WHAT IS THE CASE FOR SOME FORM OF REGULATION?
1. The Internet is now open to everybody.
In its original form, use of the Internet was confined to the American military establishment; then it was broadened to the American academic community; next it grew to academic communities in other industrialised countries; now the Internet has users in every country in every age group. There probably were some rules on use of the Internet before it went ‘public’, but certainly there was no formalised regulation and neither was any needed. However, today the Internet can be accessed by a young child from the privacy of her bedroom at any time of the day or night. In these circumstances, we must have some procedures for tackling illegal content on the Internet and some mechanisms for allowing end user control of what is accessed on the Internet.
2. The Internet is no different from other electronic networks.
Stripped of all the mystery and mystique, the Internet is an electronic delivery mechanism for messages and information. In that sense, it is not fundamentally different from other electronic communications networks such as radio, television and telecommunications. These other networks are regulated and so should the Internet. Of course broadcasting and telecommunications are the subject of very different regulatory regimes and similarly the Internet will need its own distinctive system of regulation.
3. There is harmful content on the Internet.
The major problem here is child pornography and sexual solicitation of children. While web sites and newsgroups featuring child pornography may be a tiny proportion of the total, nevertheless this material does exist in volume. In most cases, the production of this material has involved child abuse; in many cases, the users of such material are interested in, and may well have indulged in, child abuse. As for sexual solicitation, many groups involved with the welfare of children have considerable case material of paedophiles using the Net to make contact with, and arrange meetings with, minors with a view to molestation. We cannot simply accept this as the price for freedom of expression. In most countries, mere possession of child pornography is a criminal offence whether this occurs off-line or on-line.
4. There is offensive content on the Internet.
There is a massive amount of pornography of all kinds on the Internet. Many children on-line have come across web sites that upset or embarassed them. Also there are some sites which propagate extremist views, often of a racist nature. While almost all of this is legal and a free society should permit access to such material, many Internet users – especially parents, teachers and those with responsibility for children – will want to place some limitation on access to such material. The most practical way to do this is by using filtering software which in turn is assisted in operation by rating or labelling of sites or content. In some eyes, this will be seen as a form of regulation or control or even censorship, but the essential point to emphasize is that rating and filtering techniques provide end users with personal choice as to the content to which they limit or control access.
5. There is criminal activity on the Internet.
The Internet is a powerful force for disseminating information and conducting commerce but, like every other human endeavour, some people use it for a wide range of nefarious activity, much of which is illegal in most jurisdictions. Such activity includes copyright theft, credit card fraud, financial scams, money laundering, hacking, industrial espionage, cyber terrorism, actual terrorism, bomb making instructions, prostitution, certain forms of gambling, drug use, drug smuggling, suicide assistance, defamatory allegations, cyber stalking. Again society is entitled to protect itself by enforcing the criminal law in relation to on-line activity just as rigorously as it would if similar activity occurred off-line and, in a sense, this means regulation of the Internet.
6. Most users want some form of control or regulation.
Most governments, politicians, and Internet service providers all favour some form of regulation of the Internet. In taking this view, it is clear that they are reflecting the wishes of consumer groups and users themselves.
WHAT IS THE CASE AGAINST ANY REGULATION?
1. Freedom of expression should be an absolute right.
It is argued that any system of controls on the content of the Internet represents a breach of the individual’s right to freedom of expression and that such a right is absolute and cannot be qualified without irreparable damage to civil liberty in a free society.
All rights have to be qualified because absolute rights threaten other rights. An unrestricted right to freedom of expression would threaten the right of children to be free from abuse or molestation and the right of ethnic minorities to live their lives free of racial intimation and violence.
2. The Internet is different in kind from other communications networks.
It is argued that the genesis of the Internet was such that it embraced and fostered a new spirit of freedom, openness and experimentation and that these values must remain an integral feature of the Internet. This view was neatly encapsulated in the "Declaration of the Independence of Cyberspace" published by John Perry Barlow [see note 1].
At best, this view is simply romantic. The Internet is now a fundamentally different operation than the days before the arrival of the Web and mass usage of the medium. Now some literally billions of users are accessing some tens of billions of web sites and, in these circumstances, there is content and there are activities that require some form of regulation.
At worst, this view is anti-commercial and reflects resentment that ‘our’ Internet has been ‘taken over’ by the wicked corporations [for examples, see note 2]. Of course, the reality is that the overwhelming bulk of the Internet’s infrastructure is now owned and operated by private corporations and there is an explosive demand for e-commerce services.
3. The Internet is different in operation from other communications networks.
It is argued that there is no need to regulate the Internet because use of it is quite different from other communications networks. Whereas radio and television is pumped into millions of homes simultaneously (push technology), the Internet is an interactive medium and requires a particular user actively to seek a particular site or application (pull technology).
In fact, this difference in operation of the Internet is an argument for some regulation not an argument against any regulation. Precisely because radio and television are mass media, there are limits to the amount of sex and violence (for instance) that will be permitted and a parent can be reasonably sure that before mid evening there will be no ‘adult’ material broadcast. By contrast, anybody anywhere anytime can access a web site, including a young child in the privacy of a study or bedroom in the morning or afternoon. It is not enough to assert that harmful or offensive content will only be seen if one actively seeks it – at different times and in different configurations, quite innocent words like “underground”, “overground”, “white house” and “spice girls” have led to pornographic sites.
4. The Internet cannot be regulated because it is so large and so global.
It is argued that, quite unlike other communications networks, the Internet is simply enormous, growing rapidly and genuinely global and that, in these circumstances, even if one wanted to, it is just not possible to regulate the Internet. As progammer John Gilmore famously put it: "The Internet interprets censorship as damage and routes around it".
This is not an argument as to why regulation is undesirable but one as to why it is difficult and the fact that something is difficult does not mean that it should not be done. What is clear, however, is that any regulation of the Internet has to be multi-faceted, culturally sensitive, and globally co-ordinated.
5. ‘Notice and take down’ procedures are over zealous.
It is argued that the ‘notice and take down’ procedures which are a feature of regulation of the Internet in a growing number of countries are over-restrictive and lead to Internet service providers ‘playing safe’ and excluding content which is clearly not criminal but simply offensive to a particular section of the local community.
There is little hard fact to support this view. Bodies like the Internet Watch Foundation in the UK [click here] have been very careful to act only where there is clear evidence of criminal activity, almost invariably involving child abuse images. If, in some countries, there has been excessive zeal, then it is right that these regimes should be the subject of public debate and review.
6. Rating and filtering techniques are very imperfect.
It is argued that rating procedures and filtering software are crude in operation and that therefore they often exclude access to sites which it would be proper and even advantageous to see such as those on sex education.
Many of the stories about such exclusions are either old or apocryphal. Filtering software is becoming much more sophisticated and sensitive to context. Nevertheless it is true that the number of sites rated or labelled is a small proportion of the total and that filtering software is not perfect. This is why we should be promoting the rating of more sites and improvements in filtering software. It is also an argument for not over-relying on such approaches – there is no substitute for responsible parenting and teaching.
7. Parents and teachers, not regulators, should protect children.
It is argued that it is not the role of an overburdening state – either directly or through regulators – to control or limit content on the Internet. If children need protection, then those responsible for them at the time – parents, teachers, guardians, supervisors – should control what they access on the Internet.
It is simply not possible for those responsible for children to exercise this kind of over-arching control. In the context of homes, PCs – or, increasingly other Internet access devices like game consoles or mobile phones – are not always in the living room but often in a bedroom or study and, in any event, a parent cannot be expected to stand over the child at all times. In the context of schools, a teacher may have up to 30 children using computers at the same time and again cannot be monitoring the usage by every child on a continuous basis. Therefore, while parents and teachers must exercise responsibility, they should be assisted by other approaches including the taking down of sites with criminal content and the filtering of sites with offensive or inappropriate content.
WHAT ARE THE VARIOUS FORMS OF REGULATION?
If one accepts the proposition that it is wrong or inappropriate for anyone – however young or vulnerable - to be able to access anything – however illegal or offensive – on the Internet, then one has to consider how one should regulate – in the broadest sense of the word – the Internet.
Fundamentally, there are five basic approaches, but these are by no means mutually exclusive and different countries are giving different emphases to different approaches.
1. The constitutional approach
This approach makes the constitution of the country the prime determinant of what is ‘acceptable’ on the Internet. Classically this has come to be the USA’s approach as efforts to enact relevant legislation have fallen foul of the constitution, in particular the First Amendment on freedom of expression. For more information on this conflict between Congressional legislation and the American constitution, see my article on “Sex On The Net” [click here].
2. The state control approach
This approach is adopted by governments which believe that they have a right - and even a responsibility - to intervene directly and place technical controls on the content that can be accessed by their citizens. A classic case is Saudi Arabia where all of the country's Internet service providers have to go through a central node where the Saudi authorities block access to sites hosting pornography, those believed to cause religious offence, and web sites containing information on bomb-making. In China, all Internet cafes are required to keep records of sites visited, with the aim of preventing access to sites featuring pornography, gambling and those that "harm national unification, sovereignty and teritorial integrity". Prior to an important congress of the Chinese Communist Party in November 2002, the authorities even blocked all access to the Google search engine for a time. Other countries where the state is endeavouring to limit access to the Internet by its citizens include Algeria, Yemen, Bahrain, United Arab Emirates, North Korea, Vietnam, Iran, the Maldives and Singapore.
Internet Society of China click here
Amnesty International on China & the Internet click here
3. The statutory approach
This approach makes a specific piece of new legislation the prime determinant of what is ‘acceptable’ on the Internet. Classically this is the approach in Australia where the Broadcasting Services Amendment (Online Services) Act 1999 regulates online content. This Act requires Australian Internet service providers to prohibit access to or remove from their web sites material rated X or RC. The Act came into force in January 2000. For more information on the Australian model, see the briefing of the Communications Law Centre [click here] and the official report on the first six months of operation [click here].
4. The self-regulation approach
This approach rests on voluntary initiatives by the Internet service provider (ISP) industry. Classically this is the approach in Britain where there is no written constitution and government has shown no wish to legislate. Instead in 1996, the ISP industry established the Internet Watch Foundation which operates a ‘notice and take down’ procedure. For more information on the role of the IWF, see the explanation elsewhere on this site [click here].
5. Rating and filtering techniques
Finally, as well as or instead of any of the previously-mentioned approaches, Internet users – perhaps most especially parents and teachers – can use filtering software which – alone or in conjunction with the self-rating of sites – can limit access by particular users to particular parts of the Internet. For more information on this, see my article on “Rating And Filtering Of The Net” [click here].
My personal position is totally opposed to all forms of state blocking of generic categories of material on the Internet. I am most uncomfortable with the use of a constitution or statute to regulate such a fast-moving and complex medium as the Internet. My strong preference is for co-regulation by industry bodies with government support plus - in the case of children on the Net - the appropriate use of filtering software supported by adult supervision and more public awareness. Also I believe that there is considerable potential for resolving certain problems of Internet content - especially civil issues like defamatory libel and copyright infringement - using on-line mediation and arbitration procedues.
WHAT IS THE LIABILITY OF INTERNET SERVICE PROVIDERS?
Sooner or later, in any discussion of Internet regulation, understandably the issue arises of the liability of Internet service providers (ISPs). To what extent should ISPs be liable for hosting child pornography or racist content or material which is libellous or material which is in breach of copyright?
One view is that ISPs should have no liability. According to this view, ISPs are simply common carriers like the postal or telecommunications service and therefore should have no liability for the material which they carry. This view is nonsense. A letter or a telephone call is a private communication, whereas a web site or a newsgroup is accessible to a couple of billion Internet users world-wide.
Another view is that ISPs should have strict liability. According to this view, ISPs are publishers like newspapers or magazines or broadcasters and should be held fully responsible for any material which they host or, in effect, publish. This is equal nonsense. The sheer number of web sites and blogs and the frequency with which new material is being added to them mean there is no way that ISPs can know the detailed content of all the material and services which they are hosting or institute processes for checking content before it becomes accessible. For instance, You Tube has more than 20 hours of video uploaded every minute worldwide.
A position in between these two views holds that, while it is unrealistic and impractical to make ISPs liable in advance for all the material they host, once an ISP has been given notice of material of doubtful legality, then there is a liability on that ISP. If the ISP removes the offending material within a reasonable period of time of the notice being received, then generally one would not expect a court to convict, even if the material in question was subsequently found to be illegal.
In effect, this is a 'notice and take down' procedure. In the UK, since late 1996 a procedure of this kind has worked effectively in the case of child abuse images through the institutional arrangements of the Internet Watch Foundation [for further details of the IWF click here]. However, not all countries operate such a procedure in relation to child pornography. In the UK, efforts are now being made to operate this kind of procedure for criminally racist content [for further details click here] and it is possible that arrangements will be extended to material judged to incite religous hatred, but there is no publicly agreed process for handling allegations of defamatory libel or copyright infringements.
Of course, concern about liability can be used to scare individuals or companies into removing material which is perfectly legal but objectionable to someone who perhaps is being criticised or challenged via the Internet. In the USA, the Electronic Frontier Foundation and certain law schools have joined together to run a web site warning against the "chilling effects" of unreasonable recourse to 'cease and desist' letters.
Link: Chilling Effects click here
The legal liability of ISPs is now being tested in the courts:
Link: Demon case click here
The other major issue around liability is what jurisdictional authority is appropriate to a world-wide medium like the Internet. Generally speaking, the view has been taken that the appropriate authority is that of the country in which in the server hosting the material is geographically located.
The political problem here is that, currently at least, the majority of web sites are hosted in the USA where the First Amendment to the US Constitution provides a protection for freedom of speech greater than that provided, or thought appropriate, by many other countries.
Against this background, there have been some legal efforts to apply the laws of one country to material hosted in another:
Note: In January 2001, 'voluntarily' Yahoo! announced that it had decided not to permit the sale of such Nazi-related items on its American site.[For thoughts on the Yahoo! case click here.]
In the future, this issue of geographical jurisdiction may become even more complicated if servers are located on ships or aircraft or satellites where national laws do not apply. Indeed this is already becoming an issue: Roy Bates owns a sea defence fort called Sealand, which is six miles off the English coast at Felistowe, and this is home to Web servers intended to offer data storage free from US and UK law [click here].
Even more challenging are network typologies which are in contrast to the classic client/server network such as peer-to-peer (P2P) systems where each computer acts as a server to all the others on a network, obviating the need for a central server. Examples of such systems are Freenet [click here] and Gnutella [click here].
Last modified on 25 February 2010
A Declaration of the Independence of Cyberspace
"Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.
We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.
Governments derive their just powers from the consent of the governed. You have neither solicited nor received ours. We did not invite you. You do not know us, nor do you know our world. Cyberspace does not lie within your borders. Do not think that you can build it, as though it were a public construction project. You cannot. It is an act of nature and it grows itself through our collective actions.
You have not engaged in our great and gathering conversation, nor did you create the wealth of our marketplaces. You do not know our culture, our ethics, or the unwritten codes that already provide our society more order than could be obtained by any of your impositions.
You claim there are problems among us that you need to solve. You use this claim as an excuse to invade our precincts. Many of these problems don't exist. Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract . This governance will arise according to the conditions of our world, not yours. Our world is different.
Cyberspace consists of transactions, relationships, and thought itself, arrayed like a standing wave in the web of our communications. Ours is a world that is both everywhere and nowhere, but it is not where bodies live.
We are creating a world that all may enter without privilege or prejudice accorded by race, economic power, military force, or station of birth.
We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity.
Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are based on matter, There is no matter here.
Our identities have no bodies, so, unlike you, we cannot obtain order by physical coercion. We believe that from ethics, enlightened self-interest, and the commonweal, our governance will emerge . Our identities may be distributed across many of your jurisdictions. The only law that all our constituent cultures would generally recognize is the Golden Rule. We hope we will be able to build our particular solutions on that basis. But we cannot accept the solutions you are attempting to impose.
In the United States, you have today created a law, the Telecommunications Reform Act, which repudiates your own Constitution and insults the dreams of Jefferson, Washington, Mill, Madison, DeToqueville, and Brandeis. These dreams must now be born anew in us.
You are terrified of your own children, since they are natives in a world where you will always be immigrants. Because you fear them, you entrust your bureaucracies with the parental responsibilities you are too cowardly to confront yourselves. In our world, all the sentiments and expressions of humanity, from the debasing to the angelic, are parts of a seamless whole, the global conversation of bits. We cannot separate the air that chokes from the air upon which wings beat.
In China, Germany, France, Russia, Singapore, Italy and the United States, you are trying to ward off the virus of liberty by erecting guard posts at the frontiers of Cyberspace. These may keep out the contagion for a small time, but they will not work in a world that will soon be blanketed in bit-bearing media.
Your increasingly obsolete information industries would perpetuate themselves by proposing laws, in America and elsewhere, that claim to own speech itself throughout the world. These laws would declare ideas to be another industrial product, no more noble than pig iron. In our world, whatever the human mind may create can be reproduced and distributed infinitely at no cost. The global conveyance of thought no longer requires your factories to accomplish.
These increasingly hostile and colonial measures place us in the same position as those previous lovers of freedom and self-determination who had to reject the authorities of distant, uninformed powers. We must declare our virtual selves immune to your sovereignty, even as we continue to consent to your rule over our bodies. We will spread ourselves across the Planet so that no one can arrest our thoughts.
We will create a civilization of the Mind in Cyberspace. May it be more humane and fair than the world your governments have made before".
John Perry Barlow
February 8, 1996
"The Internet changed the way people thought about media and power. The Net didn't seem like a particularly safe place - but since when are revolutions safe? The introduction of business to the Internet changed all that. Corporate behemoths ignored the indigenous Net population as they colonised our space".
Douglas Rushkoff, professor of media theory at New York University, in the "Guardian" of 14 February 2000
"The Internet existed long before most of these smart-ass entrepreneurs were born. It was never designed to be used for commerce or trade. It was created as a resilient, open communications network and functioned perfectly as such for nearly 20 years. For those of us who like communicating with our peers, sharing information and helping one another , it's long been the best thing since sliced bread. Then suddenly a horde of gold-diggers backed by slavering venture capitalists arrive on the scene and begin throwing their weight around".
John Naughton, in his column "The Networker", in the "Observer" of 20 February 2000
"..I resent the way business has taken over the Internet. Since 1994, when the international research communications infrastructure was officially opened to business, I've critiqued what has appeared to me to be a degradation of the content, spirit and mission of the interactive space".
"..big business does not belong online, will not really make any money, and should leave us all alone to play and interact in our publicy-owned, civil-minded datasphere".
Douglas Rushkoff, professor of media theory at New York University, in the "Guardian" of 24 August 2000
Note that this is not the view of the inventor of the World Wide Web:
"Certain people felt that commercially motivated material polluted the Web. I had little time for this point of view. The Web was designed as a universal medium".
Tim Berners-Lee in his book "Weaving The Web" (1999)
The following commentary on the Felix Somm case is from Prof. Dr. Ulrich Sibier who was a member of Somm’s defence team:
Moving Forward into the New Millennium - A New Culture of Responsibility on the Internet
"On the eve of the new millennium, the German judiciary has disposed of another explosive waste product. On 17th November 1999, the Munich Regional Court I (20th Criminal Division) acquitted in appeal proceedings the former managing director of the German CompuServe GmbH of the charge of distribution of child pornographic material. This judgment led not only to the long overdue rehabilitation of one of the pioneers of the German online industry, who had been burdened over a period of years with the accusation of distributing child pornographic material, even though he was a committed champion in the fight against pornography on the Internet. With this acquittal, the criminal justice system also removed the relationship of tension between itself and the Internet industry, which in recent years was impeding an effective fight against crime on the Internet.
The “CompuServe Case” can be regarded at the outset - in the true style of a play - as a combination of human acts, which commenced most unfortunately but which were in the end capable of being turned around to produce some good. Under this analogy the first act was the criminal preliminary investigation proceedings with the leading role being played by a state prosecutor characterized by a poor handling of the files, a negligent gathering of evidence, suppression of exonerating matter and perhaps even political obedience in what was an election period.
The second act, marked by the conviction at first instance, was characterized by a district court judge leading a missionary crusade against child pornography on the Internet, one who wasn’t capable of learning, who high-handedly rejected motions to hear evidence and - as illustrated in Multimedia und Recht 1998, p. 438 et seq - who produced an astonishing stringing together of factual and legal mistakes. Since even the case representative from the state prosecution realised the mistake of the original indictment and requested an acquittal, this “dangerous coup by a district court judge” (as described by Martin Huff in the Frankfurter Allgemeiner Zeitung, 4th June 1998) provided the excitement of a good crime story that exposed the astonished public to the helplessness of the accused in Kafka’s “Der Proze?” during the one and a half year wait until the appeal proceedings.
With this in mind, the third act of acquittal at appeal proceedings, of which advance notice had already been given in corresponding motions by the state prosecution, is not so much the result of a committed defence team, but of a state prosecution which is independent in the best of senses and of a judge who possessed the ability to read, listen, call on expert witnesses and learn. The case thereby transformed itself - not only with respect to the accused, but also with respect to that part of the Internet which could be classed “German” - from a Greek tragedy to a happy end. The initial mistakes were overcome, truth conquered and the value inherent in any legal proceeding subject to the rule of law with the right to request motions to hear evidence and appeal procedures was impressively confirmed.Upon closer analysis, however, there was more at stake in the present case.
The reason for attempting to convict Felix Somm was not what some case commentators called the Bavarian electioneering campaign, but rather the lacking acceptance of the fact, even in our society today, that the Internet cannot be controlled on the national level. The original indictment and the conviction at first instance in the “CompuServe Case” can be seen as the attempt of our society to suppress the feeling of unconsciousness of the national state within the global Internet, manifested in the conviction of a national hostage - in the shape of Felix Somm - who according to the indictment should have filtered out criminal contents originating in the USA and reaching German Internet users.
This helps explain the approval which the proceedings and the first instance judgment received among certain superficial observers of the case. However, the expert witnesses involved in the regional court proceedings clearly confirmed that such filtering solutions are not possible in the cases of Internet access and network providers and that the legislative decision taken in ?5 subs. 3 Teleservices Act is correct, under which Internet access providers in particular are not criminally responsible for the transferred data (cf. for more detail Sieber,Verantwortlichkeit im Internet 1999). The acquittal of Felix Somm therefore - going beyond the individual aspect of rehabilitation of the accused - furthermore shows clearly the failure of national solutions intended to protect the German part of the Internet with a virtual wall against harmful contents from abroad. In this aspect lies the general importance of the case, which caused a sensation worldwide.
The obvious failure of national blocking strategies should not,however, be understood as a capitulation of Internet law. Rather it offers us the opportunity to henceforth pursue effective measures instead of absurd alibi solutions. To this end, three aspects are of particular importance.
As a result, the acquittal of Felix Somm means not only the rehabilitation of an innocent citizen who was made a national hostage in the international Internet. Rather the case must also be seen as an opportunity to abandon absurd alibi solutions and replace the unnecessary confrontation between law enforcement and the Internet industry with an effective co-operation. The solutions of the next millennium demand internationalisation, co-operation and an increased responsibility on the part of the citizen. The point in issue - reduced to its basics - is the need to develop a new culture of responsibility for the new Millennium".
Prof. Dr. Ulrich Sieber is Ordinarius in the Professorial Chair for Criminal Law, Criminal Procedural Law, Information Law and Legal Informatics at the University of Wurzburg. He is author of the recently published book “Verantwortlichkeit im Internet” (C.H. Beck Verlag, Munich 1999) and was part of the defence team for Felix Somm.