Working party on illegal and harmful content on the internet
At the informal Council meeting held in Bologna on 24 April 1996, European Telecommunications Ministers and Culture Ministers identified the issue of illegal and harmful content on the Internet as an urgent priority for analysis and action. While it was recognised that existing national laws apply to the Internet, agreement in a wider context appeared necessary to address the challenges raised by the specific nature of the Internet. The Commission was therefore asked to produce an analysis of the problems and to assess in particular the desirability of European or international regulation.
At the end of September 1996 different Councils discussed subjects that were relevant for the request emerging from the Bologna Council. The informal meeting of Ministers of Justice and Home Affairs (26-27 September 1996, Dublin) discussed further co-operation between Member States to combat trade in human beings and sexual abuse of children, and reached informal agreement on three action projects.
The Ministers of Culture and Audiovisual meeting in Galway on 25 and 26 September 1996 welcomed the fact that the issue of protection of minors and human dignity, in particular on the Internet, was going to be addressed in a Green Paper which would soon be submitted by the Commission.
The Council of Telecommunications Ministers of 27 September 1996, following on from the informal Bologna Council held a broad exchange of views on the question of preventing the dissemination, via the Internet or similar networks, of illegal material and in particular material containing, or likely to lead to, violence against or sexual exploitation of children.
It noted the transnational dimension of this problem and the consequent need to address it at national, European as well as international level.
The Council agreed to extend the working party established following the Bologna informal meeting to include representatives of the Ministers of Telecommunications as well as access and service providers, content industries and users.
The Council requested the Working Party to present concrete proposals for possible measures to combat the illegal use of Internet or similar networks in time for the Telecommunications Council of 28 November. The UK measures presented during the Council meeting should also be taken into account.
The Industry Council of 8 October 1996 recognised the need for further analysis of the issues underlying development of information society policy internationally and the need for co-ordination between initiatives relating to the subject. The German proposal to host an international conference dedicated to this end to be prepared in close co-operation with the Commission and Member States was welcomed.
The present report is a first response to the Council's request of 27 September 1996. It takes account of the two papers that were recently published by the Commission: the Communication on illegal and harmful content on the Internet and the Green Paper on the Protection of Minors and Human Dignity in audiovisual and information services and elaborates in practical terms some of the proposals.
Illegal content in the context of this report means content which is forbidden by national law. Although breaking the law may involve different types of sanction (civil damages for breach of copyright, for instance 1), the most serious types of illegal content are forbidden by the criminal law, which is the type of illegal content which this report refers to. Harmful content means both content which is allowed but whose distribution is restricted (adults only, for instance) and content which may offend certain users. This distinction, which is not intended as a legal definition, is dealt with in detail in the Communication on illegal and harmful content on the Internet 2and the Green Paper on the Protection of Minors and Human Dignity in audiovisual and information services 3.
Given the terms of the conclusions of the 27 September Telecommunication Council, and given the short time span available, this report concentrates on how to combat illegal and harmful content on the Internet. It recommends a number of measures that could be taken by the Member States and the Commission in relation to this subject. It indicates how the measures can be put into practice and who should be the lead actors in this process.
At this stage the report does not pretend to give a full picture of all relevant issues in relation to illegal and harmful content on the Internet, nor does it deal with other on-line services. It focuses on the most pressing issues and on the actions that can be initiated by the actors concerned at short notice. It does not prejudice the more extensive discussion due to take place on the Communication and the Green Paper.
The report is based on the discussions in the Working Party meetings that took place between 27 September and 28 October 1996. The first full meeting of the extended working party took place on 10 October 1996 in Brussels. At the end of the meeting, participants were requested to present their views on the various issues raised during the meeting. Reaction from Member States' representatives were requested in particular with regard to the specific legal situation vis-à-vis the Internet in their country, as well as the possible technical solutions envisaged. Industry representatives were asked to react especially in relation to self regulation and possible technical solutions.
A draft of this report was considered at a meeting on 28 October 1996 and the report was finalised on the basis of comments made at that meeting and subsequently in writing. The report reflects the views of all participants in the Working Party, be they Government representatives, industry players or users. It does not necessarily reflect the official views of the European Commission.
The remit of the Telecommunications Council to the Working Party specifically mentioned the recent initiatives taken in the UK. During the discussions of the Working Party, there was also reference to the initiative in the Netherlands. The French delegation also presented their initiative in the field of international co-operation. The German delegation made a written contribution. All these initiatives are briefly described below.
The R3 Safety-Net initiative in the UK has been developed in discussions facilitated by the Department of Trade and Industry between service providers, the Metropolitan Police and the Home Office. The immediate and particular focus of these proposals is on child pornography, though the approach may also be applicable in the future to other types of illegal material available in the Internet.
The R3 Safety-Net approach incorporate three key elements:
The approach establishes an independent foundation to support the adoption by Internet service providers and users of Responsible policies based on Rating and Reporting of illegal material which will provide the hotline for complaints.
In May 1996, the Dutch Internet providers community established a "hot-line" or central facility for the reporting of child pornography on the Internet 4. The Minister of Justice fully supported this initiative. It generated widely positive reactions, including from Internet users. Until now, it has functioned very satisfactorily: content providers (users, subscribers) of child pornography in The Netherlands have removed their illegal material after the first warning of notifying the police, making subsequent action by the police unnecessary. In some cases, violations not reported to the hot line but nevertheless having become known to the police, required police action. The reporting facility operates on a voluntary basis and is financed by Dutch Internet providers. The Dutch National Criminal Intelligence Service has been involved. Presently, the reporting facility and the police are further improving their relations.
A proposal for an agreement on international co-operation with regard to the Internet was presented to a working party of the OECD by France at a meeting in Seoul on 22 and 23 October 1996. This proposal sets out a series of principles relating to the applicable law and the factors to be taken into account when determining liability. It provides for signatories to set up national regulatory frameworks including a Code of Conduct, with mutual exchange of information on the regulations adopted and an agreement to co-operate in order to approximate national practices with regard to the Internet. The proposal also includes a section on judicial and police co-operation, in particular relating to use of networks for the purpose of terrorism, drug trafficking and organised international crime.
In November 1996, Germany made proposals to improve self-regulation of Internet content by extending the existing self-regulatory system for content in the press and broadcasting. Providers offering harmful content are to be required to appoint commissioners for the protection of young persons who are to act as points of contact and advisers for users. Providers are also given support for setting up joint self-regulatory facilities.
The initiative makes clear that the criminal law and the law on the protection of minors apply to Internet content, even if it is only stored in a volatile manner.
The Internet Content Task Force, to which the major Internet Service Providers belong, has also announced a new initiative 5 including a hot-line and co-ordinated technical measures for blocking access to illegal content. Self-regulators will intervene on their own initiative, after review by an appraiser, to remove or block access to content considered as criminal internationally such as child pornography. They will act at the request of the law-enforcement authorities where content is contrary to a specific rule of German law.
The Working Party has taken the Communication on illegal and harmful content on the Internet as a basis for elaborating the following proposals. These would need to be implemented according to the respective competences of Community and Member States. Four important points are central to the approach taken by the working party:
1. The Internet is a positive instrument, empowering citizens and educators, lowering the barriers to the creation and distribution of content and offering universal access to ever richer sources of digital information. Any action taken to deal with atypical use for illegal and harmful content should not have a disproportionate impact on Internet users and industry as a whole.
2. Information on the Internet should be allowed the same free flow as paper-based information. Any restrictions should respect fundamental rights such as freedom of expression and the right to privacy.
3. Responsibility for prosecuting and punishing those responsible for illegal content remains with the national law-enforcement authorities.
4. Industry has a responsibility to report illegal content and to remove it from their systems, and can be assisted by self-regulatory bodies. Users should also report illegal content to hot-lines.. Filtering software and rating systems can help users to avoid harmful contents.
Co-operation from the industry and a fully functioning system of self-regulation are essential to limiting the flow of illegal content on the Internet. The issue of self-regulation and liability (see below) are closely connected and need to be examined together.
Self-regulation implies participation by industry and users: in order to do this, bodies need to exist which represent industry and users. Users can be represented either by specific Internet user groups or by consumer groups.
Freedom to provide services must be ensured by any regulation of new services, whether state regulation or self-regulation. The Commission has proposed a transparency mechanism for state regulation of new services.
The self-regulation system should include
Appropriate publicity should be given to the existence of Codes of Conduct, hot-lines and self-regulatory bodies. Codes of Conduct should take into account the views of user groups.
The self-regulation system needs to be in compliance with and supported by the legal system. Service providers are subject to the law, but compliance with self-regulation could be used as evidence that reasonable efforts have been used to remove or prevent access to illegal content.
Member States have the power to take measures which could be used only if a service provider failed to comply with the rules of the self-regulation system, or if the self-regulation system ceased to function effectively. They can also require that the Code of Conduct be formally approved.
Observation of the Code of Conduct could also be made a condition of contracts between network operators and service providers, provided that network operators are not required to act as a regulatory body.
The role of self-regulators is to use their best efforts to restrict the flow of illegal content on the Internet. Where self-regulators become aware of illegal content, they should take steps to ensure its removal by informing the host service providers. Where the content emanates from abroad, they should pass information to the host country's self-regulator. They should also if requested transmit appropriate information to the police to allow them to fulfil their tasks, or to exchange information with another police force.
The hot-line could be reinforced by "citizens' watch" groups set up by user organisations who would pledge to report to the hot-line illegal content found during their use of Internet.
If necessary, appropriate legislation should make clear that possession of illegal material by those involved in self-regulation for purposes of self-regulation is not illegal.
The Commission should collaborate in establishing and contributing towards the initial cost of co-ordination at European level of industry, user and self-regulation bodies. This co-ordination should include common standards for national Codes of Conduct. A European network of hot-lines should be established.
It is important to identify accurately the chain of responsibilities in order to place the liability for illegal content on those who create it.
Service providers and network operators involved in storing, transmitting or facilitating access to content should only be liable to the extent that they have been informed of illegal content by the appropriate law-enforcement body or self-regulatory body and can take measures to remove such content from circulation. They should not be required actively to seek out illegal material. If they become aware of material which appears to be illegal, they should report it to the self-regulatory body.
Anonymous use of the Internet takes a number of forms: anonymous browsing, anonymous publishing of content on the World Wide Web, anonymous e-mail messages and anonymous posting of messages to newsgroups.
In accordance with the principle of freedom of expression and the right to privacy, use of anonymity is legal . Users may wish to access data and browse anonymously so that their personal details cannot be recorded and used without their knowledge. Content providers on the Internet may wish to remain anonymous for legitimate purposes, such as where a victim of a sexual offence or a person suffering from a dependency such as alcohol or drugs, a disease or a disability wishes to share experiences with others without revealing their identity, or where a person wishes to report a crime without fear of retaliation. A user should not be required to justify anonymous use.
Anonymity may however also be used by those engaged in illegal acts to complicate the task of the police in identifying and apprehending the person responsible. Further examination is required of the conditions under which measures to identify criminals for law enforcement purposes can be achieved in the same way as in the "off-line" world. Precedents exist in laws establishing conditions and procedures for tapping and listening into telephone calls. Anonymity should not be used as a cloak to protect criminals.
Use of filtering and rating is a means whereby Internet users are enabled to select categories of content which they prefer to receive or do not wish to receive, and to set parameters for use by children for whom they are responsible. Use of such systems should be voluntary and a matter for individual choice.
In particular, the PICS standard launched by the international World Wide Web consortium with EC support should be vigorously promoted as the means by which such ratings can be expressed and used to empower parental filtering of material.
In order to bring about a rapid acceptance of filtering and rating, a wide coverage of sites should be obtained. This can most easily be achieved if content providers participate fully in the rating process.
Rating carried out by independent third parties ensures a standard approach to content rating and deals with cases where the content provider fails to rate properly. Other benefits for users include rating systems which guarantee respect of their convictions or which deal with specific needs not met by the content provider's rating system.
Users should be given the possibility to make the most of the enormous potential of modern computing technology to protect their legitimate right to privacy, while still allowing law-enforcement authorities to carry out their duties.
Research into methods of providing users with increased levels of discrimination and intelligent filtering will also be promoted as part of the natural evolution of filtering and rating system. Users should be given the possibility to screen out anonymous publishing on the World Wide Web and to refuse to receive anonymous e-mails. Newsgroups, whether actively moderated or not, should be able to declare a policy of refusal of anonymous messages. Technical progress is needed to be able to realise these objectives.
Since some anonymous services may continue to be offered in countries where legal traceability is not guaranteed, urgent steps should also be taken to improve means of identifying where and by whom illegal content is distributed.
Attention should be paid to the process by which technical standards for digital communication are adopted since the design of such standards may affect the possibilities of law-enforcement bodies to track criminal activities.
The following are suggestions of the group which are an essential complement to other measures proposed.
Member States should examine carefully whether the rules in force are adequate to deal with illegal content transmitted by the Internet, in particular with respect to offences against children, and see how to ensure a more coherent treatment of child pornography in criminal law. The issue of liability for criminal content should be addressed (see above).
The international nature and technical features of the Internet mean that specialised training and equipment should be made available to help the police and the courts in their tasks.
The police should use advice and information from self-regulation bodies. A single liaison point between police and self-regulators in each Member State should be set up.
The proposals described above should be implemented not only within the European Union, but also internationally in an appropriate framework. This applies particularly to police and judicial co-operation and to dealing with liability for illegal content and anonymous use of Internet. Any international agreement should be in conformity with fundamental rights and European traditions of free expression. At the operational level, co-operation between hot-line operators and between operators of rating systems and shared research into filtering software and tracing systems should be promoted.
Awareness activities should be encouraged so that users understand the opportunities as well as the drawbacks of the Internet. Parents and educators, in particular, should be sufficiently informed so as to be able to take full advantage of parental control software and rating systems. Industry, self-regulatory bodies and user groups could collaborate in providing suitable material, including explanations, illustrations and animation. This should be made available on the Internet and to other media who should be encouraged to produce articles or programmes aimed at the target groups of parents, educators and young Internet users.
The proposed Web site should contain content from a variety of sources so as to provide a platform and a meeting place for all concerned in combating illegal content and providing means for dealing with harmful content. It should include the possibility for feedback from users, and links to other sites with neutral and reliable information for consumers about the Internet.
The Working Party considers that it has been extremely useful, even in the brief time available, to have met as a group including representatives of Member States, industry (network operators, hardware manufacturers, software suppliers, Internet service providers, content providers) and users. A platform with a representative group of all concerned should follow progress in implementing proposals and continue to discuss outstanding issues.
Annex: List of participants
1 Breach of copyright can also entail criminal sanctions
2 Communication to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions COM(96) 487
3 COM(96) 483
4 e-mail: email@example.com see also http://www.xs4all.nl/~meldpunt/
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