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THE INTERNET LAW AND POLICY FORUM WORKING GROUP ON CONTENT BLOCKING

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Material That Would Likely Be Considered Offensive Under Most Industry Or Governmental Rating Systems Such As Child Pornography, Material Harmful To Children, Excessively Violent Material, Material That Promotes, Incites Or Instructs In Matters Of Crime Or Violence.

Australia

Federal Law:

The Australian Broadcasting Authority ("ABA") published in summer 1996 a comprehensive report into the regulation of online services in Australia. The ABA report is perhaps the most comprehensive analysis of its kind available today and explains that moves have been made to introduce specific criminal offence provisions for online services.

The Department of Communications and the Arts ("DCA") and the Commonwealth Attorney-General have jointly released a consultation paper, proposing the introduction of criminal offence provisions and the DCA report advances the proposal that compliance with a code of practice and taking reasonable steps should be a defence to a prosecution to the publication of objectionable material.

Since the publication of the ABA report on 8 October 1996, a bill was presented to Parliament which would give the ABA authority to deal with online services and with content issues including codes of practice and classification standards. It is anticipated that the ABA shall have the power to establish codes of conduct for the Internet, to ensure a consistent national approach. Peter Webb - Chairman of the ABA - publicly supports the Platform for Internet Content Selection ("PICS") standard and hopes that PICS will provide useful tools for parental supervision to deal with content inappropriate for minors.

State Law:

As yet the transmission and retrieval of child pornography in electronic format has not been specifically dealt with by every State and Territory in Australia. Some definitions, for example, "publication" or "written and pictorial matter" are used by some jurisdictions and it is not clear whether they cover images transmitted electronically.

The ABA Report also mentions that the New South Wales Parliamentary Counsel's Office has prepared a discussion draft of criminal offence provisions (the "model offence provisions") which were drafted at the request of their Censorship Ministers. These propose offences for service providers who permit objectionable material to become available or permit minors to access material deemed unsuitable for them under the existing classification regime. There are also offences for the publication of objectionable material on an online service and for the publication of material unsuitable for minors in a way that makes it accessible to minors. Defences include compliance with a code of practice and taking reasonable steps to avoid committing an offence, or holding a reasonable belief that the material published or made accessible was not objectionable, or in respect of material unsuitable for minors, that the material was not unsuitable for minors, or that the recipients would be or were in fact adults.

Currently a Select Committee of the Australian Senate is undertaking an inquiry into computer online services in Australia with submissions to have been supplied by March 27 1997. The Committee will particularly look at recent technological developments including blocking devices, the development of codes of practice by ISPs, the efficacy of recent measures taken by the Federal, States and territory governments to prevent the exploitation of minors and recent international developments.

In Victoria State, the Classification (Publications, Films and Computer Games Enforcement) Bill is awaiting enactment. The Bill makes it an offence to use an online network to transmit "objectionable" material to minors. In Western Australia, a similar law was enacted on January 1, 1996 but provides a code of practice as a defence. Both pieces of legislation leave primary "judgement" in the hands of the service providers and the senders of the objectionable or restricted material to minors within the definitions. Service providers are only liable if they knowingly permit objectionable material to be transmitted on their network. There are reports that there is another bill before the New South Wales Parliament which is more extreme, holding individuals and Internet Service Providers ("ISPs") responsible for objectionable material, which includes sexually explicit material, drug-related and crime-related material. These provisions have now been suspended until the ABA codes and other national frameworks have been formally adopted.

Austria

In March 1997, a Viennese ISP had all its computer equipment seized by police in connection with securing evidence against a child pornographer. At present, there appear to be no clear definitions of the position of ISPs or the extent of their responsibility for content. This has led to the establishment of the Austrian Internet Service Providers Association which plans to create an Internet Coordination Office to accept warnings of illegal content and cooperate with the authorities to coordinate these issues among the ISPs.

Canada

As early as the summer 1993, a man was arrested and charged with "distributing obscene pictures and with distributing child pornography with his personal computer to upload files to a bulletin board. In this case, R. v Pecciarich however, the defendant was only convicted on the count of distributing child pornography as there was no evidence that the defendant uploaded the files. In British Columbia, in late 1995, BBS operators were charged under the obscenity and child pornography sections of the Criminal Code.

In September 1995, the Canadian Information Highway Advisory Council ("IHAC") (formed in 1994 by the Government) tabled a series of recommendations mainly in the areas of information controls in hate literature and pornography, privacy and copyright. It also recommended harmonising information control legislation and that the federal government should develop legislation to deal with the question of liability of users, owners, operators, the overall emphasis of this approach is on public awareness and industry self-regulation. The Canadian government's Department of Industry has commissioned a study of Internet content liability issues. It was looking at who is liable under present law for online libel, copyright violations, obscenity and defamation. According to David Jones, President of Electronic Frontiers Canada, there are no new laws being proposed which apply specifically to the Internet.

China

On February 4 1996, China's State Council adopted a draft law regulating the Internet, requiring all existing computer networks to liquidate and re-register with all Internet providers routing through the Ministry of Ports and Telecommunications. The rules forbid the production, retrieval and spreading of pornographic or obscene material or information which may hinder public order. Any institutional or individual service provider failing to route through the Ministry of Posts and Telecommunications and failing to register their service with the relevant authorities would be warned, suspended and fined by the public security department. A fortnight later, more rules were announced, requiring all Internet users to register with the police and to sign an agreement promising not to harm the country or do anything illegal. Individuals and institutions are required to register the fact that they are connected to the Internet with the local police within 30 days or face an unspecified punishment.

The Regulations on Safeguarding Computer Information Systems issued by the Chinese government in February 1994 may also apply to Chinese Internet users even though the Regulations apply to information systems and classified information. There also exist Regulations on Electronic Publications (April 1 1995) which although they do not currently affect online materials, will regulate online publications in the future, according to government officials.

In September 1996, the Government banned more than 100 sites. Those sites covered a broad spectrum including major US media sites, sexually explicit sites and sites offering information on Taiwan and Hong Kong. On 26 December 1996, there were American press reports from Beijing that there are plans to increase the already strict controls over the Internet. No actual details were given but the China Consumers Daily, an official newspaper, claimed that they were part of governmental efforts to combat pornography and "cultural rubbish" i.e. a term used by the Chinese authorities for anything considered unhealthy or politically suspect.

However, reports in the English Press in January 1997 from Beijing, claim that the blocks imposed on Websites operated by, among others, CNN and the Wall Street Journal have been lifted, showing a lessening of control over access to foreign news sources by China. This coincides with the launch of China Byte, a web based service in China by News Corporation in partnership with People's Daily, the communist party newspaper. Commentators feel that a watch will still be kept for politically suspect material.

There are those who argue that China also regulates content on the Internet in the same way that it controls the media generally. The ISPs themselves bar access to material which would be deemed undesirable. There is also reportedly limited access to the Internet itself with most users being people whose purposes are government approved and who are also politically reliable and manageable.

France

In May 1996, French Internet providers blocked access to 7,000 newsgroups for a week as a protest against two ISPs, FranceNet SA and WorldNet SA, being raided for carrying pornographic images of young children. The two managing directors were also arrested and charged with disseminating pornographic pictures of minors. The strike ended without any further clarification of the issues which were, as usual, whether the ISP is a carrier, broadcaster or publisher. The Conseil Superior de l'Audiovisuel (CSA), France's broadcasting authority was keen to have the power to monitor the Internet, as it does currently with Minitel. The Ministry of Post, Telecommunications and Space adopted an amendment to the bill reforming the telecommunications industry on June 18 1996 which gave it the requisite powers. However this was challenged by 60 senators on the grounds of unconstitutionality and on July 23 1996 the majority of the provisions were declared unconstitutional by the Constitutional Council. The obligation of access providers to offer technology to filter content to their customers remained, this being the only regulation in existence for access providers in France. France has also been campaigning internationally for the Internet to be considered a broadcasting medium and therefore regulated by broadcasting law.

Germany

In December 1995, CompuServe cut off access to 200 news groups after Bavarian State prosecutors notified the US-based company that it was investigating distributors of sexually explicit material on the Internet. The State prosecutors had advised CompuServe that it could face charges. Since CompuServe had no technology which could block access to a specific geographical location, access had to be blocked worldwide and the newsgroups were suspended for 4.7 m users worldwide, which led to accusations of censorship and a fear that freedom of expression would be reduced to the level of the world=s most restrictive regime. In February 1996, CompuServe reinstated all but five news groups and planned to offer a parental control program so that users can restrict access to questionable sites.

Edzard Schmidt-Jotzig, the German Justice Minister, announced in June 1996 that new regulations for the Internet were to be introduced at the end of the year and the law was under consideration in Germany=s lower house of parliament. The law is now known as the "Federal Law regulating the Conditions for Information and Communication Services" ("IuKDG"). and was approved by Helmut Kohl's Cabinet in December 1996. It is expected to come into force in autumn 1997 but it is likely that the legislation will be opposed by the regional states on constitutional grounds.

There are four main areas. The first Article contains provisions concerning the use of Teleservices; the second concerning data protection in Teleservices; the third contains the Digital Signature Law and the fourth contains provisions which bring German laws up to date so that they can deal with the impact of the information highway. Section 1 of the Act deals with the responsibilities of service providers. They are responsible for content which they themselves make available; they are only responsible for third-party content which they made available for use and they had knowledge of it and where it is technically possible to block it and it is to be reasonably expected that they block it. Mere provision of access to content does not make the service provider responsible.

Therefore, according to officials, the legislation will free ISPs in Germany from being responsible for policing their services for pornography, neo-Nazi information or other extreme pictures or writing but they will be required to block access to such material and they will therefore be liable to prosecution where it can be shown that they were aware of the infringing material but took no action.

As the proposed law places some responsibility on "suppliers", it may be for this reason that, in November 1996, CompuServe announced that it may transfer its administrative operations out of Germany fearing that the government is moving to force Internet companies to block access to child pornography, neo-Nazi materials and other undesirable material. Felix Somm, general manager of CompuServe, said at the time: "It cannot be that a provider has to make massive investments to control an international network, if you can offer services with significantly less control next door in Luxembourg".

This stance by CompuServe has been ineffective. In February 1997, charges were filed against Felix Somm (criminal charges cannot be brought against companies in Germany). He has been accused in numerous instances in 1995 and 1996 of knowingly allowing images of child pornography, violent sex and sex with animals from newsgroups on the Internet to be accessible to CompuServe's customers in Germany, according to the prosecutor's statement. The specific charges are that he assisted in the distribution of pornographic materials as well as premeditated and negligent violation of laws concerning writings which are dangerous to youths. Some of the computer games apparently available to CompuServe customers were said to glorify violence and showed Nazi symbols. This will no doubt become a test case for the authorities to see how far they can control the Internet. It would however appear that the charges are in line with the draft IuKDG given that the prosecutors are claiming that Somm did not disable the transmission of the "illegal" material on becoming aware of it and that it was technically possible to do this.

Hong Kong

The Broadcasting, Culture and Sport branch of the government, having promised Internet content regulations for the last few months, has now released a recommendation paper for the Legislative Council, saying that the government has decided not to regulate content on the Internet but rather, wanted to give the Internet "room to develop" as well as "protect freedom of expression". The government has said it would rather wait to see what other countries do to regulate the Internet.

Instead of legislation, the government is requesting that local ISPs regulate content themselves, in as much as they were already doing this voluntarily. The government also reserves the right to use existing obscenity laws, the Control of Obscene and Indecent Articles Ordinance ("COIAO")(1987) which is used primarily to regulate magazine and newspaper publishers and which has already been successfully used to prosecute an Internet pornography case.

The Hong Kong Internet Service Provider Association which was formed in November plans to implement self-regulating code of practice in early May 1997 but as yet there is no information on what those regulations will be.

India

India has one government-owned Internet service provider, VSNL, which only has approximately 14,000 subscribers. VSNL has ruled out censorship of Websites including those containing pornographic material, the Director of Operations saying "Total censorship on sites that host material that is revolting to our culture is not viable". According to a press report, a group of Internet users have joined together to form "Noporn", in an attempt to pre-empt the Indian government from regulating The Internet which they fear will affect surfers who access the WWW for more legitimate reasons.

Indonesia

In Indonesia, at the beginning of December 1996, the House of Representatives passed a broadcasting bill into law. It primarily affects television stations but also seeks to regulate new forms of broadcasting due to new communication technology including teletext, audiotext and the Internet. It outlaws violence, sadism, pornography, mysticism, a permissive lifestyle, consumerism, hedonism and feudalism. As is apparent from this list, the definitions are vague however and according to critics, need more explanation to be enforceable. Although anyone "broadcasting" through these new media is required to obtain operating licences from the government, the law appears to be more relaxed about content, stressing self-censorship by the operators. The clause dealing with the Internet is vague and also needs clarification but it would appear that the Indonesian government acknowledges that an Internet access provider is not responsible for the content of the information which is transmitted and received through the Internet.

Iran

At present, an estimated 30,000 people have accounts but only six people can be online at any one time. The Government is looking at regulating the Internet and attempting to centralise all access via the Ministry of Posts and Telecommunications. The Government is concerned that Iranians will access pornography and material offensive to Islam, such as "The Satanic Verses", but it is eager that it is used as a source for questions and discussions on Islamic law. All of this is currently outweighed due to the prohibitive cost, with three to four hours a week billed at $50 to $130.

Japan

Japan has not drafted any new laws. Internet users have been arrested for suspected distribution of pornography; but the police seemed uninterested in the service providers. The Electronic Network Consortium ("ENC"), which comprises more than 90 organisations including major online service providers, has launched an initiative to promote the provision and dissemination of PICS - compatible blocking capabilities based on the internationally adopted Recreational Software Advisory Council initiatives ("RSACi") and other rating systems. An experimental rating bureau will be started next fiscal year.

A study group in the Posts and Telecommunications Ministry of Japan have produced a report concluding that legal measures to regulate pornography on the Internet are not necessary. It favours voluntary self-regulation by private groups. Feedback from the public is expected in January and February 1997 and there are plans to set up a committee to look at software filters to prevent children accessing objectionable material.

New Zealand

It would appear that there is no Internet-specific legislation currently in New Zealand although, according to press reports, the Internal Affairs Department has served 15 search warrants on ISPs during November 1996, targeting users (rather than ISPs) who download child pornography. The warrants are predominantly concerned with Internet Relay Chat traffic. New Zealand also currently has a Technology and Crimes Reform Bill which purports to deal with the problem of minors accessing unsuitable material, though it is regarded by some as an unenforceable law.

Singapore

In Singapore, under the powers conferred by Section 18 of the Singapore Broadcasting Authority Act, the Singapore Broadcasting Authority ("SBA") issued the Internet Code of Practice, with effect from 15 July 1996.

Under the guidelines, all the Internet Service Providers and Internet Content Providers must use their best efforts to ensure that nothing is included on the Internet that offends against good taste or decency, in particular content which is pornographic or otherwise obscene, content which depicts or propagates gross exploitation of violence, nudity, sex or horror or content which depicts or propagates sexual perversions such as homosexuality, lesbianism and paedophilia.

The SBA only licenses three Internet service providers for domestic users and all three have installed "proxy servers" in order to ban undesirable Websites. However in a letter published in the Financial Times on 30 September 1996 in London, Goh Liang Kwang, Chief Executive Officer, SBA, claimed that the proxy servers were installed by the Internet services "to enhance efficiency and meet the growing demand for Internet services". Anyone wanting to produce pages for the Internet must also register with the SBA. The SBA has required service providers to block access to various sites allegedly totalling "a few dozen" pornographic Websites . Fines can be imposed for non-compliance. Parents and teachers are also encouraged to install access control software like SurfWatch and NetNanny.

Spain

In October 1996, Spanish police arrested two engineering students in the town of Vic following a tip-off from the US Treasury Department. They found approximately 4,000 computer files containing pornographic pictures and video pictures and video images, the majority featuring children. The police said there was evidence that material was distributed to buyers in the US, Canada and Australia. However the students will only spend a short time in prison, according to police. They are only being imprisoned for distributing child pornography as it is not illegal to possess it in Spain.

Switzerland

Articles 135 and 197 of the Penal Code cover criminal liability on the Internet and other online services in respect of presentation of violence and pornography respectively. This is determined on the basis of general principles, so that it is immaterial whether they are disseminated through the press, films or a network.

If the presentation disseminated and received via a network satisfies the objective criteria of that offence, the recipient will not be liable to punishment if the activity amounts to personal viewing as mere possession/consumption of violent or pornographic material is not punishable. There is an argument, however, that a user downloading the material constitutes storage under Articles 135 and 197, Clause 3 of the Penal Code. But this interpretation would appear to be contrary to the intention of the legislation. So if the user's conduct is confined to his own consumption, it would be difficult to establish any crime under the present law.

The National Council's Law Commission passed a parliamentary initiative calling for a ban on the possession of child pornography on 23 January 1996. But for this to be effective, electronic storage would have to be brought up to the same level as physical possession, which then raises the problem of distinguishing between ownership and mere consumption. If consumption were to be made punishable, there would be little effective way of enforcing it without excessive monitoring measures.

However, ISPs run the risk of "aiding and abetting the criminal presentations into the Internet" under Article 25 of the Penal Code. (It is not necessary for the aider and abettor to know the details of the act, just perceive its basic characteristics, but a general undefined intention is not enough.)

The Swiss Supreme Court ruled in the so-called "Decision 156" (SCD 121 IV 109) that the head of the PTT who was responsible for introducing "Telekiosk" was guilty of aiding and abetting pornography under Article 197 (Clause 1) if he made those facilities available knowing that they would be used to disseminate pornographic recordings which would be available to children under the age of 16. It should be noted that the Federal Attorney's office had alerted the head of the PTT to this illegal use of the Telekiosk and his potential personal criminal liability.

This can be applied directly to ISPs. However, the ISP will have to be shown to have given intentional support to the criminal act - a general intention is not sufficient. So far, the fact that the ISP knows that amongst the information he is helping disseminate there will be information of a criminal nature, does not constitute a criminal offence. The ISP need not check the network for illegal content in personal communications either, due to the inviolability of telecommunications, but it would be permissible to check public communications, though impossible given the vast amount of information posted daily. However - in line with other countries - should the service provider become aware of illegal content, and does not take immediate action, he may be held liable for aiding and abetting on account of his knowledge (this will not include vague general complaints from users about content).

Switzerland also has criminal offences relating to explosives. Article 226, para 3 of the Penal Code makes it an offence for somebody to provide such instructions to a person he knows or assumes is planning to make criminal use of explosives (or poisonous gases). Any such instructions freely available to all would not satisfy the intention requirement but if the information was directed at specific persons - an offence could be committed. Article 259 covers persons who send instructions on, for example, explosives making, together with an appeal to the recipient(s) to commit a crime and they will be liable for incitement to commit a crime (using explosives) or of publicly instigating the commission of crimes or acts of violence.

There are planned revisions of the Penal and procedural law in respect of the media for crimes of expression of opinion through the press including a proposed extension of Article 27 of the Penal Code to include all media, adding publicly accessible Internet content. It is proposed that the principle of sole liability of the author would still apply - to exclude criminal liability of others necessarily involved in the publication, which will therefore include access providers. There is a provision however that publication should take place with the author's knowledge and consent and that it can be detected and prosecuted in Switzerland. This of course will not cover authors outside Switzerland.

United Kingdom

The Obscene Publications Acts 1959 and 1964 make it an offence to publish obscene material. These Acts define "publication" to include distribution and circulation of obscene material. Publishers of obscene material, including distributors, have a defence if they have not examined the article and had no reasonable cause to suspect that the nature of the articles was such that these publications would make them liable to be convicted of an offence. It applies to online services (see below).

The Protection of Children Act 1978 makes it an offence to distribute (or have in your possession with a view to their being distributed) indecent photographs (including stills from a film) of children under 16. Again as with the Obscene Publications Act, there is a defence that the distributor did not see the work in issue and did not know or have cause to suspect them to be indecent. The Criminal Justice and Order Act 1984 has extended this to provide for a "pseudo-photograph" (an image including a computer-manipulated image having the appearance of a photograph) and there is a further offence of sending a grossly offensive or obscene, indecent or menacing message over a telecommunication service originating in the UK (The Telecommunications Act 1984). This is intended to catch the originator of the message rather than the person distributing it, i.e. the service provider. This legislation has recently been applied in the Court of Appeal judgement in R -v- Fellows R ­v­ Arnold on 3 October 1996 where it was held that images held in digital form on a computer connected to the Internet were copies of photographs for the purposes of Section 1 of the Protection of Children Act 1978 and were "distributed or shown" by being made available for access by other computer users. The activities of the defendant who distributed child pornography in that way were also a breach of the Obscene Publications Act 1959 as amended in 1964, according to the Court.

In a more recent case, a Roman Catholic priest was jailed for six years in November 1996, having pleaded guilty to 12 charges of assault and six charges of distributing indecent photographs of children under 16 over the Internet. This case is regarded as the first in the United Kingdom with a proven link between pornographic correspondence over the Internet and abuse of children. The priest was arrested following a tip off from German Police. This trail can be traced back to an original tip off from customs officials in America in 1984, passed to police in the West Midlands in the UK. The information found stored on the priest's computer in turn has identified further suspects in France, Sweden, USA, Hong Kong, Singapore, Holland, New Zealand and Germany which also identified 37 other suspects worldwide.

United States

Federal

The US Telecommunications Act of 1996 was signed on 8 February 1996 by President Clinton and it included various provisions intended to combat obscene and indecent communications. Part of the Act, the Communications Decency Act (the "CDA") provided that, among other things, any person who "by means of a telecommunications device" "knowingly ... makes, creates or solicits" and "initiates the transmission" of "any comment, request, suggestion, proposal, image or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age" "shall be criminally fined or imprisoned". Lawsuits challenging the CDA on constitutional grounds were filed on the same day, now consolidated under a general heading of ACLU v Reno. In June 1996 a temporary restraining order was granted by a special appeals court in Philadelphia forbidding the Justice Department from implementing the provisions of the CDA, that is, for introducing criminal offences in respect of "indecent" online communications. The challenge is based on First Amendment Rights, that Congress cannot establish laws which abridge free speech, and that the terms "indecent" and "patently offensive" in the Act were too vaguely defined to pass constitutional scrutiny, so that there was no certainty as to which acts will lead to prosecution. The plaintiff's claim was that this would lead ISPs and other carriers to reduce all levels of communication to that suitable for a child under 18 to avoid criminal prosecution, thereby depriving persons of the right to discuss important issues freely. The case is now before the Supreme Court and it is interesting to note that the Department of Justice is seeking to raise new issues other than those addressed in the lower courts, including a contention that the CDA should be construed to cover only those who provide so-called "commercial pornography".

The issue of liability and jurisdiction was examined in US v Thomas before the US Federal court in Western Tennessee involving violation of federal obscenity laws. The Thomas' operated a bulletin board and loaded sexually explicit material online from scanned magazines purchased from adult bookstores. Users could download and view the materials on payment of a membership fee. At first instance, the federal prosecution in Western Tennessee brought the criminal case against the defendants' electronic bulletin board system located in Berkeley, California, which is more liberal, for distribution of obscene materials which Tennessee residents could receive by dialling up the bulletin board. They were convicted under 18 U.S.C. '1465 for distributing an obscene "computer generated image". The defendants appealed their convictions.

The Sixth Circuit Court of Appeal upheld their convictions, holding that venue was held proper for either district. According to the Court, the Memphis community was affected by the distribution of the allegedly obscene material and it was therefore appropriate for the material to be evaluated according to the community standards of the Western District of Tennessee.

The Court of Appeals for the Sixth Circuit has looked at the issue of assertion of jurisdiction in relation to the Internet in CompuServe, Inc. v Patterson. Patterson entered into an agreement, stated to be governed by Ohio law, with CompuServe in order to place items of shareware onto the CompuServe system, all communications taking place over the Internet. Further events ensued and CompuServe filed a lawsuit in Ohio. Patterson moved to dismiss the suit on the basis of lack of personal jurisdiction. The motion was granted and CompuServe appealed.

The Court decided that the issue on appeal was whether Patterson's contacts with Ohio, which had been virtually entirely electronic, were sufficient to support an assertion of jurisdiction over him. The Court of Appeals reversed the decision of the District Court and held that CompuServe had made a prima facie case that the District Court had jurisdiction over him.

The Court did continue by making it clear that this case was judged very much on the particular facts, but it may tend to establish a precedent that one can content with a state via electronic contacts on the Internet.

In another case, Bensusan Restaurant Corporation v. King and The Blue Note the issue of personal jurisdiction and the Internet is studied. Here the plaintiff owns a jazz club in New York City called "The Blue Note" and several other jazz clubs. The plaintiff owns all rights, title and interest in and to the federally registered mark "The Blue Note". The defendant lives in Columbia, Missouri and operates a small club in Columbia which is also called "The Blue Note".

The defendant moved to dismiss the plaintiff's action for trade mark infringement, trade mark dilution and unfair competition by claiming lack of personal jurisdiction. The issue was whether the existence of a site on the WWW was sufficient to vest the Court with personal jurisdiction over the defendant pursuant to New York's long-arm statute and the Due Process Clause of the United States Constitution.

The Court found that the plaintiff's allegations were insufficient to support a finding of long-arm jurisdiction as it would take a New York resident several affirmative steps to access the site and utilise the information. The court said that "the mere fact that a person can gain information on the allegedly infringing product is not the equivalent of a person advertising, selling or otherwise making an effort to target its product in New York". There was no evidence of any infringing activity directed at New York. The plaintiff's other contentions were all insufficient to establish personal jurisdiction as in each case, the defendant had not directed any contact at, or had any contact with, New York nor intended to avail himself of any of New York's benefits. This is obviously a different result to CompuServe v. Patterson above, but can be distinguished on the facts. In fact, when comparing the various US judgements throughout this report, where jurisdiction has been vested in the court, the defendant has usually "solicited" a response for whatever reason from the users in the State asserting jurisdiction.

In Loving v. Boren, the plaintiff, a professor at the University of Oklahoma, alleged that the University had violated his First Amendment rights when it blocked access to Internet news groups deemed obscene by university officials. Distribution of any type of obscene material violates a state law, hence the action by the university. So two news servers were created by the university. One server had "open access", meaning that anyone could access it but it contained the university approved subset. The other server had "full access" and access was conditional upon the user acknowledging that use was for legitimate research and teaching activities and that the user was at least 18 years old.

The plaintiff failed to obtain his injunction on a failure of proof; he failed to show that the university's conduct caused him any harm. The Court also examined the constitutionality of the two-server policy, but ruled that no constitutional violation had occurred as the University Computer and Internet services did not constitute a public forum, that there was no evidence that the facilities had ever been open to the general public or used for public communication and they were "lawfully dedicated to academic and research uses".

The CDA also provides "safe harbours" for transmission companies and online service providers, so that they cannot be treated as "publishers" of third party content or held liable for actions taken to monitor or block offensive material.

From 1st October 1996, a new law from the US Congress took effect making it illegal to use computer technology to depict children in sexual deviations.

The Senate also adopted Amendment No. 200 to the Telecommunication Law reform bill in November 1996.

State

North Carolina Computer Solicitation Act, an Act which makes it a felony offence to solicit a child under 16 years of age by means of computer to commit an unlawful sex act. It has been effective since December 1 1995 and applies to acts committed on or after that date.

Under the New York State Penal Law, Section 235 was amended by Chapter 600 of The Law of 1996 - becoming effective on November 1, 1996. It reflects the modifications to the law relevant to disseminating indecent material to minors using computer systems, networks and related technologies. This is now being challenged in American Library Association v. Pataki which is being heard in the US District Court for the Southern District of New York in April 1997. As in ACLU v. Reno, the plaintiffs argue that the New York statute is unconstitutional because adults would have to communicate on a level suitable for a child and does not consider other methods of protecting children form "adult" material.

Vietnam

The Government has announced its intention to control the Internet more tightly for technical and security reasons and from the cultural aspect. It also aims to keep out foreign pornography and other information sent from abroad which it considers harmful. The Ministry of Culture and Information will monitor online content and the Interior Ministry will be in charge of monitoring Internet national security issues. ISPs and their customers are also required to be licenced and all information transferable by the Internet either sent abroad or received into Vietnam must comply with article 10 of the Press Law and article 22 of the Publication Law, according to recent regulations.

Comment

The underlying picture shows that for most countries the current legislation particularly relating to pornography has adapted itself to the Internet. In certain situations, further regulation may become necessary to catch minor points.

Perhaps more so with child pornography than any other "offensive material", countries appear to be ready to co-ordinate their efforts to arrest the offenders and to share information readily with other countries. This may of course be due to the fact that the majority of countries have ruled child pornography illegal and that in cases of "ordinary" pornography, where levels of tolerance differs enormously and this therefore does not encourage universal co-operation between police forces worldwide. In respect of excessively violent material certain countries have outlawed it on the Internet but there are no reports of it. Again this may unfortunately be due to increased interest in the issue of pornography on the Internet, which dominates the headlines.

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