Regulation of Internet Content

Introduction

Few things have been publicly discussed to that extend and duration the Internet has been and still is. At the moment, it seems that the question of granting access to as many people as possible and the complex of eCommerce are the hottest issues. But both belong to a wider regulatory framework related to as the Information Policy of a country or a conglomerate of nations like the EU. Another very important question in this context is the regulation of Internet content.

In this paper, I will briefly discuss the problems and questions related to the regulation of Internet content. Therefore I will outline the underlying technical situation, then discuss briefly the variety of content in discussion for regulation. The next section will deal with the legal problems involved in content regulation and then show some possibilities how the content can/should not/should be regulated. The latter point will mainly discuss the concept of self -regulation of the Internet which will lead to some concluding personal comments.

The aim of this paper is more to give an overview over the area than to provide a legal discussion or a solution, which is - in my opinion - not possible anyway. This paper will - especially in its examples - emphasise more on harmful content than on law infringements like copyright violations or hacking and the protection of personal privacy.

The Internet Infrastructure and the Content in Discussion

The Internet is not a physical or tangible entity, but rather a giant network which connects innumerable smaller groups of linked computer networks. It was designed to be decentralized, self -maintaining and capable of rapidly transmitting communications and has no single administrating body, regulator or even owner.¹ It now connects computers in almost every country of the world, literary overcoming language, culture religion and national boundaries.

This is one of many ways to describe the Internet. And nearly all descriptions have two things in common: its an infrastructure for communication and its globally accessible. Of course, there must be content to “fill” the infrastructure. The growing amount of provided content is what makes the Internet interesting for so many people. And every connected user has not only the possibility to read and download information from the Net but also can publish his ideas, opinions, pictures in Cyberspace².

Content can be produced, published, read, transferred and stored decentralised, globally, in real time and multimedia format. The arising chances and the change this has brought and will bring are immense: enhancing creativity and learning, trading and exchange of goods and information across borders, safeguarding human rights, realizing democratic values, strengthening pluralism and cultural diversity.³

But not all content provided and transferred online is going that way. And despite being a small percentage compared with the total amount of information available⁴, harmful, illegal or unsuitable content is a big challenge to the eWorld.

The following types of content are being considered in need for regulation⁵:

- Racist content

illegal in some countries but harmful and violating Human Rights

- Anti-Semitic/Neo-Nazi oriented content

illegal and strictly enforced e.g. in Germany, not really considered as problem in other countries like the US or Eastern Europe

- Discriminatory content

e.g. religions, disabled people, not illegal in general

- Content affecting national security

mostly illegal referring to organised crime or crime prevention, terrorist activities, how-to guides for bombs, etc.

- Content harmful for children (but legal in general)

voluntary regulations for TV, movies and computer games in place in most countries but not for the Internet, covers violence, unsuitable language, pornography, etc.

- Child pornography

illegal and strictly enforced, main area of police’s online activities

- Information Security

hacking, publishing of viruses

- Protection of Privacy

some adequate legal mechanisms in place e.g. in the EU

- Protection of Reputation

libel, comparative, unlawful advertising; usually covered in existing laws but easy to violate using the Web or chain eMails

- Intellectual Property

unauthorized distribution of copy-righted works, e.g. software and music

The above list covers quite a large and wide area of content. And the diversity lying in there is also cause of some follow-up problems. With the Internet being global and fast, not only are violations hard to discover, also may one fraud be illegal in one country but not even concerning in another one. Some of the above points will be discussed further in the next chapters.

Free Speech or Laws to Regulate?

The aims of those who wish for regulation are (in most cases) ease to understand and more or less in accordance with existing offline regulation, especially when it comes to terrorism, child pornography or intellectual property violations. But it is not always that clear and easy. Especially when it comes to content that is legal, but considered harmful by some or content that is offensive in some nations but common in other parts of the world (e.g. the different public perception of sexual content in liberal European countries like Holland and Germany versus the United States).

One basic difficulty facing those pledging for regulation is the fact, that much of the Internet’s value lies in its freedom from regulation⁶ and as consequence the diversity of the content. This freed the way for minority groups (e.g. gay communities) to use the Internet as a means of communication and have a platform for publishing ideas without being censored by “conservative” editors or the “public wish”. Another point to consider when talking about regulation is that the Internet is both a private conduit (for messages between individuals) and a public one (sites and broadcasts).⁷ And so censoring could be taken as violation if privacy rights as well.

The biggest problem (for law making bodies) though lies in the tension between the ones who wish to regulate (just think of using “censor” instead) for whatever reason and the constitutional right for free speech and the free expression of opinions. In the US, the so called first Amendment prohibits the content-based censorship of speech and has been in the middle of some discussions. Before 1996, Internet publishers had no big reasons to worry about content regulations or liability for it. This changed with the enactment of the Communications Decency Act (CDA).

Its purpose was to protect children from indecent and offensive material on the Internet. The CDA tried to create a uniform national standard of obscenity. Before the Internet age, the Miller v. California standards was applied to define obscenity in law suits. Therein the standard of obscenity was defined relatively to the community which was addressed by the material in discussion. That meant a rural community in Oklahoma set a more conservative standard than San Francisco or New York City. Applied to the Internet (addressing a very large community) the Miller v. California standard would lead to the most conservative community setting the standard for all. And the only way of stopping that information is made public in one community is to make it unavailable in all others too.⁸

With these possible consequences in mind, the act was legally challenged and declared unconstitutional by the US Supreme Court in June 97 in relation to the First Amendment. One reason was that “the interest of encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship”.⁹

This discussion in the US (and the rest of the world too) is still ongoing and it still depends on careful judgement by the courts whether the content of Web-sites is protected by the right of free speech or if it violates e.g. the rights of individuals like in the Nuremberg Files case in the US. There, site operators have to pay $107 million in punitive damages for listing names, addresses and personal details of more than 200 abortion clinic doctors. Several days later only, the site has been closed down by the provider referring to a violation of their conditions of use. Shortly after that, site has been mirrored to a Dutch ISP.¹⁰

This example highlights two other problematic areas in this filed: the role of the Internet service providers and the problem arising with the international character of the Internet. The legal role of the ISPs is still in discussion, one example of related court ruling happened two years ago in Germany and caused a lot of inconvenience amongst ISPs: CompuServe has successfully been sued in Bavaria for providing/hosting harmful content and therefore held liable for damages. The then feared wave of claims or law suits did not happen, but this case put the role of ISPs in the center of the juristic discussion.

Another example is the international treatment of anti-semitic and neo-nazi material published online. In Germany all materials relating to that topic are monitored carefully and strictly and rigid laws are in place. The publishing and distribution of related material promoting nazi, anti-semitic or racist values is forbidden as well as the denial of the genocide committed by the Third Reich regime. This covers - of course - not only written or printed publications and public performance or broadcasting but also online publication. In this field, the prosecuting attorneys and the police as well as the offices responsible for defending the constitution (Deutscher Verfassungsschutz und Behörden der Länder) are very active and confiscating material and closing Web-sites. The problem is, that they can only act when the material is hosted in Germany. Providers of this kind of material realised this very quickly and this material is hosted in the Netherlands and in North America. In these cases Germany authorities can seek assistance in these countries (which not always helps ‘cause the stuff is legal there) or can only confiscate printouts and material saved on users hard disks.

Adult Check, Filtering and Rating

Remains the question, where and how the regulation should take place. Should the provision be regulated or should the use be limited? Thinking of harmful material for children, this could mean that the provision of the content is limited or denied for all users (even if they are allowed to access this content) or that some kind of filtering should take place at the point of the information download. Latter is a promising approach when applied in private homes, but ruled unconstitutional when applie d in US libraries.¹¹

As seen on many Web-sites nowadays (I am not giving any specific examples here, because University regulations don’t permit and sometimes block access to these kinds of sites…) providers of somehow offending or adult sites use a starting page stating that the material on that site is unsuitable for people under 18 or 21 years and contains some x-rated material. It “allows” only people over the specified age to enter these sites. Right, but what about the phenomenon of the “temptation of forbidden fruits” then…?

The next step is to introduce some adult check system, that requires to enter a certain ID number before the permission to enter the site is granted. The biggest service of this kind is The Adult Check System (www.adultckeck.com). It claims to be the largest adult verification system and to be verified by First Amendment attorneys. The membership costs approx. $ 20/year and gives access to more than 120.000 sites with adult material. The basic principle seems to be (it is not made clear on the site though) that minors don’t get a credit card and therefore can’t pay the registration fee and won’t get an ID. If you don’t have a credit card you have to send a copy of the passport or the drivers licence.¹² The idea itself is pretty good and “protects” minors from accessing at least participating sites, but many sites offer free previews which are pretty interesting sometimes. (No further comments on that either)

A way to restrict access to sites is the use of filtering or blocking software on side of the user. This does not regulate the content itself but limits access based on set filters. Blocking software can be defined as software products published by commercial software companies which block access to Internet sites which are listed in an internal database of the that product or in a related external database, sites which carry certain ratings or sites that contain defined words or phrases (sex, racist, drugs, alcohol, etc.).¹³

Concerned parents can use products like Net Nanny (www.netnanny.com) - hopefully the product is better than the website, Cyber Sitter (www.cybersitter.com) or Cyber Patrol (www.cyberpatrol.com). These products can be customised to block websites containing certain content or that are rated by the organisation producing the software.¹⁴

This seems to be a good way of protecting minors using the Internet in private homes but can not be applied to facilities with public Internet access like (US) libraries. The installation of these products has been declared unconstitutional under the First Amendment. This was partly due to the fact, that these products also blocked sites that were protected by the Amendment like the National Organization for Women (www.now.org ).¹⁵ But even at home the use of these products can bring more than parents bought for. With using certain keywords to define what to let through and what to block, it can easily happen that sites about “drug” abuse or “sex”ual education will be blocked as well. This can happen to sites containing historic “anti-semitic” material too.

The independent rating or monitoring of Web-sites through organisations like the Internet Watch Foundation (IWF) in the UK especially fights the exploitation or perceived exploitation of children (www.internetwatch.org.uk). The central part is a reporting system where people can send reports when they encounter certain material on the Net and the IWF takes further action as far as notifying the authorities when the site actually deals with child pornography. The IWF also proposed a voluntary code of practice for (UK) ISPs which was agreed at in 1996. The IWF also promotes the use of a non profit filtering system like the Recreational Software Advisory Council. (RSAC).

The RSAC uses a ratings system from 0 to 4 to rank sites in categories like violence, sex and nudity. The ratings are included in the HTML code of the page and can be read by the Web-browsers supporting the RSAC standard.¹⁶

Despite their not yet clearly defined legal role and whether or not ISPs can be held liable for content hosted on their servers, most of them use a code of practice. Usually this happens as follows: users willing to sign up and use the ISPs services (e.g. free web hosting at Geocities or Xoom, communities at Yahoo, etc.) have to confirm that they will not carry out certain actions or publish certain content on this site. Otherwise the ISP will remove their account and - if appropriate - take legal actions against the user. In practice, this works quite well but still (or luckily?) there are no general rules in place to define in detail what is good and what not (e.g. what is art, nudity, pornography and what is worse).

Self-Regulation as the Way to Go?

There is no doubt that laws (and their enforcement) apply for the Internet as well as classical media when it comes to illegal or dangerous content or actions. But when things are more fuzzy or not clear, governments are not famous for reacting quick or even ahead of the developments. Usually, for the last two centuries public responses to technology are failing to keep pace with private ones.¹⁷

Many involved organisations demand some sort of regulation but many won’t rely on the law giving institutions alone. Like the international Bertelsmann Foundation, they see the future of Internet regulation in some sort of self -regulation framework.

This approach would incorporate the participation of governments, the Internet industry and the users in a systematic, international and integrated manner. This approach is favoured because the alternative - reliance on intrusive regulation with differing laws in different countries - yields short term, often crisis driven, mostly ineffective solutions.¹⁸ It is further believed, that the self -regulatory approach would provide the opportunity to adapt rapidly to the quickly changing technology. It also is seen as efficient, flexible, cheaper and offers increased incentives for complying.¹⁹

How could a self -regulation framework look like? The Bertelsmann Foundation, a consortium of international researchers and scientists in the field, names 8 points of crucial mportance:²⁰

1. Codes of conduct should be adopted to ensure that ISPs and content publishers act within in the law and within principles of social responsibility.
2. These codes must be the product and be enforced by agencies bearing the process of self -regulation.
3. International coordination of the national agencies is a essential point to reach harmonised standards.
4. Legislation must support the self -regulation process.
5. A comprehensive use of rating and filtering technologies should take place. Providers should label their content and the filters should be made available and easy to use that home users can better choose what to see.
6. A response and complaint system for users should be introduced.
7. Creating user awareness of the possible actions that can be taken and the methods in place.
8. Development of techniques to measure the effectiveness of these mechanisms.

All enforced measures of course have to allow cultural/national differences and should distinguish between illegal and harmful content. Despite the practical differences the creation a self -regulation framework would have to face, this could be a promising approach to shape the Net of the future.

Another International Issue

Another international issue facing the Internet is censorship or access controls undertaken on a nation’s scale. This applies for example to countries like China, Saudi Arabia and other former communist or Muslim countries. There, the Internet is mostly seen as a threat to the values of society and the democratic character is a contradiction to the political system in place. In the post economic crisis Asia, this point is of major importance right now. These countries are torn between the forces of conservatism and the greater political freedom of the Internet society. The answer to this question will surely shape tomorrows Internet.²¹

Conclusion

With this paper, I have tried to outline the main concerns and issues related to the regulation of Internet content. The aim of this paper is to outline the main ideas and approaches in this area, not to give a complete legal and political overview of the subject.

In my personal opinion, they way of self -regulation in conjunction with governmental regulations and ISP’s codes of conduct is the most promising approach. Not primarily to keep some sort of content off the Web but to give a better way of filtering and selecting. There is no doubt that publishers using the right of free speech to publish illegal (in the widest sense) material, should be kept of the web and be prosecuted if necessary. But as outlined above, the line between censoring of free speech and protecting the public is a thin one. Therefore, users should be made aware of what is available on the Net and should be educated (especially minors) how to use the Net and how to deal with the growing amount of information.

It is very important to keep the liberal character of the Net. This philosophy was the fertile ground for the rapid growth in the last years and every harsh regulatory interference could harm the future development.

Still the question remains - and I am not making a personal comment here - what guidelines to use for judging. In America, a bare breast is a threat to society, in most parts of Europe its on many daily newspapers (page 3 in the UK, page 1 in Germany).

[...]

¹ Posch, R.: Another win for Internet self-regulation, in: Direct Marketing (60/5) 09/997, p. 64

² Cyberspace: concept by Gibson see Jordan, T.: Cyberpower for details

³ Bertelsmann Foundation: Self-regulation of Internet Content, Gütersloh: Bertelsmann, 1999, p. 7

⁴ Flint, D.: Internet Content Regulation, Computer Law & Security Report (14/6), 1998, p. 377

⁵ Flint, D, 1998 op. cit., p. 381 & Bertelsmann Foundation, 1999, p. 16

⁶ Sirico, R.: Don’t censor the Internet, Forbes (158/3), 29.07.96, p. 48

⁷ n.a.: Hands off the Internet, The Economist, 05.07.97, p. 7

⁸ Maher, S.: Government Regulation of Internet Content, New Atlantis WOW (1/2), 02.03.97

⁹ Flint, D.: All speech should be free (except this?)!, Computer, Law & Security Report (15/3), 1999, p. 182

¹⁰ idid, p. 184

¹¹ Wallace, J.: Purchase of blocking software by public libraries is unconstitutional, www.spectacle.org/library.html, 11/97

¹² www.adultcheck.com

¹³ Wallace, J., 1997 op. cit.

¹⁴ Flint, D., 1997, op. cit. p. 377

¹⁵ Wallace, J., 1997 op. cit.

¹⁶ Flint, D., 1997, op. cit., p. 378 f.

¹⁷ Nye, J.: Navigation in the Internet age. Financial Times, 03.02.00, p. 19

¹⁸ Bertelsmann Foundation, 1999, op. cit., p. 20

¹⁹ ibid, p. 21

²⁰ ibid, p. 23 f.

²¹ Montagnon, P.: Catching the next wave, Financial Times, 28.12.99, p. 10