Memorandum by Cyber-Rights & Cyber-Liberties
(UK)
(1) Cyber-Rights & Cyber-Liberties (UK)
(http://www.cyber-rights.org), which was founded in January 1997
with the aim of promoting free speech and privacy in regard to
the Internet, welcomes the opportunity to make a written submission
to the House of Lords Select Committee on the European Union on
its inquiry into e-Commerce: Policy Development and Co-ordination
in the European Union.
(2) We addressed issues relating to the
first question of the Select Committee, namely, "what needs
to be done to create confidence and to stimulate e-commerce?",
in a written submission made to the House of Commons Trade and
Industry Committee Electronic Commerce Inquiry during last year.
The board members of Cyber-Rights & Cyber-Liberties (UK) also
gave oral evidence in relation to that inquiry.[68]
We pointed out that national Government access to encryption keys
would undermine and hold back both the development of e-commerce
and would be harmful to individual rights of privacy and free
speech. The development of the Internet requires the instillation
of trust in Internet users and affirmation that their expectation
of privacy in correspondence is legitimate. But it seems to be
the Government which has no trust and instead seeks to develop
intrusive surveillance systems. It is also very debatable whether
the UK Government's encryption policy approach is compatible with
that of the European Union or with other Member States of the
European Union.
(3) This submission will concentrate on
specific issues which reflect our current research into the protection
of individual rights and liberties in the Information Age. Therefore,
the submission will deal with the third question of the House
of Lords Select Committee, namely, will codes of conduct and co-regulation
provide sufficient protection? Is there a case for intervention
by national governments and the EU?
(4) Internet content regulation, with an
emphasis on the existence of sexually explicit content, remains
one of the greatest concerns for governments, supra-national bodies
and international organisations. The 1990s witnessed the proliferation
of the Internet and the current concerns by the regulators mainly
concentrate on the existence of illegal content such as child
pornography over the Internet, and the access of (mainly) sexually
explicit content over the Internet by children. The September
1999 e-commerce@its.best.uk, the Cabinet Office report[69]
stated that "there are worries about the content of the Internet,"[70]
and according to the report this remains as one of the major issues
that "lead to lack of confidence for the development of e-commerce
within the UK."
(5) Therefore, this submission will address
this issue in relation to Internet content regulation with specific
reference to the availability of illegal and harmful content and
the self-regulatory (or co-regulatory) approach that has been
adopted by the UK Government as the issue is relevant to the overall
purpose of the inquiry of this House of Lords Select Committee.
(6) The self-regulatory model that has been
adopted and supported by the UK Government is the Internet Watch
Foundation scheme ("IWF")http://www.internetwatch.org.uk.
This model and the activities of this UK organisation is also
supported at the European Union level by the European Commission.[71]
(7) Cyber-Rights & Cyber-Liberties (UK)
has been monitoring the activities of the IWF since its inception
in September 1996. So far, we have produced two critical reports
in relation to the activities of the IWF, namely, Who Watches
the Watchmen: Internet Content Rating Systems, and Privatised
Censorship, (November 1997);[72]
and Who Watches the Watchmen: Part IIAccountability &
Effective Self-Regulation in the Information Age, (September 1998).[73]
(8) We believe fundamental principles should
be observed when decisions are taken by government and other quasi-regulatory
bodies relating to public matters especially if the IWF scheme
will be part of the self-regulatory (or co-regulatory) approach
that has been adopted and supported by the UK Government. Therefore,
it is important to consider the good governance/regulation principles
in relation to regulators and quasi-regulators based upon the
Nolan Committee principles on good standards in public life[74]
and the Cabinet Office Regulatory Impact Unit's principles of
good regulation.[75]
(9) In general principles for a good regulatory
action should:
be based on clearly defined policy
objectives and should be easy to understand;
be the minimum necessary to meet
those objectives;
further enhance legal certainty in
a dynamic market;
aim to be technologically neutral;
have broad public support;
be enforceable, and transparent;
be balanced and avoid impetuous knee-jerk
reaction;
avoid unintended consequences;
balance risk, cost and practical
benefit;
reconcile contradictory policy objectives;
have accountability; and
(10) However, we have not witnessed these
principles being adequately observed by the Internet Watch Foundation
since its inception, even though it remains a "private organisation"
with important public duties; namely, (a) acting as a hotline
for reporting Internet content deemed to be illegal, and (b) as
a policy-setting body in relation to the availability of Internet
content which may be considered as harmful or offensive but not
illegal.[76]
Transparency, openness and more importantly "accountability"
are important features of a healthy society. Without "accountability",
the IWF will never become a transparent policy-making organisation.
Therefore, if this is the way forward for the future of "Internet
content regulation", then the mechanics of this system should
observe the above principles.
(11) Furthermore, procedures can only be
properly designed within a legal context which takes due account
of individual rights and liberties (especially freedom of expression
within this context). Such procedures are a matter of legitimate
public interest, especially to Internet users. It should not be
forgotten that the European Convention on Human Rights is now
part of the UK legislation through the enactment of the Human
Rights Act 1998. As the European Court of Human Rights stated
". . . freedom of expression constitutes one of the essential
foundations of a democratic society, one of the basic conditions
for its progress."[77]
The result of the incorporation should be "the beginning
of the strong development of a human rights culture in this country,"[78]
rather than the development of a privatised cyber-censorship culture.
(12) In January 2000, the IWF announced that
it will try to apply its self-regulation (hotline and illegal
content activity) approach to racism on the Internet. Removal
of objectionable though legal content from the Internet without
due process would certainly amount to censorship and this may
be the case in relation to hate speech on the Internet. Although
it is an offence to use threatening, abusive or insulting words
or behaviour intended or likely to stir up racial hatred under
Part III of the Public Order Act 1986, (section 18) or to publish
such materials, by written materials, in theatre plays, by video
or in a cable broadcast (sections 19 to 22) or to possess such
materials (section 23), "No proceedings for an offence under
this Part may be instituted in England and Wales except by or
with the consent of the Attorney General" according to section
27(1). So, it is very much doubtful whether the IWF should be
in a position to make these judgments without due process. Privatised
policing organisations are not acceptable bodies to judge the
suitability or illegality of Internet content and there is a serious
risk that hotline operators will act as "self-appointed judges"
and that the hotlines will "violate due process concepts
that are also enshrined in international, regional, and national
guarantees around the world."[79]
(13) If the UK is to become the best place
for e-commerce, it should also offer the best protection for individual
rights and liberties. If bodies like the IWF are to exist, then
they must more clearly be subjected to standards of constitutionality
and good government. They must also have greater regard to legal
standards, especially those standards which serve to protect liberty.
Furthermore, any co-ordinated policy initiative at a supra-national
level (eg the European Union or within the Council of Europe in
relation to the adoption of the draft Convention on Cyber-crime[80]),
or at an international level (eg within the OECD) should also
offer the best protection for individual rights and liberties.
8 May 2000
68 See generally House of Commons Select
Committee on Trade and Industry, Report on Building Confidence
in Electronic Commerce (1998-99 HC 187) and Cyber-Rights &
Cyber-Liberties (UK) Memorandum to the House of Commons Trade
and Industry Select Committee on Electronic Commerce Inquiry,
February 1999, at http://www.cyber-rights.org/reports/crcl-hc.htm. Back
69
Cabinet Office Performance and Innovation Unit Report, e-commerce@its.best.uk:
The Government's Strategy, September 1999, at http://www.cabinet-office.gov.uk/innovation/1999/ecommerce/index.htm. Back
70
Ibid at para 10.6. Back
71
Decision No /98/EC of the European Parliament and of the
Council of adopting a Multiannual Community Action Plan on promoting
safer use of the Internet by combating illegal and harmful content
on global networks, December 1998. Back
72
See http://www.cyber-rights.org/watchmen.htm. Back
73
See http://www.cyber-rights.org/watchmen-ii.htm. Back
74
Nolan Committee, First Report of the Committee on Standards
in Public Life (Cm 2850, London: HMSO, 1995). See also the
Committee on Standards in Public Life web site at http://www.open.gov.uk/cspl/csplhome.htm. Back
75
See the Cabinet Office Regulatory Impact Unit's (formerly
known as the Better Regulation Unit) Better Regulation Guide,
and the Principles of Good Regulation at http://www.cabinet-office.gov.uk/bru/1998/task_force/principles.pdf. Back
76
A detailed criticism of Internet content regulation is provided
in Walker, C, & Akdeniz, Y, "The governance of the Internet
in Europe with special reference to illegal and harmful content,"
[1998] Criminal Law Review, December Special Edition: Crime, Criminal
Justice and the Internet, pp 5-19. Back
77
Castells v Spain, App No11798/85, Ser A vol 236, (1992)
14 EHRR 445, § 42. See also Lingens v Austria, App
No 9815/82, Ser A vol 103, (1986) 8 EHRR 407; Demicoli v Malta,
App No 13057/87, Ser A vol 210, (1992) 14 EHRR 47; Oberschlick
v Austria App No 11662/85, Ser A vol 204, (1995) 19 EHRR 389;
Jerslid v Denmark, App No 15890/88, Ser A vol 298, (1995)
19 EHRR 1 Back
78
According to the Parliamentary Under-Secretary of State
for the Home Department, Mr. Mike O'Brien, House of Commons Hansard
Debates for 21 October 1998, Column 1322. Back
79
Per Professor Nadine Strossen, from an ACLU Press Release,
"ACLU Joins International Protest Against Global Internet
Censorship Plans," 9 September, 1999, at http://www.aclu.org/news/1999/n090999a.html. Back
80
(PC-CY (2000), Draft No 19), at http://conventions.coe.int/treaty/en/projets/cybercrime.htm. Back
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