Essay preview
Internet challenges the right to freedom of expression. On the one hand, Internet empowers freedom of expression by providing individuals with new means of expressions. On the other hand, the free flow of information has raised the call for content regulation, not least to restrict minors’ access to potentially harmful information. This schism has led to legal attempts to regulate content and to new selfregulatory schemes implemented by private parties. The attempts to regulate content raise the question of how to define Internet in terms of “public sphere” and accordingly protect online rights of expression. The dissertation will argue that Internet has strong public sphere elements, and should receive the same level of protection, which has been given to rights of expression in the physical world. Regarding the tendency towards selfregulation, the dissertation will point to the problem of having private parties manage a public sphere, hence regulate according to commercial codes of consumer demand rather than the principles inherent in the rights of expressions, such as the right of every minority to voice her opinion. The dissertation will conclude, that the time has come for states to take on their responsibility and strengthen the protection of freedom of expression on Internet.
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Table of Contents
1. Introduction .................................................................................................................. 4 1.1. Point of departure .................................................................................................. 4 1.2. Aim of dissertation................................................................................................. 6 System, lifeworld and Internet .......................................................................................... 7 2.1. The concepts of system and lifeworld ........................................................................ 7 2.2. Internet as lifeworld ............................................................................................... 9 2.3. Internet as system ................................................................................................ 14 Internet as a new communicative sphere ........................................................................... 20 3.1. Functional characteristics of Internet ....................................................................... 21 3.2. Internet and other types of media ............................................................................ 23 3.3. Internet as public sphere........................................................................................ 26 3.4. Access to Internet ................................................................................................ 30 3.5. State protection ................................................................................................... 31 Freedom of expression .................................................................................................. 33 4.1. Legal point of departure ........................................................................................ 33 4.2. Freedoms protected .............................................................................................. 35 4.3. Admissible restrictions.......................................................................................... 39 4.4. Political statements .............................................................................................. 42 Cases ........................................................................................................................ 45 5.1. State regulatory cases ........................................................................................... 45 5.1.1. Public space and cyberspace .......................................................................... 48 5.1.2. Internet as media ......................................................................................... 51 5.1.3. Right to express opinions .............................................................................. 53 5.1.4. Margin of appreciation ................................................................................. 56 5.1.5. Necessity test .............................................................................................. 57 5.1.6. Right to receive information........................................................................... 58 5.2. Self-regulatory cases ............................................................................................ 62 Discussion .................................................................................................................. 67 6.1. Level of protection ............................................................................................... 67 6.2. Internet and mass media ........................................................................................ 69 6.3. Filters and the right to receive information ................................................................ 70 6.4. Online decency and moral standards ........................................................................ 74 6.5. Regulation of cyber assemblies ............................................................................... 76 6.6. Regulation of access ............................................................................................. 77 6.7. Positive state obligation ........................................................................................ 78 Conclusion ................................................................................................................. 79
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1. Introduction
1.1. Point of departure In his 1998 report to the U.N. Commission on Human Rights, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression outlined the case against government regulation of Internet access and content as follows: "The new technologies and, in particular, the Internet, are inherently democratic, provide the public and individuals with access to information and sources and enable all to participate actively in the communication process. The Special Rapporteur also believes that action by States to impose excessive regulations on the use of these technologies and, again particularly the Internet, on the grounds that control, regulation and denial of access are necessary to preserve the moral fabric and cultural identity of societies is paternalistic. These regulations presume to protect people from themselves and as such, are inherently incompatible with the principles of the worth and dignity of each individual" (E/CN.4//1998/40:IIC4). In 1999 a consortium of executives from the main media and information technology industries established “The Global Business Dialogue”. The consortium points to the inconsistent international regulation in cyberspace and argues that parliaments are challenging them to develop effective self-regulatory mechanisms. One of the areas, which the consortium addresses, is content regulation, led by Walt Disney. In December 2000 the United States Congress passed the Children’s Internet Protection Act, which requires schools and libraries to install "technology protection measures" to shield minors from adult content. Two coalitions of US civil liberties groups, library associations, websites and individual library patrons will now challenge the federal law that mandates the use of filtering software in schools and libraries receiving federal grants for computers or Internet access. In January 2001 a Danish public library announced that it had made filtering mandatory on its public computers, in order to block access to pornography and other indecent material for both adults and minors. The library announced that pornography is not
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information according to the library’s definition of information and therefore is not protected as such. In January 2000 an executive from the Danish web portal Jubii.dk described how Jubii automatically, and without notifying their users, changes indecent expressions in their chat rooms in order to facilitate a more decent online environment. * Internet challenges the right to freedom of expression safeguarded in the international human rights treaties. On the one hand, Internet empowers freedom of expression by providing individuals with new means of imparting and seeking information. On the other hand, the free flow of information has raised the call for content regulation, not least to restrict minors’ access to potentially harmful information. In the US the call for state intervention has so far led to the US Communication Decency Act in 1996, the Children’s Online Protection Act in 1998, and the Children’s Internet Protection Act in 2000. On the European level, governments have not sought to the same degree to regulate potentially harmful content by legislation, but are increasingly encouraging private parties, such as Internet Service Providers, to selfregulate. The legal attempts to regulate content on Internet raises the question of how to define Internet in terms of public sphere and accordingly balance the online rights of expression against the restrictions necessary in a democratic society. In other words, which level of protection should be provided for the communicative sphere of cyberspace? Also, the tendency towards private parties’ self-regulation raises some interesting issues from a human rights perspective. Freedom of expression is a protection of individuals’ right to voice opinions and to receive information without state interference. This freedom builds on the presumption that the public sphere is managed, or at least supervised, by the state. However, on Internet, the public sphere is neither managed nor supervised by the state, but by private parties whom increasingly self-regulate in order 5
to secure a “safe” online environment. This raises the question of positive state obligations; specifically how to secure freedom of expression in a public sphere managed by private parties? 1.2. Aim of dissertation The dissertation will try to give an answer to these two questions, thereby making a contribution to the political and legal zone of ambiguity, which currently characterises the protection of online freedom of expression. In doing so, the dissertation will explore: • • • • • How the communicative sphere of Internet can be understood in terms of public versus private sphere. How the characteristic features of Internet differ from other media types. Which level of protection the right to freedom of expression provides for. The legal and political space so far defined for regulating online expressions and information retrieval, including self-regulatory tendencies. The need for further legal or political action.
For the theoretical basis, the dissertation will draw on Habermas’ description of modernity as consisting of system and lifeworld. The theory will be used as a framework for discussing the evolution of Internet from the first lifeworld oriented vision to today’s reality, which is a penetrated sphere of private entities, regulation and commercialisation. In assessing Internet as a new communicative sphere, the focus will be on Internet’s functional characteristics and how it resembles and differs from other media. The concept of system and lifeworld will further be used to discuss Internet in terms of public versus private sphere. As a legal basis, the dissertation will use Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the related case law of the European Court. The level of protection provided for by the right to freedom of expression will be discussed by examining the scope of application of Article 10. The legal assessment will include some current policy tendencies in the field of freedom of expression and Internet. 6
In order to define the legal and political space so far defined for online content regulation, some recent cases will be examined. The cases will primarily deal with two types of content regulation, namely state legislative measures and self-regulatory schemes. The final part of the dissertation will discuss the level of protection that should be provided for online expressions, including the issue of positive state obligations in order to protect freedom of expression in a communicative sphere managed by private parties.
2. System, lifeworld and Internet
The chapter will introduce Habermas’ theory of modernity, and use the concepts of system and lifeworld as a theoretical framework for discussing the evolution of Internet from the first lifeworld oriented vision to today’s reality of system penetration. 2.1. The concepts of system and lifeworld The concepts of system and lifeworld are central in Habermas’ analysis of modernity, where they represent two different forms of action spheres: a lifeworld with communicative actions oriented to reaching understanding; and a system with instrumental/strategic actions oriented to success (Habermas 1991:258). Lifeworld represents individuals’ natural worldview and functions as the basis for their communicative actions. The lifeworld consists of three components: culture, society and personality, which represent a coherent resource that functions as a background for individuals’ adjustment to the surrounding society. The cultural aspect is referring to the cultural heritage and language. The society aspect is referring to the social norms and rules for how to behave in society and is, as such, helping to ensure that social integration can pass relatively unproblematic. The personality aspect is referring to the individual capacities learned during the socialisation process (Habermas 1992:138). An important function for the lifeworld is to serve as “home” for communicative actions. As the lifeworld represents the cultural and linguistic horizon of meaning, it gets a context creating as well as a constitutive function. As context, the lifeworld 7
functions as an implicit horizon, which individuals’ draw upon when communicating. Its constitutive function is related to the fact that individuals are captured in the structure and worldview of their language, which accordingly constitute how they perceive the world. According to Habermas, it is through communicative actions that individuals reproduce the lifeworld, specifically maintain and develop culture and language. Closely connected to communicative actions is the concept of public sphere and public opinion. According to Habermas, events and occasions are public when they, in contrast to closed or exclusive affairs, are open to all, in the same sense as we speak of public places or public houses (Habermas 1989:1). The public sphere appears as a specific domain, the public domain versus the private, where communicative action can flourish and form public opinion (Ibid:2). It is through communicative actions in the public sphere that lifeworld gains its potential for opposing the system, by fostering the public’s role as a critical judge (Ibid). Whereas lifeworld is symbolic in its nature, the system is material. The system represents societies economic-administrative apparatus, which is not reproduced through communicative action but through money and power. The system is a norm free social sphere, where subsystems (economic and political) are regulated by anonymous and language free media1. Since these media are not based on communicative actions (where you need to present arguments) they allow for much faster and more effective interactions. Habermas uses the concepts of system and lifeworld to characterise modern societies with two main tendencies. On the one hand, a growing complexity where still more interactions are mediated by the system’s media (money and power) and where still more subsystems are created to deal with this complexity. On the other hand, an increasing uncoupling of system and lifeworld – that is social integration and system integration. Habermas is concerned about this development because the system increasingly gets disconnected from norms and values, in which it should be anchored
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Media simulate some of the features of language, for instance the structure of raising and redeeming claims, whereas the structure of mutual understanding is not reproduced (Habermas 1992:263).
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(Habermas 1992:154). But he is also optimistic in the sense that he believes the rationality inherent in communicative actions can re-establish the coupling between system and lifeworld. This distinction between social and system integration is one of the main differences between Habermas and a system thinker such as Luhmann. For Luhmann, there is no distinction between system and lifeworld, but only between different subsystems. Accordingly, different system perspectives replace lifeworld as a common linguistic and cultural background and the normative base, which it implies. Modern societies consist merely of media-mediated subsystems, which has as their main task to reduce complexity. Through this process of reducing complexity, the systems constructs an inner complexity according to its media, such as money, power or love. The inner complexity represents the level of (outer) complexity, which the system is able to deal with (Luhmann 1993: Chapter 1:II). Despite these differences between Habermas and Luhmann, there are several common lines in their drawing of the modern society; such as increased complexity, increased contingency (the imperative of choice), and system differentiation. Another similarity is that both Habermas and Luhmann stress the importance of communication, whether to reduce complexity (Luhmann) or to establish a coupling between system and lifeworld (Habermas). In the following section I will explore how Habermas’ concepts of system and lifeworld can be used to describe the modern information society – especially the gradual transformation of Internet from an early anarchy stage to an increasingly system controlled agenda. 2.2. Internet as lifeworld Cyberspace2 as a new phenomenon appeared in Western Europe in the early1990s. First in universities and research centres, then within society generally, cyberspace became the new target of libertarian utopianism (Lessig 1999:4). Cyberspace arose from the
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The term cyberspace originates from the American author William Gibson. “Cyberspace. A consensual hallucination experienced daily by billions of legitimate operators, in every nation, by children being taught mathematical concepts. A graphic representation of data abstracted from the banks of every computer in the human system. Unthinkable complexity. Lines of light ranged in the non-space of the mind, clusters and constellations of data. Like city lights, receding” (Gibson 1984:51).
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displacement of certain architectures of control. The single-purpose network of telephones was replaced by a multipurpose network of data. The one-to-many architecture of mass media was supplemented by an architecture, where every individual could participate. “The space promised a kind of society that real space could never allow – freedom without anarchy, control without government, consensus without power” (Ibid). Using Habermas’ terminology we would say that Internet in the early stage held promises for an empowered lifeworld, by providing conditions for a communicative sphere free from system interference. In cyberspace, society could regain the critical public sphere, which was lost in the complexity of modern societies, where “town square meetings” where replaced by mass media. In cyberspace, everyone could make an appearance, since no editors or power structures would prevent the individual from voicing her opinion. And appearance is important for participating in the public sphere. If individuals do not appear, that is are neither seen nor heard, they do not exist as a public voice. "Only in the light of the public sphere did that which existed become revealed, did everything become visible to all. In the discussion among citizens issues were made topical and took on shape” (Habermas 1989:4). If we look at Habermas’ description of public opinion, we see why the first perception of cyberspace held such promise for a stronger public sphere. Drawing on C.W. Mills, Habermas characterises the formation of public opinion by: (1) virtually as many people express opinions as receive them. (2) Public communications are so organised that there is a chance immediately and effectively to reply to any opinion expressed in public. Opinions formed by such discussion (3) readily find an outlet in effective action, even against – if necessary – the prevailing system of authority, and (4) authoritative institutions do not penetrate the public, which is thus more or less autonomous in its operation (Habermas 1989:249). Some of these characteristics, particularly the equal possibility of receiving and expressing opinions, are precisely some of the features, which distinguish Internet from traditional mass media, as we shall see in the following chapter.
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Habermas stresses that opinions cease to be public opinions when they are entangled in the communicative structure of “mass”. This is due to the characteristics of mass media such as (1) far fewer people express opinions than receive them, thus the community of publics become an abstract collection of individuals who receive impressions from the mass media. (2) The communications that prevail are so organised that it is difficult or impossible for the individual to answer back immediately or with any effect. (3) The realisation of opinion in action is controlled by authorities who organise and control the channels of such action, and (4) the mass has no autonomy from institutions; on the contrary, agents of authorised institutions penetrate this mass, reducing any autonomy it may have in the formation of opinion by discussion (Ibid). Accordingly, the public sphere of the modern world dominated by mass media has lost part of its pre-modern potential for forming public opinions. Another point made by Habermas when discussing the evolution of communication in the public sphere is the change in the “opinion power structure”, thus the need to protect the diversity of the public dialogue from the public itself. Whereas the threat to public opinion used to be authoritative powers such as the king or state, the threat is increasingly the public itself. “Wherever the apparently no less arbitrary power of the public itself had taken the place of princely power, the accusation of intolerance was now leveled against the public opinion that had become prevalent. The demand for tolerance was addressed to it and not to the censors who had once suppressed it. The right to the free expression of opinion was no longer called on to protect the public’s rational-critical debate against the reach of the police but to protect the nonconformists from the grip of the public itself” (Habermas 1989:134). The early vision of cyberspace held the potential for a revitalised public sphere, a sphere free from traditional power structures; built on consensus-oriented communication from the bottom-up by the participants. In this way, Internet represented a potential for strengthening communicative actions. It could be a new means for opposing the systems colonisation of lifeworld. And Internet does bear promising features for strengthening pluralism and empowering civil society. Here are a few practical examples to illustrate: 11
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Easier to get your message out: Through e-mail and websites, human rights organisations in Egypt and the Palestinian territories can disseminate information more effectively than before, despite modest resources and limited access to local media (HRW 1999:17).
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New means for suppressed media: When Radio B92 in Belgrade was closed by the authorities, the station put its programming on the Internet using a Dutch Service Provider. Radio Free Europe, Voice of America and Deutche Welle picked up the station and broadcasted it back into Serbia. In response to this, the government allowed the station back on the air (GILC 1998:C).
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Easier to “meet and discuss”: Citizens of Arab countries have been able to debate with Israelis in chat rooms at a time when it was difficult for them to have face-to-face contact, telephone conversations, and postal correspondence, due to travel restrictions and the absence of phone or mail links between many Arab countries and Israel (HRW 1999:18).
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Harder for governments to censor information: The China News Digest (www.cnd.org) makes available news from non-official sources. While the Chinese government sometimes blocks the site, users in China have found ways to access it (GILC 1998:B).
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Easier to find information, for instance from a specific minority group: An Arab Gay and Lesbian website (www.glas.org) caters to people who, in many Arab countries, have few places to obtain information pertaining to their sexual orientation (HRW 1999:19).
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Easier access to public information, for instance new laws, decision making and so on: Through the European Unions website (europa.eu.int) the public can gain access to all EU publications in several languages.
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Easier access to global information: For Indian children in the Chiapas region in Mexico, a few computers with Internet access have meant access to a “global library” of information3.
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Mobilising civil society: The McSpotlight site (www.mcspotlight.org) is created to provide information on the “McLibel” trial, against MacDonald and other multinational corporations. The site is a new way of mobilising consumers
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worldwide and has received some of the most extensive press coverage ever given to a website (Liberty 1998:263). However, promising these new possibilities were, and presently are, the development of cyberspace over the last five years has led to a situation where Internet is a mixture of liberal potential and the reality of strong system influence. Before we take a look on the tendencies of system colonisation, let me try to sum up the essential features of the (modern) public sphere before and after Internet’s entrance onto the scene. The public sphere before Internet was characterised by mass media as the main mediator of public opinion. With mass media, public dialogue is channelled through a filter where editors choose, which information to present. Using Luhmann’s system terminology, we could say that the system of mass media acts according to a communicative code, that determines, which information is selected for publishing or broadcasting, and which information is not (Qvortrup 2001:237). The media cannot present all information, or voice every public opinion, thus system selection is necessary. The public act as information providers to the degree that they provide “saleable stories”, but their primary role is as more or less passive information receivers. From an individual point of view, the possibility of appearance, for expressing an opinion on radio or television, is very limited. The press has the role of public watchdog or caretaker of the public sphere, but since the press is also enrolled in the system of money (information has to be saleable) and power (the information selection process is part of an institutional power structure), the press is representing both lifeworld and system interests. With Internet, the public sphere gains a communication means, where every individual can appear and express opinions. On Internet, the filtered mass media communication is supplemented by a communication where the individual can be both information provider and receiver. Cyberspace therefore holds potential for a stronger diversity of opinions and expressions, as they actually exist in society, thus strengthening the public discourse and sphere. An interactive public sphere, where consensus-oriented communicative actions can flourish, supplements the rationale of mass media. The 3
Internet access is part of “El Mono Pintado” - a project to empower Indian children in Chiapas, Mexico. For further information see http://www.pangea.org/ropalimpia/enotbre2.htm (in Spanish).
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precondition for this empowered public sphere is, however, both cyber-access and cyber-listeners, since public appearance is no good if no one is listening. I will return to these preconditions in the following chapter, after first examining recent Internet development. 2.3. Internet as system Over the past five years, Internet has moved from the free anarchistic vision to the reality of commercial interests, tools and power. The private sector has realised the potential in the new information market and the increasingly commercial focus is changing some of the initial “rules” of cyberspace, for instance the initial separation between access and content providers and the vision of a free public sphere with unlimited access to information. Private entities, the system sphere, are taking over an increasingly large part of cyberspace, with the result that still more interactions are mediated by the systems media (money and power) and still more subsystems are created to deal with this complexity. To give a few illustrations: From openness to (system) security Internet was originally built for research4, and the architectures were aimed at openness, whereas security in the early Internet stage was provided for by security schemes such as the PGP (Pretty Good Privacy) web-of-trust model. When e-commerce entered the scene, the call for more secure transactions started. The security infrastructure is now developing with commercial applications with built-in encryption, digital signatures and “certificate authorities” to provide for digital certificates. Also the issue of regulation of encryption, that is government’s access to secured communication through “recovery keys”, has been subject to political debate and regulation for the last five years5. This transformation from openness to secureness is one example of new system regulations, in this case the commercial sector and governments redefining the rules of cyberspace.
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Until 1991 the National Science Foundation forbade its use for commerce (Lessig 1999:39). “Companies that were once bastions of unregulability are now becoming producers of technologies that facilitate regulation. For example, Network Associates, interior of the encryption program PGP, was originally a strong opponent of regulation of encryption; now it offers products that facilitate corporate control of encryption and recovery of keys” (Lessig 1999:52).
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Commercialisation – new actors and gatekeepers Another aspect of e-commerce is the increasing focus on the control of cyberspace infrastructure and content, in order for private enterprises to gain market shares from the cyber market. This is changing the media picture and introduces new coalitions of actors. Traditional players in media – publishers and broadcasters – are being joined by partners from the telecommunication sector, from the IT industry and from the financial service sector. New alliances form new trans-national corporations. “As Information becomes the most tradable commodity in the world, many of the major industry players will be global corporations richer than many medium sized-countries. They will have enormous power” (CoE 1998:162). Some of the new alliances bring together information carriers and content providers, which give these enterprises increasing power to combine control of access with control of content6. This can be a step in the direction of access providers as “gatekeepers” that filter access and content due to corporate interests, thus system imperatives of power and money. The development potentially moves a still larger part of cyberspace from the public sphere to a system sphere mediated by power and money and potentially endangers individuals’ right to uncensored and non-discriminatory access to the public sphere7. So far the media market has argued for self-regulation, but at the European level there is political pressure for a new regime of national and international rules to limit concentration of media resources and to safeguard pluralism (Ibid:163)8. Barriers to information freedom - search engines Since no “content directory” of Internet exists, search engines are crucial both as user tools of finding information, and for published information to be easily found. Information that cannot be found on Internet is in principle non-existent to the potential 6
“ Free access to a diversity of information sources and creative products is under pressure as a result of the strong trend towards consolidation on the global online market. In all the essential domains of this market one finds a strong degree of concentration among key players” (Hamelink 2000:146). 7 The creation of one of the worlds largest companies to exploit the new technologies; the merging of British Telecom and the United States telephone conglomerate MCI is one example of a new multibillion-scale actor. It is also an example of infrastructure and content merging, since MCI have partnership with Rupert Murdochs large media company News Corporation (CoE 1998:162). 8 The most recent EU initiative in this field is the Green Paper on the convergence of the telecommunications, media and information technology sector, and the implications for regulation (COM 97, 623). The Green Paper states that competition rules are not enough to safeguard media pluralism and access.
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reader. Today there exists a variety of commercial search engines, such as Yahoo, Lycos, Altavista, and Webcrawler, most of them connected to content providers. These are commercial services, where users need to register their content to secure their appearance in cyberspace, and where keyword technique influences the information’s position in the searching hierarchy, that is the position on the search result list. A website, which is not connected to a search engine, cannot be found unless the user knows the specific address of the site. Thus, commercial search engines work as both tools and potential barriers to information retrieval. Search engines have up till now primarily been perceived as neutral information retrieval tools9, but with the Media Industry’s increasing focus on ownership of web portals and the connected search engines, the picture might be changing. For instance did Walt Disney in 1998 announce the purchase of 43 percent of the stock in the search engine Infoseek. Also Time-Warner and News Corp. began the development of their own web portals, and MCI concluded a deal with Yahoo!, whereby its clients will be guided to the search engine of Yahoo! (Hamelink 2000:147). Since the existence of “neutral” search engines is crucial to realising the communicative potential of cyberspace, a development where “information retrieval” becomes a custody would essentially change the rules of Internet, and move information retrieval from a public cyber sphere of communicative actions, to a system sphere of money and power. Towards Internet regulation With Internet being “an American invention”, the US has more or less privileged access to the “road” level of cyberspace regulation, such as the domain name system (Mayer 2000:149). However, on the “substantive” level there have been a broad variety of attempts to regulate cyberspace10. It is important to note, that Internet regulation does not depart from a legal vacuum, but that most of the legal issues, for example child
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For instance did the search engine Altavista in the spring of 1999 start to sell the first two positions in the “search results list”, but was so strongly criticized by their users that they stopped the attempt to commercialize the search results. For further information see http://www.joyzone.dk/soegemaskiner/a11_altavista.asp (in Danish). 10 At EU level the most coherent legal framework is contained in the Directive on electronic commerce (Directive 2000/31/EC).
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pornography, copyright or trans-national commerce, are already subject to regulation or can be resolved by deduction from existing rules (Ibid:151)11. Seen from the perspective of human rights, the two major areas of Internet regulation have been privacy and freedom of expression. The privacy issues at stake so far have been (1) how to ensure the privacy of personal data and (2) how to balance the privacy of communication against law enforcement’s need for interception and access to online communications. The content issues have been (1) how to control illegal content and (2) how to control legal but potentially harmful content without unduly infringing on the right to freedom of expression (Liberty 1998:146). Since the main topic of this thesis is legal content regulation, I will concentrate on the tendencies in this field and not go further into the area of regulating on-line privacy. In understanding the regulatory dilemmas of content, it is crucial to distinguish between illegal content such as child pornography and content, which is legal, but might be harmful when accessed by minors, for example adult pornography. Often the two discussions are mixed, thereby confusing the criminal law agenda of combating for instance child pornography with the moral agenda of combating legal content, which might be harmful to minors. On the European level, the EU Commission has for the last five years encouraged greater cooperation between member states both to enforce criminal law on Internet and for the definition of minimum European standards on criminal content12. Regarding legal but potentially harmful content, the Commission encourages the IT industry to form a platform enabling the use of filtering systems based on common standards community-wide13. It also encourages content providers to cooperate by adopting their own codes of conduct including systematic self-rating. The Action Plan on Promoting Safer use of the Internet is the most recent follow-up on EU’s Internet policy. The action plan has a large range of projects directed at making Internet a safer place, not least for 11 12
For an account of the contesting views on states ability to regulate cyberspace see Goldsmith 1998. See for instance the Communication on Illegal and Harmful Content on the Internet (COM 96, 487). 13 The Commission identifies two basic technical means of protecting children for accessing harmful and illegal content: “upstream control” which means preventing illegal content from being published and
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children. The projects are divided into three main areas: establishment of Hotlines, development of rating and filtering systems and awareness building – amounting to a total of 25 Million ECU (Decision no. /98/EC). A last aspect of Internet regulation to be mentioned here is the issue of Internet Service Providers (ISPs) liability. Some countries, such as Tunisia, have tried to regulate ISPs through Internet specific legislation, which holds ISPs liable for content they host or carry (HRW 1999:35). Other countries such as Singapore regulate ISPs through licensing terms demanding that they block access to foreign websites and newsgroups deemed harmful to national morals (GILC 1998:II). In Europe the issue has been debated since 199514. The Commission in the Communication on Illegal and Harmful Content on the Internet stressed that Internet access 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. ISPs should not be targeted by the individual governments and law enforcement bodies where the ISPs have no control of the Internet content” (COM 1996, 487:4b). Also, the most recent European Directive on electronic commerce seeks to establish legal certainty through an exemption from liability for intermediaries who act only as a "mere conduit" for access to information (Directive 2000/31/EC). New self-regulatory schemes As illustrated above, the EU appeals to private parties’ ability to self-regulate, not least in the field of potentially harmful content. In 1999 some of the worlds most powerful business players15 established the Global Business Dialogue on electronic commerce (GBDe) with the aim to establish standards for electronic commerce thereby promoting self-regulatory systems instead of legislation. In the field of content, the working group is lead by the Walt Disney Company, with the aim to: “continue the development of and “downstream control” which means preventing harmful content from reaching minors, for example through a filter device (Ibid). 14 In 1998 Germany made headline with the CompuServe trial, where the ...