Global Internet Liberty Campaign Submission on the Illegal and Harmful Use of the Internet to the Irish Minister for Justice

written by Yaman Akdeniz, Cyber-Rights & Cyber-Liberties (UK)

Ireland has become the latest country to consider whether to crack down on ëharmful and illegalí use of the Internet. A Working Group on Illegal and Harmful Use of the Internet, which consists of representatives from both private and public sectors, has been established with advisory and recommendatory functions.

The Global Internet Liberty Campaign, an international association of civil liberties groups concerned with protecting freedom of speech and other rights for Internet users, hope with this submission to lay the basis for an effective Internet policy by providing key background information on both technical and policy issues. The undersigned members of the Global Internet Liberty Campaign examine the experience of other countries in trying to assert jurisdiction over the Internet.

The undersigned members of the Global Internet Liberty Campaign recommend, in summary, that the Irish government:

The Irish Working Group on Illegal and Harmful Use of the Internet terms of reference are as follows:

In relation to those issues which can be domestically addressed, to identify the legal, technical and structural problems which arise and to make specific recommendations for their resolution in terms of short, medium and long term proposals as appropriate,

In relation to those issues which require resolution in an international context, to make recommendations which will inform policy in this regard.

The Irish Working Group invited submissions from interested groups and individuals on issues relevant to the above terms of reference. However, the call for submissions was reported in the media on the 23rd of June 1997. The short consultation period will be a barrier to the attempts of interested parties and concerned citizens to discuss the above issues in detail.

The Introduction of the Internet

By providing quick and cheap access to any kind of information, the Internet is the first truly interactive ëmassí medium. It should not be surprising that governments around the globe are anxious to control this new medium, 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, and thus at risk for an exaggerated sense of fear and ëmoral panic.í Unfortunately, many people needing more education include the government, law enforcement bodies such as the police, prosecutors, judges, and the media. In reality, while the Internet tends to reveal problems in an extreme form, it rarely produces genuinely new ones.

The Irish initiatives follow the recent developments within the European Union with respect to the regulation of illegal and harmful content on the Internet. The European Commission approved a Communication on Illegal and Harmful Content on the Internet (1996) and a Green Paper (1996) on the protection of minors and human dignity in audiovisual and information services in October 1996. The European Parliament also adopted a resolution about the European Commission Communication in April 1997.

The Submission of the undersigned members of the Global Internet Liberty Campaign will hereby examine the points of reference suggested by the Irish Working Group and provide an expert opinion on the following matters:

(1) To identify the nature and extent of the issues surrounding the illegal and harmful use of the Internet.

It is difficult to identify ëillegal contentí within a global medium such as the Internet and even more complicated to identify what is ëharmful content.í While the undersigned members of the Global Internet Liberty Campaign considers ëchild pornographyí to be a universally identified ëillegal content,í even this area reveals differences in regulation in many countries. ëHarmí is a criterion which will depend upon cultural differences. There have been attempts, for example, by the German government to restrict the availability of hate speech on the Internet, specifically the web sites related to the denial of the Holocaust. Many of these same materials are legal in other countries, even though most of the population finds them offensive; the preservation of the principle of free expression is more important to these governments than the pursuit and prosecution of every potentially dangerous speaker.

Ireland has a long history of censorship laws and is known for strict pornography regulations in other media. Some very strict controls exist, and there has been a broad acceptance of censorship for many years. No definition of ëobsceneí is available in Irish law, but The Censorship of Publications Act 1929 defines ëindecentí as follows: ëindecent shall be construed as including suggestive of or inciting to sexual immorality or unnatural vice or likely in any other similar way to corrupt or deprave.í In the early 1960s, Edna OíBrienís The Country Girls (1960), The Lonely Girl (1962), Girls in their Married Bliss (1963), and August is a Wicked Month (1965) were all censored. Books such as The Joy of Sex and The Erotic Art of India were also censored or banned by the Irish Censorship of Publications Board in 1987. It has only recently become legal to import publications known for pornographic content, such as the Playboy magazine.

Therefore, the undersigned members of the Global Internet Liberty Campaign will assume that ëpornographyí may be considered as ëharmful contentí to a certain group of people, namely the children in Ireland.

The regulation of potentially ëharmful contentí such as pornography on the Internet and regulation of invariably illegal content such as child pornography are different in nature and should not be confused. Any regulatory action intended to protect a certain group of people, such as children, should not take the form of an unconditional prohibition of using the Internet to distribute certain content that is freely available to adults in other media. Therefore, attempts to pass online censorship legislation such as the US Communications Decency Act (part of the 1996 Telecommunications Act) should be avoided.

The US Supreme Court struck down the CDA in a historic ruling determining the future of free speech on the Internet on June 26, 1997 in the case of Reno v ACLU. ëThe CDAís ìindecent transmissionî and ìpatently offensive displayî provisions abridge ìthe freedom of speechî protected by the First Amendment,í the decision read. The Supreme Court explained that the factors that are present in broadcasting are not present in cyberspace. ëNeither before nor after the enactment of the CDA have the vast democratic fora of the Internet been subject to the type of government supervision and regulation that has attended the broadcast industry.í The Supreme Court stated that ëthe Internet is not as ìinvasiveî as radio or television and confirmed the finding of the lower court that ëcommunications over the Internet do not ìinvadeî an individualís home or appear on oneís computer screen unbidden. Users seldom encounter content by accident.í

Pornography on the Internet is available in different formats. These range from pictures and short animated movies, to sound files and stories. Most of this kind of pornographic content is available through World Wide Web (ëWWWí) pages; sometimes they are also distributed through an older communication process, Usenet newsgroups. The Internet also makes it possible to discuss sex, see live sex acts, and arrange sexual activities from computer screens. There are also sex related discussions on the Internet Relay Chat (ëIRCí) channels where users in small groups or in private channels exchange messages and files. But like the Web and Usenet, only a small fraction of the IRC channels are dedicated to sex. There are more than 14000 Usenet discussion groups all around the world but only around 200 groups are sex related, and some of these relate to socially valuable and legitimate discussions, such as about homosexuality or sexual abuse.

There is no settled definition of pornography either in Ireland itself or, to an even greater degree, in a multi-national environment such as the Internet where cultural, moral and legal variations all around the world make it difficult to define ëpornographic contentí in a global society. What is considered simply sexually explicit but not obscene in United Kingdom, for example, may well be obscene in many other countries. Conversely, what is considered in Sweden as pornographic but lawful may well be obscene under the current UK legislation.

(2) To prioritise such Internet issues with particular reference to the need to address the issue of child pornography in the short term.

Child pornography, rather than other forms of pornographic content, has been the main concern and fear of legislators and parents since paedophiles started to use the Internet for circulating pornographic materials related to children. Paedophilia may be a form of expression involving fantasies and imaginings which may be explicitly important to minority sexual groups, the paedophiles. But while pornography may benefit from freedom of speech arguments and less severe laws, the line should be drawn with child pornography at least where physical harm to real children is involved as it almost inevitably will be with the production and use of child pornography.

In most cases, child pornography is a permanent record of the sexual abuse of the child who was involved (except for pseudo-photographs where the pictures are created by only the use of computers and without any physical harm to children). There can be no understanding of the special problem of child pornography until there is understanding of the special way in which child pornography is child abuse.

Any regulatory action intended to protect children from being abused in the production of pornography or from accessing unsuitable content should not take the form of an unconditional prohibition of using the Internet to distribute content which is available freely for adults in other media. Therefore, child pornography laws should not be used as false examples of supposed legitimate restriction of freedom of expression, because child pornography is not a matter of expression, but of the abuse of children.

(3) To examine and assess the current approaches both domestically and internationally to addressing Internet issues.

At the moment it would be inappropriate to attempt to regulate certain content such as pornography on the Internet while it is already available in the streets, and bans or pre-censorship acts would be unworkable because of the diversity of pornographic sources. Following the introduction of the CDA 1994 in the USA, many WWW pages containing sexually explicit material introduced password protection schemes which required credit card numbers. For example, Adultcheck is one of the US based schemes regulating WWW pages with sexually explicit content on the Internet: its system requires that both the willing adults and the providers are registered by paying fees to obtain username and passwords. By doing so the pornography industry will self-regulate itself anyway. To do so is in their best interest, since they will wish to safeguard the substantial amount of profits made from the pornography industry each year.

However, the prime responsibility for assuring an appropriate moral environment for children must rest elsewhere. Parents and teachers should be responsible for protecting children from accessing pornographic content which may be harmful to their development. Standards that are overly broad or loose will result if the job is handed over to rating bodies with different cultural backgrounds, the software industry, or even the producers of pornography. This is not a helpless demand for personal responsibility, since the computer industry is also supplying the means of protection.

Most filtering software available is designed for the home market. These are intended to respond to the preferences of parents making decisions for their own children. Therefore, such software should not be used in public and university libraries because libraries are responsible for serving a broad and diverse community with different preferences and views. American Library Association in a resolution adopted in June 1997, stated that ëblocking Internet sites is antithetical to library missions because it requires the library to limit information access.í

In approving of the promise that self-rating systems provide, we warn that they must not be used as a pretext for ëzoningí the Internet, as two dissenting justices suggested in the U.S. Supreme Court, Reno v ACLU. The dissent, while agreeing that the CDA was unconstitutional, left open the possibility that material could in the future be banned from the open Internet and allowed only in special sites where access would be controlled by identification and screening of users. This proposal is onerous for several reasons: it threatens to restrict information to socially valuable information that the government does not wish people to see, and requires users to reveal their identities when viewing sensitive materials. Imagine if someone who was afraid of getting a sexually transmitted disease had to leave a record that he or she had requested information about it before getting life-saving information; this would be a violation of privacy and would have a chilling effect on use of the Internet.

(4) In relation to those issues which can be domestically addressed, to identify the legal, technical and structural problems which arise and to make specific recommendations for their resolution in terms of short, medium and long term proposals as appropriate.

Ireland is a member of the European Union and also a signatory of the European Convention on Human Rights. While the convention document is not a part of domestic law, Irish courts may refer to it. Ireland also ratified the Covenant on Civil and Political Rights in 1989 which states in Article 19 that:

(1) Everyone shall have the right to hold opinions without interference. (2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally or in writing or in print, in the form of art, or through any other media of his choice.

Referring to article 19(2) of the International Covenant on Civil and Political Rights, which Ireland ratified in 1989, we, the undersigned members of the Global Internet Liberty Campaign, consider the attempts to restrict speech on the Internet as an illegal act. Additionally, the value of attempting to ban content any government find offensive is highly questionable. The proper response to offensive expression is more and better expression and prosecution of offending criminals, not censorship.

Ireland is also a signatory of the Universal Declaration of Human Rights, adopted by the United Nations General Assembly on December 10, 1948, which states:

ARTICLE 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

All governments should recognise that the Internet is not a local, or even national, medium, but a global medium in which regional laws have little useful effect. ëTop-downí censorship efforts not only fail to prevent the distribution of material to users in the local jurisdiction, but constitute a direct assault on the rights and other interests of Internet users and service providers in other jurisdictions, who not subject to the censorship law in question. Because local laws lack jurisdiction on a global scale, a U.S. Federal District Judge in the case of ALA v. Pataki, in New York State ruled on June 20, 1997 that its law banning indecent words or images on the Internet was unconstitutional, pointing out that it was trying to regulate material located in other states.

There appears not to be a single solution for the regulation of illegal and harmful content on the Internet because the exact definition of offences such as child pornography varies from one country to another. What is considered harmful will also depend upon cultural differences. The European Commission Communication Paper (1996) stated that ëeach country may reach its own conclusion in defining the borderline between what is permissible and not permissible.í Therefore, a multi- layered solution is needed in this area. The multi-layered governance should be a mixture of national and international legislation, and self imposed regulation by the ISPs and on-line users. This should include codes of conduct by the ISPs, software filters to be used by parents, advice to parents and school teachers, hotlines, and special organisations to report illegal content on the Internet.

The European Commission Communication Paper (1996) stated that ëInternet access providers and host service providers play a key role in giving users access to Internet content. It should not however be forgotten that the prime responsibility for content lies with authors and content providers.í

Blocking access at the level of access providers has been criticised by the EU communication paper on the ground that these actions go far beyond the limited category of illegal content and ësuch a restrictive regime is inconceivable for Europe as it would severely interfere with the freedom of the individual and its political traditions.í Therefore ëthe law may need to be changed or clarified to assist access providers and host service providers, whose primary business is to provide a service to customers.í

The EU developments are very important and would affect both Ireland and other Member States. ëTherefore, the position of the ISPs should be clarified, and they should not be targeted by the individual governments and law enforcement bodies where the ISPs have no control of the Internet content.í

Two technical factors prevent a service provider, such as the CompuServe branch prosecuted twice in Germany over the past two years, from blocking the free flow of information on the Internet. First, an Internet service provider cannot easily stop the incoming flow of material. No one can monitor the enormous quantity of network traffic, which may consist of hundreds of thousands of emails, newsgroup messages, files, and Web pages that pass through in dozens of text and binary formats, some of them readable only by particular proprietary tools. As the European Commission noted recently, ëit is as yet unclear how far it is technically possible to block access to content once it is identified as illegal. This is a problem which also affects the degree of liability of the access providers.í

A second technical problem is that a provider cannot selectively disable transmission to particular users. Electronic networks typically do not allow for the identification of particular users or their national region. Thus, CompuServe correctly claimed that it cannot provide material in one country while blocking it in another; such a distinction would require an enormous new infrastructure on top of the current network.

Some networking technologies, such as newsgroups, may allow individual operators to select some groups or items and block others. But many technologies, such as the widely used World Wide Web, currently do not support such selectivity.

The recent ëBonn Declarationí underlined 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 Declaration recognised 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.

(5) In relation to those issues which require resolution in an international context, to make recommendations which will inform policy in this regard.

Despite the popular perception, the Internet is not a ëlawless place.í It has developed its own standards for behaviour over time. The Internet is a complex, anarchic, and multi-national environment where old concepts of regulation, reliant as they are upon tangibility in time and space, may not be easily applicable or enforceable. A wider concept of governance may be more suitable. Traditional concerns over objectionable speech, violations of personal privacy, copyright violations, and other aspects of information exchange have found new challenges in the past few years on the Internet.

These are pressing issues of public, political, commercial and legal interest. The treatment of material considered harmful may be different in different societies, and what is considered to be harmful depends on cultural differences. It is therefore indispensable 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 judgements of the European Court of Human Rights in Castells v. Spain (judgement of 23 April 1992, Series A no. 236, p.22, § 42):

ë... 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 ìinformationî or ìideasî that are favourably 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.í

Conclusion

The great appeal of the Internet is its openness. Efforts to restrict the free flow of information on the Internet, like efforts to restrict what may be said on a telephone, would place unreasonable burdens on well established principles of privacy and free speech.

There are no borders on the Internet, and ëactions by individual governments and international organisations can have a profound effect on the rights of the citizens around the world.í The full potential of the development of the Internet will depend on society as a whole striking the right balance between freedom of speech and public interest considerations; between policies designed to foster the emergence of new services and the need to ensure that the opportunities they create are not abused by the few at the expense of the many.

We reaffirm that filtering software, though imperfect, can be fine-tuned by Irish people in their own homes to suit their Irish preferences. Government-imposed censorship, over-regulation, or service provider liability will do nothing to keep people from obtaining material the government does not like, as most of it will be on servers in another country. Such restrictions would, however, make Ireland, like any other jurisdiction that goes too far, a very hostile place for network development or any other high-tech industry and investment. Ireland should be looking to empower Irish people for the future as the country enters the Twenty-First Century, not turning back to the censorship and closed-mindedness of the Nineteenth Century.

Contact Information:

Mr Yaman Akdeniz
Head of Cyber-Rights & Cyber-Liberties (UK)
Url: http://www.leeds.ac.uk/law/pgs/yaman/yaman.htm
Address: Centre For Criminal Justice Studies,
University of Leeds,
Leeds LS2 9JT.
Telephone: 0113-2335033
Fax: 0113- 2335056
E-mail: lawya@leeds.ac.uk

For further information about the GILC see <http://www.gilc.org>

Undersigned Members of the Global Internet Liberty Campaign