available through http://www.cyber-rights.org/watchmen-ii.htm.
7. Nolan Committee, First Report of the Committee on Standards in Public Life (Cm 2850, London: HMSO, 1995). See also the Committee on Standards in Public Life web site at http://www.open.gov.uk/cspl/csplhome.htm.
8. See the Cabinet Office Regulatory Impact Unit’s (formerly known as the Better Regulation Unit) Better Regulation Guide, and the Principles of Good Regulation at http://www.cabinet-office.gov.uk/bru/1998/task_force/principles.pdf.
9. A detailed criticism of Internet content regulation is provided in Walker, C., & Akdeniz, Y., "The governance of the Internet in Europe with special reference to illegal and harmful content," [1998] Criminal Law Review, December Special Edition: Crime, Criminal Justice and the Internet, pp 5-19. This article has also been provided as an appendix for the review of the House of Lords Select Committee.
10. Castells v. Spain, App. no.11798/85, Ser.A vol.236, (1992) 14 EHRR 445, § 42. See also Lingens v Austria, App. no.9815/82, Ser. A vol.103, (1986) 8 EHRR 407; Demicoli v Malta, App. no.13057/87, Ser.A vol.210, (1992) 14 EHRR 47; Oberschlick v Austria App. no.11662/85, Ser.A vol.204, (1995) 19 EHRR 389; Jersild v Denmark, App. no.15890/88, Ser. A vol.298, (1995) 19 EHRR 1
11. According to the Parliamentary Under-Secretary of State for the Home Department, Mr. Mike O’Brien, House of Commons Hansard Debates for 21 October 1998, Column 1322.
12. Per Professor Nadine Strossen, from an ACLU Press Release, "ACLU Joins International Protest Against Global Internet Censorship Plans," 9 September, 1999, at http://www.aclu.org/news/1999/n090999a.html.
13. (PC-CY (2000), Draft N° 19), at http://conventions.coe.int/treaty/en/projets/cybercrime.htm.

Written by Mr. Yaman Akdeniz,
Director of Cyber-Rights & Cyber-Liberties (UK),
E-mail: lawya@cyber-rights.org
URL: http://www.cyber-rights.org
Phone: 0498 865116
Fax: 07092 199011
Postal Address: Centre for Criminal Justice Studies, Faculty of Law, University of Leeds, Leeds LS2 9JT.

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