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THE INTERNET LAW AND POLICY FORUM WORKING GROUP ON CONTENT BLOCKING

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II. SELF-REGULATORY INITIATIVES

Australia | Belgium | EU | France | Germany | Japan | Netherlands
New Zealand | OECD | Singapore | Switzerland | U.K. | U.S.

Australia

As discussed earlier in this report, the Australian Broadcasting Authority (the "ABA") have published a comprehensive investigation into the content of online services. The report has been generally welcomed by industry. The main recommendation of the ABA was that industry codes of practice should be developed by online service providers. They regarded this emerging industry group as providing an important intermediary function in the online environment who were the best placed to define practical and workable solutions to address community concerns. The ABA felt it was important to also establish a set of rules for the conduct of industry participants and that the ABA itself should have a monitoring role in relation to the codes of practice for the service providers.

The main elements of proposed regulatory framework are:

  1. the identification of matters which should be included in codes of practice for service providers, to provide appropriate community safeguards, including complaints handling procedures;
  2. the registration by the ABA of such codes of practice, developed by service providers after a process of public consultation; and
  3. the monitoring of codes of practice and their effectiveness by the ABA.

The ABA is aware of moves to introduce specific common law offence provisions for online services. These relate to objectionable material and making available to minors material which may be unsuitable for them. The model offence provisions which have been recently drafted for the States and Territory Censorship Ministers refer to a number of defences which would be available to a service provider in a prosecution. These include compliance with an applicable industry code of practice. The ABA acknowledges that any code of practice referred to in the model offence provisions should be the same as that registered by the ABA. This will provide a co-ordinated regulatory and enforcement strategy.

In relation to unsuitable material, the ABA has recommended that service providers include in codes of practice reasonable age verification procedures which aim to limit the holding of an online account to persons over the age of 18. This aims to prevent children's access to open online services without parental supervision. The ABA's investigation into the presence of objectionable material online confirm that it is available and that this is a matter for serious concern. However, the ABA also found that the chance of being involuntarily exposed to such material is low, but material unsuitable for children can be more easily found but is often accompanied by warnings and/or requires credit card details.

In considering strategies to limit children's access to this kind of material, the ABA acknowledges that the most effective controls can be applied by users i.e. using the available filter software products, combined with parental supervision which would address concerns about the protection of children.

The ABA proposes that a purpose-built labelling scheme for online content be developed. The scheme should be based on the principles that underpin the existing classification regime for other media and be appropriate to the nature of the online environment. The Platform for Internet Contents Selection (PICS) was seen as having strong support from the industry and the online community. The ABA has recommended that it convene an online labelling Task Force, with all the relevant parties, including the Office of Film and Literature Classification and the industry. The task force would develop the labelling system for Australian content providers and consumers which would utilise the set standards incorporated in PICS, or any other relevant standards that might be developed. The ABA also recommended that Australia participate in a PICS development process in the international arena, and collaborate with the relevant expert bodies to maximise Australian consistency with overseas rating schemes.

The ABA acknowledges that co-operation between government agencies, the online industry and the community is required.

The Internet Industry Association of Australia ("INTIAA") is at present formulating a code of conduct to help set standards for its members and aims to fight offensive content and dishonest traders. A second draft was published on 10 September 1996 and is awaiting comments. It is hoped that it will receive ABA approval in due course. Internet content will be classified under the current code used by the Office of Film and Television Classification which supports content labelling; new users of the Internet will have to confirm that they are 18 years of age or over before being given unlimited access, vendors are required to follow certain procedures in relation to online sales. The Code also deals with secrecy obligations, data collection and use and the handling of difficulties and complaints.

The ABA has also been invited by the United Nations Educational, Scientific and Cultural Organisation ("UNESCO") to conduct a pilot study on the Internet and International Regulatory Issues. The aim is for the pilot study to identify some of the main features of the online environment, discuss the recent technical developments in rating systems such as PICS, to assess recent developments in Australia, Malaysia, Singapore and the United Kingdom and to consider areas which would benefit from international co-operation.

Belgium

In November 1996, a group of Belgian service providers announced that they were forming Belgian ISPA ("Internet Service Providers Association"), effectively adopting wholesale the aims, constitution and code of conduct adopted by the UK ISPA.

EU

In November 1996, the European Commission published its report by the Working Party on Illegal and Harmful Content on the Internet including proposals for further action. This does not prejudice the more extensive discussion due to take place in the first quarter of 1997 on the Communication on Illegal and Harmful Content on the Internet and the Green Paper on the Protection of Minors and Human Dignity in audio-visual and information services.

There are four points central to the approach taken by the Working Party:

  1. Any action taken to deal with illegal and harmful content should not have a disproportionate impact on Internet users and the industry as a whole.
  2. Any restrictions should respect fundamental rights such as freedom of expression and the right to privacy.
  3. Responsibility for prosecuting and punishing those responsible for illegal content remains with the national law enforcement authorities.
  4. The industry should be responsible for reporting and removing illegal content, assisted by self-regulatory bodies. There should also be use of hot lines and filtering software and rating systems.

Proposals For Further Action

  1. Self-regulation
    1. Internet service providers and users should establish representative bodies in all member states.
    2. A self regulatory system should be set up which includes:
      • a code of conduct for ISPs
      • a hotline for complaints from the public
      • an independent self-regulatory body to advise on breaches of the code of conduct.
      • NB: Importantly, the report specifically suggested that compliance by ISPs with all of the above could be used as evidence (i.e. as a defence from prosecution) that reasonable efforts had been used to remove or prevent access to illegal material.
  2. The role of self-regulatory bodies:
    They should use their best efforts to restrict the flow of illegal content on the Internet. If they were to become aware of illegal content, they should take steps to ensure its removal by informing the host service providers. Where the content emanates from abroad, they should pass the information to the host country's self-regulator. They should also where appropriate provide information to the police.
  3. There should be European co-ordination of ISP, user and self-regulatory bodies.
  • Liability
    1. Internet service providers should only be liable for illegal content where they are themselves the content provider, or where they have been informed of and have then failed to take reasonable steps to remove illegal content from a service to which they provide access ( they should not be required to actively search for illegal content).
    2. Anonymous use of the Internet:
      The Working Party feels that further examination is required of conditions under which measures can be taken to detect the criminals, having regard to existing laws which regulate for example phone tapping and listening in the "off-line" world.
  • Technical Measures - Filtering and Rating
    The PICS standard is strongly supported by the European Commission (i) as an effective means of rating material and (ii) of them filtering material which has been so rated..
    1. Content providers should be encouraged to rate their material.
    2. The Commission should foster applied research especially into the development of third-party rating systems to meet different needs and take account of Europe's cultural and linguistic diversity. (see further section on technical aspects of content blocking)
    3. The Commission should include improved privacy-enhancing and tracing mechanisms as a priority in its research programme and results made available from existing programmes as soon as possible.
  • Further Suggestions
    1. Criminal law and criminal procedure and the penalties for offences should be appropriate. Each Member State should examine whether regulations in force deal with illegal content transmission on the Internet adequately, in particular, in relation to child pornography and liability for illegal content.
    2. Police should take advantage of advice and information from self-regulation bodies.
  • International Co-Operation
    The Working Party would like to see those proposals implemented on an international basis within an appropriate framework, with particular application to police and judicial cooperation and to dealing with liability for illegal content and anonymous use of the Internet. There should also be co-operation between hotline operators and also operators of rating systems and shared research into filtering software and tracing systems. The EU has already set up a Website intended to raise awareness on this issue
  • Support Measures
    • Awareness And Parental Education:
      Industry, self-regulatory bodies and user groups should collaborate to provide relevant material to parents and educators so that they can take full advantage of control software and rating systems. There should also be a Website on illegal and harmful content with links to hotlines, advice on using the Internet and filtering and rating, with links to filtering and rating software and information about self-regulatory bodies and industry codes of conduct.

    Commentary

    During the meetings of the working party, there was a great deal of consensus amongst the various member states and their industry representatives regarding the proposals set out above and the desirability of self-regulation. It will therefore be interesting in 1997 to observe how each state seeks to implement the proposals. To this end, the responses to the Green Paper on the Protection of Minors and Human Dignity in audio-visual and information services shall provide a reasonable indication.

    France

    France has been very concerned that there is international cooperation in order to form a code of good conduct for the Internet between all countries and it has therefore presented a proposal to the Organisation for Economic Co-Operation and Development ("OECD") for an agreement on international cooperation with regard to the Internet. The aims are stated as fulfilling the necessity to lay down the principles governing cooperation between the signatories to the agreement in order to better apprehend the characteristics of these networks, to enhance their substantial potential both economically and culturally and to combat illegal activities over them. It covers applicable laws, accountability, cooperation and harmonisation of national regulatory frameworks, a code of conduct, and judicial and police cooperation.

    Germany

    ISPs have begun to form a German ISPA (Internet Service Providers Association) based on the EC Working Party on Illegal and Harmful Content on the Internet.

    Japan

    Japanese service providers have contacted the UK ISPA in January 1997 requesting a meeting to discuss self-regulation.

    Netherlands

    In May 1996, the Dutch Internet providers established a "hotline" for reporting child pornography on the Internet. This has been fully supported by the Government. In most cases, illegal material has been removed after the first warning of notifying the police, meaning no further police action. It is regarded as one of the most successful initiatives against child pornography and has been studied by many other countries considering content regulation of the Internet.

    New Zealand

    The Internet Society of New Zealand met in August 1996 to discuss the development of a code of practice for Internet providers, the draft code presented for adoption which would bind its members to a set of ethics covering what services and information a customer can expect from their service provider, terms and conditions of sale and a complaints mechanism for customer problems with an Internet provider's service or content. The Minister of Information Technology, Maurice Williamson supports industry self-regulation.

    OECD

    The OECD Secretariat has issued a consultation paper on international cooperation concerning content and conduct on the Internet.

    Singapore

    The Singapore Broadcasting Authority has issued the Internet Code of Practice.

    Switzerland

    In May 1996, the Federal Office of Justice published a report of an Interdepartmental Working Party on penal, data protection and copyright aspects of the Internet, as a result of requests from Swiss Telecom and members of parliament following a supreme court decision and the planned market entry of Unisource Business Networks as an Internet provider. The Report concluded that at present, priority if any should be given to legislating to prevent the dissemination of racist, pornographic or violent material on the Internet. The Working Party also decided that uncontrolled dissemination and illegal use of personal data should be halted and that attempts should be made to avoid illegal use of copyrighted works and to protect industrial property rights.

    The Report provided eleven Recommendations for service providers as follows:

    1. If the Provider has knowledge at first hand or provided by third parties of concrete information giving grounds for suspicion that certain network content could be unlawful, he should immediately conduct or commission investigations with a view to suspending this content, as necessary. If the Provider has certain knowledge of unlawful network content, and in particular content which is punishable by law, he should immediately take the technical measures that are feasible and reasonable to suspend access to this content.
    2. It is recommended that access providers set up a Focal Point to collect and analyse information from providers, their customers and third parties about unlawful network content. This Focal Point should function as a service and information "hub", offering affiliated providers up-to-date information about network content which is to be suspended as well as professional and technical support.
    3. It is recommended that the Provider should, in principle, conclude service agreements only with private individuals who have sound judgement and are of age. Furthermore customers should be granted access to the network solely through user identification and a password (pin code).
    4. In a service contract, the Provider should reserve the right to suspend a "suspicious" site temporarily and to terminate the contract unilaterally if the customer disseminates unlawful content from his site or if such content can be called up from that site.
    5. The service contract should explicitly invite the customer to report any unlawful network content or any other unlawful Internet applications of which he becomes aware straight to the Provider and/or to the Focal Point.
    6. The Provider should be aware that displays of violence punishable under the terms of Article 135 of the Swiss Penal Code are not confined to film or photographic presentations but may also be contained in other articles or presentations, especially in computer games, and that promoting or placing on offer displays of violence is also a punishable offence. The same applies to presentations of hard porn within the meaning of Article 197, Clause 3, of the Swiss Penal Code.
    7. The Provider should brief his customers adequately on the potential data protection hazards involved in using the Internet and taking advantage of its services. He should also draw their attention to measures and products for ensuring the confidentiality, accuracy and availability of personal data (e.g. coding and encryption techniques).
    8. The Provider should process only the personal customer data required for providing his services. Technical and organisational measures should be taken to ensure that the data processed is made available only to staff requiring them to do their work. The data should not be used for any purpose other than that cited on obtaining the data, which is obvious from the circumstances or is prescribed by law. Data may only be made available to third parties with the customer=s consent if the provider has a qualified obligation to make the data known.
    9. The Provider should not draw up personal profiles of customers and should not make their names, addresses and telephone numbers accessible via the Internet, unless the person involved has given his consent, unless their is a legal justification for doing so or an overriding public or private interest is involved.
    10. Recommendation 1 (above) should also be observed when the Provider is aware that particular network content constitutes an infringement of copyright or industrial property rights.
    11. The Provider should draw attention in the service contract to the customer=s obligation to respect copyright and industrial property rights and should reserve the right to temporarily suspend a site suspected of infringement and unilaterally terminate the contract in the event of infringement.

    United Kingdom

    The Internet Service Providers Association ("ISPA") is a trade association comprising around 50 service providers, which formally launched in May 1996, when it adopted a code of best practice to establish a Code of Practice for service providers, to establish accepted standards of service and a uniform code of practice acceptable to members, to address any technical issues of specific relevance to the UK Internet Community and to foster co-operation with related organisations world-wide. The UK has subsequently developed the R3/Internet Watch initiative following discussions involving ISPA, LINX (the London Internet Exchange), the Metropolitan Police, the DTI and the Home Office. The initial focus of the initiative is to target child pornography. It incorporates 3 elements - rating, reporting and responsibility. Rating will be based on PICS and the Internet Watch Foundation has committed to producing a proposal for a UK-specific rating service by the end of March 1997. A hotline has been set up by the Internet Watch Foundation to report child pornography (and going forward, other types of illegal material). These reports will be checked and if appropriate, the ISPs are informed so that they can take the appropriate action. Content providers should take responsibility for rating their own pages and service providers should take responsibility for removing content brought to their attention which is either mis-rated or illegal.

    Since Internet Watch became operational in December 1996, it has received 34 calls reporting child pornography originating in the US, Japan, Holland and Sweden.

    There is still ongoing debate regarding how the Internet Watch Foundation should be funded. It is currently financed by a charitable donation, however it is anticipated that Internet service providers shall be required to pay what is in effect a "levy", probably factored into their trade association membership if applicable.

    United States

    In 1985, the Software Publishers Association ("SPA") initiated an industry wide effort to fight software piracy and now the SPA has launched a comprehensive Internet Anti-Piracy Campaign ("IAPC"), created an Education Program and Code of Conduct for ISPs. There have been criticisms of the Code by various parties, including the EFF and the Association of Online Professionals ("AOP"), who claim that by signing up to the Code, ISPs would be accepting obligations which go further than under any copyright laws including active monitoring of content passing through their servers. The Code has now been changed and is embodied in the "Policy Statement on Contributory Infringement" dealing with Serial Numbers and Cracker utilities, making various recommendations to ISPs to avoid pirated software being available on their servers. The SPA advocates that ISPs should endeavour "to maintain the integrity of the Internet" and if "the industry does not work together to stop piracy, it may invite more formal regulation".

    On 10 December 1996, the US Internet Council was formally launched. The Council has been formed to provided a policy forum at the state level on issues affecting the future of the Internet. The Council will act as an information exchange network for state legislators who are responsible for Internet issues in their states. The Council has now published a draft document which advocates a non-regulatory market-oriented approach although its stance on some ideas are not in line with current policy. (It is also intended to complement the work of the Congressional Internet Caucus.)

    Also in December 1996, the Internet Content Coalition was formed. It is a non-profit making organisation made up of 70 content providers who look at the regulation of Internet content.

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