forwarded message from Felipe Rodriquez

tabe at ozgurluk.xs4all.nl tabe at ozgurluk.xs4all.nl
Fri Oct 18 04:09:00 MDT 1996



http://www2.echo.lu/legal/en/internet/content/content.html


                Illegal and harmful content on the Internet

           COMMUNICATION TO THE EUROPEAN PARLIAMENT, THE COUNCIL,
                   THE ECONOMIC AND SOCIAL COMMITTEE AND
                        THE COMMITTEE OF THE REGIONS



  TABLE OF CONTENTS

   INTRODUCTION
   1. THE OPPORTUNITIES OF THE INTERNET
   2. HOW DOES THE INTERNET WORK?
   3. ILLEGAL AND HARMFUL CONTENT ON INTERNET
   4. IDENTIFYING AND COMBATING ILLEGAL CONTENT ON INTERNET
   5. DEALING WITH HARMFUL CONTENT ON INTERNET
   6. POLICY OPTIONS/CONCLUSIONS
     _________________________________________________________________

INTRODUCTION

   The symbol of the convergence between telecommunications, computer and
   content industries, and one of its main drivers, the Internet has
   established itself as one of the main building blocks of the Global
   Information Infrastructure and as an essential enabler of the
   Information Society in Europe. Characterised by a growth rate
   unprecedented in the historSEy of communication technologies, the
   Internet now reaches some 60 million users in 160 countries, doubling
   each year. Its most popular application, the World-Wide-Web, based on
   protocols developed in Europe, is fast becoming a standard vehicle for
   information publication and electronic commerce, with an estimated 10
   million sites world-wide in 1995, up 1600% over the previous year.
   Driven by its meteoric growth, and its rapid evolution from a
   government/academic network to a broad-based communication and trading
   platform, the Internet is currently revolutionising a number of
   economic sectors, with the emergence of a vibrant and fast-growing
   "Internet Economy". Simultaneously, the Internet has also become a
   powerful influence in the social, educational and cultural fields -
   empowering citizens and educators, lowering the barriers to the
   creation and distribution of content, offering universal access to
   ever richer sources of digital information.

   Reflecting these opportunities, the vast majority of Internet content
   is for purposes of information for totally legitimate (and often
   highly productive) business or private usage. However, like any other
   communication technologies, particularly in the initial stages of
   their development, the Internet carries an amount of potentially
   harmful or illegal contents or can be misused as a vehicle for
   criminal activities. Although statistically a limited phenomenon, a
   wide range of distinct areas are concerned. These are covered by
   different legal regimes and instruments at the national and
   international level, e.g.:

     * national security (instructions on bomb-making, illegal drug
       production, terrorist activities);
     * protection of minors (abusive forms of marketing, violence,
       pornography);
     * protection of human dignity (incitement to racial hatred or racial
       discrimination);
     * economic security (fraud, instructions on pirating credit cards);
     * information security (malicious hacking);
     * protection of privacy (unauthorised communication of personal
       data, electronic harassment);
     * protection of reputation (libel, unlawful comparative
       advertising);
     * intellectual property (unauthorised distribution of copyrighted
       works, e.g. software or music)

   While the benefits of the Internet far outweigh its negative aspects,
   these aspects cannot be ignored. They are pressing issues of public,
   political, commercial and legal interest. Reflecting these concerns,
   recent political discussions in the European Union have stressed the
   need for urgent action and concrete solutions.

   Therefore, most recently, on 27 September 1996 the Telecommunications
   Council adopted a resolution on preventing the dissemination of
   illegal content on the Internet, in particular child pornography. The
   Council took note that the Commission would publish a Communication on
   this issue, and welcomed that initiative. Stressing the need for rapid
   response, the Council urged the Commission to carry its ongoing work
   and to present practical measures in time for the next
   Telecommunications Council on 28 November 1996.

   The Commission is fully aware of the importance of these issues, and
   of the need to strike the right balance between ensuring the free flow
   of information and guaranteeing protection of the public interest so
   as to meet justified concerns.

   Already, at the informal Council meeting held in Bologna on 24 April
   1996, European Telecommunications and Culture ministers had identified
   the issue of illegal and harmful content on the Internet as an urgent
   priority. It was considered that, while existing national laws apply
   to the Internet, agreement should be reached in a wider context to
   address the specific challenges raised by this "network of networks".
   The Commission was therefore requested to produce a summary of
   problems posed by the rapid development of Internet, and to assess, in
   particular, the desirability of European or international regulation.

   As regards the distribution of illegal content on the Internet, it is
   clearly the responsibility of Member States to ensure the application
   of existing laws. What is illegal offline remains illegal online, and
   it is up to Member States to enforce these laws. Nevertheless, given
   the highly decentralised and transnational nature of the Internet,
   concrete measures to reinforce co-operation between Member States
   should be launched in the context of Justice and Home Affairs.

   At another level, the presence of illegal and harmful content on the
   Internet has direct repercussions on the workings of the Internal
   Market. In particular, the adoption by Member States of regulations of
   new Internet services intended to protect the public interest may also
   create risks of distortions of competition (for example, through
   widely divergent responses to the question of potential liability of
   Internet service providers), hamper the free circulation of these
   services, and lead to a re-fragmentation of the Internal Market. If
   unsolved, such problems may justify Community intervention. Like in
   any new and fast-growing industry, legal and regulatory certainty is
   the conditio sine qua non to foster investments, guarantee the
   development of a competitive Internet services sector, and ensure the
   growth of a wider Internet-based economy in Europe.

   It is widely recognised that the international nature of the Internet
   and its unique characteristics (extremely decentralised structure,
   resistance to tampering, high degree of automation, global reach, wide
   usage) clearly pose novel, and specific, problems. These problems need
   innovative, and specific, solutions which should be put in place
   rapidly, anda co-ordinated response at EU and international level.

   Complementary to the present initiative, issues of protection of
   minors stricto sensu - themselves a subset of wider issues of illegal
   and harmful content - will be addressed in the Green Paper on the
   Protection of Minors and Human Dignity in Audiovisual and Information
   Services. That Green Paper takes a horizontal approach, and will
   initiate a long term reflection on this issue across all electronic
   media.

   This Communication assesses the opportunities offered by the Internet,
   identifies different variations of illegal and harmful content,
   describes the technical environment of the Internet and gives policy
   options for immediate action on a technology and/or legal base to
   fight against such content on the Internet.

1. THE OPPORTUNITIES OF THE INTERNET

   The potential of the Internet to inform, educate, entertain and
   conduct business on a global scale is considerable. At a relatively
   modest cost, vast quantities of information can be sent around the
   world in new multi-media communications. A number of countries in the
   world, and in particular in the European Union, have already seized on
   these radical new opportunities.

   In social terms, the Internet represents significant potential
   benefits. It offers unprecedented opportunities for empowering
   citizens, and for connecting them to ever richer sources of digital
   information. The Internet has been used by great effect in a number of
   Member States to connect administrations and citizens. Lowering the
   barriers of entry to the dissemination of information on the local, as
   well as on the global scale, the Internet allows individuals or
   associations to publish information about their activities to a wide
   audience at modest cost. In the field of culture, the Internet already
   contributes significantly to the creation and dissemination of
   European digital multimedia content, fostering linguistic diversity,
   and the rayonnement of European cultures in the world. As exemplified
   by a number of innovative projects linking libraries, schools and
   universities in Europe, the Internet is similarly the key to a new
   "electronic literacy", and, as such, the cornerstone of the new and
   far-reaching European Union initiative, the Action Plan "Learning in
   the Information Society".

   Currently revolutionising electronic commerce, the "network of
   networks" is likely to play a crucial role for the European economy.
   This is directly linked to the liberalisation of Europe’s
   telecommunications market, which should translate into lower operating
   costs for Internet users and service providers (1) . As the US market
   already demonstrates, the Internet is directly fostering a new and
   fast-growing Internet economy (2) , creating new categories of
   businesses and new jobs (Internet infrastructure and software,
   Internet access providers, consumer and business content distribution,
   online retail and financial services). Beyond this "core Internet
   economy" of businesses which create revenues directly from the
   Internet, the Internet is having an indirect impact on a much wider
   "Internet sphere of influence". The Internet is thus radically
   transforming a number of existing economic sectors (travel services,
   insurance, direct retailing, electronic publishing), creating new
   markets, reducing costs and improving customer service. It is, in
   particular, generating new opportunities for European SMEs, a growing
   number of which are now eagerly capitalising on unprecedented access
   to global markets offered by the World Wide Web. Similarly, large
   economic sectors, such as the direct marketing industry in Europe
   (which represented a total income of ECU 37 billion in 1994 (3) ), and
   in particular the traditional catalogue business, are actively
   integrating the Internet in their marketing and fulfilment strategies,
   and planning gradually to migrate a substantial part of their
   activities to the Internet.

   In the field of advertising and marketing, the Internet presents a
   number of significant and well documented advantages. Because of its
   interactive nature, and the immediacy and ease of communication,
   advertising messages can be targeted at audiences much more precisely
   than has been possible until now, and feedback obtained from current
   or potential customers. Similarly, when used for executing
   transactions or even delivering content on line, the Internet offers
   considerable cost savings for both businesses and customers.

   Enlarging the scope of electronic commerce to the general public on
   global markets, the Internet is, at the same time, bringing radical
   changes in business-to-business transactions, as companies migrate
   from proprietary networks and closed protocols (such as traditional
   EDI) to the Internet and to corporate "Intranets". This
   business-to-business sector is currently the fastest growth area in
   the global Internet economy. It is a sector of crucial strategic
   importance for European companies competing on world-wide markets.

   As any other sector of activities, the Internet may be used for
   legitimate purposes or misused by some elements of the society. The
   framework for the Internet should, therefore, foster economic
   development, while taking account of justified social and societal
   concerns. Consumers and businesses must be reassured that the Internet
   is a safe and secure place to work, learn and play.

   This Communication, therefore, aims

     firstly to describe briefly the different types of illegal and
       harmful content,
     secondly to examine the technical context in which action can be
       taken to deal with illegal and harmful content, and
     finally to suggest a number of practical measures designed to be
       rapidly implemented

   In the following sections, section 2 describes the different Internet
   applications, section 3 defines what is meant by "illegal and harmful
   content", section 4 deals with ways in which to combat illegal
   content, section 5 explains issues related to harmful content and
   section 6 presents a number of proposals.

2. HOW DOES THE INTERNET WORK?

   The Internet is the most visible example of an international computer
   network. Although it is neither the first nor the only such network,
   it is distinguished by the fact that nobody "owns" it and by the fact
   that over the past few years "ordinary" users, private individuals and
   businesses, and not just the scientific or academic community, have
   started to use it widely, causing a dramatic increase in the number of
   computers linked to the Internet (4) . Unlike other traditional
   networks such as broadcasting, the Internet is essentially
   user-driven, with users themselves, rather than established
   publishers, generating a substantial part of the "content".

   A unique characteristic of the Internet is that it functions
   simultaneously as a medium for publishing and for communication.
   Unlike in the case of traditional media, the Internet supports a
   variety of communication modes: one-to-one, one-to-many, many-to-many.
   An Internet user may "speak" or "listen" interchangeably. At any given
   time, a receiver can and does become content provider, of his own
   accord, or through "re-posting" of content by a third party. The
   Internet therefore is radically different from traditional
   broadcasting. It also differs radically from a traditional
   telecommunication service. This constant shift from "publishing mode"
   to "private communication mode" - two modes governed traditionally by
   very different legal regimes - constitutes one of the main challenges
   of Internet regulation.

   The many different ways of distributing Internet content reflect the
   structural and historical idiosyncrasies of this network. The extent
   to which technical measures can be used to detect, track down or
   intercept illegal and harmful content also significantly differs from
   application to application.

   Most individual users will not have permanent direct access to the
   Internet. They will go through an access provider. This includes:

     * Internet access providers, specialised in offering access to the
       Internet ;
     * Internet service providers, who offer additional services such as
       hosting content produced by themselves, or by users or by third
       parties (those who produce content are referred to here as content
       providers);
     * On-line service providers, who provide proprietary content (5) for
       subscribers on their closed systems, and now also offer them
       Internet access.

   The term "Internet service provider" is often used generically,
   without a clear distinction being made between the service of
   providing access to the Internet and the service of hosting content.
   The terms "access provider" and "host service provider" will be used
   here to differentiate. The same organisation can of course fall within
   both categories.

   Both "access provider" and "host service provider" will connect to the
   Internet via a leased line, a telecommunications connection made
   available by the "network operator", such as British Telecom.

   The World Wide Web (WWW or Web) is the area where pages with text,
   graphics and even sound and video clips may be viewed. Pages are
   linked to each other by a series of "hyper-links" offering a congenial
   and highly interactive way of navigating through Web content. These
   pages may be published by anyone who has access to storage space on a
   "host" computer connected to the Internet running the appropriate
   software (a "Web server" or "site"). This possibility to become a
   "content publisher" is often given at low cost as an additional
   service by Internet access providers, and individuals in this way have
   the same potential to distribute information as large corporations.
   The pages published in this way are available to any Internet user who
   chooses to consult them, and are identifiable by an address which is
   used in order to consult them directly, or to reach the page through
   hyperlinks.

   Electronic mail allows communication between individuals. It is also
   easy to send out the same message to multiple addresses using mailing
   lists. Although in general the author of the correspondence will be
   identified by his e-mail address, "anonymous remailer" systems have
   been set up where the sender's identity is not passed to the
   recipient. Messages sent to an Internet address are stored in the
   recipient's mailbox on the mail server maintained by the access
   provider until the recipient reads them.

   In some 15,000 newsgroups, the content is provided by individuals who
   send messages (which may be simple text, but can include graphics
   encoded so that they can be transferred). These messages are not
   stored in a single place, but copied from one newsgroup server to
   another. Because of the enormous storage requirements, host service
   providers will often only keep such messages on their newsgroup
   servers for a limited period and may well not carry all newsgroups.
   There are also sites on the World Wide Web where archives of newsgroup
   contents are stored and can be searched.

   Additionally, Internet Relay Chat (IRC) allows direct communication in
   real time between Internet subscribers, and may be used to organise
   face to face meetings and the exchange of content. IRC can now support
   low resolution video technologies such as CUSeeMe.

   All of these means can be used to distribute illegal and harmful
   content, and the extent to which they can be controlled will be
   pointed out in the following sections.

3. ILLEGAL AND HARMFUL CONTENT ON INTERNET

   The Internet is a new form of distribution and communication. Like any
   other communication technologies, particularly in the initial stages
   of their development, the Internet carries an amount of potentially
   harmful or illegal contents or is misused as a vehicle for criminal
   activities. Like any other communication technology, such as the
   telephone or GSM, the Internet can be used by criminals to facilitate
   their activities.

   All these activities fall under the existing legal framework.
   Therefore, the Internet does not exist in a legal vacuum, since all
   those involved (authors, content providers, host service providers who
   actually store the documents and make them available, network
   operators, access providers and end users) are subject to the
   respective laws of the Member States.

   In terms of illegal and harmful content, it is crucial to
   differentiate between content which is illegal and other harmful
   content. These different categories of content pose radically
   different issues of principle, and call for very different legal and
   technological responses. It would be dangerous to amalgamate separate
   issues such as children accessing pornographic content for adults, and
   adults accessing pornography about children. Priorities should clearly
   be set and resources mobilised to tackle the most important issues,
   that is the fight against criminal content - such as clamping down on
   child pornography, or use of the Internet as an new technology for
   criminals.

a. Illegal Content

   There exists a whole range of rules which limit for different reasons
   the use and distribution of a certain content. The infringement of
   these rules lead to the illegality of the content.

   Certain issues do not involve protection of public order, but rather
   the protection of the rights of individuals (protection of privacy and
   reputation) and of an environment allowing creation of content to
   flourish (intellectual property). Content such as breach of copyright,
   libel, invasion of privacy or unlawful comparative advertising will
   usually be dealt with at the initiative of the person whose rights are
   infringed by a civil action for damages or an injunction, although
   there may also be remedies under the criminal law or administrative
   law (data protection). Host service providers may also be drawn into
   disputes over such content, because they may be accused of having
   facilitated its distribution.

   Certain content is - in addition - considered as criminal by the laws
   of Member States.

   This is the case for example with child pornography, trafficking in
   human beings, dissemination of racist material or incitement to racial
   hatred, terrorism or all forms of fraud (e.g. credit-card fraud).

   The exact definition of offences varies from country to country.
   Within the EU, even child pornography, for example, where a high
   degree of consensus exists, is covered by specific legislation in some
   Member States and by more general rules relating to obscenity in
   others. (6)

   Where certain acts are punishable under the criminal law of one Member
   State, but not in another (7) , practical difficulties of enforcing
   the law may arise.

b. Harmful content

   Various types of material may offend the values and feelings of other
   persons: content expressing political opinions, religious beliefs or
   views on racial matters etc.

   What is considered to be harmful depends on cultural differences. Each
   country may reach its own conclusion in defining the borderline
   between what is permissible and not permissible. It is therefore
   indispensable that international initiatives take into account
   different ethical standards in different countries in order to explore
   appropriate rules to protect people against offensive material whilst
   ensuring freedom of expression.

   In this context it is understood that the fundamental rights,
   especially the right of freedom of expression have to be fully
   respected (limitations in the Member States see Green Paper on the
   Protection of Minors and Human Dignity in Audiovisual and Information
   Services, Annexe III)



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