Evolution, Implementation and Practice of Internet Self-regulation, Co-regulation and Public–Private Collaboration

Against this background, the European Commission produced a communication looking at the challenge of harmful and illegal Internet content.

Two main types of preparatory work were carried out for the Green Paper. Firstly, the Member States were asked to reply to a questionnaire on the protection of minors and human dignity in the context of the development of services in the information society. All of the Member States responded favourably to this consultation processes. Secondly, with a view to the preparation of this Green Paper, the Commission commissioned a series of studies on the protection of minors and human dignity in the information society. These cover the regulatory, economic and technological aspects of the question in the 15 Member States, Canada, Japan and the USA. The Green Paper looked at the broader audio-visual services including radio, terrestrial and satellite television services and the Internet.

The Green Paper set out to examine the challenges that society faces in ensuring that two specific issues of overriding public interest, i.e. protection of minors and of human dignity, are adequately taken into account in the rapidly evolving world of audio-visual and information services. It was presented at the same time as the “Commission Communication on Illegal and harmful Content on Internet”. The two documents were fully complementary, both as regards timing and scope. The fight against the dissemination of content offensive to human dignity and the protection of minors—against exposure to content that is harmful to their development—were considered of fundamental importance in enabling new audio-visual and information services to develop in a climate of trust and confidence. It underlined the need not to confuse problems that are different in nature, such as child pornography, which is illegal and subject to penal sanctions, and children accessing pornographic content for adults, which while being harmful for their development may not be illegal for adults. It points out that national arrangements in Europe are all set against the background of the fundamental rights enshrined in the European Convention of Human Rights (ECHR) which are incorporated in general principles of Community law by Article F.2 of the Treaty on European Union. In particular, Article 10 ECHR guarantees the right to freedom of expression. In the fight against illegal content, cooperation between the Member States in the field of justice and home affairs was identified as having a fundamental role to play given the international character of the new services. The potential for encouraging cooperation between the relevant industry sectors was also evaluated (codes of conduct, common standards for rating systems, promotion of PICS). Possible user awareness and media education measures are also put forward for debate.

The Green Paper identified a series of questions for further debate on issues the Commission considered important in order to define future policy actions. These included:
Taking account of what is technically feasible and economically reasonable, what should be the liability of different operators in the content communication chain, from the content creator to the final user? What types of liability: penal, civil and editorial should come into play and under what conditions should liability be limited?
How should the test of proportionality of any restrictive measures be applied? Inter alia, should any arbitration or conciliation mechanisms at European Union level be envisaged? If so, what sort of mechanisms?
How do we determine the right balance between protection of privacy (including allowing users to maintain anonymity on the networks) and the need to enforce liability for illegal behaviour?
Should one give priority to a regulatory or a self-regulatory approach (possibly backed up by legislation in the latter case) as regards parental control systems? What measures would be required, inter alia at the European Union level?
In what cases should systematic supply of parental control systems be envisaged (according to service type or other criteria)? Should any obligatory regime be envisaged? If so, in what format and to which operators should it apply? What are the essential functions that such systems should provide?
How can decentralisation of content rating be implemented, catering for the need to respect individual, local and national sensitivities, where audio-visual and information services are transnational?
What elements of standardisation would allow content ratings to be developed in a coherent way in Europe, in particular in the case of digital services (standardisation of types of information to be supplied, of encoding and decoding of such information, etc.)?
In what ways should administrative cooperation be implemented in the European Union? How and in what institutional framework should it be formalised?
What should the priorities be at the European level and at the international level? In particular, should one give priority to developing solutions at the European Union level and then promoting them at the international level or should this be done in parallel? What are the most appropriate international fora for international cooperation (G7, DECD, ITU, WTD UN or bilateral relations)? How should this international cooperation be formalised?

In its communication from the Commission [2] to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions on Illegal and harmful content on the Internet, the Commission recalls that illegal content relates to wider issues than child pornography.

The Internet was recognised as a symbol and had established itself as one of the main drivers of the convergence between telecommunications, computer and content industries. The Internet had also established itself as one of the main building blocks of the Global Information Infrastructure and as an essential enabler of the Information Society in Europe. Characterised by a growth rate unprecedented in the history of communication technologies, at the time of the Communication, the Internet had reached almost 60 million users in 160 countries and was doubling each year. The most popular application, the World Wide Web, based on protocols developed in Europe, was fast becoming a standard vehicle for information publication and electronic commerce, with an estimated 10 million sites worldwide in 1995, up 1600 % over the previous year.

As regards the distribution of illegal content on the Internet, it was clearly the responsibility of Member States to ensure the application of existing laws. What was illegal offline remains illegal online. Harmful content was defined as “both content which is allowed but whose distribution is restricted (adults only, for instance) and content which may offend certain users, although its publication is not restricted because of the principle of freedom of expression.” It is interesting to note that Internet issues were still considered as an extension of real-life crime and there was little attention given to new crimes facilitated by the Internet. It was also considered that the presence of illegal and harmful content on the Internet had “direct repercussions on tile workings of the Internal Market In particular, the adoption by Member States of regulations of new Internet services intended to protect the public interest may also create risks of distortions of competition (for example, through widely divergent responses to the question of potential liability of Internet service providers), hamper the free circulation of these services, and lead to a re-fragmentation of the Internal Market.”

A conference organised by the Association of London Government (“ALG”) called the First European Conference on Combating Violence and Pornography on the Internet was hosted on 13–14 February 1997 [3].⁹ The conference was organised to look at what could be done to combat violence and pornography on the Internet. The aim of the conference was to focus on the technical and moral issues around policing, legality and censorship to tackle the growing amount of and ever easier access to violence and pornography on the Internet. The conference aimed to influence European policy on tackling violence and pornography on the Internet. Mr. David Kerr stated that in December 1996, there were 28 reports from the online users which resulted in 5 pictures being removed from the UK ISP servers (mainly newsgroups). In January 1997, the Internet Watch Foundation had reported over 100 illegal items to the UK Police and there have been 50 additional reports by online users. Mr Kerr stated that most of the illegal contents on the Internet containing child pornography are posted from outside the UK and the EU (mainly from the USA) and international cooperation is needed to be effective.

According to a report written by Yaman Akdeniz¹⁰ about the conference, Mr. Jorg Tauss, a member of the German Bundestag Committee of Enquiry into Media and Violence, stated that he was against the policing of the Internet for pornography since it is widely available in the streets in his country. Mr. Tauss mentioned the difficulties in defining the word “pornography” and stated that this would be even more complicated in an international environment such as the Internet. While regulation of pornography would be difficult and unworkable, child pornography is a different issue. Mr. Tauss stated that the “Internet is not an illegal vacuum or beyond the rule of law” and that the police should take action to combat child pornography. Mr. Tauss also mentioned that the authorities do not understand the Internet at all and highlighted one case in Germany where the person who had reported child pornography to German authorities was himself prosecuted (because he had the material in his cache memory).

Whereas Sect. 1.​3.​1 noted that the whole development of the Internet was dominated by commercial interests and market forces and followed the principle of imposing no regulation for the sake of faster development, this was beginning to change. Rapid evolution of Internet services was still supported and encouraged, but it now needed to be supported by a self-regulatory, effective response to clearly articulated Internet concerns. In the early days, the concerns centred on bandwidth (spam and newsgroups) and on child protection, and sometimes these issues combined with the challenge of spam advertising child pornography websites.

Mr. David Kerr¹¹ was the first Chief Executive of the Internet Watch Foundation and company secretary, Internet Content Rating Association. He was appointed to the IWF in October 1996 to set up and run the organisation, and he was involved in developing public–private partnerships addressing issues such as race relations and rural services. He was appointed to IWF to implement an agreement between the UK Internet industry, government and the police. He was responsible for developing one of the world’s first hotlines for dealing with illegal net content with the support of the UK government, police and ISPs. He also played a leading role in specifying a UK rating system and in promoting the development of an internationally acceptable rating and filtering scheme. He has led the INCORE project commissioned by the EU to make recommendations on the approach to rating and filtering from a European perspective, which is reporting in mid-2000. The ICRA, a not-for-profit consortium of global net players, was set up to deliver an international rating system. Later in 1999, he participated in the experts network set up by the Bertelsmann Foundation to consider issues of self-regulation of Internet content, which made recommendations to the Internet Content Summit in Munich in September 1999 and was jointly run by the INCORE.

UK ISPs were not present to discuss the availability of pornographic content on the Internet while their potential liability was discussed. Various ideas about self-regulation were discussed and the debate focused on the challenge of self-regulation and how self-regulatory solutions would operate and be effective (Internet Watch Foundation or rating systems such as PICS and RSACi). The main people concerned about the regulation of the Internet were non-users of the Internet.

On 17 February 1997, the council of the representatives of the governments of the member states [4] adopted a resolution on illegal and harmful content on the Internet (97/C 70/01) and stressed the importance of three action projects:

On 1 July 1997, the US government published a document on a Framework for Global Electronic Commerce (Clinton and Gore [5].¹² President William J. Clinton and Vice President Albert Gore, Jr. wrote that “the Internet is being used to reinvent government and reshape our lives and our communities in the process. As the Internet empowers citizens and democratizes societies, it is also changing classic business and economic paradigms. New models of commercial interaction are developing as businesses and consumers participate in the electronic marketplace and reap the resultant benefits. Entrepreneurs are able to start new businesses more easily, with smaller up–front investment requirements”. They went on to say that “Governments can have a profound effect on the growth of commerce on the Internet. By their actions, they can facilitate electronic trade or inhibit it”. Principles of the framework include the following:

The framework identified that the goal was to ensure that online service providers can reach end-users on reasonable and non-discriminatory terms and condition, and there were several areas of concern such as access to leased lines, local loops pricing, interconnection and unbundling and attaching equipment to the network. Bilateral exchanges with individual foreign governments, regional fora such as APEC and CITEL, and multilateral fora such as the OECD and ITU, and various other fora (i.e. international alliances of private businesses, the International Organization of Standardization [ISO], the International Electrotechnical Commission [IEC]), also were used for international discussions on telecommunication-related Internet issues and removing trade barriers that inhibit the export of information technology. These issues include the terms and conditions governing the exchange of online traffic, addressing and reliability.

In the area of online content, four areas of concern were listed as follows:
The Administration encouraged the creation of private fora to take the lead in areas requiring self-regulation such as privacy, content ratings and consumer protection and in areas such as standards development, commercial code and fostering interoperability.

It is clear that the focus of the US strategy was to encourage information society services and Internet growth, and there was very little consideration of the downside issues of the Internet such as emerging cybercrime trends. The conflict between responding to illegal and harmful content and supporting and encouraging Internet services became a major challenge in Europe.

Section 1.​2 identified the problem of blurring boundaries which further contributed to the uncertainty as to who and how cybersecurity would be governed. It was not clear what the applicable legal and regulatory regimes were and which roles private stakeholders would play in safeguarding cyberspace. These framework papers, Green Papers and the European conferences started the debate to tease out the potential for safeguarding cyberspace and to identify the legitimate and reasonable roles of the variety of stakeholders. More importantly, it sought to identify the realistic limits of regulation, self-regulation and co-regulation in the new world of cyberspace.

The Federal Republic of Germany and the European Commission jointly organised the European Ministerial Conference entitled “Global Information Networks: Realising the Potential”, held in Bonn from 6–8 July 1997 [6].¹³ Ministers from the Member States of the European Union, members of the European Free Trade Association and countries of the Central and Eastern Europe and Cyprus, members of the European Commission, guests from the USA, Canada, Japan and Russia and representatives from industry, users and European and international organisations attended the Conference. Ministers recognised the key role which the private sector is playing in the emergence of Global Information Networks, in particular through investments in infrastructures and services. They considered that the expansion of Global Information Networks must essentially be market-led and left to private initiative. They believe that private enterprise should drive the expansion of electronic commerce in Europe. Ministers also agreed that any regulatory framework for electronic commerce should be clear and predictable, pro-competitive, strike the right balance between the freedom of expression and the protection of private and public interests, in particular the protection of minors, and ensure consumer protection.

Ministers declared the emergence of Global Information Networks as a highly positive development. They considered this to be of crucial importance for Europe’s future and an opportunity for all, businesses small and large, citizens and public administrations. They stressed the special characteristics and fundamentally transnational nature of the Internet which set it apart in almost every way from the then traditional means of communication. Ministers recognised that these new opportunities come with new challenges and that the sheer pace of development could have created technological and legal uncertainties. Such concerns, if not addressed, would delay investments by businesses and slow down take-up by users.

Ministers noted with satisfaction the key role taken by the industry itself in the process of standards setting. They considered that technological and commercial interoperability in a competitive environment was a vital factor for the development of Global Information Networks. Ministers recognised that it was crucial to build trust and confidence in Global Information Networks by ensuring that basic human rights were respected and by safeguarding the interests of society in general, including producers and consumers, particularly through fair and transparent offers of service. This could be achieved by protection of creativity and investment, security and confidentiality, digital signatures and responsibility of the actors.

The most important policy decision by Europe in the evolving area of self-regulation was made during this conference and the subsequent Ministerial declaration. Ministers stressed that the rules on responsibility for content should be based on a set of common principles so as to ensure a level playing field. Therefore, intermediaries such as network operators and access providers should, in general, not be responsible for content. This principle should be applied in such a way that intermediaries such as network operators and access providers are not subject to unreasonable, disproportionate or discriminatory rules. In any case, third-party content hosting services should not be expected to exercise prior control on the content which they have no reason to believe is illegal. Due account should be taken of whether such intermediaries had reasonable grounds to know and reasonable possibility to control the content. Ministers considered that rules on responsibility should give effect to the principle of freedom of speech, respect public and private interests and not impose disproportionate burdens on actors.

As noted in Chap. 1, when the government has no agenda for promoting and supporting self-regulation […], the private sector itself can be very sceptical about self-regulation or initiatives may be undermined by state apathy towards lack of driving forces and uncertainty of, current legal statutes.

Colm suggested that I should take over his role as a broader industry representative in the committee since I knew most about the Internet services available in Ireland today and personally knew each of the Internet organisations, their management and many of their staff. I had managed to maintain their respect throughout my time in IEunet. He felt that it was too complex for him to represent the interests of his company while at the same time to represent the views of the wider Internet marketplace in Ireland. While he could make a reasonably fair attempt at achieving this balance, there was no forum for him to meet with competitors in the market and ask their views on a range of subjects in order to represent those views during meetings of the committee on illegal and harmful use of the Internet. Like Colm Greely, I could probably accurately estimate the views of the Internet service providers on a range of social, political and business issues, but I also understood that the open nature of this government committee meant it had the ability to move in a range of complex and diverse directions which would challenge the limits of my experiences or knowledge. However, I would be able to meet with each of the industry players and could probably be accepted as a fair broker and representative of those views with no personal/professional agenda being in play. I therefore agreed to take on the role and started working on the committee from the next meeting.

The Working Group on Illegal and Harmful Use of the Internet [7] was created at a time when “the Internet still represents a vague concept to many people. Understandably, they find it difficult to grasp the idea of a network-of-networks-of-computers which has no central ownership, is almost indestructible and is growing at an unknowable rate”.

The terms of reference of the Working Group were guided by the European Commission that published a Green Paper on the Protection of Minors and Human Dignity in Audio-Visual and Information Services published on 16 October 1996. The terms of reference were to identify the nature and extent of the issues surrounding the illegal and harmful use of the Internet; to prioritise such issues with particular reference to the need to address the issue of child pornography in the short term; and to examine and assess the current approaches both domestically and internationally to addressing the problem of the illegal and harmful use of the Internet, in relation to those issues that can be domestically addressed, to identify the legal, technical and structural problems that arise; and to make specific recommendations for their resolution in the short, medium and long term as appropriate, in relation to those issues that require resolution in an international context, to make recommendations which will inform policy in this regard.

Mr. Nigel Williams¹⁴ (died 26 March 2006) was a native of Northern Ireland and the founder of the London-based charity Childnet International and had an international reputation for his work on the impact of the Internet on children. (In 2003, he was appointed as Northern Ireland’s first commissioner for children.) A significant part of his work with Childnet (established 1995), while working in Westminster as head of public policy for Christian Action Research and Education (CARE), concerned pornography. He recognised the need to protect children from danger and published a book on the subject, False Images. Overall, however, he was clear that what information technology offered was essentially positive. Parents needed to recognise that their children would benefit from what he called this “parallel universe”. He was also a board member of the Internet Watch Foundation and the Internet Content Rating Association, and in 2001, it was appointed to the home secretary’s task force on child protection on the Internet.

The period from 1996 to 1998 was an amazing period in the evolution of self-regulation. The methodology adopted offered a focused structured process to identify the essential issues relating to Internet technologies and the diverse services evolving from their widespread adoption. A number of the working group members were quite knowledgeable on the subject area, but there were also quite a few who had very limited understanding of the operation of the Internet, the range of different organisations responsible for effective Internet operation and the different levels of knowledge and capabilities of these organisations in any effective self-regulatory response. In addition, the range of illegal activities and harmful activities possible was identified and the difference between current criminal activities in the real world and online crime was debated. It was a very thought provoking process. These areas are highlighted in Fig. 2.1.

As an Internet technology expert, I was respected by all members of the working group. As a person representing the interests of the wider Internet industry, my opinion was treated with suspicion and assumed to be focused on the short-term narrow interests of the industry. It was a challenging period to share my knowledge of Internet systems and the low level of cooperation and sharing between the different industry players. Whereas the early interests of the working group were to understand the detailed inner workings of networked computer systems and the Internet in particular, the emphasis on gaining a deeper understanding on the range of Internet services, protocols and the international nature of Internet activities was of immense importance. At times, it seemed that the range of issues would overwhelm the aims and objectives of the committee.

To support this process, documents were prepared describing the structure of the industry and the layers of interconnectivity at the organisational level. These documents described the level of visibility these players had at different levels in the technology network models. It is necessary to understand the various players in the industry and their role in relation to the carrying, processing and storage of information on its journey throughout the Internet. The roles can be broken into seven main areas including the consumer groups (Individuals, Families, companies, Research Organisations, Universities, Schools, Government Agencies, Employees, Students, etc.), the telecommunications circuit provider, the Internet access provider (including TCP/IP address allocation, domain name registration, dial-in facilities, email, newsgroup and the web services), the facilities providers (include hosting and web farm), the content providers, the broadcasters and the regulatory agencies. For example, the role of a Domain Registry both at the country level and at the global level was described in detail. Prepared documents described the different Internet services being sold, how they are implemented and the possibilities of interception and disruption of illegal and harmful activities. Section 1.​5.​3 of the proposed NIS directive [8] indicates out these categories have continued to increase including a greater number of industry stakeholders including e-commerce platforms, Internet Payment gateways, social networks, cloud computing services and application stores. These were later increased to include Internet exchange points, national domain name registries and the web hosting services.

An alternative method of describing the roles is to do so in terms of the electronic services provided including electronic mail, network news, web browsing, web provision, online chat, file transfer and other services. (Note that Social Networking Services had not started operating yet.) I described the potential options the different stakeholders could implement in combating illegal and harmful content. The data travelling across the ISP network operations centre (backbone) are processed automatically and unless deliberately intercepted are never seen, heard or read by human operators. The sheer volume and complexity negated any reasonable analysis without prior knowledge and specific targeting of potential abuse.

Email allows the exchange of messages and documents in a one-to-one and one-to-many manner. These messages are usually plain text, but attached files can be graphics, spreadsheets, reports, etc. It is also possible to encrypt email content to prevent others from intercepting it. Email can be particularly difficult to regulate since the messages can be considered as communication between parties with entitlements to privacy and confidentiality. The communication can be encrypted preventing interception and therefore regulation. One aspect of email activity which can be regulated is that of “spamming”—a process where volume email is targeted at end-users without their request—in essence “junk” mail.

The newsgroups are spread across 15,000 different topics, and in theory, it is possible to prevent the distribution of specific newsgroups. However, there is no technical method of controlling the content of any newsgroup—it is subject to self-regulation and net etiquette. The blocking of specific newsgroups is feasible but cannot be considered as a definitive solution to illegal or harmful content. It is possible for users to inject news messages into the news system using international news hosts, thus bypassing local regulations In addition, users can read the news database stored on international servers which would have a significant impact on international bandwidth if large numbers were to adopt this approach.

Web browsing allowed end-users to use Microsoft Internet Explorer¹⁵ or Netscape Navigator¹⁶ from Netscape to browse information in a graphical and hierarchical manner on remote servers located in all countries of the world. This content could span the full range of work-related research material, edutainment for home education to illegal and harmful material. The wide range of dubious material has created real concerns among many Internet users. Its success continues to grow and newer technologies will enable faster and wider distribution of the web content. The recent standards in relation to PICS¹⁷ (Platform for Internet Content Selection) allow substantial choice in the categorisation of website content. Browsing software now checks each site selected for a site rating hosted on a separate server for the style and content of the selected site. Simple rules can permit or deny access to sites based on criteria specified by the parent, manager or users themselves. In addition, end-users and institutions would want rating agencies particularly tuned to their ethos and responsibilities.

Websites could be hosted anywhere in the world, and a single site can even span multi-jurisdictional boundaries. The site can contain text, graphics, video clips, music and sound clips in addition to more complex interfaces to remote databases which can be located in different geographical boundaries.

File transfer permitted the copying of documents, graphics, video clips and audio clips from any part of the world onto the local computer or from the local computer onto a remote computer system. The file transfer process was normally performed manually by the user, but on many systems could be completely automated. The remote files could be encoded, compressed and even encrypted. Many systems offered anonymous FTP facilities which were essentially a large volume of publicly accessible files available for download by anyone without password access. Some organisations offer controlled (username and password) access to files and documents for a financial charge.

CHAT (not to be mistaken with Voice-over IP—voip which arrived later) was the Internet equivalent of voice chat lines except that the users participating in the forums each type their message which is then copied onto the screen of each participant in the group. The “conversations” could cover a very broad range of subjects including illegal and harmful areas. Many of these discussion groups were publicly advertised and users could specify to their chat software that they are interested in taking part. It is also possible to have closed group discussions by prior arrangement. The primary target of any regulatory activity would be the publicly advertised groups. This would still be a major technical problem since the location of the broadcast point can easily move across international boundaries with ease.

There were several major issues identified which are critical to any conversation or debate on self-regulation. Firstly, there was the issue of the critical and important difference between illegal and harmful content and activity. The report stated that “decisions on acceptability of harmful material are subjective and are very much context-based. There are variations in levels of acceptability not only between countries but also within countries. What some people might find distasteful and offensive, others may not. While the cultural norms may mediate what is considered to be ‘acceptable’, any form of consensus is, at best, problematic”.¹⁸

The second issue was the recognition that there are significant differences in any effective response to activity- and content-related issues (illegal or harmful).

The third critical issue was the acceptance that the Internet was international in nature and that it would be technically challenging for any single country to adopt and implement a national approach to Internet issues which was not internationally accepted and endorsed. It required international collaboration to be effective.

Much of the work of this group is still relevant today, and although many of the risks identified in this working group have received much attention and disruption as a result of a range of international effective responses, a number of challenges listed in this report remain unresolved. The pace of change on the Internet continues to be phenomenal.