Opinion of the Economic and Social Committee on the 'Green Paper on the Protection of minors and human dignity in audiovisual and information services` (97/C 287/04)

On 12 November 1997 the European Commission decided to consult the Economic and Social Committee, under Article 198 of the Treaty establishing the European Community, on the above-mentioned green paper.

The Section for Industry, Commerce, Crafts and Services, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 7 May 1997. The rapporteur was Dame Jocelyn Barrow.

At its 346th plenary session (meeting of 28 May 1997) the Economic and Social Committee adopted the following opinion by 90 votes to two with one abstention.

1. Introduction

The new media services offer an unprecedented flow of information and thus considerable social, cultural and education opportunities. Of the total content published and distributed by means of the new media services the proportion of content from which minors and human dignity require protection although relatively small is nevertheless significant. The illegal and harmful content which is published and distributed on the new media services is, however, a particular cause for concern.

2. General comments

2.1. The two basic issues which are faced by the new media services are what content is to be permitted and how is this content to be regulated.

2.2. It is a well established principle at national, European and international level that the protection of minors and human dignity is of paramount importance. The content currently published and distributed by means of the new media services presents particular dangers for the protection of minors and human dignity. If in relation to the new media services the protection of minors and human dignity are to be ensured, it is essential that these services provide a safe and secure means of communicating whilst at the same time providing a free flow of information and allowing freedom of expression.

2.3. In order to create such an environment illegal and harmful content needs to be controlled by means of legislation and regulation. In order to control such content it will be necessary to determine which content is illegal () and thus absolutely prohibited and which content is deemed harmful () and thus restricted. The distinction between illegal and harmful content should be based on established principles governing the protection of minors and human dignity. Provisions contained in existing legislative and regulatory frameworks which apply to traditional forms of media should apply equally to content in the new media services. It will however, be necessary to clarify the status of the legal and regulatory framework governing such content. For closed networks, such as VOD () systems, classifications of content will already exist (e.g. for television) and could be extended easily to VOD systems. These classifications could also be adopted for use in relation to the more 'open` systems such as the Internet and on-line services. Definitions of illegal and harmful content should be adopted at an international level and then implemented at a national level - varying slightly to take account of national norms and sensitivities.

3. Specific comments

3.1. Illegal content

It is crucial to the protection of minors and human dignity that illegal content is specifically defined, although as mentioned above any such definition may vary from country to country and from one form of medium to another. What constitutes illegal content in the new media services will require specific legislation and sanctions achieved either by the introduction of new legislation/regulation or amending existing legislation/regulation to extend the publication, distribution or possession of illegal content to the new media services (). The global nature of the new media services however, raises problems of both jurisdiction and enforcement; international cooperation will be required if sanctions are to be effective.

3.2. Harmful content

The deviation from the definition of harmful content will vary from country to country depending on the cultural and social norms of that country. Unlike illegal content, however, harmful content will not be subject to absolute prohibitions but will only be restricted in certain circumstances, such as the protection of minors and human dignity. Because of the varying cultural and social norms self-regulation (statutory requirement for an independent body) will provide the most suitable solution for the regulation of harmful content.

Regulation of illegal and harmful content should not result in restrictions on content in the new media services which would otherwise be allowed in other forms of media.

3.3. The protection of minors

Fundamental to the issue of the protection of minors is the determination of what is meant by the term 'minor`. The green paper specifically refers to 'minors` rather than 'children` or 'young persons`; this is probably because of the wide legal discrepancies not only at a national level but also at a European and international level in the dividing line between children and young persons (). The use of the term 'minor` still does not solve this problem as the age of minority differs from one country to another. It is often the case, however, that in relation to harmful content minority will be interpreted strictly to mean 18 or 21 years of age. As mentioned above, it is the nature of the new media services which gives rise to the particular difficulties in the protection of minors. For example, whilst child pornography is illegal in most countries, violence and adult pornography is not, although it is widely agreed that violence and adult pornography is harmful to minors and should therefore be restricted. In 'closed` networks such as VOD there are various options available to control the access of content by minors; the area of most concern is the 'open` networks such as the Internet where not only is access to content far more difficult to control but there appears to be little awareness by parents/educators as to the type and extent of content available on this medium.

3.4. Of all the mechanisms available to users of the new media services the rating and labelling systems (i.e. classification/codification) appear to offer the most effective means of content control as they will indicate whether a particular site normally contains illegal and/or harmful content and what sort of illegal and/or harmful content it is. Because of the global nature of the new media services all content (including both illegal and harmful content) will need to be rated/labelled because, as mentioned above, what constitutes illegal content in the UK may not constitute illegal content in Sweden. Where there is a risk that content which is illegal in a certain country will be received and accessed in that country a mechanism such as or similar to a territory statement () would help in minimizing that risk.

3.5. Both third party and user rating systems, if available together will enable users to make use of PICS () compliant ratings so that they can customize the nature of the content available to match their personal sensitivities.

3.6. Service providers should be required to play a major role in the protection of minors and human dignity in the new media services from illegal and/or harmful content by promoting PICS software, requiring user-rating, removing content which is persistently and deliberately migrated, removing illegal and/or harmful content if the content provider fails to do so.

3.7. In addition to the content control mechanisms implemented by the communication industry it is essential that users have available to them means additional of protecting themselves from illegal and harmful content in accordance with their individual standards.

3.8. Equal in importance to any technical content control solution which may be introduced is raising the awareness of parents/educators as to the type and extent of content available not only to minors but generally on the new media services, particularly open network services. Although technical solutions are useful they cannot and should not either:

i) replace the role of parents/educators, or

ii) be a substitute for legislation or regulation.

3.9. All distributors/publishers of content on the new media services must be accountable and their actions traceable. The principle of legal traceability must be incorporated into any legislative/regulatory framework governing the new media services. It is key to the development of the new media services (particularly 'open` systems) that the originators of illegal and harmful content can be traced. Although anonymity can serve useful purposes in certain contexts, allowing distributors/publishers absolute anonymity is dangerous.

3.10. Advertising - although advertising is clearly an issue which impacts on the protection of minors and human dignity in the new media services, the European Commission makes it clear that programme content and advertising should be dealt with separately; existing regulation distinguishes between the two. Neither the Green Paper on the Protection of Minors and Human Dignity in the Audiovisual and Information Services nor the Communication on Illegal and Harmful Content on the Internet should deal with advertising as this is currently being considered separately within the framework of Community legislation on advertising.

4. Regulatory framework

4.1. On the issue of regulation of content it is clear that the protection of minors and human dignity in the new media services and illegal and harmful content on the Internet cannot be dealt with in isolation; no individual approach in any one country will be able to deal with these issues effectively. The protection of minors and human dignity cannot be ensured effectively if the new media services are allowed to develop without specific legislation, regulation and sanctions. Ultimately, these issues must be dealt with at an international level although the immediacy of the issues presented by the new media services demand that in the medium to long term coordinated regulation at a European level is required.

4.2. Regulation of the new media services should be by means of a common (i.e. European-wide) framework supported by the introduction of a new independent regulatory body at a European level to implement relevant legislation, regulations and sanctions regarding content in the new media services; at present no such body exists. This approach would provide the flexibility needed; a review of existing regulatory bodies could be used as a guideline. Such a regulatory body must be able to impose rigorous sanctions to enforce applicable legislation and regulation. However, any legislation/regulation must achieve a balance between the protection of minors and human dignity and the freedom of expression and exchange of ideas and cultures. Unless an industry led consensus, legislative framework and regulatory body are implemented, it is likely that less acceptable and more rigid national controls will be imposed which would lead to fragmentation of the audiovisual and information services industry and conflicts for network operators, service providers, access providers and users.

4.3. Some form of European-wide self-regulatory body should be established which would be overseen/governed by an international body. This self-regulatory independent body should be responsible for dealing with complaints about illegal and/or harmful content and for tracing offenders, for requesting the removal of offending content and if offenders do not cooperate, for taking action against the offenders themselves.

4.4. If illegal and/or harmful content which has been received/accessed in a particular country originates from outside the country where it is received/accessed the relevant regulatory body must be obliged to pass details onto the foreign service provider in the country from where the illegal and/or harmful content emanates.

4.5. Service providers established in a particular country should take the laws/regulations of that country as the relevant one for its operators in that country. However, laws and/or regulations adopted by service providers established in, for example, the UK can only deal with illegal/harmful content in the UK if the content was posted by a UK user.

5. Responsibility and liability

5.1. On the issues of responsibility and liability, the nature of the new media services and the vast amount of content available on them means that it would not be practicable to fix any one group such as the network providers or the service providers or the access providers, exclusively with liability; their liability should not cover all content. It will be equally important to ensure that users assume responsibility for content posted by them.

5.2. There should however be clear parameters of responsibility and liability for network operators, service operators, access providers and users in respect of illegal and harmful content which they post and/or transmit using the new media services; this is particularly important for 'open` systems such as the Internet. Extensive discussions with industry regulators, network operators, service providers, access providers, child protection organizations, consumer protection organizations and users must be sought before these parameters of responsibility and liability can be formulated, although it is generally agreed within the industry that service providers should be at the vanguard of taking a responsible approach to the protection of minors and human dignity and control of illegal and harmful content in the new media services.

5.3. Measures need to be implemented which are reasonable and practicable for hindering use of these services for illegal and/or harmful purposes. Establishing an industry-wide understanding of what measures are reasonable and practicable will assist in providing a defence for legitimate network providers, service providers, access providers and users against prosecution for knowingly permitting services to be used to publish and/or distribute illegal and/or harmful content.

5.4. Finally, the issues surrounding the protection of minors and human dignity on the new media services and illegal and harmful content on the Internet will evolve as these services evolve. Thus any approach adopted must not only be effective in dealing with current issues but must also be flexible enough so that existing providers can be adopted and additional regulations introduced to cover evolving issues. It is important to defy permanent once and for all solutions.

6. Conclusions and recommendations

6.1. As far as the protection of minors and human dignity is concerned the legislative and regulatory framework for illegal and harmful content on the new media services which is published and distributed by means of the 'closed` systems such as VOD should either come under the existing legislative and regulatory principles and a framework of existing media such as television or should be based heavily on such legislative and regulatory principles and framework. Illegal and harmful content () on the new media services which is published and distributed by means of the 'open` systems such as the Internet should be subject to specific legislation, regulation and sanctions.

6.2. There will need to be improved international collaboration in the development, coordination and enforcement of legislation, regulation and sanctions. Harmful content is to be dealt with both by improving parents/educators awareness of content and by introducing technologies to exercise control.

6.3. There needs to be a review of the types of legislative and regulatory principles and framework that will be appropriate in relation to the new media services. In addition there should be a review of the content offered to children on television. In particular, emphasis should be paid to the German, English and French examples where television channels/programming have been designed exclusively for children.

6.4. There should be an agreed methodology in the approach to be taken at a national, European and ultimately at an international level in respect of the legislative and regulatory framework.

6.5. A committee or group of experts comprising representatives from national regulatory bodies, government and interested parties should be established to monitor, improve coordination and information at a European level. What form and status should any such committee or group take?

Brussels, 28 May 1997.

The President of the Economic and Social Committee

Tom JENKINS

() Illegal - contrary to or forbidden by law; illicit; unauthorized or prohibited by a code of official or accepted rules.

() Harmful - causing or tending to cause harm (physical, moral or mental injury or damage); injurious, damaging.

() VOD = Video on Demand.

() In the UK, for example, the Obscene Publications Act 1959 was amended so that 'publication` of obscene material is now defined to include the transmission of electronically stored data which when converted into human readable form is obscene. The Protection of children Act 1978, which makes it an offence to 'distribute` or 'show` or 'possess` or 'publish` any indecent 'pseudo-photograph` of a child was amended so that pseudo-photograph now includes data stored by electronic means.

() Criteria for the protection of the mentally disabled should be included in regulations governing illegal and harmful content in the audiovisual and information services.

() A territory statement specifies that a site should only be accessed from or that content should only be available in certain countries.

() PICS = Platform for Internet Content Selection.

() Notwithstanding any slight variations in the concept of human dignity arising from the differing national norms, the protection of human dignity would demand that content is prohibited if it is:

(i) discriminatory on the grounds of race, sex or nationality;

(ii) offensive to religious or political beliefs;

(iii) encourages behaviour which is prejudicial to health and/or safety;

(iv) encourages behaviour which is prejudicial to the protection of the environment.

One must be careful to ensure that these provisions are not interpreted too widely less the concept become too subjective and thus unworkable.