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HOW THE INTERNET COULD BE REGULATED
Text of a presentation made in various forms at:
- last modified on 7 January 2009
- the London School of Economics (LSE) in London on 12 January 2006
- the Office of Communications (Ofcom) in London on 13 January 2006
- a dinner hosted by the software company SAS in Geneva on 16 May 2006
This presentation is informed by my six-year term from 2000-2005 as the first independent Chair of the Internet Watch Foundation, a body which exists to combat illegal content on the Net in the UK. However, it does not represent the policy of the IWF and indeed its scope goes well beyond the remit of that organisation.
The presentation is prompted by the growing debate about whether existing controls on Internet content adequately meet the concerns of users and what happens when the heavily regulated world of broadcasting collides with the virtually unregulated world of the Internet.
WHY WE SHOULDN'T REGULATE THE INTERNET
Many people argue that it would be wrong to attempt to regulate the Internet and advance arguments such as the following:
- The Internet was created as a totally different kind of network and should be a ‘free’ space. This argument essentially refers back to the origins of the Net, when it was first used by the military as an open network designed to ensure that the communication always got through, and then by academics who largely knew and trusted each other and put a high value on freedom of expression.
- The Internet is a ‘pull’ not a ‘push’ communications network. This argument implicitly accepts that it is acceptable, even necessary, to regulate content which is simply 'pushed' at the consumer, such as conventional radio and television broadcasting, but suggests that it is is unnecessary or inappropriate to regulate content which the consumer 'pulls' to him or her such as by surfing or searching on the Net.
- The Internet is a global network that simply cannot be regulated. Almost all content regulation is based on national laws and conventions and of course the Net is a worldwide phenomenon, so it is argued that, even if one wanted to do so, any regulation of Internet content could not be effective.
- The Internet is a technically complex and evolving network that can never be regulated. Effectively the Web only became a mass media in the mid 1990s and, since then, developments - like Google and blogging - have been so rapid that, it is argued, any attempt to regulate the medium is doomed.
- Any form of regulation is flawed and imperfect. This argument rests on the experience that techniques such as blocking of content by filters have often been less than perfect - for instance, sometimes offensive material still gets through and other times educational material is blocked.
WHY WE SHOULD REGULATE THE INTERNET
However, there are strong arguments in favour of some form of regulation of the Internet, including the following:
- The Internet is fundamentally just another communications network. The argument runs: if we regulate radio, television, and telecommunications networks, why don't we regulate the Net? This argument suggests that, not only is the Internet in a sense, just another network, as a result of convergence it is essentially becoming the network. so that, if we do not regulate the Net at all, effectively over time we are going to abandon the notion of content regulation.
- There is a range of problematic content on the Internet. There is illegal content such as child abuse images; there is harmful content such as advice on how to commit suicide; and there is offensive content such as pornography. The argument goes that we cannot regulate these different forms of problematic content in the same way, but equally we cannot simply ignore it.
- There is criminal activity on the Internet. Spam, scams, viruses, hacking, phishing, money laundering, identification theft, grooming of children .. almost all criminal activity in the physical world has its online analogue and again, the argument goes, we cannot simply ignore this.
- The Internet now has users in every country totalling around several billion. This argument implicitly accepts that the origins of the Internet involved a philosophy of free expression but insists that the user base and the range of activities of the Net are now so fundamentally different that it is a mass media and needs regulation like other media.
- Most users want some form of regulation or control. The Oxford Internet Survey (OxIS) [click here] published in May 2005 had some typical indications of this. When asked if governments should regulate the Internet, 29% said that they should. When asked who should be responsible for restricting children's content, 95% said parents, 75% said ISPs and 46% said government.
REGULATING ILLEGAL CONTENT
It is a major proposition of this presentation that any sensible discussion of regulation of the Internet needs to distinguish between illegal content, harmful content, and offensive content. I now deal with these in turn.
In the UK, effectively illegal content is regulated by the Internet Watch Foundation [click here] through a self-regulatory approach.
What is the nature of the IWF?
The IWF has a very specific remit focused on illegal content, more specifically:
- It was founded by the industry in late 1996 when two trade bodies - the Internet Service Providers' Association (ISPA) and the London Internet Exchange (LINX) - together with some large players like BT and AOL came together to create the body.
- It has an independent Chair selected through open advertisement and appointed by the Board.
- The Board consists of six non-industry members selected through open advertisement and three industry members chosen by the Funding Council.
- There is Funding Council which has on it representatives of every subscribing member.
- The IWF has no statutory powers. Although in effect it is giving force to certain aspects of the criminal law, all its notices and advice are technically advisory.
- The IWF has no Government funding, although it does receive European Union funding under the Commission's Safer Internet plus Action Plan [click here].
- Although not a statutory body and receiving no state funding, the IWF has strong Government support as expressed in Ministerial statements and access to Ministers and officials.
The IWF has been very successful in fulfilling that remit:
- images of child abuse anywhere in the world
- adult material that potentially breaches the Obscene Publications Act in the UK
- criminally racist material in the UK.
How is illegal material removed or blocked under the IWF regime?
- The number of reports handled has increased from 1,291 in 1997 to 23,658 in 2005.
- The proportion of illegal content found to be hosted in UK has fallen from 18% in 1997 to 0.3% in 2005.
- The number of funders has increased from 9 in 1997 to 60 in 2005.
- No Internet Service Provider has ever been prosecuted and the reputation of the ISP community has been greatly enhanced.
- Then Prime Minister Tony Blair described the IWF as “perhaps the world’s best regime for tackling child pornography”.
The problem now for the IWF - and indeed for the other such hotlines around the world - is abroad, more specifically:
- There is a 'notice and take down' procedure for individual images which are both illegal and hosted in UK.
- The IWF compiles a list of newsgroups judged to be advertising illegal material and recommends to members that these newsgroups not be carried. About 250 newsgroups are 'caught' by this policy.
- The IWF compiles a list of newsgroups known regularly to contain illegal material and again recommends to members that these newsgroups not be carried. A small number of additional newsgroups are 'caught' by this policy.
- Most recently and most significantly, ISPs are blocking illegal URLs using the IWF's child abuse image content (CAIC) database and using technologies like BT’s Cleanfeed. The number of URLs on this list - which is up-dated twice a day - is between 800-1200.
In early 2005, a study by the International Centre for Missing and Exploited Children (ICMEC) in the United States found that possession of child abuse material is not a crime in 138 countries and, in 122 countries, there is no law dealing with the use of computers and the Internet as a means of distribution of child abuse images [for more information on this report click here]. So the UK needs the cooperation of other governments, law enforcement agencies and major industry players if we are to combat and reduce the availability of child abuse images in this country and around the world.
- United States - the source of 40% of illegal reports in 2005
- Russia - the source of 28% of illegal reports in 2005
- Thailand, China, Japan & South Korea - the source of 17% of illegal reports in 2005
Since the IWF's remit is illegal material, there are some possible areas of the law which might be amended in terms which would suggest a minor extension to the IWF's existing remit, specifically:
However, the IWF has absolutely no intention or wish to engage in harmful or offensive content, so the proposals that now follow are my personal suggestions for discussion and debate.
- The proposed new law on possession of extreme adult pornographic material
- The proposed new law on incitement to religious hatred
- A possible review of the law on incitement to racial hatred
- A possible review of the law on protection of minors in relation to adult pornographic material
- A possible review of the law on the test of obscenity in relation to adult pornographic material
REGULATING HARMFUL CONTENT
It is my view that currently there is Internet content that is not illegal in UK law but would be regarded as harmful by most people. It is my contention that the industry needs to tackle such harmful content if it is to be credible in then insisting that users effectively have to protect themselves from content which, however offensive, is not illegal or harmful. Clearly it is for Government and Parliament to define illegal content. But how one would define harmful content?
I offer the following definition for discussion and debate: “Content the creation of which or the viewing of which involves or is likely to cause actual physical or possible psychological harm.”
Examples of material likely to be ‘caught’ by such a definition would be incitement to racial hatred or acts of violence and promotion of anorexia, bulimia or suicide.
Often when I introduce such a notion into the debate on Internet regulation, I am challenged by the question: How can you draw the line? My immediate response is that, in this country (as in most others), people are drawing the line every day in relation to whether and, if so how and when, one can hear, see, or read various forms of content, whether it be radio, television, films, videos & DVDs, newspapers & magazines. Sometimes the same material is subject to different rules - for instance, something unacceptable for broadcast at 8 pm might well be permissable at 10 pm or a film which is unacceptable for an '18' certificate in the cinema might receive a 'R18' classification in a video shop.
Therefore I propose in relation to Internet content that we consult bodies which already make judgements on content about creation of an appropriate panel. Such bodies would include the Ofcom Content Board [click here], the BBC [click here], the Association for Television On Demand (ATVOD) [click here], the British Board for Film Classification (BBFC) [click here], and the Independent Mobile Classification Body (ICMB) [click here]. I would suggest that we then create an independent panel of individuals with expertise in physical and psychological health who would draw up an agreed definition of harmful content and be available to judge whether material referred to them did or did not fall within this definition.
What would one do about such harmful content?
- There should be no requirement on ISPs to monitor proactively content to which they are providing access to determine whether it is harmful.
- Reports of suspected material from the public should be submitted to a defined body.
- This body should immediately refer this material to the independent panel which would make a judgement and a recommendation as to whether it was in fact harmful.
- A database of sites judged to be harmful should be maintained by the defined body.
- ISPs should be invited to block access to such sites on a voluntary basis.
REGULATING OFFENSIVE CONTENT
Once we have effective regimes for illegal and harmful content respectively, one has to consider that material which is offensive - sometimes grossly offensive - to certain users of the Internet. This is content which some users would rather not access or would rather that their children not access.
Now identification of content as offensive is subjective and reflects the values of the user who must therefore exercise some responsibility for controlling access. The judgement of a religious household would probably be different from that of a secular household. The judgement of a household with children would probably be different from that of one with no chidren. The judgement of what a 12 year old could access might well be different from what it would be appropriate for an 8 year old to view. Tolerance of sexual images might be different to those of violent images.
It is my view that, once we have proper arrangements for handling illegal and harmful content, it is reasonable and right for government and industry to argue that end users themselves have to exercise control in relation to material that they find offensive BUT we should inform users of the techniques and the tools that they can use to exercise such control. What are such techniques and tools? They include:
Of course, it would help parents and others with responsibility for children if they could buy a PC with filtering software pre-installed and set at the maximum level of safety and if the default setting for all web browsers was a child-safe mode. Then adult users of such hardware and software would have the opportunity, when they wished, to to switch to a less filtered or completely open mode.
- Labelling of material through systems such as that of the Internet Content Rating Association (ICRA) [click here] - The ICRA descriptors were determined through a process of international consultation to establish a content labelling system that gives consistency across different cultures and languages.
- Rating systems drawn up by third parties such as parents' or childrens' organisations - Whereas labelling should as far as possible be value-free, rating sytems act on those labels to express a value judgement that should be explicit, so that users of the system know what kinds of material are likely to be blocked.
- Filtering software of which there are many different options on the market - The European Commission's Safer Internet Programme has initiated a study aiming at an independent assessment of the filtering software and services. Started in November 2005, the study will be carried out through an annual benchmarking exercise of 30 parental control and spam filtering products or services, which will be repeated over three years.
- Search engine 'preferences' which are unknown to most parents - Google, the most used browser has the word 'preferences' in tiny text to the right of the search box and clicking on this reveals the option of three settings for what is called 'SafeSearch Filtering', yet this facility is vitually a secret to most parents.
- Use of the 'history' tab on the browser which again is unknown to many parents - This is a means for parents to keep a check on where their young children are going in cyberspace, although there has to be some respect for the privacy of children.
- Promotion of education, awareness and media literacy programmes - Section 11 of the Communications Act 2003 provides that Ofcom has a duty to promote media literacy and the Department of Culture, Media & Sports (DCMS) has granted £500,000 a year for this purpose, but a very wide range of organisations have a role to play in the promotion of such programmes.
WHAT ELSE WOULD HELP?
Looking at Internet content generally, what else would help? Let me make a few final suggestions:
In the medium term, we are going to see:
- There should more proactive media comment and debate by spokespersons who can and will speak for the industry as a whole rather than simply for particular companies or products. Too often debates in the media are ill-informed or unbalanced because the industry does not engage as effectively as it could.
- There should be a user-friendly, well-publicised web site offering advice on the full range of Internet content issues. The 'Get Safe Online' initiative [click here] is a useful start here.
- There should be a UK body like the Internet Rights Forum [click here] in France with government, industry and civil society representation. This could discuss problems of Internet content, stimulate wider debate, and make recommendations.
- The Internet Governance Forum (IGF) [click here] set up by the United Nations, following the World Summit on the Information Society in Tunis, should become a genuinely useful focus for global discussion of issues of Internet content.
- a blurring of linear ('push') and non-linear ('pull') material through developments like video on demand (VoD), near VoD, the personal video recorder (PVR), BBC's iPlayer and Internet Protocol Television (IPTV).
- a convergence of broadcasting and the Internet both technologically and commercially.
- more Net users using higher speeds and spending more time and doing more things online.
THE IMPLICATIONS FOR BROADCASTING
If we can determine an acceptable regine for regulating Internet content, this will beg the question of why we regulate broadcasting content so differently. Indeed why do we regulate broadcasting at all?
Historically there have been three reasons:
Therefore it is possible to argue that the historic reasons for regulating broadcasting in the traditional ways are fast disappearing. In these circumstances, one could well argue that broadcasting should not be regulated much differently from how we regulate the Internet or at least how we might regulate the Internet in the manner proposed in this article.
- Broadcasting has used scarce spectrum and, in return for free or 'cheap' spectrum, broadcasters have been expected to meet certain public service broadcasting obligations and this requirement has provided leverage to regulators to exercise quite strong controls on content. BUT: increasingly broadcasting is not done using scarce spectrum; it uses satellite, cable or simply the telephone lines with technologies like ADSL.
- Broadcasting has been seen as having a special social impact because so many people watched the same programme at the same time. BUT: increasingly with multi-channel television and time-shifting devices like the VCR and the PVR, any given broadcast is probably seen by a relatively small proportion of the population.
- Broadcasting has been seen as a 'push' technology over which viewers had little control once they switched on the television set. BUT: increasingly viewers are 'pulling' material through the use of VCRS, PVRs, video on demand, near video on demand, podcasting, and so on.
Therefore regulation of broadcasting would focus on illegal and harmful content, leaving offensive content as a matter essentially for viewers to block if they thought that appropriate for their family. This would suggest a convergence of the regulation of broadcasting and the Internet to a model which, compared to the present situation, would involve a lot less regulation for broadcasting and a bit more regulation for the Internet.
Two issues are crucial here:
- This could not be done overnight. Consumers have strong expectations regarding broadcasting regulation and these expectations would have to be managed through some kind of transitional process.
- We could not simply abandon most broadcasting regulation without empowering viewers to make informed choices by provision of proper tools and better media literacy.
Let me attempt to summarize this presentation and my recommendations:
If we do not have a rational debate on the regulation of the Internet and come up with practical and effective proposals, then many of the one-third of UK homes that are still not on the Internet will be deterred from doing so, many of those who are on the Net will be reluctant to use it as extensively and confidently as they should, and we run the risk that scare campaigns will be whipped up around particularly harmful or offensive content, tempting politicians and regulators to intervene in ways that the industry would probably find unhelpful.
- The Internet cannot – and should not – be regulated like ‘old’ media.
- However, more can and should be done, especially in relation to harmful content.
- New initiatives should be low-cost, practical and promoted on a voluntary basis.
- Most problematic Internet content is not illegal or harmful and users must take appropriate responsibility while being advised on tools and techniques.
- Over time, we should regulate broadcasting and the Internet in a less differentiated manner.
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