Opinion of the Committee of the Regions on:

- the 'Green Paper on the protection of minors and human dignity in audiovisual and information services`, and - the 'Communication of the Commission on Illegal and harmful content on the Internet` (97/C 215/07)

THE COMMITTEE OF THE REGIONS,

having regard to the Green Paper on the protection of minors and human dignity in audiovisual and information services (COM(96) 483 final) and the Commission's communication on Illegal and harmful content on the Internet (COM(96) 487 final);

having regard to the Commission decision of 23 October 1996 to consult the Committee of the Regions on this matter, under Article 198C, first paragraph, of the Treaty establishing the European Community;

having regard to the Committee's decision of 8 March 1996 and 15 January 1997 instructing Commission 7 (Citizens' Europe, research, culture, youth and consumers) to draft the opinion;

having regard to the draft opinion (CdR 440/96 rev) unanimously adopted by Commission 7 on 31 January 1997 (rapporteur: Mrs Onkelinx);

whereas the COR adopted a positive approach to the general development towards the information society and in particular bearing in mind the benefits and opportunities that this progress holds out to Europe's regions, municipalities and citizens, as the Committee of the Regions stressed in its opinion on the Commission's communication entitled 'Europe's way to the information society. An action plan` () (COM(94) 347 final);

whereas opening telecommunication networks in Europe can make a positive contribution by bringing the European regions, municipalities and citizens closer to each other, as the Committee of the Regions stressed previously in its opinion on the Commission communication entitled 'A methodology for the implementation of information society applications and proposal for a decision on a series of guidelines for trans-European telecommunications networks` () (COM(95) 224 final) ();

whereas the new audio-visual and telecommunication services create challenges and opportunities for European regional and local cultural diversity and for the media in Europe, as the Committee of the Regions stressed previously in its opinions on the Green Paper on 'Strategy options to strengthen the European programme industry in the context of the audiovisual policy of the European Union` () (COM(94) 96 final), on the Commission's communication entitled 'Follow-up to the consultation process relating to the Green Paper on Pluralism and media concentration in the Internal Market` () (COM(94) 353 final), and on the Commission's communication and the draft decision adopting a 'multi-annual Community programme to encourage the use of multimedia content in the emerging information society - INFO 2000` () (COM(95) 149 final) ();

whereas measures to protect children and young people as consumers are particularly important, as the Committee of the Regions stressed previously in its opinion on the Commission communication on 'Priorities for consumer policy 1996-1998` () (COM(95) 519 final);

whereas despite the largely positive aspects of the development of new audiovisual and information services there are several serious problems, mostly relating to the protection of minors and human dignity,

unanimously adopted the following opinion at its 17th plenary session on 12 and 13 March 1997 (meeting of 13 March).

1. Introduction

1.1. When submitting the proposed revision of the directive on Television without frontiers to the Council and the European Parliament in April 1996, the Commission announced that it was drafting a Green Paper on the new audiovisual services in the context of the information society;

1.2. The Commission decided to divide this work in two parts. The first deals with the protection of minors and human dignity, both of which are fundamental rights under the European Convention on Human Rights. The Green Paper is accompanied by a communication on illegal and harmful content on the Internet and this opinion covers these two documents. The second part of the paper will deal with the promotion of cultural and linguistic diversity.

1.3. These documents are published in the context of a wide ongoing debate. The sexual exploitation of children in Europe at present is an extremely worrying problem which justifies the special attention accorded to it by the European Parliament and the Council. These two documents are part of the Commission's response to the plethora of resolutions on this subject. ()

1.4. The Committee of the Regions shares these concerns. Its opinion of 1 February 1995 on the Commission's communication 'The information society in Europe: an action plan` stressed that a legal and administrative framework for the new information and communication technologies must be designed to protect privacy, to guarantee easy, non-discriminatory access to all the Union's citizens and to further the development of their rights. The Committee's opinion of 13 June 1996 on the Commission's communication on 'Priorities for consumer policy 1996-1998` emphasized that steps must be taken to protect child and adolescent consumers.

1.5. The Committee of the Regions welcomes the Commission's swift response to citizens' demands, opening a wide in-depth debate and proposing practical measures which can be implemented in the short term.

1.6. Nevertheless the Committee has not lost sight of other dimensions of the problems posed by new audiovisual and information services. Some of them are dealt with in separate communications but the Committee also expects the Commission to assess the protection of other rights, in particular in the areas of public policy, consumers' rights and public health. The Committee also notes that the second part of the Green Paper on the promotion of cultural and linguistic diversity in the new audiovisual and information services is included in the Commission's programme for 1997.

1.7. The COR also wishes to point out that the debate is of vital importance for local and regional authorities, partly because of their responsibility for culture, education and audiovisual material. It is therefore essential that they be consulted and involved in work to solve these problems.

2. General observations

2.1. Context

2.1.1. Audiovisual and information services are undergoing rapid and extensive change. Generally speaking, the COR believes that the new communication tools hold out valuable cultural, educational and training opportunities. This trend must, however, be backed by new measures to implement the rules and principles which guarantee freedom of expression in our democratic societies and full application of the statutory checks on this fundamental right. These principles, along with the checks and balances, are enshrined in Member States' constitutions and international conventions, in particular, the European Convention for the Protection of Human Rights and, in the case of children, in the UN Convention on the Rights of the Child, adopted in New York on 20 November 1989.

2.1.2. The Committee believes that these new services are beneficial and that legislation and the search for appropriate technical solutions must not impede their development, either economically or in terms of social and cultural opportunities.

2.1.3. It is essential, therefore, to coordinate national measures within a common European strategy which gives equal importance to developing instruments specifically designed to protect the public interest and to promoting content quality. The Committee would point out that coordinated definitions of the terms used in connection with the problems under discussion (e.g. pornography) are a sine qua non for the deployment of a common European strategy.

2.1.4. The COR lays particular emphasis on the cultural dimension. Citizens must be guaranteed free expression of their local, regional and cultural diversity, which should not be curtailed by the adoption of purely technical measures. The second part of the green paper will undoubtedly provide an opportunity for reviewing this problem.

2.2. The search for coherence

2.2.1. The two documents under discussion are complementary in the following respects.

a) the communication sets out short-term measures specifically for the Internet; it deals with the dissemination of illegal and harmful content and addresses the question of human dignity and the protection of minors;

b) the green paper proposes long-term consultation of Member States on a variety of questions relating specifically to the protection of minors and human dignity in services which transcend the Internet.

2.2.2. However, the communication already outlines replies to some of the questions in the green paper. While this is warranted by the urgency of the matter, the proposed measures must be flexible if they are to keep pace with the debate.

2.2.3. The COR stresses the need, when the proposed consultation has been completed, to adopt a consistent approach to the implications for other areas of the political decisions on protection of minors and human dignity.

2.2.4. In this respect the Commission's communication on 'Regulatory transparency in the internal market for information society services` () is unsatisfactory. It proposes that Directive 83/189/EEC () which provides for an information procedure for technical standards and regulations, be amended to cover the rules on a number of new electronic services. This procedure could take up to 18 months, during which the directive could not be enforced. Such a delay is unacceptable as regards, for example, measures to combat racism or child pornography where rapid action may be necessary.

2.3. Illegal and harmful contents

2.3.1. Both the green paper and the communication distinguish clearly between:

a) contents which should be prohibited, regardless of the age of the target audience (e.g. the green paper singles out child pornography and the communication refers to terrorist activities);

b) contents which could impair the physical, mental or moral development of minors and which should therefore be accessible only to adults.

2.3.2. The COR fully agrees with the Commission on the importance of this distinction; the green paper reminds us that these objectives pose different problems and call for different solutions.

2.3.3. Illegal content should be generally banned, regardless of the medium used, while the dissemination of harmful content can be approached in various ways, depending on the medium involved. This being so, different methods could be used to deal with these two problems.

2.4. The services involved and the essence of the communication

2.4.1. The communication concentrates exclusively on Internet content. In the interests of clarity, it is worth citing a recent French study, which defines the Internet as a group of users, most of whom are identifiable, who use various interconnected networks under a general protocol to seek information and services they need and to access it via their computers (). Three main characteristics can be identified. Firstly, it is a vehicle for information which provides different types of service from different communications systems. Secondly, it is a conglomeration of networks (134 495 on 1 July 1996), which means that no specific body is responsible for it. Thirdly, service provision on the Internet operates according to demand, unlike the traditional media which operate on supply.

2.4.2. The green paper covers the broad sweep of audiovisual and information services, regardless of the vehicle used. The various electronic services are described in Appendix II of the green paper.

2.4.3. The following criteria are useful in distinguishing and analysing the types of service:

a) Is the choice of information and the time of transmission controlled centrally or by the individual?

This distinction is important in dealing with contents which could be physically, mentally or morally harmful to minors.

b) Is it possible to identify a publisher clearly or is this virtually impossible?

2.4.4. Furthermore the first chapter of the green paper describes the context in which these new services have developed (from the mass media to the editorial model, followed by the emergence of a new communication model). The very nature of communication is evolving, and this creates a new difficulty. The demarcation line between public and private communication is disappearing, and rights and responsibilities are generally allocated according to this distinction. Under privacy laws, only the author can be held responsible for private dissemination of illegal or contentious material. If such material is disseminated publicly, the other players (printer, publisher, etc.) are also responsible.

2.4.5. This difficulty is particularly noticeable in Internet services and more especially in the discussion forums involving communication by electronic mail.

2.4.6 This is seen as one of the most significant challenges to implementing legislation, both in the green paper and the communication, but neither can offer suggestions; nevertheless, the problem must be resolved if we are to establish a clear demarcation of rights and responsibilities.

2.4.7. In this respect the COR suggests exploring the interesting avenue suggested in a recent Council of Europe study. It notes that as an undefined public can access all networked communications, particularly in an interactive context, they can all have a public dimension unless the author wishes them to remain confidential (). This approach stresses the author's intention as to the nature of the communication, and therefore the public or private nature of the source, regardless of the medium used.

3. Specific observations

3.1. Operators' responsibilities in the communication chain

3.1.1. Subject to point 2.4.4 et seq., and because of the multiplicity of players, the definition and apportionment of responsibility is a major issue. For the Internet the communication suggests assessing the need for a European legislative framework for service and access providers. With regard to the green paper's long-term objective, the COR believes that it would be useful initially to determine the scope for identifying the roles of the various operators in a chain of communication. An operator may have more than one role but this classification will make it easier to establish the degree of control over the information.

3.1.2. The communication already distinguishes the roles of Internet providers, classifying them as service, access and host service providers, network operators, etc.

3.1.3. Furthermore, apportioning responsibility in the context of public communication depends on the illegal or harmful nature of the material.

3.1.4. It is an offence to disseminate illegal material, regardless of the medium used. When the person or body responsible can be easily identified (digital television, PPV, NVOD, VOD and certain on-line services), editorial responsibility can be invoked.

3.1.5. Identification is almost impossible, however, where the communication chain is decentralized, as for on-line services or the Internet. The practical possibilities open to the various players to identify and take action on illegal material must be carefully assessed before opting for a sliding scale of responsibility. This assessment, based on the range of roles involved, would facilitate research on the scope for 'responsibility without blame` arrangements along the lines of European directives on toys or medicinal products.

3.1.6. Legislation must seek to protect minors from exposure to material which may harm them physically, mentally or morally, but which may be legally accessible to adults. The Committee of the Regions believes that the nature and scope of restrictions under such legislation may vary according to the type of service, as stated in Chapter 2.2 and Appendix III of the green paper.

3.1.7. Generally, it would be useful to analyse each type of service and in particular to assess the respective user's degree of control over the choice of content. The Committee points out that a range of sociological factors come into play here, including age, education, cultural and even regional differences; the COR therefore wishes to be involved in any initiative launched by the European Union.

3.1.8. The Committee also stresses that the legislation adopted in accordance with this analysis should concentrate on giving the user the greatest possible degree of control over the choice of content.

3.1.9. In the Committee's view, this approach reconciles the need to protect minors, the fundamental principle of freedom of expression and the very specific context of disputed material.

3.2. Regulation or self-regulation

3.2.1. The green paper's questions and the communication's proposals seem to present contrasting views on regulation and self-regulation. As self-regulation forms part of a more general legislative framework, the COR proposes to restate the problem in the following terms: Where is the demarcation line between self-regulation and a legislative framework?

3.2.2. The precise definition of what is unlawful is a purely legal matter. The problem lies in the trans-frontier provision of services when legal definitions differ between Member States and even more between Union and non-Union countries. The COR wholeheartedly advocates harmonizing the definition of unlawful material and supports efforts in this direction.

3.2.3. This being so, self-regulation can be construed as establishing arrangements for identifying illegal material and blocking access to it. There have been several proposals for the creation of central 'collection points` to pool information on illegal material on the Internet.

3.2.4. Harmful material on the Internet can be dealt with by combining the use of PICS standard filtering software (Platform for Internet Content Selection) with decentralized content labelling. This solution respects national and regional sensitivities as well as the freedom of the individual user.

3.2.5. The creation of assessment services must be encouraged and legislation should give preference to identifiable service providers who provide labelling. This approach guarantees independence by dissociating the labelling process from the service providers' intentions.

3.2.6. It should be noted, furthermore, that the TV anti-violence chip is of no use in decentralizing content assessment and is difficult to reconcile with European cultural diversity.

3.2.7. This being so, the COR believes that national authorities and the European Union should cooperate with regional and local authorities in the following areas:

a) on enacting legislation to require access providers to offer content selection options which meet the PICS standard;

b) encouraging decentralization of content assessment by the creation of various assessment services and systems, either by Internet operators or by third parties;

c) establishing their own 'public` assessment services and systems to be used as a reference.

3.2.8. Regardless of support for tangible initiatives, the COR would stress that the principle of freedom of expression argues for considerable caution when designing software to filter information, so as to ensure that it is the end user, and not public authorities or suppliers, who determines what can and cannot be seen.

3.3. International cooperation

3.3.1. The need for greater international cooperation emerges clearly from the context and the development described both in the green paper and in the communication.

3.3.2. The COR believes, however, that administrative cooperation cannot be confined to measures pertaining to the internal market, as proposed in the draft directive on transparency of legislation in the new information society services.

3.3.3. Cooperation is also justified, as already stated, on seeking a coherent approach to full harmonization with regard to illegal content and in the field of law.

3.3.4. In selecting an appropriate international cooperation agency, free trade imperatives must not override the public interest issues involved here.

3.3.5. Effective legal and police cooperation between the EU Member States is vitally necessary to prevent terrorists, drug dealers and international organized crime from using the Internet. The Committee wishes to alert the Intergovernmental Conference to this point in order to permit significant improvement and simplification of procedures when the Treaty is being reviewed.

3.3.6. The COR also welcomes the European Council's decisions on the campaign against organized crime, including the abuse of new communication technology, the sexual exploitation of children and slavery (Dublin, 13 and 14 December 1996).

3.4. Education and the media

3.4.1. The COR believes that media information, awareness and education campaigns are pre-requisites for universal and equal access to the new audiovisual and information services. The curtailment of unlawful or harmful practices is part of the same logic, first and foremost, and is based on user responsibility. Improved technical devices will only be of marginal benefit without this vital dimension.

3.4.2. The COR has already alerted the Council and the Commission to this problem, in particular in its Opinion on the INFO 2000 programme adopted on 18 January 1996. The Committee believes that the campaign to combat illegal and harmful content must be coupled with measures to encourage useful content of high quality.

3.4.3. For this reason the Committee regrets the cursory treatment of this aspect in the green paper and the communication. As already stressed in 3.1.7 above, the Committee believes that this subject should be assessed and considered in depth.

3.4.4. The Committee wishes to be involved in the initiative on learning in the information society; it points out that local and regional authorities, who are frequently involved in organizing education, will play a crucial role in achieving the initiative's objectives and in focusing discussion in educational circles on the wide-scale use of multi-media services as educational tools.

3.4.5. Parental responsibility for minors will be all the more justified if it is supported by the provision of appropriate information. Many parents have requested education in the new services. Education authorities, ranging from schools to organizations responsible for social reintegration, must be responsible to such requests.

3.4.6. Action taken by the European Union and national authorities cannot be confined solely to the field of education. It should also promote and encourage local pilot schemes to encourage responsible use of the new electronic services. These schemes should be adequately funded. In addition they should reach the widest possible public, with the emphasis on securing widespread general understanding rather than on esoteric technical vocabulary.

4. Conclusions

4.1. The Committee of the Regions shares the concern expressed by the Council and the European Parliament about the emergence of crime in the use of new electronic services, and particularly on the Internet, the sexual exploitation of children being the most outrageous example. The Committee approves the Commission's action in proposing specific short-term measures for the Internet, combined with wide-ranging consultation on the medium- and long-term, global strategy including international cooperation within Europe and outside it.

4.2. Faced with this problem it is vital to avoid formulae which would restrict free speech, the right to information or the free exercise of individual judgement, subject to the restrictions enshrined in Article 10(2) of the European Convention for the protection of human rights and fundamental freedoms. The green paper and the communication avoid these dangers.

4.3. The Committee is particularly exercised by the need for consistency in the legislation and practices to be implemented within the Union and in Member States. Harmony and effectiveness will be achieved inter alia by adopting a conceptual framework defining essential ideas such as the legal nature of the new modes of communication or by identifying the players in the various stages of each communication medium. In addition the definition of responsibilities requires analysis and assessment procedures, which must recognize the specific features of each new service, distinguish the types of content (unlawful or harmful to the welfare of minors), assess the operator's degree of control over the information and place users, in their socio-cultural diversity in the centre of the machinery; this must include minors for whom states are required to ensure specific forms of protection. The Committee would recommend that the Commission hold consultations for the purpose of coordinating the definitions of the terms used (e.g. pornography), these coordinated definitions being a sine qua non for the implementation of the strategy.

4.4. The Committee would recommend that the Commission hold consultations for the purpose of coordinating the definitions of the terms used (e.g. pornography), these coordinated definitions being a sine qua non for the implementation of the strategy.

4.5. The Committee stresses the role to be played by parents in wishing to control the availability of detrimental material, particularly via the Internet, and calls for further development of technical measures to enable them to restrict its reception. For the Internet it is worth investigating a system using PICS standard filtering software coupled with a decentralized content labelling system. Nevertheless the independent services which assess bodies producing or distributing material must be given priority. Young people should also be guaranteed peer-group involvement in the assessment work.

4.6. The Committee believes, however, that education in the use of the media, designed to promote responsible use of the new services by the general public and encourage quality productions are as important as supervisory measures and technology. Local and regional authorities should contribute in this respect, in cooperation with the European authorities and the Member States.

Brussels, 13 March 1997.

The Chairman of the Committee of the Regions

Pasqual MARAGALL i MIRA

() OJ No C 210, 14. 8. 1995, p. 109.

() OJ No C 129, 2. 5. 1996, p. 31/32.

() OJ No C 302, 14. 11. 1995, p. 23.

() OJ No C 210, 14. 8. 1995, p. 41.

() OJ No C 100, 2. 4. 1996, p. 48.

() OJ No C 129, 2. 5. 1996, p. 39.

() OJ No C 250, 26. 9. 1996, p. 4.

() OJ No C 337, 11. 11. 1996, p. 49.

() In particular the European Parliament's resolution of 19 September 1996 on minors who are victims of violence and previous resolutions on the rights of the child and traffic in human beings. See also the work of informal meetings of the ministers of culture, the audiovisual media and telecommunications at Bologna on 24 April 1996 and ministers for justice and internal affairs in Dublin on 26 and 27 September 1996: the Council's conclusions on paedophilia and the Internet, 27 September 1996; the Council's 'culture and audiovisual` resolution, Galway, 25 and 26 September 1996 and its 'Telecommunications` resolution of 28 November 1996 on Internet messages with illegal and harmful content. See also the European Council's conclusions on justice and internal affairs, Dublin, 13 and 14 December 1996.

() COM(96) 392 final - 96/0220 COD.

() OJ No L 109, 26. 4. 1983, p. 8.

() Report of the Interministerial Mission on the Internet, chaired by Mrs Falque-Pierrotin, 16. 3. 1996-16. 6. 1996.

() Council of Europe, Information highways to electronic democracy. The impact of information and communication technology on our freedoms.