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The Governance of the Internet in Europe with Special Reference to Illegal and Harmful Content

Clive WALKER <law6cw@leeds.ac.uk>
Yaman AKDENIZ <lawya@leeds.ac.uk>
University of Leeds
United Kingdom

Abstract

This paper will explain in the context of the Internet the shift from a narrow concern with "governmentality" to a broader political and social "governance." The emergence of "Internet governance" entails a more diverse and fragmented regulatory network, with no presumption that the nodal points need be anchored primarily in nation-states. The paper will concentrate on the important developments within selected Member States of the European Union, especially the United Kingdom, and within the European Union itself in order to contribute to the debate on Internet communications policy and how governance and the Internet can reflexively act upon each other.

Contents

Introduction

Governance is concerned with a complex pattern of interrelationships between social institutions and individuals (see Osborne & Gaebler, 1992, p. 34; and Jessop, 1995). According to Rhodes, "governance is not a choice between centralization and decentralization. It is about regulating relationships in complex systems" (Rhodes, 1994, p. 151). Another explanation for "governance" is given by Hirst and Thompson where "governance is, the control of an activity by some means such that a range of desired outcomes is attained -- is a function that can be performed by a wide variety of public and private, state and non-state, national and international, institutions and practices" (Hirst & Thompson, 1995, p. 422). The discourse of governance is especially relevant to analysis of the Internet within Western Europe, not only because of the inherent nature of the technology but also because of the political and social nature of Western Europe.

As for the technological imperative, the Internet began in the 1960s as a project of the United States Government's Department of Defense to create a computer network which would be able to withstand a nuclear attack. "The origins, development and co-operative ethos of cyberspace are therefore directly related to the real world of government policy-making and public expenditure" (Loader, 1997, pp. 6-7). But at the same time, the very design of the technology creates a potentially infinite and unbreakable communications complex which cannot be readily bounded by one government or even several or many acting in concert:

...the Internet is too widespread to be easily dominated by any single government. By creating a seamless global-economic zone, borderless and unregulatable, the Internet calls into question the very idea of a nation-state (Barlow, 1996).

In this way, the Internet provides a paradigm of a late modern (Giddens, 1990) subsociety, in which the traditional structures of class or other sociopolitical commonality are replaced by new élites whose privilege is measured in terms of knowledge and technological access (Castells, 1996; O'Malley & Palmer, 1996). The Internet is a complicated, anarchic, and multinational environment where old concepts of regulation, reliant as they are upon tangibility (rather than distanciation [Poster, 1988]) in time and space, may not be easily applicable or enforceable.

European Union and the Internet

Placing these developments within Western Europe amplifies the discourses of fragmentation. The European aspect 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. The former involves a developing tier of governmentality, which is at odds with traditional nation-statehood in Western Europe but which potentially plays an important role in regulation of transnational commerce and social affairs.

The latter may be represented by the cultural diversity of Europe, which has a heterogeneity far greater than, say North America, and which is given a constitutional recognition in terms of the doctrine of "subsidiarity" in the Maastricht Treaty of European Union of 1992 (HMSO, 1992). In this way, fragmentation in order to preserve rather than to regiment social and cultural texture has become an article of faith within the European Union. Further pressures to respect difference can be expected to flow from the commitment at the recent Amsterdam Summit to expand the Union into Eastern Europe (see Treaty of Europe, 1997).

At European Union Member State level, there is no doubt that there is a strong commitment, based on global economic competition but equally political populism, to embrace in principle "the age of the Information Society" (House of Lords Select Committee, 1996, paras.1.1, 1.6.). 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 Neo-Nazis, 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 moderate these differences. The legitimate 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.

Faced with the fragmentation of both the Internet and the all-purpose nation state, and having regard for 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). Rather, in the current stage of modern, or postmodern society, one can expect a trend towards "governance" rather than the "government," in which the role of the nation state is not exclusive. The nation state abjures the traditional monopolization of the policing function not only on political and philosophical grounds associated with neo-Liberalism or new Conservatism (Habermas, 1989; Gamble, 1986) but also because of the pragmatic difficulties in doing otherwise in the case of instantaneous, mass participation and global modes of communication (Garland, 1996, Walker, 1997). 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 in particular (and, one might say, self-reflexively, vice versa), and this is also true for self-regulatory solutions introduced for the availability of certain types of content on the Internet. The solution:

Rules and rule-making 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).

The result is that there appears not to be a single, harmonized site 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 (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.) 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 another. The European Commission issued last year 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" (European Commission Communication, 1996). This "margin of appreciation" is of course very much in line with the approach fostered by the Council of Europe's European Court of Human Rights (see Handyside v UK, App. no. no. 5493/72, Ser A vol.24, (1976) 1 EHRR 737, and Jones, 1995).

Therefore, a multi-layered solution seems a suitable response to the altered states of virtual reality, though many of the proposed levels of governance entail their own debatable problems so that the effect is often to localize rather than to solve disputes about state coercive powers. Nevertheless, the authors suggest that the framework of multi-layered governance of the Internet, at least insofar as it applies in Europe, will comprise a neo-corporatist (Habermas, 1989, p. 61) mixture of

  • Global international regulatory solutions by the likes of OECD, ITU, and the WIPO
  • Regional supranational legislation such as by the European Union
  • Regulations by the individual governments at national or local level, such as through specialist police squads and customs control units
  • Self-imposed regulation by the ISPs (see Dunne, 1994) -- these may cut across the above boundaries since ISPs can operate at a global level
  • Representation of online users through national and transnational pressure groups at both national and international levels
  • Rating systems such as Platform for Internet Content Selection ("PICS") and Recreational Software Advisory Council on the Internet ("RSACi") -- again, the precise siting of these interventions remains debatable.
  • Self-imposed regulation, such as through software filters, to be used by end-users, whether individually (especially by parents and by teachers in schools) or collectively (especially by social rules within network communities such as discussion groups)
  • Hotlines and pressure organizations to report illegal content such as child pornography on the Internet

In total, these levels of intervention reflect late modernity in that there is a dispersal of regulatory power not only in regard to levels of governance but also in the shifting boundary between the public and the private, with the latter taking a strong role in policing (Rose & Miller, 1992). Insofar as they point towards self-government and the mobilization of concerned and active groups, there may also be some rationale and impetus provided by the communitarian movement (Etzioni, 1993). Applied to the Internet, it might be argued that it is up to good netizens to sustain the voice of communal morality rather than expecting some state law enforcer to clean up the virtual town (see Braithwaite & Pettit, 1992; Selznick, 1995; Strang, 1995; Leadbeter, 1996). However, the success of such an appeal to the localized governance of crime will itself raise profound questions as to the constitution of "community" and the morality which is chosen to prevail and wider democracy and accountability (see Crawford, 1997). And such appeals to a communal spirit should not be allowed to mask the fact that repression continues, whether through traditional policing institutions or through the tyranny of societal standards.

Legislative history of the EU initiatives

This mixed political economy has been recognized by the European Commission which suggested in a recent Communication Paper that

the answer to the challenge will be a combination of self-control 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 co-operation (EC Comm. Paper, 1996).

The Communication Paper was the result of calls for the regulation of the Internet within the European Union in early 1996. The Communication Paper was launched together with a Green Paper on the Protection of Minors and Human Dignity in Audio-visual and Information Services in October 1996 (Green Paper, 1996). The European Commission documents follow the resolution adopted by the Telecommunications Council of Ministers in September 1996, on preventing the dissemination of illegal content on the Internet, especially child pornography. While the Communication gives policy options for immediate action to fight against harmful and illegal content on the Internet, the Green Paper sets out to examine the challenges that society faces in ensuring that these issues of overriding public interest are adequately taken into account in the rapidly evolving world of audio-visual and information services.

If such mechanisms of international governance and re-regulation 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 & Thompson, 1995, p. 430).

The UK Government welcomed the EU Communication with its emphasis on self-regulation by industry, as entirely consistent with the UK's approach:

The UK strongly agrees with the Commission that since a legal framework for regulation of the Internet already exists in Member States, new laws or regulations are unnecessary (Select Committee on European Legislation, 1996, para. 14.8.).

More recently, Chris Smith, the Secretary of State for National Heritage, stated that

It is vital, however, in considering how best to address [the problem of illegal and harmful content on the Internet], that we bear in mind that only a small fraction of the material available to the public poses a threat to the protection of minors or human dignity. It will be important, therefore, not to impose hasty regulation upon these new services and thereby constrain their development and the educational, commercial and social opportunities and other benefits they can engender" (Select Committee on European Legislation, 1997).

The Communication and Green Papers were followed by the European Commission Working Party Report in early November 1996. According to the Working Party Report, a self-regulatory system, including representatives of industry and users, to advise on whether or not a breach of the Code of Conduct has occurred, should be developed. The next stage in the discussion was that the European Parliament adopted a resolution on the Commission communication paper in April 1997 (see the Pradier Report, 1997). According to the European Commissioner Martin Bangemann, it is difficult to pass legislation at international level on "harmful" content on the Internet, but there is less cultural difference in what is "illegal," and the response must be global.

Taking up that wider aspect, in the resolution adopted at the meeting of October 1996, the Council of Ministers of the European Union has recognized the need for further analysis of the issues underlying development of information society policy internationally with a view to reaching a common understanding on means and conditions governing the use of global information networks. The Council of Ministers stressed the need for coordination between initiatives relating to the subjects, both in the Union framework and in other international fora. These issues were discussed at the "Global Information Networks, Ministerial Conference," in Bonn, in July 1997. The resultant "Bonn Declaration" (< http://www2.echo.lu/bonn/final.html>) underlines the importance of clearly defining the relevant legal rules on responsibility for content of the various actors in the chain between creation and use. The Ministers recognized the need to make a clear distinction between the responsibility of those who produce and place content in circulation and that of intermediaries such as the Internet service providers, thus beginning to accept that it is producers and users who must exercise normative choice and discernment and that carriers are not in a position to act as content guardians in this medium.

The EU ministers also declared at the Bonn Conference "their intention to co-operate fully within the Council of Europe, the OECD, the WTO and other appropriate international fora, in order to identify and dismantle existing obstacles to the use of new services on Global Information networks, to prevent the establishment of new barriers, and to establish a clear and predictable legal framework at national and, where appropriate, European and global levels." This only proves that Internet-related problems deserve not only national and supranational attention but also global level of governance because the Internet remains bigger than any single nation state and even bigger than the EU and has resisted so far any attempt to regulate it.

The Bonn Declaration was followed in September 1997 by Martin Bangemann's call for an Internet charter, which should focus on issues to do with technical standards, illegal content, licenses, encryption, and data privacy.

The current situation may lead to the adoption of isolated global rules with different countries signing up to different rules agreed under the auspices of different international organizations. An international charter would provide a suitable answer (Bangemann, 1997).

The idea was given further substance when Martin Bangemann and fellow Commissioner, Sir Leon Brittan, launched a proposed framework for international policy cooperation and sought to start a process which could lead to the adoption of an International Communications Charter for the Internet in February 1998 (EU Communication on International Charter, 1998; Tucker, 1998).

The EU Action Plan

In November 1997, the European Commission adopted a new proposal for an action plan promoting the safe use of the Internet, which would cover a three-year period from 1998 to 2001 (Action Plan, 1997). The new Action Plan recognized that the Internet does not exist in a "legal vacuum." However, because of the global nature of the Internet, the EU prefers self-regulatory solutions for the regulation of illegal and harmful content on the Internet. The Action Plan, therefore, encourages the creation of a European network of hotlines for online users to report illegal content, such as child pornography; the development of self-regulatory and content-monitoring schemes by access providers and content providers; 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 while choosing the appropriate content and exercising a reasonable amount of parental control.

The Action Plan does not propose an exact budget, although it agreed that seven million ecus should be spent in 1998 and between seven and ten million ecus the following three years, according to a Commission spokesperson (Reuters, 1997). The final amount must be agreed upon between EU ministers and the European Parliament. Up to 46% of the available funding will be spent for the development of filtering and rating systems, while support actions such as the legal implications will get only a maximum of 8%.

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 EU 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 bomb-making (national security), pornography (protection of minors), incitement to racial hatred (protection of human dignity), and libel (protection of reputation). But none of these listed are necessarily "illegal content" and not even considered as "harmful content" (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 US Communications Decency Act 1996 in the US Supreme Court, (see ACLU v Reno 117 S. Ct. 2329 (1997); Akdeniz, 1997a), and states should avoid pandering to the lowest common denominator where the least tolerant can set the pace. The European Court of Human Rights, in its judgment in Handyside, App. no. no. 5493/72, Ser A vol.24, (1976) 1 EHRR 737, 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 committed. Therefore, "harm" is a criterion which will depend upon cultural differences.

The fundamental democratic principles of freedom of expression and respect for privacy, enshrined in Articles 8 and 10 of the European Convention on Human Rights, must be observed, and any measure restricting these freedoms must be legitimate, necessary for the aim pursued, and strictly proportionate in the limitations it imposes (European Commission Working Document, 1997).

The emphasis on transfrontier expression is prescient, especially if territorial expressions about rights or otherwise are destabilized.

Second, in addition to concerns about standards, one should also examine closely the chosen mechanism. While the EU Action Plan emphasizes self-regulatory solutions, these may result in the privatized censorship of "controversial speech by banishing it to the farthest corners of cyberspace with blocking and rating schemes"(Per Steinhardt, B., Associate Director of the ACLU; see ACLU, 1997). Rating and filtering products claim to empower users to block unwanted material from their personal systems. The most sophisticated and widely recognized of these systems is the Platform for Internet Content Selection ("PICS"), introduced by the World Wide Web Consortium. European governments were especially interested in this hoped-for self-regulatory solution to Internet content. But according to a recent ACLU paper, third-party ratings systems pose free speech problems, creating a "cloud of smoke" (Washington Post, 1997). Therefore, with few third-party rating products currently available, the potential for arbitrary censorship increases. According to the ACLU paper, "it is not too late for the Internet community to slowly and carefully examine these proposals and to reject those that will transform the Internet from a true marketplace of ideas into just another mainstream, lifeless medium."

Third, whatever, the confusion of values, objectives, and tiers of governance, it may be concluded that there are some overarching principles which are in danger of being lost from sight.

In political terms, these first 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 standard-setting in the field of data protection (see Council of Europe Convention on Data Protection 1980, European Communities, Directive on Data Protection 1995) 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 rights.

A second political principle tends towards the opposite direction -- towards universalization. This consideration is the constant demand for respect for individual rights, which was expressed through the Council of Europe's European Convention on Human Rights and Fundamental Freedoms of 1950 (van Dijk & van Hoof, 1990; Harris, O'Boyle, & Warbrick, 1995; Janis, Kay, & Bradley, 1995; Jacobs, & White, 1996). This "external bill of rights" contains a strong (though not absolute) statement in favor of free expression in Article 10(1):

(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. . . .
(Note also the requirement of respect for privacy of communications in Article 8(1).)

According to a recent 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" (European Commission Working Document, 1997). But there are problems related to the use of rating systems and filtering software (see ACLU, 1997; Cyber-Rights & Cyber-Liberties (UK), 1997) not necessarily addressed by the EU initiatives. Far from empowering individual users or supervisors (such as parents), systems such as PICS are reliant upon a centralized 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). 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. 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 European Convention on Human Rights], 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 (per 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).

Next, there are also economic ground rules. Inappropriate regulation of content may threaten the growth of information technology and result in loss of market share and investment to competitors such as the US or in the Far East.

Conclusion

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 (Human Rights Watch Report, 1996), and the Internet seems to be following a pattern common to the regulation of new media. Most of the people concerned about the Internet are non-users of it, and there is a fear and "moral panic" (Cohen, 1987) among these people which includes the government, law enforcement bodies such as the police, prosecutors, and judges together with the media in general (Akdeniz, 1997b). The paper will conclude that the full potential of the development of the Internet will depend on society accentuating its opportunities for speech, information, and education, while empowering, but not demanding, very localized forms of policing (often at the level of the 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.

Information about the authors

Professor Clive Walker is the director of Centre for Criminal Justice Studies, University of Leeds and he can be contacted at law6cw@leeds.ac.uk. Mr. Yaman Akdeniz is also at the Centre for Criminal Justice Studies and he is the founder of Cyber-Rights & Cyber-Liberties (UK), a nonprofit civil liberties organization. He can be contacted at lawya@leeds.ac.uk. Both authors research and write about the governance of the Internet and legal issues surrounding the global Internet.

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