Walker appears to be acknowledging the significance of nation-state laws and standards, but also recognises that nation-state regulation alone will not suffice.
2. Role to be played at the national level: Public and Private bodies:
As part of the movement into multi-layered governance, the involvement of self regulation at the private level cannot be underestimated. This can be demonstrated in the contentious area of child pornography. It would be impossible to reach agreement at the international stage as to how pornography should be defined because with the multi-national environment of the Internet also comes cultural, moral and legal variations and what is illegal in one country may not be in another. 11
‘…each country may reach its own conclusion in defining the borderline between what is permissible and not permissible…’ 12
One way in which self regulation is carried out is by way of Internet Service providers. In the UK, ISP’s have been encouraged to produce codes of practice to control access to illegal and unsuitable material.13
The Internet Watch Foundation was established in the UK in 1996 as a further method of self regulation for the ISP’s in the private domain and has an e-mail, telephone and fax hot-line so that users can report materials related to child pornography and other obscene materials.14 This has prevented ISP’s from being accused of possessing the material in the UK, as the ISP’s are only required to remove the content which has been identified and located by another source.15 For example, according to IWF’s second report, the number of reports reached 2407 and in 447 of these reports action was taken and, more significantly, 430 of the actions reports contained child pornography.16
The decision in the case of Sacchi v Italy 17 illustrates how national level of governance is still authoritative. It demonstrates how control of information by means of nation-state regulation is still possible. In this case the applicant claimed that by being prevented by domestic law from operating his cable television firm, this constituted a violation of the right to freedom of information as safeguarded by Article 10 of the European Convention of Human Rights.18 His application was rejected.
At the national level, governments have co-regulative initiatives. Indeed, governments at the national level are needed to take the lead on areas which need to be addressed. For instance education and awareness campaigns are an important method of regulating the content of the internet, as citizens will be made aware of how to protect their personal information on mediums such as social networks. Co-regulation at the national level also occurs due to the strong link between government aims and the self regulatory solutions offered by the industry which set out to achieve government aims.19
At the national level, governments cannot rely upon legislation to regulate and govern the internet. This is because governments cannot react quickly enough to the rapid development of the internet. Certainly, government action ought to be a last resort as the law always lags behind technology.20 This can be demonstrated if we were to look at the nature of the parliamentary process itself in the UK. Indeed, encryption rules took seven years to develop in the UK.21 Furthermore, the rules on the possession of extreme pornography will not come into force until January 2009.22 Therefore, it is important that governments rely on additional and alternative regulatory models. The Governments in most jurisdictions have acknowledged the fact that;
‘…the Internet is too widespread to be easily dominated by any single government…’23
Role to be played at the International Level: Public and Private bodies:
Whereas the EU was originally developed for economic issues, it is now involving itself in criminal matters and cross-jurisdictional cooperation. Indeed, in 2003, it published the Council Framework decision on combating the sexual exploitation of children.24 All EU Member States were required to implement the decision and work at the International level has been ongoing with the encouragement of the United Nations, whereby the World Summit
on the Information Society was set up in relation to internet related documents.25 The Geneva Action Plan was set up to identify the role of the stakeholders and had as its aim, to develop the infrastructure and access to the internet for poor regions such as Africa.26
In terms of harmonization at the international level, some people would argue that private bodies can only achieve a shared global perspective in limited areas such as data protection and consumer laws. However, the Organisation for Economic Co-operation and Development27 brings together the governments of countries committed to democracy and the market economy from around the world to: Sustain sustainable economic growth, boost employment, raise living standards, maintain financial stability, assist other countries, economic development and to contribute to the growth in world trade.28 This International initiative is designed to improve regulation by providing a setting whereby governments can compare policies, seek answers to problems and learn from each others practices.29 By working together, the aim is to achieve a higher level of expertise to ensure better regulation techniques.
Similarly, the Cybercrime Convention recognises the importance of co-operation between Member States and seeks to come up with a common criminal policy aimed at the protection of society against cybercrime within the context of the continuing globalisation of computer networks.30 The convention is designed to strike the right balance between the rights of law enforcement and respect for the fundamental human rights and fundamental
freedoms.31
Article 24 of the Convention outlines the principles relating to extradition. Indeed, due to the borderless nature of the internet, this article is important in ensuring that countries work together to catch the criminals on a global scale.32 Article 25 outlines the principles relating to mutual assistance and demonstrates that parties should assist one another to the best of their ability for the purposes of investigations and proceedings which relate to criminal offences relating to computer systems.33
In relation to child pornography, at the European level, the Council Framework decision in 2003 was designed to combat racist content and xenophobia,34 including the holocaust denial as one of its provisions (not yet finalised). During the past year the EU has been looking at proposals with regards to terrorist propaganda and the incitement to terrorism.35 However, the EU did not regulate on this issue and instead decided to focus upon self regulatory solutions such as education and awareness programmes and filtering solutions.36 In 1999, the EU also developed a community level action plan in order to combat some of the problems of the internet and to achieve ‘safer use of the internet.’37 This action plan is funded by the EU and has been proved successful, since it has been renewed four times.38
The Internet Corporation for Assigned Names and Numbers is the non-profit corporation that was formed to assume responsibility for the IP address space allocation, protocol parameter assignment, domain name system management, and root server system management function previously formed under U.S government contract by IANA and other entities.39 ICANN was formed in 1998 and has as its aim, public-benefit initiatives. ICANN is fully aware that content on the internet cannot be easily regulated, but its coordination role of the Internet’s naming system makes it very much compatible with the very nature of the internet I.e. its continual expansion and evolution. As it relies on participants from all over the world to keep the Internet secure and stable, it is an important part of the multi-layered governance system, despite having no direct links to the governments of each jurisdiction.40 This private body is yet another example of why nation-state governments cannot work alone on matters relating to the internet.
‘Governance signifies a change in the meaning of government…or the new method by which society is governed.’ 41
Why the current multi-layered governance system is inadequate:
Article 9 of the Cyber-Crime Convention, which sets out the offences related to child pornography42, has resulted in difficulties in achieving mutual agreements between states in relation to what is or is not acceptable conduct and since this is a contentious subject of debate, harmonization at the Council of Europe Level has been stifled. Indeed, when the Council of Europe introduced an additional protocol to the Cyber-Crime convention
relating to crimes committed through computer system, limited support was achieved.43 Furthermore, harmonization at the European level is still to be achieved since its implementation is subject to signature and ratification.44 Also, in relation to encryption standards, inter-government regulation is very slow to react due to the fact that bureaucracy takes time.45 Indeed, there have been criticisms of decision making in regards to the internet at the international level. For instance, it took the Council of Europe five years to develop the Cyber Crime convention and even after this, not all nation states have ratified it.46 This is most likely to be due to content related matters. The UN, for example, has been debating the response for encountering racist content on the internet for almost a decade as a strategy cannot be agreed upon and there are also constitutional differences in legal frameworks, not to mention the protection of certain human rights.47 Also, in a global environment, problems have occurred at the cross-jurisdictional level. For example, some countries do not criminalise the possession of child pornography and instead focus upon production and distribution.48 Article 9.1.e however, includes
‘...possessing child pornography in a computer system…’49
At the national level in the UK, however, possession, distribution and production are all criminalised50 and therefore the Cyber-Crime convention could be seen to act in favour of certain jurisdictions and undoubtedly is fragmented in the sense that it cannot make everyone happy.
There has been a problematic response when it comes to ratifying the Cybercrime convention I.e. the UK, Spain, Germany and Russia have still not ratified.51 The UK may have chosen not to cooperate due to the fact that the majority of crimes on the convention are already criminalised in the UK and so it is not on the political agenda.52 Also, if the UK had signed the convention, this would have meant that it would have to cooperate with other states I.e. provide data etc. This presents a potential problem of a multi-layered governance system, as it indicates that some jurisdictions are not prepared to work with other states to achieve better regulation practices.
The World Conference Against Racist Content53 is another example of the UN’s attempts to formulate policies, but like child pornography, this is a contentious subject and harmonization seems like an impossible task. Self regulation has been encouraged as a result. There has been an increase in the support of Self regulation as an alternative to failed harmonization. However, by allowing private bodies such as the Internet Watch Foundation to become a policy making body, (filtering and rating systems), this may create a concerning standard for the privatised censorship on the internet.54 In the report ‘Who watches the Watchman,55’ it has been suggested that the development of rating and filtering systems may not be able to provide the best solutions and self regulation is closely linked to government aims and inspirations. In this sense, the resulting restrictions and complex regulations would render the UK, a hostile environment for network development.56
At the national level, the self regulatory initiatives of ISP’s have become under increasing pressure when it comes to content related matters. They are seen to be the ‘gatekeepers’ and are the ‘usual suspects’ and have been accused of possessing harmful material.57 Despite being able to fully police their own networks, ISP’s may be taken to court.58 Whilst in the UK, ISP’s are rarely prosecuted due to the existence of private bodies such as the Internet Watch Foundation, this has not been the case in other countries such as France and Germany where ISP’s have been charged with criminal offences, such as in the case of Felix Somm who received a two-year suspended sentence and a fine of DM 100,000.59 Also, in terms of the ‘deep pocket’ argument, ISP’s have the money to be sued.60
A criticism then of these countries is their lack of private bodies to control regulation and the overuse of their governments, who do not have the expertise to deal with various content related matters. Indeed;
‘It is important to distinguish between illegal material and material which is legal but…offensive. Self regulation is an appropriate tool to address the latter….’61
To conclude, the response of the EU has been unclear and so there has been an increased focus on self regulatory initiatives in the private sector. However, self-regulatory initiatives do not always promote whole-hearted co-operation on an international scale and so it is worrying that these such initiatives are on the increase.
1 - Internet Governance: September 9, 2004The State of Play, pg. 7.
3 Working Group on Internet Governance, Background Report, July 2005. Pg. 6 - The need for a shared understanding of Internet governance.
6 WSIS and internet governance: The struggle over the core resources of the internet. Wolfgang Kleinwachter.
9 Reidenberg J R, ‘Governing Networks and Cyberspace Rule-Making’ (1996) Emory Law Journal (45) 911 (Summer).
10 Walker, C, ‘Cyber-Contempt: Fir Trails and the Internet’ (1997) Yearbook of Media and Entertainment Law.
11 Akdeniz, Y, ‘Governing pornography and child pornography on the Internet: The UK Approach’ in Cyber-Rights, Protection, and Markets: A symposium (2001) University of West Los Angeles Law Review, 247-275.
12 European Commission Communication to the European Parliament, The Council, The Economic and Social Committee and the Committee of the Regions: Illegal and Harmful content on the Internet, Com (96) 487, Brussels, 16 October 1996.
13 See the JANET Acceptable Use Policy, at <http://www.ja.net/documents/use.htkm>
14 See <http://www.internetwatch.org.uk/hotline/>
16 See Safety-Net proposal, ‘Rating, Reporting, Responsibility, For Child Pornography & Illegal Material on the Internet’ adopted and recommended by the Executive Committee of ISPA - Internet Service Providers Association.
17 Giuseppe Sacchi v Italy (case 6452/74) [1982] E.C.C. 20.
18 ECHR <www.echr.coe.int>
19 Government White Paper, A Future for Communications, December 2000, Cm 5010.
20 Hirst P, Thompson G, ‘Globalization and the Future of the Nation State,’ Economy and Society, (1995) 24 (3).
22 Consultation on the possession of extreme pornographic material, <http://www.homeoffice.gov.uk/>
23 Barlow, J.P ‘Thinking Locally, Acting Globally,’ Cyber-Rights Electronic List, 15 January, 1996.
24 Council Framework Decision of 22 December 2003 on combating the sexual exploitation of children and child pornography.
25 <http://www.itu.int/wsis/>
30 Council of Europe Cyber-Crime Convention, ETS 185, November 2001.UK government signed the Convention on 23 November, 2001.
31 The Council of Europe has 46 members, including all 25 members of the European Union, and seeks to promote and protect human rights and the rule of law throughout Europe.
32 Ibid (n 30), See Article 24 (1)(a) Cyber-Crime Convention 2001.
33 Ibid (n 20), See Article 25 (1)
34 See, Framework decision on combating racism and xenophobia, (2007/2067(INI))
35 Proposal for a Council Framework Decision, amending Framework Decision 2002/475/JHA on combating terrorism. Section 1: Procedural issues and consultation of interested parties
36 Select Committee on European Union (IWF’s Primary roles) See <http://www.iwf.org.uk/>
38 ibid (n 26) See Website; www.iwf.org.uk
41 Rhodes, R.A.W. ‘The New Governance: Governing without Government,’ (1996) Political Studies, XLIV, 652 667, at 652.
45 OECD Cryptography Policy Guidelines and the report on background and issues of cryptography policy, March 1997.
50 See Protection of Children Act 1978, s. 160 of the Criminal Justice Act 1988
53 Communication from the Commission of 1 June 2001. Contribution to the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance [ final. See <http://europa.eu/>
55 Cyber-Rights and Cyber-Liberties (UK) ‘Who Watches the Watchman: Internet Content Rating Systems, and privatised Censorship’ (1997).
59 See the criminal case of Somm, Felix Bruno, File Number 8340. The conviction was reversed on appeal in November 1999.
61 See House of Lords Select Committee on Science and Technology, ‘Information Society: Agenda for Action in the UK,’ session 1995-96.