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Cyber-Rights & Cyber-Liberties (UK)

Memorandum

for the

Internet Content Summit 1999

A Bertelsmann Foundation Conference
September 9 to 11, 199, Munich, Germany

The Press Release for this statement is here.

Bertelsmann Foundation Internet Content Summit 1999 documents are available through http://www.stiftung.bertelsmann.de/internetcontent/english/frameset_home.htm

Cyber-Rights & Cyber-Liberties (UK) (http://www.cyber-righs.org) is a non profit civil liberties organisation which was founded with the aim of promoting free speech and privacy in regard to the Internet. Cyber-Rights & Cyber-Liberties (UK) is a member of the Global Internet Liberty Campaign (http://www.gilc.org) since March 1997.

Cyber-Rights & Cyber-Liberties (UK) produced two Who Watches the Watchmen reports on the implications of the use and development of rating and filtering systems for the Internet content. The first report entitled “Internet Content Rating Systems, and Privatised Censorship,” (November 1997, http://www.cyber-rights.org/watchmen.htm) insisted that the debate on regulation of Internet content should take place openly and with the involvement of public at large rather than at the hands of a few industry based private bodies. The second Watchmen report entitled “Accountability & Effective Self-Regulation in the Information Age” concluded that current solutions offered at various foras such as the development of rating and filtering systems may not be the real answers and solutions for the few problems created by the Internet (September 1998, http://www.cyber-rights.org/watchmen-ii.htm).

This memorandum contains the recommendations of Cyber-Rights & Cyber-Liberties (UK) in relation to proposals by the industry for the “self regulation of Internet content” during the Munich Internet Content Summit 1999.

The Internet as an empowering tool

The Internet is a social, cultural, commercial, educational and entertainment global communications system the legitimate purpose of which is to benefit and empower online users, lowering the barriers to the creation and the distribution of expressions throughout the world. Governments, the Internet industry and the online users have each an important role to play in building and keeping open, consistent with this purpose, global communications networks.

Content regulation has been so far the most politically prominent aspect of Internet regulation. However, there appears not to be a single locus solution for the regulation of illegal and harmful content on the Internet. Aside from any practical difficulties connected with the enforcement of a European common standard (which would be immense, since the Internet is not confined to Europe and much material is accessible from America and south east Asia), it would be difficult to determine the common standards to be applied. What is considered to be harmful depends on cultural differences which are significant within Europe.

In summary, the general approach to content regulation is that the vast majority of content is not wholly harmful but some of it may well be inappropriate to certain segments of the Internet audience in certain circumstances. It follows that the responsibilities for content must be allocated at various points rather than concentrated within one all-purpose “policing” organisation:

Self-regulation of Internet content

Any approach to Internet content including self-regulatory initiatives on an international level should be open and transparent. All forms of initiatives should have public participation for finding solutions to the existing problems and self-regulatory bodies should be made accountable to the public.

Such systems should not only include the representatives of the Internet industry which is more concerned about protecting its financial interests. The rights of the individual Internet users should be respected and represented within all the initiatives.

Governments and government bodies should be encouraged to establish citizen participation in the self-regulatory process advocated by the Internet industry and it is the duty of individual governments to establish transparency and openness of such initiatives which are of concern to their citizens.

Codes of Conduct for the Internet industry

The development of codes of conduct for the Internet content and service providers are welcome and to be encouraged but such codes of conduct should respect the rights of individual Internet users.

In all facets of their business, the ISPs and content providers should recognise that the European Convention on Human Rights (and other international agreements) enshrines the rights to freedom of expression, privacy and access to information. Therefore, the ISPs and content providers should safeguard and positively encourage these fundamental values with respect to online usage within the codes of conduct that may be developed.

General Principles to be observed on Content Regulation by ISPs:

(a) The primary responsibility for Internet content rests with the content providers and not with the ISPs.

(b) The ISPs must respect freedom of expression of users and content providers and allow expression to be communicated unless evidently illegal.

(c) The right to privacy of online users or customers of the ISPs should be respected and codes of conduct and user agreements should include privacy policies as recommended by the February 1999 Recommendation of the Council of Europe “for the Protection of Privacy on the Internet.”

(d) In order to encourage expression and respect for privacy, ISPs should offer positive guidance and facilities to Internet users and content providers.

(e) ISPs should not impose any form of monitoring or classification requirements which are inconsistent with the freedoms and rights of users or content providers.

(f) ISPs should observe the value of freedom of information in their own activities to the greatest extent possible consistent with commercial interests. It follows that their customers should know:

(g) The responsibilities of ISPs to respond to complaints about content (notice and takedown) or the demand to regulate content differ according to whether they act as a provider for a third party or as the creator or owner of content. Where third party content is involved, the ISP must take due account of the freedoms and rights of others and not just considerations of commercial interest or political convenience.

The role of the Governments within a self-regulatory environment

Self-regulation does not exclude completely national government legal regulation. For example, national government bodies would be needed for the enforcement of existing laws, and ISPs should collaborate with the law enforcement bodies where evidence of illegality comes to light. But even here, there is a role for self-regulatory guidelines, for example, to remind ISPs of the rights of the online users such as freedom of expression and privacy within the limits of the existing national laws and European regulations.

Governments and government bodies should also assess the utility of the tools that are developed and advocated by the Internet industry such as the rating and filtering tools for Internet content. Individual governments, members of the European Union and the European Commission should recognise that privately created and privately maintained rating and filtering systems can be used for censorship of Internet content and may not be so effective in protecting concerned users and children. Therefore, governments should avoid (unlike Australia) mandating the blocking of Internet content.

Rating and filtering systems

These tools are advocated as “empowering tools” for Internet users. However, rating and filtering systems have been part of an ongoing Internet controversy and have been widely criticised by civil liberties organisations as such systems may be the perfect tool for censorship. Therefore, there are problems related to the use of rating systems and filtering software not necessarily addressed or assessed by national, international, and self-regulatory bodies.

Far from empowering individual users or supervisors (such as parents), systems such as PICS are reliant upon a centralised system of classification of material content. But this classification process clearly takes control away from end-users and imposes standards which most do not have the time, inclination or knowledge to question (or even notice).

Hotlines for reporting Internet content

The utility of Internet hotlines for reporting potential illegal activity remains debatable. Removing content (e.g. child pornography) from the Usenet discussion groups through reports made to the hotlines and notice and takedown provisions for the ISPs is not the most effective way of dealing with this sort of problem.

Undoubtedly, the availability and distribution of child pornography should be regulated, whether on the Internet or elsewhere. However, the main concern of enforcement authorities and self- regulatory bodies should remain the prevention of child abuse - the involvement of children in the making of pornography, or its use to groom them to become involved in abusive acts. Therefore:

It is the duty of the law enforcement bodies to take action in relation to illegal content over the Internet and law enforcement agencies are capable of dealing with online criminal activity. However, the industry can help the law enforcement bodies to keep up-to-date with Internet related developments.

Illegality is a matter for the courts of law and not for industry based hotlines. The utility of hotlines should be carefully assessed by government bodies and if possible private policing of the Internet by the industry should be avoided. These mechanisms should not “only” be set up for the benefit of the Internet industry to avoid legal liability.

Actions taken by the self-regulatory bodies for the protection of children from illegal activities should not be Internet or medium specific and should aim to protect children from real life dangers and should aim to improve the lives of children rather than aiming to “clean up the Internet.”


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