There appears to be no single solution to the regulation ofillegal and harmful content on the Internet because, for example,the exact definition of offences such as child pornography variesfrom one country to another and also what is considered harmfulwill depend upon cultural differences. A recent EuropeanCommission Communication Paper stated that each country mayreach its own conclusion in defining the borderline between whatis permissible and not permissible.(10) Themulti-layered governance system should be a mixture of nationaland international legislation, and self-imposed regulation by theISPs and on-line users. This should include codes of conduct bythe ISPs, software filters to be used by parents, advice toparents and school teachers, hotlines and special organisationsto report illegal content on the Internet.
Avedon Carol is a strong advocate for freedom of expression. She opened by noting that there is essentially little new about the net. Technology may have changed but people have been writing letters for centuries - paper has been around for a long time! The essential difference is that there is less of a time lag with e-mail. The downside is that the feedback one gets is often poor! Similarly, she pointed out that none of the arguments about censorship are new. All of the discussions currently taking place about the Internet have been held before; about the printing press, the novel, the radio and the television each in their turn. New technology is always seen as a new threat and it is little surprise that it becomes a new excuse for arguments for censorship.
Although the IWF proposals state that UK ISPs should bearresponsibility for their services, and take reasonable measuresto hinder the use of the Internet for illegal purposes, it iswrong to assume that ISPs should be held solely responsible forcontent provided by third parties on the Internet. The realproblem will remain elsewhere; in the real rather than virtualworld, where pornographic materials are originally created. Aslong as such material is produced, there can never be a totalsolution to its availability via the Internet. The Internet isjust another convenient tool for paedophiles who wish to trafficin these kind of materials.(46) The formation ofthe IWF sets a dangerous precedent for privatised censorship onthe Internet. A better approach would have been a freeconfidential telephone hot-line not run by the industry itself,akin to that run by the Metropolitan Police in London to combatterrorism. Furthermore, removing materials containing childpornography from the Internet at a UK level only is near futileas material can always be accessed by UK residents from computerslocated abroad.
It should not however be forgotten that the primeresponsibility for content lies with authors and primary contentproviders. Blocking access at the level of access providers wascriticised in the EU communication paper discussed above on theground that access is restricted to far more material than thelimited category of illegal communications. Such a restrictiveregime severely interferes with the freedom of the individual andthe political traditions of Europe. There is a real need for thelegal position of the ISPs to be clarified, so that they neednot, as at present, steer a path between accusations ofcensorship by users, and exposure to liability for the contentthey carry.
The action taken by the UK police appears to have beenill-considered and will not do much to reduce the availability ofpornographic content on the Internet. Furthermore, the list ofnewsgroups provided by the UK police includes much material thatis not illegal, such as legitimate discussion groups forhomosexuals, and discussion groups which do not contain anypictures, but contain text, sexual fantasies and stories. Thesewould almost certainly not infringe UK obscenity laws. The actionof the UK police also amounted to censorship of material withoutpublic debate in Parliament or elsewhere. Political action by theUK government would be preferable to random censorship by lawenforcement authorities.
As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.
As a result, Internet executives in China most likely censor far more material than they need to. The Chinese system relies on a classic psychological truth: self-censorship is always far more comprehensive than formal censorship. By having each private company assume responsibility for its corner of the Internet, the government effectively outsources the otherwise unmanageable task of monitoring the billions of e-mail messages, news stories and chat postings that circulate every day in China. The government's preferred method seems to be to leave the companies guessing, then to call up occasionally with angry demands that a Web page be taken down in 24 hours. "It's the panopticon," says James Mulvenon, a China specialist who is the head of a Washington policy group called the Center for Intelligence Research and Analysis. "There's a randomness to their enforcement, and that creates a sense that they're looking at everything."
In summary, all four of the speakers were positive about the potential of the Internet and were wary of arguments for censorship, especially when it comes to the removal of legal material. Thompson and Dixon, though, felt that there is a genuine need for regulation, especially when it comes to illegal material. Carol and Evans, on the other hand, were of the view that freedom of expression needs to be defended and that people should be trusted to form their own opinions and make their own choices about what they view. The panel failed to come to a consensus, but all agreed on the importance of continuing to rehearse the arguments in public. May the debate continue . . .
The American Civil Liberties Union (ACLU) and other civilliberties groups filed a lawsuit challenging the CDA as anunconstitutional restraint on free speech on the Internet. In ACLU claimed that the CDA was ill defined anddid not sufficiently delineate what speech or other actions wouldbe subject to prosecution. ACLU and the other plaintiffs arguedthat:
Intimidation and "self-regulation" are, in fact, critical to how the party communicates its censorship rules to private-sector Internet companies. To be permitted to offer Internet services, a private company must sign a license agreeing not to circulate content on certain subjects, including material that "damages the honor or interests of the state" or "disturbs the public order or destroys public stability" or even "infringes upon national customs and habits." One prohibition specifically targets "evil cults or superstition," a clear reference to Falun Gong. But the language is, for the most part, intentionally vague. It leaves wide discretion for any minor official in China's dozens of regulatory agencies to demand that something he finds offensive be taken offline.
One mistake Westerners frequently make about China is to assume that the government is furtive about its censorship. On the contrary, the party is quite matter of fact about it — proud, even. One American businessman who would speak only anonymously told me the story of attending an award ceremony last year held by the Internet Society of China for Internet firms, including the major Internet service providers. "I'm sitting there in the audience for this thing," he recounted, "and they say, 'And now it's time to award our annual Self-Discipline Awards!' And they gave 10 companies an award. They gave them a plaque. They shook hands. The minister was there; he took his picture with each guy. It was basically like Excellence in Self-Censorship — and everybody in the audience is, like, clapping." Internet censorship in China, this businessman explained, is presented as a benevolent police function. In January, the Shenzhen Public Security Bureau created two cuddly little anime-style cartoon "Internet Police" mascots named "Jingjing" and "Chacha"; each cybercop has a blog and a chat window where Chinese citizens can talk to them. As a Shenzhen official candidly told The Beijing Youth Daily, "The main function of Jingjing and Chacha is to intimidate." The article went on to explain that the characters are there "to publicly remind all Netizens to be conscious of safe and healthy use of the Internet, self-regulate their online behavior and maintain harmonious Internet order together."