Examination of Witnesses (Questions 535
- 539)
TUESDAY 13 FEBRUARY 2001
MS KAREN
THOMSON, MS
CLARE GILBERT
AND MR
SIMON HAMPTON
Chairman: Thank you very much indeed
for coming to see us here this morning. You are an extraordinarily
powerful and interesting organisation and we hope to get a lot
of information out of you. We will begin with Mr Maxton.
Mr Maxton
535. Could I start with a topical question,
do you have a view of the Napster decision yesterday in the United
States?
(Ms Gilbert) I think AOL's position has
always been that we value intellectual property and we think intellectual
property must be protected in the Internet just as it is off-line.
I think what the court came down with was really the only sensible
decision they could make, given the facts. I think what we are
looking for in the future is a resolution which will enable technologies
and companies like Napster to operate in a lawful manner, and
there is much talk about the move towards a subscription model
for music on the Internet and that might provide the solution.
That is the challenge for Napster, to run their business in a
lawful environment.
Mr Maxton: One of the dangers is that
the open provision which Napster allowed for people—all
right, illegally, I will accept that—to swap music means
that now record companies will not be really competing to drive
their prices down. Recent investigations here have shown in terms
of the actual physical market, rather than the Internet market,
the record companies are operating cartels to keep prices at a
certain level.
Chairman
536. As we pointed out a long time ago.
(Ms Gilbert) I think that is a separate question.
I think already the Internet offers a medium through which companies
can compete legitimately on price. People can buy their CDs from
a number of sites and those will be offered at a discounted rate,
but it is a different question to say, "Is it right to incentivise
record companies to bring down their prices because they are competing
with an illegal product?" I would not go that far, I do not
think.
Mr Maxton
537. Record companies, I discovered over Christmas,
compete with each other. WHSmith, for instance, were selling one
record I bought at £5 more in their shops than they were
selling it on the Internet, which seems a very strange thing to
do. Can I look at content. Do you think it is possible for one
country to have laws which regulate content on the Internet?
(Ms Gilbert) These are lots of lawyers questions—I
am covering them off! I think that is one of the greatest challenges
which we face as the Internet goes forward. We have seen it already
starting in Europe where we have to deal with the fact that the
vast majority of content still is situated on the servers in a
country where there is a very strong first amendment right, and
that allows content to be there which in many countries is either
illegal or unacceptable. The position we take within AOL is that
much of the answer to this will lie in technology and in particular
technology which empowers users to make decisions about what they
access. For example, AOL has developed its own software tools
which enable parents to filter out unacceptable content, and I
think the same technology could be applied to help filter out
unacceptable content on a broader level. If we look at illegal
content, that is really a question for law enforcement and also
for international discussion. We have seen a number of initiatives
already take off, if we look at the question of child pornography
which was a serious concern, there we have broadly on an international
level harmony in laws across many jurisdictions, so that in most
countries it is illegal to possess child pornography material.
We have two levels of activity in the industry to deal with this
type of content on the web. We have in the UK an industry-funded
body called the Internet Watch Foundation which operates a hot-line
where you phone in and say, "I think I have seen something
on the web which I think is child pornography and therefore should
be removed." The Internet Watch Foundation will look at it
and if in their view it is illegal, they notify ISPs who remove
the content. For child pornography that works pretty well because
it is pretty easy to make a decision about what is or is not illegal
child pornography, it is much more difficult to apply that model
in the broader context of illegal material. So, for example, someone
might write to us and say, "I believe I have been defamed
on the Internet" or "I believe a certain piece of content
is illegal hate speak", and those sort of decisions are very
difficult and complex and our view at the moment is that the best
forum for those decisions remains the court, and it is not really
the role of ISPs to stand in the middle and act as judge and jury
on whether content is or is not illegal.
538. Presumably if you are the provider you
are the same as the publisher and therefore, if someone puts something
on a web site which you then allow people to access, are you not
legally liable along with the actual person who has put it on?
I cannot remember exactly but there was the case of the Pro-Life,
as they call themselves, organisation in the States which had
to pay out very large sums of money to certain people as a result
of what was on the web site, were the providers involved in that?
(Ms Gilbert) I cannot recall the facts of that case
but I think it is worth looking at two distinctions. If we look
at the UK, the vast majority of illegal content which is objected
to is not hosted, so it is not within the control of the UK ISPs,
it is not their customers putting it on the web, it is people
in other countries where perhaps laws are more relaxed or where
people feel they can place this content with a greater degree
of safety. For UK ISPs, under the English legal system to take
responsibility for that and to take action is probably technologically
impossible and is also not getting to the perpetrator of the crime.
If illegal activity is conducted over the Internet by the customer
of the UK ISP then there is normally a process in place where
the UK ISP will help the police with legitimate inquiries and
will act on proper notices to deal with that content.
539. One other problem that arises is the search
machine, if you like. You obviously have your own. One of the
problems is that certain words can be put on to a search machine
and it comes up with the answers that you do not expect and some
of them may very well be things that you certainly would not wish
children to see. Do you in any way control your search machine
so that it is the two hundredth item down the line that comes
up rather than the first that comes up?
(Ms Gilbert) No, not in so far as I am aware. I think
our search facility is done on the basis of the closeness of the
search that you are matching. For example, if parents are concerned
about their children using search facilities then we have very
simple software tools which enable them to add further filters
to the content through AOL's parental controls.
Chairman: Mr Maxton has to go in a moment
but could I just ask about that so that I can be very clear about
it. I read an article in the New Yorker not long ago in
which it said—I cannot remember if your organisation was
mentioned, I do not particularly wish to target it, but you are
a very authoritative group—that organisations with search
engines were deliberately giving priority in their lists to references
which could be of commercial advantage to them rather than providing
the information to the Internet searcher or browser. That is a
serious allegation and a magazine like the New Yorker would
not make it without basis. Could you comment on that, and if Mr
Maxton feels he has to go in the middle of that—
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