GREEN PAPER ON THE PROTECTION OF MINORS AND HUMAN DIGNITY IN AUDIOVISUAL AND INFORMATION SERVICES
Date: 1996-10-16
Institutions: European Commission
Subjects: audiovisual programme, child protection, consumer protection, fundamental rights, information network

COMMISSION OF THE EUROPEAN  COMMUNITIES 

Brussels,  16.10.1996 
COM(96)483  final 

GREEN PAPER ON THE PROTECTION  OF MINORS AND HUMAN  DIGNITY IN 
AUDIOVISUAL  AND  INFORMATION  SERVICES 

(presented by the Commission) 

CONTENTS 

INTRODUCTION 

SUMMARY 

CHAPTER I 

The  protection  of  minors  and  human  dignity: 
Context  and  issues 

1. 
2. 
3. 

The  protection  of  minors  and  human  dignity 
The  changing  context 
The  extent  of  the  problem  by  type  of  services 

CHAPTER II  Rules  and  enforcement  measures  applicable 

to  protection  of  minors  and  human  dignity 

1. 
2. 

Common  general  principles 
The  rules  and  resources  deployed  in the  national  context 

Protection  of  human  dignity 
The  protection  of  minors 

2.1. 
2.2. 
2.3  Media  education 

CHAPTER m 

The  European  Union  context 

1. 
2. 
3. 

Principle  of  free  movement  of  services 
Cooperation  in  the  field  of justice  and  home  affairs 
Priority  lines  for  cooperation  in the  European  Union 

CONCLUSION 

ANNEXES 

1 

3 

6 

6 
7 
10 

12 

12 
13 

13 
15 
20 

21 

21 
22 
23 

25 

C\ 

INTRODUCTION 

This  Green  Paper  sets  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 audiovisual and 
information  services.  The  transition  from  a  broadcast  world  to  an  environment  where 
conventional  television  will  exist  alongside  on-line  services  and  indeed  hybrid  products 
creates  a host  of  opportunities.  The  full  potential  of  such developments  will  depend  on 
society  as  a  whole  striking  the  right  balance  between  freedom  of  speech  and  public 
interest considerations, between policies designed to foster the emergence of  new services 
and the need to ensure that the opportunities they create are not abused  by the few  at the 
expense  of  the  many.  Certain  facets  of  these  issues  require  European,  indeed  global, 
solutions.  Others remain a matter for  individual states or for individuals themselves.  The 
Commission  believes that  it is legitimate  and necessary  in this framework  to analyze the 
situation  as  a whole,  in order  to  examine  the  added  value that  each  level  of  government 
should  play,  while  paying  special  attention  to policy  initiatives  at European  Union  level 
with  due  respect  for  the  principle  of  subsidiarity. 

The  issues  studied  - the  protection  of  minors  and  of  human  dignity  -  are  currently  high 
on the  political  agenda.  They  are  identified  in the first  annual  report  of  the  Information 
Society  Forum,  adopted  in June  1996, as being among the priorities  for  legal  protection. 
They  also  have  consistently  been  dealt  with  - by  national  and  Community  policies  -  as 
issues of overriding public interest.  Legal and others measures in this field  have naturally 
been designed as a function  of the characteristics of traditional electronic media (broadcast 
television  and  radio)  which  are  centralised 
in  nature  and  instruments  of  mass 
communication. 
The  new  emerging  services  have  two  fundamentally  different 
characteristics  -  they  are  decentralised  and  they  are  closer  to  individual  than  to  mass 
communication.  Even  though  the  actual  content  of  such  services  will  sometimes  be the 
same  - a film,  a news bulletin,  a documentary  - these different  characteristics  have to  be 
taken  into  account  when  designing  policy.  This  Green  Paper  therefore  describes  the 
evolution of audiovisual and information  services, analyzes current legislation and policies 
at  national,  European  and  international  level  and the implications  of the  development  of 
new  services  for  these  policies  as  far  as is relevant  for  the two  issues  under  study.  The 
kinds of policy options examined are various and comprehensive, ranging from  regulation 
and  self-regulation  through  awareness  and  educational  measures  to  the  development  of 
parental  control  systems. 

The  purpose  of  this  Commission  Green  Paper  is  to  stimulate  debate  on  a  medium-  to 
long-term  basis. 
It  is  being  presented  at  the  same  time  as  the  Commission 
Communication  on  " Illegal  and  harmful  Content  on Internet".  The two  documents  are 
fully  complementary  both as regards timing and scope.  The Communication puts  forward 
short-term  measures  required  to deal  with  specific  Internet  related  issues  that  go beyond 
the field  of protection  of minors and human dignity.  The Green Paper, besides its longer 
term  and  consultative  nature,  covers  the  specific  subject  matter  of  protection  of  minors 
and  human  dignity  in  relation  to  new  audiovisual  and  information  services  in  general. 
Both  respond  to  requests  from  the  European  Parliament  and  Council  for  an  in-depth 
examination  of European public policy issues related to the development  of new services. 

In this respect the Commission would like to underline that a number of policy  initiatives 
have  already  been  launched,  or  are  under  examination,  that  deal  either  specifically,  or 
For  example,  the  Commission 
interest  issues. 
incidentally  with  related  public 

Communication  on  "Services  of  General  Interest  in  Europe"  contains  a  section  on 
broadcasting  in  which  it  is  pointed  out  that  general  interest  considerations  in  this  field 
basically concern the content of broadcasts and are linked to moral and democratic values, 
such  as  pluralism,  information  ethics  and  protection  of  the  individual. 
Intellectual 
property  is  covered  in  the  Green  Paper  on  Copyright  and  Neighbouring  Rights  in  the 
Information  Society.  The  Commercial  Communications  Green  Paper  covers  inter alia 
public  interest  issues  in  relation  to  advertising  and  sponsorship.  A  Directive  has  been 
adopted  on  the  protection  of  individuals  with  regard  to  the  processing  of  personal  data. 
The  "Television  without  frontiers"  Directive,  which  is  in  the  process  of  being  revised, 
provides  coordinated  Community  rules in a number  of fields,  including  the protection  of 
minors.  The proposed  Directive  on  "Regulatory  Transparency  in the  Internal  Market  for 
Information  Society  Services" will facilitate  Community coordination of future  regulatory 
activity  and  the  pursuit  of  public  interest  objectives  that  are worthy  of  protection. 

Finally,  yet  other  issues  flowing  from  the  development  of  new  audiovisual  and 
information  services  -  such  as  those  related  to  cultural  and  linguistic  diversity  -  have 
already been the subject  of several recent policy  initiatives (such as the MEDIA II, INFO 
2000 and Multilingual Information  Systems programmes).  The Commission will monitor 
the achievements  of these initiatives in the light of their objectives  and will come  forward 
in  due  course  with  an  up-dated  assessment  of  the  situation  and  of  any  need  for  further 
policy  initiatives. 

SUMMARY 

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  are 
of  fundamental  importance  in  enabling  new  audiovisual  and  information  services  to 
develop  in  a climate  of trust  and  confidence.  If effective  measures  to protect the  public 
interest in these fields  are not rapidly identified  and implemented we run the risk of these 
new  services  not  reaching  their  full  economic,  social  and  cultural  potential. 

Chapter  I  of  this  Green  Paper  identifies  those  aspects  of  the  development  of  new 
audiovisual  and  information  services that are relevant for the protection of minors and of 
human  dignity  and  analyzes the categories of content that may  give rise to problems.  It 
underlines 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.  Solutions have to be designed to take account of the type of content 
in  question. 

They  also  have  to  be  adapted  as  a  consequence  of  the  evolution  of  the  service 
environment.  New  television  services,  such as pay-per-view,  provide greater individual 
choice.  They  are evolving  away  from  the mass media model,  where the viewer's  choice 
is  between  watching  a  programme  or  not,  towards  a  model  that  is  closer  to  publishing 
i.e. where the viewer  selects his or her programme from  a wider choice.  On-line  services 
take this evolution further  towards the individual communication model.  In  geographical 
terms distribution  networks  are less national and increasingly  global  in nature,  Internet 
being a world-wide  network  of networks.  Moreover, new types of content are emerging. 
A  traditional  television  programme  that  is  watched  from  beginning  to  end  is  linear  in 
nature whereas interactivity allows one to navigate through alternative scenarios.  Hybrid 
forms  of content are coming into existence, for example combining games, advertising and 
information  in  new  ways. 

The  development  of  new  services  requires  a flexible  framework,  notably  in  regulatory 
terms.  A functional  analysis of the characteristics of each new type of service is required 
in order to  identify  new  solutions.  Any new risks inherent to the nature of new  services 
have  to  be  carefully  evaluated.  Concerns  about  the protection  of minors  and  of  human 
dignity in relation to new emerging audiovisual and information  services justify  vigilance 
on the part  of public  authorities  and citizens alike.  However,  the problem  should not  be 
overstated  -  the  difficulty  often  resides  more  in  the  characteristics of  new  services  as 
compared to  traditional media than in their content. 

Chapter H  provides  an  analysis  of  existing  legal  and  constitutional  arrangements  at 
European and national  level.  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  as  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.  It  also  provides  that  the  exercise  of  this 
right may  be  subject  to  certain  limitations  for  specified  reasons, including  the  protection 
of health  or morals  and  the prevention  of crime.  Accordingly,  freedom  of  expression  is 
nowhere  absolute  in the  European  Union  and is  subject  to restrictions.  The  case  law  of 
the  European  Court  of Human  Rights  has developed  the principle  of proportionality  the 
crucial test of conformity  of any restrictive measures with the fundamental  principles  laid 

down  in the ECHR.  Europe therefore  has a basis for  a common  approach  - the principle 
of freedom  of expression  and the test of proportionality.  Beyond  this common  basis the 
actual regimes  in the Member States  vary greatly and reflect differences in cultural and 
moral standards. 

In  general  terms,  the  new  services  can  create  specific  new problems  with  regard to  the 
enforcement of  legal provisions.  An  example  is the  increased  difficulty  of  determining 
liability  where there are several different  operators involved in the communications  chain 
(network provider, access provider, service provider, content provider).  Such  difficulties 
are  more  acute  when  the  different  elements  of the  chain  are  in  different  countries. 

This  Chapter  then  goes  on to  examine  the  problems  related  to  the protection  of  minors 
against harmful, but not necessarily illegal, content such as adult erotica. In some Member 
States,  the  principle  of  protection  of  minors  is  incorporated  into  general  provisions, 
whatever the media involved, which forbid the supply to minors of material likely to harm 
their  development  (but which may  be  legally accessed by adults).  Other  Member  States 
have provisions  that  are media  specific.  In all cases, the implementation  of measures  to 
protect  minors  requires  the  identification  of  ways of ensuring  that  minors  do  not  access 
harmful  material  while  allowing  adults  access.  Recent technological developments  can 
provide  new solutions through greater, parental control, both in the television  (v-chip) and 
on-line  (PICS) environments.  In both  cases, content  rating  is  a key  part  of  the  system. 
The  new  technical  possibilities  are  more  limited  in  the  television  than  in  the  on-line 
environment, but both have the advantage of offering 'bottom-up" rather than 'top  down" 
solutions that obviate the need for prior censorship and increase the potential  effectiveness 
of self-regulation. 

Chapter in  analyzes the situation  at the level of the European  Union both with regard  to 
Community  law and to cooperation  in the field  of justice and home affairs.  The freedom 
to  provide  services  is  one  of  the  four  basic  freedoms  guaranteed  by  the  Treaty. 
Restrictions  are possible  for  overriding  reasons  of public  interest,  such as the  protection 
of  minors  and  of  human  dignity,  but  are  subject  notably  to the proportionality  test. 

In the fight  against illegal content, cooperation between the Member States in the field  of 
justice  and  home  affairs is  identified  as  having a fundamental  role  to  play  given  the 
international character of the new services.  Through such cooperation the Member  States 
will  be  able  to  more  effectively  counter  illegal  use  and  content.  Moreover,  internal 
coherence  will  put  them  in  a better  position  to  work towards  world-wide  solutions. 

Various options for improving cooperation between national administrations and with the 
Commission in both the Community and justice and home affairs frameworks are explored 
(systematic  exchange  of  information,  joint  analysis  of  national  legislative  provisions, 
establishment  of  a  common  framework  for  self-regulation,  recommendations  for 
cooperation in the field of justice and home affairs,  common orientations for  international 
cooperation).  The  potential  for  encouraging cooperation between  the  relevant industry 
sectors  is  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. 

Building  on  the  Commission's  first  policy  options  presented  in  the  Communication  on 
Illegal  and Harmful  Content  on the  Internet,  Chapters H and ZZZboth identify  a series  of 

questions for further  debate on issues the Commission considers as key for defining  future 
policy  actions.  They  are,  in  order: 

Question 1: 
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, editorial - should come  into 
play  and  under what  conditions  should  liability  be limited  ? 

Question 2: 
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? 

Question 3: 
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? 

Question  4: 
Should one give priority  to a regulatory or a self-regulatory approach (possibly  backed up 
by  legislation  in  the  latter case)  as  regards pcoxntal control  systems?  What  measures 
would  be required, inter  alia  at European  Union level? 

Question  5: 
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 form  and  to  which  operators should  it  apply?  What  ewe  the  essential 
functions  that such  systems  should  provide? 

Question  6: 
How  can  decentralisation  of  content  rating  be  implemented,  catering for  the  need  to 
respect  individual,  local  caid national  sensitivities,  where  audiovisual  and  information 
services  are  transnational? 

Question  7: 
What  elements  of  standardisation  would  allow  content  ratings  to  be  developed  in  a 
coherent way  in  Europe,  in particulca'  in the  case of  digital se\-vices (standardisation of 
types of  information to be supplied, of encoding and decoding of such information,  etc.)? 

Question  8: 
In what ways should  administrative cooperation be implemented  in the European Union? 
How  and in  what  institutional framework  should  it be  formalised? 

Question  9: 
What should  the priorities  be at European level  and at international level?  In particular, 
should  one  give  priority  to  developing  solutions  at  European  Union  level  and  then 
promoting  them  at  international level  or should  this  be  done  in parallel?  What  are the 
most appropriate  international fora for  international cooperation (G7, OECD, ITU,  WTO, 
UN or bilateral relations)?  How  should  this  international cooperation be  formalised? 

CHAPTER I 

THE  PROTECTION  OF  MINORS  AND  HUMAN  DIGNITY: 
CONTEXT AND  ISSUES 

This  chapter  will  identify  the  main  problems  arising  from  material  in  audiovisual  and 
information  services  which  are  of  relevance  to  the  protection  of  minors  and  human 
dignity. 

!• 

The protection of  minors  and human dignity 

Whatever the weight given to freedom  of expression, the protection of minors and human 
dignity  has  always  been  a  fundamental  concern  of  media  regulation.  The  appearance  of 
new  media  in  no  way  alters  the  need  for  that  protection. 

The  arrangements  made  to  protect  minors  and human  dignity  may  vary  from  country  to 
country  and  from  time  to  time.  But  it  is  important  to  distinguish  two  types  of  problem 
relating  to  material: 

Firstly, access to certain types  of material may be banned for  everyone, regardless 
of  the  age  of  the potential  audience or  the  medium  used. Here  it  is  possible, 
irrespective  of differences  in national  legislation, to identify  a general category  of 
material that violates  human dignity, primarily  consisting  of  child  pornography, 
extreme gratuitous violence and incitement to racial or other hatred, discrimination, 
and  violence. 
Secondly,  access  to  certain material that might  affect  the physical  and  mental 
development  of minors is allowed  only for  adults. These measures should not be 
confused  with  other  objectives  of  general  interest,  such  as  consumer  protection, 
which  might  also  help  to  protect  minors  (notably  in  terms  of  advertising,  where 
exploitation  of their credulity  is to be prevented).1 The aim is therefore  limited  to 
preventing minors from encountering, by accident or otherwise, material that might 
affect  their  physical  and/or  mental  development. 

The  issues  are  sometimes  confused  for  one  reason  or  another,  but  it  is  essential  to 
maintain  the  distinction  between  these  different  questions:  they  are  different  objectives 
which  raise  different problems  and  call  for  different solutions.  Clearly,  the  measures 
required to enforce  a total ban are different  from  those needed to restrict access by minors 
or  to  prevent  chance  access  by  adults. 

For example, in the context of Community law relating to broadcasting (Directive 89/552/EEC), 
the two objectives  are clearly  distinguished: 

rules  for  the  protection  of  minors  apply  to  all  programmes,  including  advertising,  an 
advertisement, like any other type of programme, may not contain material that is likely 
to seriously  impair the development of minors (Article 22); 
rules for the protection of consumers applicable to advertisements specifically  outlaw all 
exploitation of minors'  credulity  (Article 16). 

2. 

The changing context 

The emergence of new audiovisual and information  services radically changes the context 
of protection  for  minors  and  human  dignity  (see Annex II). 

2.1 

Television: from  mass  media to editorial  model 

Digital  broadcasting  is  likely  to  give  a  spectacular  boost  to  the  number  and  range  of 
services: each  digital  cluster  comprises  or will  comprise  several  dozen  services,  such  as 
pay-per-view  (PPV)  and  near  video  on demand  (NVOD). Video  on  demand  (VOD)  and 
a whole range of new transactional  services (from  films  on demand via interactive  games 
to home banking) will gradually be introduced, although it is still too early to say  exactly 
how this will happen  or what  form  it will  take (infrastructure,  means  of  communication, 
type  of  content,  etc.). 

User's televistoci and 
Set Top Box/PC 

Y Programme!nSkct*' 

•  ! •»  in  ».  ii  _  11«.I, 

i  «i  a.  } 

:-"•  .Advertisers'^'  -Jj 

This trend marks  the transition in the  world of television from  a  "mass media"  approach 
to  one  which  increasingly  resembles  the editorial model: 

shortage  of  frequencies  is  no  longer  an  obstacle  to  the  proliferation  of  services; 
services  diversify  and  their  impact  is  related  to  the  total  number  of  services 
available; 
the  viewer  has  a  wide  range  of  choice  among  clearly  identifiable  services  and 
types  of  programme. 

2.2 

On-line  services:  from  the  editorial  model  to  a new  model  of  communication 

The  development  of  "proprietary" on-line  services, such  as  ComnuServe  or  America  on 
Line  (AOL),  and  above  all  the  exponential  growth  of  the  Internet  are  seen  as  the 
forerunners  of  a  mass  market  for  on-line  services. 

^ 
7*. 
Contracted V* party 
content providers 

^ " " ïï 

fe*gjfflfit^tffi|} 

flnfprtrStton^ctvioS» 

Interactive services, 
content from other users, 
minigcd by O.S. Provider. 

On-line  services  are electronic  communications  systems which  offer  paid-up  subscribers 
a  range  of  services  (electronic  mail,  information  services,  games  and  discussion  groups 
or  chat  lines)  accessible  via  the  telephone  network  using  a  modem  and  a  computer.  In 
addition  to  the  long-standing  Bulletin  Board  Services  (BBS),  proprietary  commercial 
services are expanding rapidly in the United States and making their appearance on certain 
European  markets.  The closed  architecture  of these  networks  ensures  a  level  of  security 
for  transactions  which  has  enabled  commercial  services  to take  off. 

The basic  logic  of on-line  services  clearly  follows  the editorial  model: material  is  edited 
and made accessible to the public on individual  demand. But a new  model  of  interactive 
communication  is  emerging  via  certain  resources  of  on-line  services  and  the  Internet  in 
particular:2 each user becomes a potential supplier of material. This unique model  defies 
any simple analogy with existing media and traditional forms  of telecommunication. It has 
to  be considered on its own  terms. 

l.A.P.-run servers 
providing value-
added services 

<: P 

A network of 
networks connecting 
together a vaste 
number of computers 
y 
worldwide 

• = Content 

See  Communication  on  Harmful  and  Illegal  Content  on  the  Internet. 

2.3 

From national  services  to worldwide  networks 

The  appearance  of  special-interest  services  and  pay  channels  has  increased 
the 
cross-border  circulation  of  television  broadcasts,  even  if  these  services  mainly  target  a 
single  language  area.  The  growth  of  digital  television,  by  freeing  the  services  from  the 
traditional  constraint  of  shortage  of  frequencies,  will  make  it possible  to  develop  highly 
specialized  services, some of which will not be economically  viable on a national  market 
alone. These  services will  have to exploit niche markets  on a transnational  level  in order 
to  attract  a  large  enough  audience. 

Given the  state  of  the technology,  it  is hard to picture  VOD  systems  on  an  international 
basis.  In  the  longer  term,  however,  the  development  of  VOD  systems  might  come  to 
follow  on-line  services. 

On-line  services  already  have  an  international  dimension  via  the  major  proprietary 
networks  such  as  AOL  and  CompuServe.  Each  time  this  type  of  service  becomes 
established  in  a new  country,  the  entire  network  expands  and  all  subscribers  are  able  to 
communicate  with  one  another  and  access  the  same  material. 

The  Internet  is  already  a  global  network,  potentially  accessible  in  almost  every  country 
in the world. Moreover, the specific  structure of the Internet makes it virtually  impossible 
to  isolate  a particular  geographical  area. 

This shift from  national services to worldwide networks presents a major challenge to the 
protection  of minors and human dignity. It calls for  careful consideration of the means to 
be deployed  and the appropriate level of action to ensure that European principles relating 
to  the protection  of  minors and human  dignity  are taken into account. 

2.4 

The emergence  of  new  types  of  material 

The  linear  model  intrinsic  to  televised  material  (each  programme  is  viewed  from 
beginning  to end)  is giving  way to  a more complex  architecture within which  navigation 
between items is freer  and the user can interact with the material  (e.g. the new  interactive 
media  such  as  CD-ROM,  CD-I  and  DVD). 

Clearly  identified  material  (documentary,  news, advertising,  films,  etc.) are merging  into 
new  hybrid forms  of  material that  are  difficult  to  label:  the  same  item  may  combine 
advertising,  news  and  a  game  element  without  it  being  possible  to  isolate  the  different 
components. 

And  in the  digital  world,  material can increasingly  be  manipulated  it  can  be  distributed 
and modified  easily  on a wide variety of media and services. Computer-generated  images 
can  offer  a  virtual  world  and  insert  subliminal  material,  which  is  a  source  of  new 
ambiguities  in  relations  with  reality. 

These  trends  raise  a  seris  of  questions.  How  to  check  the  accuracy  of  the  information 
(false  messages  substituted  for  the original, false  firms  offering  false  services or  goods)? 
How to  defend  the  various rights  that  go with the name, the image  and  the reputation  of 
a person or firm? What will be the long-term societal impact of hybrid material  combining 
the real and the virtual worlds? These questions reflect  new long-term risks that are more 

difficult  to assess, especially in relation to the physical and mental development of minors. 
They  will  have  to  be  identified  and  analyzed  carefully. 

2.5 

The incubation period: new  risks  and  opportunities 

This  new  environment  has  by  no  means  stabilized  yet.  Now,  however,  the  common 
language of digital technology makes it possible to envisage various forms  of  convergence 
at  the  level  of  terminals  (television,  computer  or  others),  infrastructures  (hertzian, 
telecommunications,  cable  or  satellite  networks)  or  the  services  themselves. 

Throughout  this  long  incubation  period, these new  services  will  only  be  able to  develop 
in & flexible  environment. - particularly  as regards regulatory measures  - which can easily 
adapt  to  the  rapid  changes  in  the  industry.  The  various  convergence  scenarios  and  the 
numerous  opportunities  created  by  interactivity  make  it  more  difficult  automatically  to 
apply  traditional  distinctions  between  types  of  service  (television/computer,  private 
communications/public  communications,  point-to-point/point  to  multi-point)  and  to 
assimilate the new services to the existing media.  We now  have to examine  carefully  the 
different functions  offered by  each new service in order to  identify  its relevant features. 

Against  this  background  of  rapid  change,  we  must  assess  the  new  risks  which  are 
emerging for  the protection  of  minors and human dignity.  We must  also  weigh  up the 
many possibilities for  monitoring the material offered by the audiovisual and information 
new  services. 

3. 

The  extent  of  the  problem  bv  tvne  of  services 

The  nature  and  scope  of  the  problems  involved  in the  protection  of  minors  and  human 
dignity  vary  according  to  the type  of  service. 

In some countries erotic programmes  are broadcast late at night on the hertzian  television 
channels,  and  pornographic  material  is  shown  on pay  channels. Encrypted  channels 
devoted  exclusively  to  pornography  are  still  a relatively  minor  phenomenon  in  Europe. 
On the  other  hand,  the  question  of  violence  on television,  which  is much  more  difficult 
to regulate,  is the  subject  of  debate  in many  countries. It is also  likely  that PPV,  NVOD 
and  VOD  services  will  offer  some  erotic  and/or  pornographic  material  and  will  be  less 
affected  by  the  debate  about  violence,  particularly  if  users  are  correctly  informed  about 
the  exact  nature  of  the  programmes  on  offer. 

On-line  services  offer  a  series  of  commercial  sites  aimed  at  adults  containing  material 
such  as  erotic  or  pornographic  photographs  available  at  a price.  These  "published"  sites 
are  clearly  identifiable.  Despite  the  closed  nature  of  the  proprietary  networks  it  is  also 
possible  to  find  all  the  other  types  of  material  in  interactive  applications  (discussion 
groups)  or  via  electronic  mail. 

As can be seen  from  the Communication  on Harmful  and Illegal Content  on the  Internet, 
the  Internet  undoubtedly  carries  all  of  the  controversial  types  of  material  (ranging  from 
child  pornography  to  incitement  to racial hatred, via all kinds of violent  or other  abusive 
material).  The  controversial  sites  are  often  identifiable  and  the  fact  that  deliberate  steps 

10 

have to be taken to obtain the information  (via addresses or search tools) means that  it is 
virtually  impossible  to  come  across  unwanted  material  "by  accident". 

The importance of questions relating to the protection of minors and human dignity  in the 
audiovisual and information services is hardly surprising.  Genuine problems  are emerging 
which  more  than justify  the  attention  of  the public  authorities and  ordinary  citizens. 
However,  the novelty  lies more in modes  of communication which defy  comparison with 
existing  media than in the material itself.  It is  unlikely that the new services  carry more 
contentious material than the traditional media have to date. But  the new  services  make 
this  material  more  visible  and  relatively  more  accessible.  An  understanding  of  the 
operation  of  each  service  would  therefore  seem  to  be  essential  to  determining  the 
appropriate responses. 

11 

CHAPTER H RULES  AND  ENFORCEMENT  MEASURES  APPLICABLE  TO 
PROTECTION  OF MINORS  AND  HUMAN  DIGNITY 

1. 

Common  general  principles 

Before  considering  what  rules  and  enforcement  measures  applicable  to  protection  of 
minors  and  human  dignity,  it  must  be  emphasized  that  they  are  all  subject  to  two 
fundamental  principles that are inherent in any democratic society  - freedom  of expression 
and  respect  for  privacy  (see  Annex  III). 

1.1 

The principle  of  freedom  of  expression 

Freedom  of  expression  is  secured  by  a range  of  international  Conventions,  of  which  the 
European  Convention  for  the  Protection  of  Human  Rights  and  Fundamental  Freedoms 
("the  Convention")  is both  the  most  sophisticated  and  a vital reference  for  the  European 
Union. All the Member  States are parties to the Convention and, with the exception of the 
United  Kingdom,  have established  freedom  of expression  as a principle  of  constitutional 
status  in the  legal  systems. 

Although the Convention  is not  strictly binding on the European  Community,  its content 
has been incorporated  into its legal order by Article  F(2) of the Treaty on European Union 
and by cases decided by the Court of Justice of the European Communities relating to the 
general  principles  of  Community  law. 

But  the  principle  is  never  an  absolute  one.  Freedom  of  expression  may  be  restricted  by 
the  State,  though  the  possible  restrictions  are  circumscribed  by  a  very  precise  set  of 
criteria: to be considered necessary in a democratic society,  the measure must meet  a real 
social need and be effective  without being disproportionate in the restrictions it  imposes. 
The assessment  will  require the proportionality  test  to  be  applied. 

1.2 

The principle  of respect for privacy 

The  principle  of  respect  for  privacy  has  the  same  status  as  the  principle  of  freedom  of 
expression.  It  is  secured  by  Article  8 of the  Convention,  and  restrictions  are  allowed  on 
much  the  same  terms  as  in the  case  of  freedom  of  expression. 

Restrictions  on  the  principle  would  are  possible  (notably  to  identify  and  punish  private 
communications  for  criminal  purposes), though  once  again the  proportionality  test  must 
be  passed. 

There is  a European common  core, constituted both by  the  Convention  and its  uniform 
interpretation by  the European Court of Human Rights  and the incorporation of general 
principles  of law in the Community legal order.. Yet the common core is by  no means the 
same thing as a set  of common  rules. Be that as it may,  however,  the principles  are still 
most significant: in the absence of common rules, Europe at least has a common approach 
to  assessing  rules  that  limit  the freedom  of  expression  or  the  right  to  privacy.  That 
method -  the proportionality  test  -  must  be  taken as a powerful factor for  convergence 
between the Member States as regards the legal treatment (or self-regulation) of questions 

12 

relating to  the protection  of  minors  and human dignity  in audiovisual and information 
services. 

2. 

The rules  and  resources  deployed  in the national context 

It  is  clear  from  an  analysis  of  national  regulations  and  other  measures  relating  to  the 
protection  of  minors  and  human  dignity just  how  wide  the  gaps  separating  the  Member 
States'  cultural  and  legal  traditions  are  (see  Annex  III). But  is possible  to  identify  broad 
patterns  and  specific  problems. 

2.1 

Protection  of  human dignity 

The  first  type  of  restriction  imposed  by  the provisions  of  all  countries  aims  to  prohibit 
outright certain kinds of material considered  as intolerable both for the individual  and  for 
the community  at large and as going to the very roots of society and, in particular,  human 
dignity. 

All  the Member  States  have  outright  prohibitions  on certain kinds of material. There  are 
generally  heavy  fines  and  prison  terms,  in  the  general  criminal  law  or  in  specific 
enactments,  to  enforce  the  prohibition  on  producing,  distributing,  importing  and 
advertising such  material. By their general character, these prohibitions apply to all media 
and services, including those that emerged after the time of the enactment. The addressee's 
and  user's  ages  are  immaterial. 

Prohibitions  on  general  categories  of  material  detrimental  to  human  dignity,  such  as 
material  that  is  obscene,  contrary to  sound  morals or  indecent, exist  in  most  Member 
States. Sometimes the terms are defined  by the legislation; elsewhere, their meaning  falls 
to  be  determined  by  the  courts.  And  the  same  concept  may  be  used  to  underpin  both  a 
blanket prohibition  and a more flexible  situation in which material  is restricted  depending 
on  the  potential  audience  or  on  the  medium  used. 

Given all these factors, it would appear possible to identify  certain types of material which 
are  generally  prohibited  in  the  Union. 

The material to which  the most  unanimous ban applies in the Union is child pornography 
(in the form  of photos, photo-simulations  and animated material). The World  Conference 
on the  Sexual  Exploitation  of  Children  held  in  Stockholm  recently  drew  attention  to  the 
problem  of distribution  of  such material  via communications  networks  and  called  firmly 
for  possession  to  be  made  into  an  offence. 

General  concepts  (obscenity,  sound  morals)  also  encompass  violent  pornography 
(including  material  involving  non-consenting  adults)  and  zoophilia  as  being  widely 
prohibited. 

A  further  category  of  material  subject  to  outright  prohibition  in a  significant  number  of 
countries  is  incitement  to  racial hatred or  violence  (or both).  The  terms  used  and  the 
degree of precision of national legislation vary widely, but there is evidence of a common 
objective,  which  is  to  combat  all  kinds  of  material  that  directly  or  indirectly  incite  to 

13 

hatred, discrimination  or violence  against persons or groups of persons on grounds of the 
race,  nationality,  skin  colour,  sex  or  religion. 

The  differences  between  national  rules  and  their  lack  of  transparency  makes  it  moire 
difficult  to apply existing national rules to international services and networks and involve 
the industries in question at European level. Moreover, they can generate  disproportionate 
barriers to the free  movement  of services in the Community  and make it harder to  defend 
shared  values  in  international  fora. 

In view of this, the Commission acknowledges the fundamental  importance of cooperation 
between the Member  States in the field  of justice and home affairs  (see Chapter III, point 
2).  Common  definitions  of  what  ought  to  treated  as  unlawful  are  needed,  and  criminal, 
judicial  and  police  cooperation  between  the  Member  States  needs  stepping  up. 

Once  prohibited  material  has  been  defined,  the  Member  States  must  enforce  the 
prohibitions,  by  identifying  and  punishing  offenders.  New  problems  arise  with  the 
implementation  of  prohibitions  when  the  new  audiovisual  and  information  services  are 
involved:  where  services  are centralized,  it is possible to  identify  an operator  so that  the 
rules can be discussed  and responsibility  for the application allocated, but  responsibilities 
are difficult  to  allocate in the case of decentralized services  as there are so  many  stages 
involved  -from  initial loading to access by  the end-user (sec Communication  on Illegal 
and  harmful  Content  on  the  Internet). 

The responsibility  of a user loading illicit material on to the network and the release  from 
responsibility of the operators who merely carry it seem clearly accepted. But the question 
of  the  responsibility  of  intermediate  stages  (notably  where  material  is  stored,  even 
temporarily,  in  readable  format)  is  far  from  settled.  The  point  is  to  ascertain  what  is 
technically  feasible  and economically  viable and to observe a balance between  protection 
of  freedom  of  expression  and  privacy,  on  the  one  hand,  and  the  protection  minors  and 
human  dignity  on  the  other. 

And  because  communications  networks  are now  global,  the  scope for  application  of 
national legislation  is restricted. Where  decentralized  services  on  international  networks 
are concerned, controversial material can rapidly be relayed to other servers to circumvent 
restrictions.  Apart  from  the  risk  of  large-scale  derealization  of  servers  towards  the  less 
strict  countries,  this  mobility  also  raises  the  problem  of  updating  black  lists  of 
questionable sites or material. It may be that blocking a site that carries illicit material will 
turn out to be disproportionate  if all the services and material accommodated  on the  same 
server  are  blocked  as  a  result. 

A  number  of  practical  cases  have  generated  a wide  debate  pending  the  emergence  of  a 
coherent body of case law. Some Member States are devising regulatory  solutions, but the 
initial  response to the practical  difficulties  has been in the form  of  self-regulation  by  the 
operators  (see  Communication  on  Illegal  and  Harmful  Content  on  the  Internet). 

These isolated  national solutions come  up against visible  limits,  and the development  of 
a coherent approach at European  Union level  would facilitate  application of national law 
while  avoiding  disproportionate obstacles to the transfrontier development  of services  in 
the internal market. 

14 

Building  on  the  initial  guidelines  set  out  in  the  Communication  Illegal  and  harmfull 
Content  on the  Internet, the  approach could  be focused  on the following  questions: 

1 

2 

3 

Bearing in mind  what is technically feasible  and economically reasonable, 
what responsibilities  should be attributed to the various people  involved  in 
communicating the material -from 
the author to  the final  user (what  types 
of responsibility  -  criminal, general legal, editorial -  and under what 
circumstances should they  be exonerated from  their responsibilities. 

What measures are needed to promote  transparency  in the provision  of 
services,  particularly in framework  of contractual relations between  service 
providers  and material providers? 

How  can the right balance be achieved between the protection  of privacy 
(including allowing  users to  operate anonymously on networks)  and the need 
to  attribute blame for  illegal behaviour? 

2.2 

The protection  of  minors 

In  some  Member  States, the  general  principle  of the protection  of minors takes the  form 
of  provisions  of  criminal  law  banning the  supply  to  minors  of  material  that  may  be 
harmful to their development  but which  is lawfully  available to adults. These  provisions 
are  of  general  application:  they  apply  regardless  of the  manner  in  which  the  material  in 
question  is  supplied  to  the minor.  In  Member  States  which  do  not  have  general  rules  of 
this  type,  the  same  sort  of  protection  is  afforded  by  rules applying  specifically  to  the 
individual  media. 

Any  system for  protecting  minors needs a reasonable way of ensuring that minors do not 
normally  have  access  to  material  which  could  damage  their  physical  or  mental 
development,  while  at the same  time  allowing adults access to such material. 

2.2.1  Controlling  access  by  minors  to questionable  material 

Rules  governing  access  by minors  to  certain types  of material  depend  very  much  on  the 
type of service. Despite certain similarities between the world of broadcasting  and that of 
on-line  services,  we  shall  study  these  two  areas  separately  to  simplify  the  layout  (see 
Annex  IV). 

a) 

Broadcast  services 

With  conventional  television,  the  time  of transmission  of programmes  can  be  scheduled 
in  such  a way  as to  protect  minors: potentially  harmful  programmes  may  be  transmitted 
only  late in the evening, when children are presumed not to be watching. Technically, this 
"watershed"  system  can  be  applied  to  any  television  service,  but  it  will  not  always 
necessarily  correspond  to  the  logic  of  tomorrow's  television.  Some  private  and  public 
broadcasters  have  also  developed,  usually  on  a voluntary  basis, a system  of symbols  to 

15 

inform  viewers  of  the  nature  of  the  programmes  broadcast.  Various  logos  are  used  to 
classify  programmes  potentially  harmful  to  minors. 

The  new  broadcasting  services  offer  new  solutions  for  the  protection  of  minors.  The 
conditional  access  inherent  in  all  pay-as-you-view  services  offers  a  wide  range  of 
possibilities for  controlling access by minors: 

firstly,  subscription  is  in  itself a means  for  parents  to check  that  the  service  they 
choose  does  not  contain  material  liable  to  upset  their  children; 
secondly, the privileged relationship between the subscriber and the pay-per-view 
service  has  often  led  the  services  involved  to  develop  a  consumer  information 
policy  on  the programmes  offered  which  includes  advice  for  parents; 
finally,  a variety  of technical  features  are sometimes  offered  to facilitate  parental 
control; this could  be a simple locking  system  allowing parents to prevent  access 
to  programmes,  for  example  in  their  absence,  or  a  system  for  giving  access  to 
programmes  (which  are  normally  scrambled)  only  by  means  of  a  personal 
identification  number  (PIN),  special  card  or  credit  card.  In  the  case  of  adult 
services, this type  of  system  would  enable parents to  ensure that they  alone  have 
access  to  programmes. 

The  emergence  of  technical methods  of parental control has  led  to  an  extensive  debate, 
particularly  on whether  or not they  should be used  for  non-encoded  television.  Based  on 
the Canadian example and the interest that it generated in the United States, the possibility 
of linking a systematic classification  of content to a parental control mechanism  attracted 
special  interest  in  the  European  Parliament  and  the  Council  in  the  course  of  the  review 
of the Television  Without  Frontiers  Directive.3 The question  was also  debated  in  several 
Member  States. The various debates on this system have quickly highlighted not only the 
problems  of  the  implementation  of  the  system  (notably  as  regards  classification  of 
material)  but  also  a  more  fundamental  problem  that  has  not  yet  been  settled 

The industries concerned have also recognized the importance of the protection of minors 
and  are developing  practical  solutions. Electronic guides for  navigating through the  wide 
range  of  television  programmes  will  soon  be  available  on  the  market  and  will  offer 
various  possibilities  in  terms  of  parental  control.  Originally  designed  to  assist  and 
automate  the  programming  of  video  recorders  in  a  multi-channel  environment,  these 
electronic guides will be able to decipher a wide range of information  about programmes, 
including  whether  they  contain  material  that  could  pose  a problem  for  minors. 

In the  field  of  digital television,  the  use of a decoder  and  the  need  for  electronic  guides 
to  cope  with  the  large  number  of  programmes  available  provide  two  opportunities  for 
developing devices  for providing  the viewer with  information  and controlling  content.  In 
the initial  stages, pressure  on the price of digital decoders has not so far  made  it possible 
to  incorporate  this  dimension.  As the market  develops, however,  and  if it  seems to  meet 
the  consumers'  needs,  this  type  of  function  could  be  introduced  at  a reasonable  cost. 

b) 

On-line  services 

Directive 89/552. 

16 

Unlike  broadcast  services,  on-line  services  do  not  lend  themselves  to  a  segregation  of 
material  based  on  the  time  of  broadcast.  All  available  material  can  be  consulted  at  any 
time. Moreover,  material  is accessed  on an individual  basis (choice of a specific  item) at 
a time selected by the user. Access to sensitive material will therefore rarely be accidental. 
In this specific  context, the question of the protection of minors takes the following  form: 
how can adults be  offered  a maximum  freedom  of expression  while ensuring that  minors 
are  not  exposed  to  material  which  is  likely  to  harm  their  physical,  mental  or  moral 
development.  Possible  ways  of  protecting  minors  will  vary  according  to  the  degree  of 
openness  of  the  networks. 

* 

Closed  networks 

Video-on-demand  systems,  at  their  current  stage  of  development,  have  a  number  of 
features  which  can  be  used  to  protect  minors. 

Operators  are  clearly  identifiable  and  relatively  few  in  number.  When  they  do  not  offer 
material themselves they have contractual links with information  providers. This structure 
makes  it possible  to  install  a transparent system  of responsibility for  the material  shown 
While  it  is  clearly  out  of  all  proportion  to  ban  all  material  which  could  be  harmful  to 
minors  from  such  services,  it  is  perfectly  reasonable,  in  cooperation  with  the  operators 
concerned,  to  work  out  ways  of  protecting  minors  effectively: 

identification  or  classification  of  controversial material by  means  of  electronic 
programme  guides  (for  example,  identification  of  a  space  reserved  for  adult 
entertainment); 
proof  of  age on payment  for  or on access to the programme  (using a bank card  or 
a  personal  identification  number); 
possibility  of opting  out of certain categories  of programmes  at the user's  request 
(the  user  would  then  only  have  access  to  part  of  the  material  available); 
parental control devices  preventing  access  to  certain  categories  of  programme. 

Similarly,  in proprietary  on-line services,  the editorial content (material  provided  by  the 
service  itself  or  provided  on  the  basis  of  a  contract  between  the  service  and  the 
information  providers)  is similar in some ways and therefore  offers  similar solutions. The 
size  of  the  network  plays  an  important  role  here,  however:  it  could  be  difficult,  on  a 
worldwide  network,  to  find  solutions  which  would  be  acceptable  in  all  the  countries 
covered  by  the  service. 

* 

Open networks 

The  protection  of  minors  becomes  more  difficult  on  open  networks  where  every  user  is 
a potential information  provider. On the proprietary networks or on the Internet, thousands 
of items are created,  consulted  and  exchanged via facilities  permitting  varying  degrees of 
interactivity  between  users  which  require  the  intervention  of  various  intermediaries 
between  the  information  provider  and  the  users  accessing  it. 

Given  the  threat of joint  liability,  notably  criminal liability, for  distribution  of material 
harmful to minors, the industry has spontaneously developed  a series of mechanisms  for 
the protection  of  minors.  These  mechanisms  can  be  broken  down  according  to  the  level 
at which  they  operate:  the  level  of  information  providers,  access  providers  or  the  user. 

17 

Only systems developed by the user offer  a truly comprehensive solution enabling parents 
to  enjoy  full  access  to  Internet  (or  a  proprietary  on-line  service)  while  controlling  or 
restricting access by minors. They are all based on software  the security of which  depends 
substantially  on  the  level  of  sophistication  of the  product. 

In  addition  to  the  prior  identification  of users, which  is common  to  all  systems,  various 
other  functionalities  are  proposed: 

restrictions  on computer use enable  parents  to  limit  access  by  children  to  times 
when  they  are  present; 
memory  storage  of  navigation  on  the  networks  (sites  accessed,  messages 
exchanged,  etc.)  enables  parents  to  monitor  the  use  their  children  actually  make 
of  services; 
systematic  filtering  of  material  allows  controversial  material  to  be  intercepted 
automatically.  The first generation  of systems of this type operates mainly  on the 
basis  of  key  words  and  the  identification  of  certain  types  of  material  (images). 
This  limits  the  effectiveness  of  the  protection  (a  few  key  words  may  not  be 
sufficient  to  determine  the  scope  of  material  which  could  shock  minors)  while 
imposing  considerable  limits  on  access  to  harmless  material; 
blocking  sites  on  a selective  basis  on  the  basis  of  a  labelling  system  allowing 
material  to  be filtered by  suitable  software. 

All  services  may  be  adapted  to  incorporate  control  devices,  notably  parental  control. 
However,  such  systems  are  not  yet  available  on  all  services  under  development  and 
existing  systems  are  not  as  secure  as they  might  be.  Exploration  of  the  potential  in  this 
field  offered  by  all  digital  services  should  be  a  priority.  In  view  of  the  potentially 
transnational  nature  of  all  of  these  services,  the  European  Union  is  concerned  by  all 
aspects  of  such  developments. 

Should  the approach  taken in the area of parental control devices  be based 
on legislation or on self-regulation (possibly  supervised)?  What rules should 
be  introduced, particularly at  Union level? 

In what cases (types  of service  or other criteria)  should parental control 
devices  be  incorporated in a service  automatically ? Should this be 
compulsory? If so,  what form  should it  take and which operators would  be 
affected? In these different cases, what are the essential functions  which the 
device  should perform? 

2.2.2  Labelling  of  material 

At  first  glance, the  identification  of material  which  could  be harmful  to  minors  presents 
a  basic  problem:  firstly,  a consensus  does  not  necessarily  exist,  even  in  medical  circles, 
as to what  is likely  to  affect  the moral  or physical  development  of minors; secondly,  the 
term  "minors" does not cover a uniform  group and it is doubtful  whether  children  of  four 
have  the  same  problems  as adolescents  of  15. 

These  two  problems  lead  in  practice  to  a  wide  variety  of  national  classifications 
introduced  for  certain  media  (especially  films)  which  are  often  incompatible.  In  the 
services  context,  this  diversity  has  repercussions  for  the  circulation  of  the  material 
concerned. 

To  combine  the  use  of the  new means  of controlling  content  with the free movement  of 
services  assumes  a  trend  away  from  centralized  classification  systems 
towards 
decentralized  labelling systems  which  take better account of differences in attitudes. The 
urgency  of this  development  varies  according  to the nature  of the  services. 

a) 

Broadcasting  services 

In the absence of parental  control facilities, broadcasters have to base their scheduling on 
a  centralized  classification  operated  by  the  broadcaster  in  accordance  with  more  or  less 
detailed  rules  and  recommendations. 

In the context of the development of electronic programme guides and navigation systems, 
ways  can  be  found  that  will  respect  national  sensitivities  in transnational  services: 

information  on  the  programmes  offered  can  be  differentiated  according  to  the 
country  served  (for  a  given  service  available  in  countries  A  and  B,  different 
classifications  might  be  used,  e.g.  A  in  country  A  and  B  in  country  B,  for  the 
same  programme); 
the classification  and labelling of programmes might be decentralized  (the service 
sets  up  a  classification  and  labelling  structures  in  each  country  served). 

b) 

On-line  services 

Video-on-demand  and proprietary on-line services can also classify  the material they  offer 
themselves  (or  via  contracts  with  other  information  providers).  While  it  is  not  yet 
systematic  on the proprietary  services, user information  on the potentially  harmful  nature 
of  certain  material  for  minors  is  becoming  more  common. 

The  open  structure  of  the  Internet,  on  the  other  hand,  as  well  as  the  user-friendly  and 
highly  interactive  applications  of  the  proprietary  services,  raise  the  question  of  the 
classification  of  material  in  radically  different  terms.  The  variety  of  ways  of  publishing 
material  and the fact  that each user is a potential publisher makes it necessary to filter the 
material  that  is  available.  Three  different  types  of  filter  have  been  developed. 

Black list filtering aims to block  access to  sites identified  as problematic  in  view 
of the material  they  distribute  (nudity, violence, sex, etc.); black  lists are  difficult 
to  update. 
White  list  filtering  authorizes  access  only  to  pre-determined  sites;  access  to 
material  is  heavily  limited. 
Filtering  based  on  neutral labelling gives users access to  information  on  material 
loaded  by  suppliers  or  third  parties  on the  basis  of  their  own  selection  criteria. 

A  combination  of  these  various  forms  of  classification  enables  the  user  to  make  up  an 
operating environment that is generally safe as regards Internet access by minors. But only 
the  generalized  introduction  of  the  neutral  labelling  filtering  system  would  make  it 
possible  to  regulate  the  question  comprehensively. 

19 

As can be seen  from  the Communication  on Illegal  and harmful  Content  on the  Internet, 
PICS (Platform  for Internet Content Selection) offers  an open global standard to make this 
neutral labelling possible. For European Union purposes, PICS has the decisive advantage 
that it offers  a very flexible  framework for classifying  and indexing material and enables 
the same material to be classified under different labels supplied by différent third parties 
and  containing  différent  types  of  information,  so  that  it  can  have  regard  to  differing 
national,  regional  and  local  sensitivities.  A  large  number  of  filtering  systems  already 
incorporate  the  PICS  system  (PICS  compatible)  but  the real  challenge  is  still  to  reach  a 
critical  mass  of  sites  and  labelled  content. 

For  all  seivices  operating  according  to  the  individual  consumer  demand  principle, 
encouraging material suppliers and third parties to label the material they make available 
is a priority for the harmonious development of control of material in general and parental 
control  in particular. 

6 

7 

How  can the labelling of  material be decentralized in the case  of 
transnational services  so  as to  reflects the diversity  of national, local and 
personal  sensitivities? 

What standardization efforts are needed to  ensure the coherent  development 
of material labelling at European level, particularly for  digital  services 
(standardization of  the types  of  information supplied,  coding  and decoding 
of this  or other information)? 

2.3  Media  education 

The  revolution  which  has taken  place  in the  audiovisual  and  information  services,  from 
unencoded  general-interest  broadcasting  to  the  new  mode  of  communication  offered  by 
the Internet,  implies  a need to  learn  a whole new approach to the audiovisual  media  (see 
Annex  IV). 

Parents  and  children  must  learn  to  use  the  new  communication  tools.  They  need  to  be 
warned  of  the  new  risks  involved  and  also  of  the  protection  facilities  available. 
Information, awareness-raising and education are the keys to effective  protection of minors 
and  to  establishing  the  climate  of  confidence  on  which  the  development  of  the  new 
services  depends. 

In this  context, the  initiative  on Learning  in the Information  Society4  should  help  spread 
new  approaches  to  familiarizing  young  people  with  these  questions. 

COM(96)471  final,  25.1.1996. 

20 

CHAPTER 

ffl 

THE EUROPEAN  UNION  CONTEXT 
INSTRUMENTS  AND  PRIORITIES 

Although being in principle a matter for the Member States, the question of the protection 
of  minors  and  human  dignity  in the  electronic  services cannot  fail  to  have  ramifications 
at  European Union  level, and the Community  institutions have expressed  the  importance 
they  attach  to  the protection  of these  general  interests  on  several  occasions.5 

From  the  point  of  view  of  Community  law  and  the  instruments  it  provides  in this  area, 
there  are  two  aspects  which  merit  particular  attention: 

firstly,  the principle  of free  movement of services in the Community  presupposes 
the  removal  of  unjustified  barriers  and,  in  some  cases,  the  harmonization  of 
national  legislation; 
secondly,  the Union  Treaty  lays down  a procedure  for  cooperation  in the  field  of 
justice and home affairs  which could be applied to certain aspects of the protection 
of  minors  and  human  dignity  in the new  electronic  services. 

The  Commission  believes  that  in  many  areas,  cooperation  with  national  authorities  and 
the  relevant  industries  and  international  cooperation  are  the  priority  lines  of  European 
Union  action. 

1. 

Principle  of  free  movement  of  services 

Freedom  to  offer  services  is  one  of  the  four  fundamental  freedoms  governing  the 
establishment  and  operation  of the  single  market. 

The development  of new broadcast  services (digital television, pay-per-view,  near-video-
on-demand)  is  subject  to  the  Television  without  Frontiers  Directive,  which  lays  down 
common  rules  for  the  protection  of  minors  and  human  dignity  and  gives  effect  to  the 
principle  of  freedom  to  provide  services  (see  Annex  III). Its principles  are  based  on  the 
general-interest  non-encoded  broadcasting  model,  and  it will  probably  need  to  be  tested 
on proportionality  lines as its implementation will have to be modulated  in the case of the 
new  services.  But  neither  the  fundamental  principle  that  the  law  of  the  sending  country 
applies, nor the special procedure  for  control by the country of reception  for the  purposes 
of  the  protection  of  minors  and  human  dignity,  should  not  be  called  into  question. 

The Commission,  together with the representatives of the Member  States,  will review  the 
operation  of  the  relevant provisions  of  the  Directive, particularly  as they  apply  to  new 
forms  of  broadcast services. 

The  current  amendments  to  the  Directive  will  supply  a  suitable  opportunity  for 
cooperation  with  the  Member  States  (Contact  Committee)  and  the  Commission  would 
enjoy  a  dual  remit:  to  pay  special  attention  to  this  aspect  in  the  periodic  review  of  the 
operation  of  the  Directive  and,  in  liaison  with  the  authorities  of  the  Member  States,  to 

See  the  Joint  Declaration  of  the  European  Parliament,  the  Council,  the  Representatives  of  the 
Member  States  and  the  Commission  of  11 June  1986  against  racism  and  xenophobia,  which  is 
certainly  the  most  solemnly  worded  to date. 

21 

investigate the advantages and drawbacks of other means of allowing parents and teachers 
to  control  the programmes  that  minors  can  watch. 

While  the  free  movement  of  broadcasting  services  in  the  Community  is  secured  by  the 
Television  Without  Frontiers  Directive, the  transfrontier  movement  of  other  audiovisual 
and  information  services  is  covered  by  the  general  rules  of  the  internal  market,  and 
particularly  the  freedom  to  provide  services. 

The  Member  States  are  entitled  to  take  non-discriminatory  measures  where justified  for 
overriding  reasons  of  the  public  interest.  Measures  of  this  type  would  therefore  be 
legitimate provided they were strictly proportional to the aim pursued and that there were 
no  other  less  restrictive  measures  of  equivalent  effect  available.  What  we  find  here, 
therefore,  in the  context  of the  freedom  to  offer  services,  is  a proportionality  test  of  the 
type  highlighted  in  relation  to  freedom  of  expression. 

Whether regulation or self-regulation is the solution, the Commission must ensure that the 
measures adopted are not discriminatory  and that their application is in proportion to the 
objective  pursued.6 

In the light of  this principle,  this framework  should be considered a goal  to  be attained 
progressively  (in  keeping  with  the pace  of  development  of  the  services)  and  by  the 
appropriate methods.  The Commission  is of the view  that it is too  early,  at this stage  of 
development  of  the  new  services,  to  make specific proposals,  especially  of  a regulatory 
nature, at Community  level. 

2. 

Cooperation in the field of  justice  and home  affairs 

Introduced  by virtue of the Treaty on European Union,7 cooperation in the field  of justice 
and  home  affairs  has  a fundamental  role  to play  as  a  channel for  addressing  various 
aspects of the protection  of minors and human dignity in the new electronic services,  more 
particularly the application of  criminal penalties for  certain types  of  content. 

As the definition  of offences  varies from  one country to another, all reprehensible acts are 
not  necessarily  punishable  in  all  Member  States.  As  the  audiovisual  and  information 
services  are  international  in  scope,  the  authors  or  suppliers  of  material  may  abuse  the 
situation  by  supplying  material  in  countries  where  it  considered  unlawful  from  others 
where  it  is  lawful.  Even  where  the  legislation  of  the  relevant  country  prohibits  certain 
material  and  requires  a prosecution  to  be  brought,  the  author  or  supplier  of the  material 
may  be  outside  the  criminal  law's  jurisdiction  and  not  amenable  to  pursuit  by  the 
enforcement  authorities,  confined  within  national  territorial  limits. 

If regulatory measures are opted for, the proposal for an instrument on transparency in the internal 
market  for  information  society  services  (COM(96)392)  will  provide  a  fundamental  means  of 
securing  balance  in  the  Community  between  the  protection  of  general  interests  such  as  the 
protection of minors and human dignity and the free  circulation of electronic services. 
Title VI of the Treaty on European Union contains provisions on cooperation in the field of justice 
and home  affairs. 

22 

Clearly,  therefore,  there  is  a  need  for  closer  cooperation  between  Member  States  to 
effectively  combat illegal material and practices in the new technologies. In general terms 
criminal,  judicial  and  police  cooperation  between  Member  States  needs  stepping  up. 
Greater  coherence  in  the  approaches  taken  by  the  Member  States  would  also  ease 
cooperation  with  third  parties. 

The  Union  Treaty  provides  the  instruments  for  such  cooperation  in justice  and  home 
affairs.  The political  agreement between Justice and Home Affairs  Ministers,  meeting  in 
Dublin  on  26  and  27  September  1996,  to  reinforce  police  cooperation  in  Europol  to 
combat  paedophilia  and  trafficking  in  children  and  women  and  to  begin  work  on 
minimum  legislative  standards  in matters  of  child  abuse,  are  a recent  example; 

Other forms  of cooperation  could  also be considered both on legal matters  (cryptography 
on  networks,  common  approach  to  remailing,  international  extradition  agreements,  etc.) 
and  practical  aspects  (for  example,  training  the  police  authorities  to  use  computers  and 
electronic networks and exchange of information  on the treatment of criminal cases linked 
to  the  use  of the  new  electronic  services, etc.). 

3. 

Priority  lines  for cooperation  in the European Union 

To facilitate  the emergence  of coherent  solutions at Union level, and without prejudice  to 
the short-term measures proposed by the Commission in its Communication on Illegal and 
harmful  Content  on  the  Internet,  the  Commission  considers  it  important  to  highlight 
certain  areas  for  cooperation. 

3.1 

Administrative  cooperation 

Cooperation  between  the  relevant  national  authorities  is  a  priority  if  a  coherent  Union 
framework  is to  be  laid  down  for  the protection  of minors  and  human  dignity  in  on-line 
services  (from  video-on-demand  to  the  Internet).  Cooperation  should  focus  on  the 
following  points  in  particular: 

* 
The exchange of information on current developments (specific problems, case-law, 
self-regulation,  draft  legislation,  etc.)  as  a  way  of  developing  Community  expertise  on 
these  problems. 

A  comparative analysis of national legislation and its implementationXo encourage 

* 
the  Member  States  to  introduce  common  minimum  standards  regarding  illegal  material. 

* 
The drawing-up of recommendations  and guidelines for  cooperation in the  fields 
of justice  and home  affairs. Without  prejudging  the  work  programme  for  cooperation  in 
justice  and  home  affairs,  these  specific  priorities  for  new  services  could  be  taken  into 
account in other work, which will often  have a broader scope (measures to combat  racism 
and  xenophobia,  trafficking  in  women  or  sexual  abuse  of  children  for  commercial 
purposes,  etc.). 

The definition  of  a common framework for  self-regulation  in Europe, assuming 

* 
that  self-regulation  is  accepted  as  appropriate.  This  framework  will  have  to  include: 

23 

the objectives  to be pursued  as regards the protection of minors and human 
dignity,  which  will  constitute  the  basic  conditions  of  self-regulation; 
principles  concerning  the representation of  industry  at European  level  and 
decision-making  procedures', 
a timetable  for the drawing-up of a code of conduct and specific  protective 
measures  by  the  relevant  industries. 

The drawing-up of recommendations and guidelines for  international cooperation, 

* 
the  object  of  the  exercise  being  to  identify  shared  values  and  principles  to  be  defended 
in  international  bodies,  on  the  basis  of  work  carried  out  at  Union  level. 

3.2 

Cooperation with the  industries 

The various industries concerned have a key role to play in developing and  implementing 
solutions to the problem  of protecting minors and human  dignity. It is therefore  vital that 
they  be  mobilized  as  far  as  possible  and  organized  effectively  at  European  level.  The 
ability of these industries to speak with one voice through genuinely representative  bodies 
will  be  crucial. 

The  main  tasks  which  industry  should  work  on are: 

drawing up a code of  conduct  and concrete measures within a framework  defined 
by  the  cooperation  between  national  government  departments; 
identifying  areas  where  there  may  be  a  need  for  common  standards  on  the 
labelling of material; 
promoting  the PICS standard or equivalent systems  with  a view  to  reaching  - as 
quickly  as  possible  - a  critical  mass  of  labelled  material  and  navigation  systems 
and/or  parental  control  devices  which  are mutually  compatible. 

3.3 

Cooperation  on  informing  users  and  raising  their awareness 

There  are two  medium  and  long-term  objectives  here: 

ensuring that users of the new electronic services (in particular parents and minors) 
are  aware  of  the  specific  risks  involved  and  that  they  use  existing  methods  of 
protection  effectively; 
encouraging  associations and grass-roots organizations to become  involved  in the 
process  of  labelling  material (labelling  by  third  parties); 
encouraging  consumer associations and individual consumers to become  involved 
in market surveillance; 
encouraging  parental  awareness  of  their  responsibility  for  monitoring  heir 
children's activities. 

The measures  to  be  implemented  in this context  should  be examined  in detail. At  Union 
level  the  Commission  proposes  that  work  be  carried  out  in  stages,  concentrating  on  the 
following  priorities: 

a study  of  current  initiatives  (assessing, in particular,  how effective  they  are)  and 
the sharing  of  information  on good practices; 

24 

cooperation with  all  parties  involved  (governments,  the  educational  community, 
consumer  groups,  the  relevant  industries, etc); 
establishment  of  an  action plan  centred  on the  support  of  Community  initiatives 
which  provide  real  value-added; 
identification  of  common  messages  and 
transnational initiatives (information and awareness-raising campaigns, production 
of teaching  materials) 
research into the establishment of a user-friendly  information  society. This will be 
among  the  priorities  of  the  Fifth  framework  Research  Programme. 

3.4 

Promoting  the  access  of  minors to the new electronic  services 

The Commission  will  study  the possibility  of taking this priority  into account  in  existing 
Community programmes on education and on support for industries producing audiovisual 
material.  It will  also  encourage  mutual  information  and the  sharing  of  good  practices  in 
the  relevant  networks  at  European  level.  On  the  basis  of  its  work  in  this  field,  the 
Commission will send a communication to the Council and Parliament, together with any 
proposals  that  are  appropriate. 

The  importance  and  variety  of  the  forms  of  cooperation  to  be  used  to  develop  suitable 
national,  Community  and  international  responses  are  such  as  to  raise  the  following 
questions: 

How  can administrative  cooperation be applied at European Union  level? 
Must it be  formalized?  If so, within what institutional  framework? 

How  can work  be  linked  at European and international  level? That is  to  say, 
should  solutions  be  developed  at European Union level  before  being 
promoted  at international  level  or should  both courses  of  action run 
parallel? Which  are the  most pertinent vehicles  for international  cooperation 
(G7,  OECD, ITU, WTO? Or bilateral  contacts? How  can this  international 
cooperation  be  formalized? 

CONCLUSION 

The  decentralized  services,  and  primarily  the  Internet,  merit  the  main  attention  and 
urgency  where  the  protection  of  minors  and  human  dignity  is concerned.  It has  become 
clear here that, faced  with the limits to purely national  solutions  and the difficulty  and of 
devising  and  applying  worldwide  solutions, the  European  Union  has  a fundamental  role 
to  play.  But  the  potential  for  transnational  development  of  the  decentralized  services  is 
such  that  common  or  at  least  compatible  solutions  are  worth  seeking  in  the  European 
Union. 

Looking  beyond  the  initial  short-term  measures  set out  in the  Communication  on  Illegal 
and harmful  Content on the Internet, the aim of the guidelines proposed  and the questions 
asked  in  this  Green  Paper  is  to  help  create  the  conditions  for  the  establishment  of  a 
coherent  framework  for  the  protection  of  minors  and  human  dignity  in  audiovisual  and 

25 

information  services  in the  European  Union.  The  Commission  hopes  to  receive  a large 
number of  contributions  along the  following  lines: 

comments  on  its  analysis  of  the present  situation  and additional  information  on 
current developments  (legislation,  self-regulation,  technical  advances, etc.); 
comments  on the relevance  of the guidelines  and proposals  set out here; 
practical  answers to the various questions raised. 

Contributions  should  be addressed no  later than 28  February  1997 to: 

European  Commission 
Directorate-General  X 
Mr Paulger 
Unit  X.D.3 
rue de la Loi  102, Room  5/23 
B-1049  Brussels 

e-mail:  gregory-paulger@dglO.cec.be 

26 

ANNEXES 

3} 

PREPARATORY  WORK 

ANNEX  I 

Two  main  types  of  preparatory  work  were  carried  out  for  this  document: 

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.1  All  of  the Member  States  responded  favourably  to  this  consultation  processus. 
The analysis of the replies, supplemented  by a meeting of representatives  of the  Member 
States2 and additional  contributions  from  several Member  States, all confirm  the need  for 
a debate at European Union level. The problem is in fact being studied or debated in most 
of the Member  States, and these questions are often  high on the public agenda.  Although 
national approaches may vary, a consensus is emerging on the need to take account of the 
Community  and  international  dimensions. 

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.3  These  cover  the  regulatory,  economic  and  teclinological  aspects  of 
the  question  in  the  15 Member  States,  Canada,  Japan  and  the  United  States.  Frequent 
reference  will  be  made  in  what  follows  to  these  studies,  a  summary  of  which  may  be 
obtained  from  the  European  Commission. 

In  addition,  numerous  informal  contacts  with  economic  operators  and  other  interested 
parties  have  enabled  their  views  to  be  taken  into  account  as  well. 

1 
2 

Questionnaire  sent  to  the  Member  States  in October  1995. 
Representatives  of  the  national  competent  authorities  met  in  Brussels  on  12 July  1996. 
These  were  carried  out  by  Hydra  Associates,  London. 

28 

ANNEX H 

ELECTRONIC  SERVICES 

l. 

* 

Glossary 

Digital  broadcasting 

Digital  broadcasting  is  a  new  form  of  broadcasting  programmes,  differing  from  the 
traditional, analog form. Images are converted into digitized data (using a digital technique 
now common to broadcasting, télécoms and data-processing). Compression of the resultant 
data  (by  special  algorithms)  greatly  narrows the  spectrum  needed  for  their  transmission. 

In  practice,  several  clusters  of  digital  television  services  have  emerged  or  are  in 
preparation  in  Europe. 

* 

Pay-per-view 

Pay-per-view  (PPV)  services  offer  viewers the possibility  of  selecting  from  the  contents 
of  a  broadcasting  schedule  and  paying  only  for  what  they  actually  view.  These  are 
broadcasting  services  in  that  distribution  is  triggered  by  a  universally-available  service 
(even  though  it  may  be  accessible  only  to  viewers  possessing  the  requisite  receiving 
equipment); the  viewer's  decision  is technically  confined  to  determining  which  portions 
of  the  encrypted  programmes  he  will  decode  and  then  actually  view.  This  is  a point-to-
multipoint  service. 

* 

Near video  on demand  (NVOD) 

The  principle  of NVOD  is  much  the  same  as with  PPV,  but the  consumer's  selection  is 
extended  by  the  fact  that the  material  is distributed  in parallel  at  short  intervals  of time. 

* 

Video  on  demand  (VOD) 

VOD offers  consumers  a whole range of transactional  services from  films  on demand via 
tele-banking  to  tele-shopping.  The  consumer  has  the  possibility  of  selecting  the 
programmes of their choice from  a catalogue of permanently-available  programmes. Like 
all  truly  interactive  services,  this  is  actually  a  telecommunications  service  in  that  the 
distribution  of the programme  is triggered  by the viewer's  individual  connection.  This  is 
a  point-to-point  service. 

* 

Videotext 

The Télétel network  which was  launched  in France in  1984 is the most highly  developed 
videotex system in the world. Over two-thirds of the French population have access to the 
network  via  a specific  terminal  (Minitel)  and can access some 25  000  different  services, 
many  of  them  transactional. 

* 

'Proprietary" on-line  services 

29 

The  market  in  proprietary  on-line  services  is  dominated  by  three  North  American 
operators: AOL, with 4.5 million subscribers worldwide in 1995, CompuServe (3.7  million 
subscribers)  and  Prodigy.  CompuServe  is  the  most  well-established  service  in  Europe, 
with  500  000  subscribers  in  1995  and  a target  of  1 million  in  1996. AOL  has  launched 
a service in Germany and the United Kingdom in partnership with Bertelsmann.  Microsoft 
Network  is  also  developing  services  aimed  specifically  at  European  markets.  Finally, 
Planet  Internet  (controlled  by  KPN  - a telecommunications  operator  in the  Netherlands) 
is developing  a  European  strategy. 

* 

Internet 

The Internet is more difficult  to define. It is effectively  a worldwide network of computers 
which can communicate with one another thanks to a series of common protocols. Created 
in the United  States  for  military  purposes, then taken up by the university  and  scientific 
community,  it  is  only  in  the  past  five  years  that  the  Internet  has  become  a  worldwide 
network  open to the general public. Estimates of the number of Internet users  worldwide 
vary  from  30  to  50  million,  and  growth  everywhere  is  exponential.  The  Internet  is 
undergoing a rapid  evolution. Although  still primarily used for data search and  electronic 
mail,  it  could  become  the  medium  for  numerous  commercial  services. 

The Internet is described in detaim in the Communication on Harmful  and Illegal Content. 

2. 

The new  audiovisual  and information  services  and their environments 

Type  of 
architecture 

Digital  TV 

VOD  system 
(closed 
architecture) 

Proprietary 
on-line 
services 
(closed 
architecture, 
highly 
interactive 
services 

Users 

Intermediaries 

Infrastructure  and 
networks 

Multimedia  services 
and  material 

Terminal:  TV 
+  set-top  box 

Terminal:  TV 
+  set-top  box 

Terminal:  PC 
+  modem 

Proprietary 
broad-band 
network 

Proprietary 
network 

Satellite,  cable, 
hertzian 

Services  and  material 
put  out  under  VOD 
system  operator 
TEXT,  FIXED  IMAGE, 
VIDEO,  SOUND 

Services  and  material 
put  out  under  VOD 
system  operator 
Material  loaded  by 
users  (e-mail,  BBS, 
chat-lines) 
TEXT,  FIXED  IMAGE, 
VIDEO,  SOUND 
(sound  and  animated 
image  in  development) 

30 

Internet 
(open 
architecture) 

Terminal: PC 
+  modem 

Host servers, 
Access 
providers 

Services and material 
put out under VOD 
system operator 
Material loaded by 
users (home-page, 
WWW, e-mail, BBS, 
chat-lines) 
TEXT,  FIXED IMAGE, 
VIDEO,  SOUND 
(sound and animated 
image in development) 

31 

RULES APPLICABLE TO PROTECTION OF MINORS AND HUMAN 
DIGNITY 

ANNEX III 

I. 

1. 

GENERAL PRINCIPLES 

Principle of  freedom of expression 

Article  10 of the European Convention on Human Rights reads: 

The  exercise  of  these freedoms,  since  it  carries  with  it  duties and 

Everyone has the right to freedom of expression.  This right shall include 

"i. 
freedom to hold opinions and to receive and impart information and ideas without 
interference by public authorities and regardless of frontiers. This Article shall not 
prevent States from requiring the licensing of broadcasting,  television or cinema 
enterprises. 
2. 
responsibilities,  may be subject to such formalities, conditions, restrictions  or 
penalties as are prescribed by law and are necessary in a democratic society, in 
the interests of  national security, territorial  integrity  or public  safety, for  the 
prevention of disorder or crime, for  the protection  of health or morals, for  the 
protection of the reputation or rights of others, for preventing the disclosure  of 
information  received  in  confidence,  or  for  maintaining the  authority and 
impartiality  of the judiciary. " 

It is incorporated  into the Community  legal order in two ways: 

Article  F(2)  of  the Treaty  on European  Union reads:  "The Union  shall respect 
fundamental rights, as guaranteed by the European Convention for the Protection 
of  Human  Rights  and  Fundamental  Freedoms  signed 
4 November 1950 and as they result from the constitutional traditions common to 
the Member State, as general principles of Community  law "; 

in  Rome  on 

the European Court of Justice has acknowledged the relevance of the principle of 
freedom of expression as declared by Article  10 of the Convention and reckoned 
it among  the  general  principles  of  Community  law.  In Case C-260/89 Elliniki 
Radiophonia  Tileorassi  [1991] ECR 1-2925 it held: 

"With  regard to Article 10 of the European  Convention  on Human Rights ...  it 
must first be pointed out that, as the Court has consistently  held, fundamental 
rights  form  an integral part  of the general principles of law, the observance  of 
which  it  ensures.  For  that purpose  the  Court draws  inspiration  from  the 
constitutional traditions  common  to the Member States  and from  the guidelines 
supplied by international treaties for the protection of human rights on which the 
Member  States  have  collaborated  or  of  which  they  are  signatories  ...  The 
European Convention  on Human Rights has special significance  in that respect 
...It 
follows  that  ...  the  Community cannot  accept  measures  which  are 
incompatible  with  observance  of  the  human  rights  thus  recognized and 
guaranteed". 

32 

In the Member  States,  the principle  is of constitutional  status  (though  not  in the  United 
Kingdom,  which  has  no  written  constitution): 

National  Freedom of  Expression  Provisions 

Austria 

Belgium 

Denmark 
Finland 

Germany" 

Source  ot  national 
provisions 
Constitution  - Article  13 

Constitution  - Article  19 
(& Article  25 for  press) 
Constitution  - Section 77 
Constitution  - Article  2 
Section  10 

Declaration  ot  the  Rights 
of  Man  (constitutional 
text)  - Article  11 
Constitution  - Article 5 

Media/types  ol  expression 
covered 
Spoken  or  written,  print  or 
pictorial  representation 
All  expression  and  all 
media 
All  media 
All  media 

All  media 

Speech, writing  and 
pictures 

Constitution  - Article  14  TÏÏ 

e  press 

Ireland 

Constitution  -
Article  40.6.1 

Expression  ot  convictions 
and  opinions 

Italy 

Luxembourg 

Constitution  - Article  21 
Section  1 
Constitution  - Article  24 

Netherlands 

Constitution  - Article  7 

Portugal 
Spa 

Sweden 

Constitution  - Article  16 
Constitution  - Article  20 

Constitution  - RF 
Section  1; TF  Chapter  1 
Section  1; YGL 
Chapter  1 Section  1 

All  media 

Oral  expression  and  the 
press, though  interpreted 
more  widely 
Press  and  broadcasting,  and 
other  media to  a  somewhat 
lesser  extent 
All  expression 
Thoughts,  ideas  and 
opinions  thrqugh  any 
medium 
RF  - general;  IF  - press; 
YGL  - film  and  television, 
possibly  online  media 

T jr 

Source:  Hydra 

Limits to  right 

Ex post  legal  control 

Ex post legal  control 

Ex post legal  control 
Ex post legal control;  prior  control  is 
allowed  where  the  protection  of 
children  is  imperative 
Depends  on  the  particular  medium  - its 
technical  restraints  and  "influence" 

Ex post legal  controls,  in  particular  laws 
aimed  at  protection  of  youth  and 
personal  dignity 
Ex post control  ot  material  that  either 
insults  Christianity  or  other  known 
religions,  insults  the  President, 
compromises  national  security  or  which 
is  obscene 
Restrictions  are  allowed  to  protect 
public  order  or  morality  (blasphemy, 
indecency)  and  the  authority  of  the 

Restrictions  based  on  public  morality 
grounds 
Ex post  legal  control 

Ex post legal  control;  non-press  and 
non-broadcast  media  may  be  censored 
for  persons  under  16 
Ex post legal  control 
Laws  based  on  rights  ot  honour, 
privacy,  self-image  and  protection  of 
minors 
RF  - legal  control  "acceptable  in  a 
democratic  society"; 
TF  and  YGL  - ex post  legal  control 
based  on  protection  of  minors, 
violence,  racial  hatred 

In  practice, the  Member  States  attach  varying  degrees  of  importance  to  the  principle  of 
freedom of expression, depending on their cultural and legal traditions. Some consequently 
have  a  general  prohibition  on  any  form  of  central  control  over  the  media  and  thus  give 
pride of place to self-regulation.  In others, State protection  of public morality  and  minors 
entails  advance  censorship  of  different  kinds. 

The effect  of the  relative  paucity  of  cases and the  duration  of proceedings  in the  ECHR 
is that its decisions  are of persuasive authority  for  national  legislators rather than a direct 
means  of  securing  the  protection  of  the  freedom  of  expression. 

33 

Both the cases and the academic writers acknowledge the dual dimension of the principle: 
it secures both the freedom  to express and impart  ideas and information  and the  freedom 
to seek and receive them. In the context of on-line services, it applies both to the  service 
and  to  its  users.  Frontiers  are  immaterial. 

The  European  Court  of  Human  Rights  (ECHR)  has  confirmed  that  the  freedom  of 
expression extends not only to ideas and information  generally regarded as inoffensive  but 
even  to  those  that  might  offend,  shock  or disturb.1 

But  the  principle  is  never  an  absolute  one.  Freedom  of  expression  may  be  restricted  by 
the  State,  though  the  possible  restrictions  are  circumscribed  by  a  very  precise  set  of 
combined  criteria  that  have  been  clearly  enunciated  by  the  ECHR:2 

they  must  be  prescribed  by  the  law  (transparency,  to  the  exclusion  of  the 
arbitrary); 
they  must  be  necessary,  that  is to  say they  must  meet  a genuine  social  need  and 
respect  the  values  inherent  in a democratic  society; 
they must pursue legitimate objects that are defined exhaustively; these include the 
protection  of  public  health  and  morals,  which  are  of  particular  relevance  to  the 
protection  of  minors  and  human  dignity. 

It will be readily  understood that the main difficulty  lies in defining  the necessary nature 
of  a restrictive  measure  that  is prescribed  by  law  or pursues  a  legitimate  objective.  It  is 
not  enough  for  a measure  to appear  useful  or reasonable. Its mandatory  character  can  be 
deduced  only  from  a  detailed  analysis  of  its  effectiveness  and  the  extent  of  the 
interference.  The  test  is  one  of  the  proportionality  of the  restriction. 

One  final  point  regarding  Article  10 in  the  context  of  on-line  services:  the  provision  in 
the  first  paragraph  for  the  possibility  of  requiring  licensing  for  certain  activities 
(broadcasting, television and cinema) has to be interpreted in the light of the Article taken 
as a whole3 and therefore  of the principles behind it. It follows that the enabling  provision 
cannot be used as a ground for unwarranted restrictions on freedom  of expression that  fail 
the  proportionality  test. 

Internationally,  the  UN  Covenant  on Civil  and  Political  Rights  also  provides  democratic 
countries  with  a  common  basis.  Article  19  enshrines  the  principle  of  freedom  of 
expression: 

Eveiyone  shall have  the right to hold opinions  without  interference. 
"7. 
2. 
Everyone  shall  have  the  right  to freedom  of  expression;  this  right  shall 
include freedom  to seek,  receive  and impart information  and  ideas  of  all  kinds, 
regardless of frontiers,  either orally or in writing or in print,  in the form  of  art,  or 
through any  other media  of  his choice. 
3. 
The exercise of the rights provided for  in paragraph 2 of this article ccaries 
with  it  special  duties  and responsibilities. It  may  therefore be  subject  to certain 

Handy side  v  United Kingdom  (1976). 
Handy side  v  United Kingdom  (1976); Sunday  Times v  United Kingdom  (1979). 
ECHR:  Groppera Radio  (1990), A utronic (1990)  and Inform at ionsverein  Lentia(\993). 

34 

restrictions,  but  these  shall  only  be  such  as  are provided  for  by  law  and are 
necessary: 
(a) 
(b) 
or of public  health or  morals" 

for  respect  of  the  rights  or reputations of  others; 
for  the protection  of  national security  or of public  order (ordre publique), 

Article  19 of the Universal  Declaration  of Human Rights of  10 December  1948  likewise 
upholds  the  principle. 

The differences  in sensitivities and values are more marked between countries in  different 
continents than between the countries  of Europe. The principle of freedom  of  expression 
enshrined  in  the  First  Amendment  to  the  United  States  Constitution  has  a  far  wider 
practical  impact  than  the  corresponding  principle  in Europe. 

The  protection  for  speeches  that  incite  racial  hatred  by  the  First  Amendment  clearly 
illustrates  the  difference  between  the  impact  of  the  principle  in  America  and  in  most 
European  countries:  in  a judgment  given  in  June  1992  (RAV  v  City  of  St  Paul),  the 
Supreme  Court held  that  an expression  of racial  hatred was not punishable  as the  hatred 
was  addressed  simply  at an ethnic  community.  It could be condemned  only  if there  was 
a  clear  and  immediate  risk  of  actual  damage. 

The First Amendment, incidentally, has been taken to protect a whole series of non-verbal 
expressions,  including  setting  fire  to  the  national  flag,  exhibiting  works  of  art  and 
displaying  slogans  on  T-shirts. 

v 

2. 

The principle of respect for privacy 

Article  8 of the  European  Convention  on  Human  Rights reads: 

Everyone  has the right to respect for  his private  and family  life,  his  home 

"7. 
and his  correspondence. 
2. 
There  shall  be  no  interference by  a public  authority  with  the  exercise  of 
this  right  except  such  as  is  in  accordance with  the  law  and  is  necessary  in  a 
democratic  society  'in  the  interests  of  national  security,  public  safety  or  the 
economic  well-being  of  the  country, for  the prevention  of  disorder  or crime,  for 
the protection  of  health or morals, or for  the protection  of  the  rights  or  freedoms 
of  others. " 

H. 

NATIONAL RULES 

1. 

The diversity  of  national  legal  and cultural traditions 

The diversity is visible in the first place in the institutional structures that allocate powers 
and jurisdiction  between  the  central  and  local  tiers  of  government.  Member  States  with 
a  federal  structure  or  various  forms  of  regional  autonomy  have  to  allocate  powers  in  a 
way that is not necessary  in a centralized  state. In some media-related  matters, the  former 
have  to  respect  varying  local  sensitivities  to varying  degrees. 

35 

Secondly,  it  is  visible  in  the  differing  weight  attached  to  case-law  and  legislation 
respectively,  and  also  in the  importance  of the role played by the jury  in criminal  courts 
and  civil  courts. 

Thirdly,  it  is  visible  in  the  relationship  between  regulators  and  their  client  industries, 
notably  in the  encouragement  given to  self-regulation. 

And fourthly,  it is visible in differing  sensitivities in matters of morals and morality. The 
reactions of public opinion are often the determining factor where the protection of minors 
and human dignity is concerned, and they reflect deep-seated cultural differences.  By way 
of  illustration,  there  is  a  wide  gap  between  the  Nordic  countries,  which  are  tough  on 
violent  material  but  easy-going  where  sexually-explicit  material  is  concerned,  and  the 
Latin  countries,  tough  on  sex  but  less  so on  violence. 

Regarding  the  protection  of minors  and  human  dignity,  the  diversity  is often  such  as  to 
make  summaries  and  comparisons  more  than  arduous: the  practical  response  to  a  given 
general approach will vary from country to country, and even from region to region within 
the  same  country. 

Divergencies  (and  the  lack  of transparency)  in national  rules  on the outright  prohibition 
on  production,  distribution  and  in  some  cases  possession  of  certain  material  generate 
several  major  difficulties  in relation  to transnational  services. 

* 

Outright prohibitions  on certain material 

In the  implementation  of such rules the relevant authorities and courts retain some  room 
for  discretion: 

there may  be  a general  definition  of prohibited  material  to  be interpreted  case  by 
case in the light of social values prevailing at the relevant time and in the relevant 
place  -  by  way  of  example,  legislation  prohibiting  obscene  or  indecent  material 
may  be  applied  in  different  ways,  depending  on  the  moment  in  time  and  the 
country,  and  some prohibitions  addressed  to the press have been extended  by the 
courts  to  all  media  generally; 

General  categories 

Country 

Absolute 
prohibition of a 
general category 
of material 

A 

0 

B 

0 
M 

DK 

D 

H 

E 

EIR 

F 

GR 

I 

0 
M 

0 
M 

0 
M 

L 

0 

NL 

P 

S 

SF 

UK 

0 

O 
M 

O: obscene material prohibited 
M: material contrary to sound morals and indecent material prohibited 
H: material detrimental to human dignity prohibited 

prohibited  material may be defined  more tightly (violent pornography,  incitement 
to  hatred,  etc.)  but the  definition  will  have  to  be  applied  in  a particular  context; 

36 

Incitement to hatred, discrimination and violence 

Country 

Hatred, 
discrimination, 
violence 

A 

X 

B 

X 

DK 

X 

D 

X 

E 

EIR 

X 

F 

X 

GR 

I 

NL 

L 

X 

P 

X 

S 

X 

SF 

UK 

X 

X 

with  a few  exceptions  (such  as child pornography  in some countries),  possession 
of prohibited  material  rarely  constitutes  an  offence,  on  account  of  the  protection 
afforded  to  private  life.  Supplying  it  to  others,  or  intending  to  do  so,  is  more 
commonly  required4; 

Child pornography 

A 

s 

B 

s 

DK 

s 

D 
s 

E 

s 

EIR 

G 

F 

G 

GR 

I 

G 

G 

L 

G 

NL 

s 

P 

G 

S 

S 

SF 

G 

UK 

S 

Country 

Child 
pornography 
prohibited 

G:  general  prohibition  (obscenity,  indecency,  etc.) 
S:  specific  prohibition  (child  pornography,  protection  of  children  against  sexual  abuse,  etc.) 

artistic  and  scientific  works  are  generally  excluded; 
some  provisions,  though  still  in  force,  are  not  enforced  in practice. 

The  result  of  these  factors  is  a  general  lack  of  transparency  in  provisions  imposing 
outright  prohibitions,  which  makes  it  difficult  to  identify  a  common  core  of  European 
rules  and  values. 

* 

Rules  applicable  in certain non-member countries 

In  the  area  of  international  services  or  networks,  all  national  legislation  is  naturally 
relevant.  There  are countries outside the European Union where there is little  democracy 
and where the lack of respect for  freedom  of expression results in attempts to prohibit or 
drastically  curtail  access  to  new  services,  and,  on  the  other  side  of  the  coin,  there  are 
countries  where the absence of any real control creates a "paradise" for the circulation  of 
material  which  is  generally  prohibited.  Moreover,  apart  from  general  principles  such  as 
those laid down by international  conventions or charters, particularly  in the framework  of 

Behind this facade of unanimity, there is a debate on the grounds for the prohibition and the scope 
of the prohibition.  Where the prohibition is interpreted as a constraint on freedom  of expression, 
it is confined  to production,  import,  transfer  and possession  for  transfer  to others. But where it 
is  enacted  to  prevent  child  abuse  and  protect  minors  against  such  sex  offences,  it  extends  to 
possession of material, which may accordingly be seized and the offender  may be punishable. 

The  Stockholm  World  Congress  against  the  sexual  exploitation  of  children  for  commercial 
purposes called for tougher national legislation and stricter enforcement,  notably by extension of 
the prohibition of child pornography to cover possession. 

Incidentally,  tKS.age of sexual majority  varies from  country to country. 

37 

the  United  Nations,  widely  varying  value  systems  throughout  the  world  often  result  in 
very  diverse  regulatory  structures. 

However, this Green Paper is confined  to three non-member countries: Canada, the United 
States and Japan. In terms of general bans, the situation in these three countries is broadly 
as  follows: 

Canada has a general ban on the production and distribution of all child pornography  and 
obscene  material.  This  covers  all  forms  of  excessive  exploitation  of  sex  and  any 
combination  of  sex  and  crime,  horror,  cruelty  or  violence.  Furthermore,  incitement  to 
genocide  or  hatred  of particular  groups  is prohibited,  as is the  intentional  dissemination 
of  false  information. 

The  United  States  has  a  general  ban  on  child  pornography5  and  obscene  material, 
operating at both Federal and  State level. The ban on obscene material applies  essentially 
to  sex-related  photographic  and video material. On the other hand, the First  Amendment 
(constitutional  principle  of  freedom  of  speech)  can  also  be  applied  to  speeches  inciting 
hatred  or  discrimination,  provided  that  they  do  not  constitute  an  immediate  danger  to 
people  or  goods. 

Japan also operates  a total ban on the distribution  and possession of obscene material  for 
the  purpose  of  sale.  But  the  implementation  of  the  ban  relies  mainly  on  codes  of  good 
practice  established  by  the  industries  concerned,  and  can  vary  considerably  from  one 
region to  another.  Finally, neither the possession  of such material  for  private use nor the 
production  of  obscene  material  for  export  is  illegal. 

3. 

Differences  in the rules  applying to various  media 

As  well  as  outright  bans,  various  considerations  have  resulted  in  the  development  of 
specific  regulatory  systems  for  each  medium. 

3.1 

Differences  in rules 

As  well  as  material  on  which  there  is  an  outright  ban,  there  is  also  the  question  of 
material  for  which  production  and  distribution  is,  in  principle,  authorized.  Therefore, 
various  objectives  of  general  interest  have  resulted  in  the  development  of  specific 
restrictions: 

the  protection  of  minors  against  material  which  might  harm  their  physical  or 
mental  development  is an almost  universal  objective.  It can  also  be  linked  to  the 
notion  of children's  rights, as enshrined  in the United Nations  Convention.  While 
parents  have  primary  responsibility  in  the  field,  public  authorities  and  the 
industries  concerned  have also traditionally played a decisive role. In one form  or 
another, the protection of minors gives rise to a series of restrictions relating to the 
distribution  of  material  which  is, moreover,  entirely  legal; 

Which,  in some States, also covers the possession of child pornography  for  private use. 

38 

the  desire  to  protect  sensitive  people  -  the  "average  citizen"  -  against  coming 
across  material  which  might  shock  them,  and,  hence,  to  restrict  access  to  such 
material to those who specifically  wish to have it, entails certain restrictions on its 
distribution; 
the  scarcity  of  certain  media  (Hertzian  frequencies)  has  made  it  necessary  for  a 
third party  to handle their  allocation  and the definition  of criteria to take  account 
of  public  interest.  Such  criteria  traditionally  involve  restrictions  on  the  type  of 
material  likely  to  be  distributed  by  such  media. 

These three objectives of general interest are not always clearly expressed or distinguished 
in  national  legislation,  but  they  have  largely  been  the  basis  for  the  development  of 
different  rules  for  different  media.  Complying  with  these  objectives  implies  that  the 
aspects peculiar  to  each  medium  must  be taken  into  account, particularly  as regards  the 
following  characteristics: 

the  perceived  impact  of  the  medium:  images,  particularly  moving  images,  are 
traditionally  believed  to  have  a greater  impact  than  words; 
its  presence  in  society:  more  attention  is  paid  to  the  television  in  the  corner  of 
every room and the telephone in every hallway than to other, less common  media; 
the  degree  of  consumer  choice  offered  by  the medium:  this  depends  both  on  the 
number of suppliers of material for a particular medium, the variety of material  on 
offer,  the  amount  of  information  available  on  the  material,  and,  above  all,  the 
access  methods  for  such  material. 

In practice, the objective  consideration  of these different  characteristics  by the  regulatory 
authorities is sometimes upset by less rational considerations. Occasional tragic  incidents 
periodically bring to the fore the question of the media's influence  on the development  of 
violent  or  abnormal  behaviour  in  society.  In  such  cases,  the  violence  of  the  public 
reaction,  widely  relayed  in  the  press,  sometimes  prompts  hasty  accusations  and 
disproportionate  responses  from  the  relevant  authorities. 

3.2 

The established media 

Despite  the  sometimes  sizeable  differences  from  one  Member  State  to  another  revealed 
by  a detailed  study  of  regulations  and  other measures  which exist  at national  level,  it  is 
possible  to  establish  a rough  profile  of the  rules  which  apply  to  the  established  media. 

3.2.1  Publishing 

Publishing  appears  to  be  the  medium  least  subject  to  restrictions  on  freedom  of 
expression.  Even  where  there  are  rules  on the  material  used,6  checks  are  usually  carried 

As well as general bans and rules for  the protection of minors, the rules on material used relate 
mainly to journalistic ethics (accuracy and objectivity of information, protection of privacy, respect 
for personal image, etc.). Moreover, legislation in some countries repeat certain general principles 
(relating to public morality,  obscenity,  non-discrimination,  etc.)  in texts  specifically  concerning 
the press. 

39 

out after  publication.7 Furthermore, there is also little in the way of self-regulation,  except 
for  the  codes  of  ethics  for  the  press  and  particularly  for  journalism. 

On  the  other  hand,  several  Member  States  (DK,  ES,  FR,  GR  and  SF)  have  introduced 
registration of publications, compulsory checks by publishers on the material they publish, 
and even specific  forms of liability which depart from  the rules on liability in the ordinary 
law  (FR,  PT,  SF).  Such  measures  on  transparency  and/or  liability  allow  disputes  to  be 
settled  more  easily. 

Moreover, Germany has a system of classification  of publications which may cause harm 
to minors: a judicial  federal  authority  establishes an official  list of such publications, and 
access to these works is subsequently prohibited to minors. The material targeted  usually 
consists  of immoral  publications, or those which contain violence  or pornography,  incite 
people  to  crime,  defend  National  Socialism,  attack  human  dignity  or  encourage  the  use 
of  drugs. 

The  general  situation  seems  to  reflect  many  of  the  most  important  characteristics  of 
publishing: 

publishing  is, in essence, the medium  of free  expression  and  the press, and  plays 
a  particularly  decisive  role  in  the  working  of  democracies; 
anyone  can  publish  something  -  the  only  constraints  are  financial  -  and  this 
relative  ease  of  access  to  publishing  ensures  a great  diversity  of  publications; 
access to the published word requires an active choice on the part of the consumer, 
and  it  is  relatively  easy  to  keep  contentious  publications  out  of  reach  of  minors. 

3.2.2  Cinema and video 

As  a  means  of  artistic  expression,  the  cinema  enjoys  a  large  amount  of  freedom  of 
expression.  In  all  Member  States,  measures  to  protect  minors  include  a  compulsory  or 
voluntary  system  of  film  classification  which  sets  the  recommended  or  required  age  at 
which children will be allowed to see films in the cinema. Although they have a common 
objective,  these  systems  are  very  different8  and  their  implementation  reflects  the 
differences  in  sensitivities  of  national  film  classification  boards. 

The classification  of videos and other audiovisual  products (CD-Rom, video  games, etc.) 
is  much  less  advanced,  but,  where  it  exists,  tends  to  be  based  on  the  model  of  the 
cinema.9 

Among  the  Member  States,  there  are  two  exceptions  to  the  principle  of  post-publication 
verification:  in Ireland,  the Censorship of Publications Board prohibits the publication of  material 
which  is  indecent,  obscene,  pro-abortion  or  too concerned  with  subjects  relating  to  crime. 
In  France,  Mayors  or  Prefects  can  seize  a publication  in the  interests  of  public  order. 
The  simplest  classification  systems  consist  of  only  two categories  of  film  (suitable  or  unsuitable 
for  minors),  and  only  those  films  for  which  a  classification  of  "suitable  for  minors"  is  being 
sought  need  undergo  the  classification  procedure.  In  other  countries,  there  are  various 
classifications  according to age.  In some cases, classifications  within the category  of  "suitable  for 
minors" exist only to guide parents.  In such cases, minors accompanied by adults may be admitted 
to  films  which  are  not  recommended  for  their  age  group.  In other  cases,  it  is  up  to  the  cinemas 
themselves  to  ensure  that  classifications  are  respected  by checking  the  age  of  customers. 
However,  there  are  some  differences  between  the  two: the  label  may  be  purely  for  information, 

40 

3.2.3  Television  broadcasting 

Material broadcast on television is subject to stringent regulations. In the various Member 
States,  there  are  various  methods  of making  the  rules  and  ensuring  they  are  obeyed: 

most  of  the  Member  States  have  legislation  to protect  human  dignity  and  public 
morality; 
systems  whereby  individual  authorizations  are  issued  to  broadcasters  (often 
accompanied  by  specifications  setting  out  precise  rules)  exist  in  most  Member 
States  and  are  a powerful  method  of control  (violation  of the  rules  could  lead  to 
the  withdrawal  of the  authorization); 
self-regulation  is  also  highly  developed,  whether  it  be  a  system  which  is  an 
integral  part  of  the  operation  of  the  public  service,  or  a  private  initiative  on  the 
part  of  broadcasters; 
monitoring  authorities,  with  varying  levels  of  power  and  resources,  have  also 
sprung  up  in  most  Member  States. 

Apart  from  these  general  points,  there  are  clear  differences  in  the  operating  conditions 
enjoyed  by  broadcasters,  which  range  from  the  application  of  rules  similar  to  those  for 
publishing  (DK,  NL,  S), to  precisely  regulated  systems  with  systematic  checks. 

While the type of material which causes problems is more or less the same in the  various 
Member  States  (nudity/sexuality,  gratuitous  violence,  incitement  to  discrimination  or  to 
hatred), differences  in sensitivity  can be detected  in the practical  application  of the  rules 
in  the  different  Member  States. 

The  rules  applying  to  television  have  often  been  justified  on  the  basis  of  its  wide 
distribution,  and  enforced  using  the  rules  on the  granting  of  frequencies  (as  they  are  so 
scarce). 

as there may be no obligation on the establishment renting or selling the vidéocassettes to check 
them; self-classification  is highly developed in the video industry,  either as a complement to, or 
as a replacement  for binding regulations. 

41 

3.2.4  Audiotex  and videotex  services 

* 

audiotex 

Services  accessible  by  telephone  (audiotex  and  discussion  forums)  should,  in  principle, 
be  given  a  high  degree  of protection,  in terms  of  freedom  of  expression,  because  of  the 
traditionally  private  nature  of  telephone  communications.  However,  the  development  of 
services  of  a  sexual  nature  has  caused  problems  in relation  to  the protection  of minors10 
which  has  given  rise  to  specific  measures.  These  services  are  treated  differently, 
depending  on  whether  they  are  added-value telecommunications  services  (billing  by  the 
communications  operator)  or  direct  pay  services  (by  credit  card  or  subscription). 

In the first case, public action, and self-regulation  in particular, depend on the cooperation 
of telecommunications  operators, which  constitute  an interface  between the providers  of 
clearly  identified  services  and  the  consumer: 

it  has  been  possible  to  insert  certain  clauses  on  good  practice  into  contracts 
between  telecommunications  operators  and  service  providers.  Failure  to  comply 
with  these  could  result  in  a refusal  to  carry  the  service; 
certain  types  of  service  have  been  clearly  identified  by  a  specific  numbering 
system; 
telecommunications  operators  have  had  to  offer  consumers  opt-outs  (making 
certain  types  of  services  inaccessible  on  their  telephone),  opt-ins  (for  which  an 
explicit  application  for  access  to  particular  services  must  be  made),  blocking  of 
certain numbers on request, or access only on the basis of a personal  identification 
code. 

In the second  case, the absence of an intermediary  between the consumer  and the  service 
has resulted  in more  liberal  arrangements: in most  cases, the need to use  a credit card  or 
any  other  means  of  direct  payment  has  been  considered  a  sufficient  guarantee  of  the 
protection  of  minors.  In  some  cases, however,  a licence  requirement  has  allowed  a code 
of  practice  to  be  imposed  on  such  services. 

All  the  countries  which  have  implemented  a regulation  in  relation  to  national  telephone 
services,11  in  one  form  or another,  have  noted  an  increase  in the use  of  foreign  services. 
Attempts  to  subject  these  services  to  the  same  rules  as  national  services  have  come  up 
against  both  technical  and  diplomatic  hurdles. 

* 

Videotex 

Videotex  services  have  never  really  become  mainstream  consumer  services  except  in 
France  and  Germany,  which  explains  the  lack  of  specific  measures  in  other  countries. 

In  practice,  in  the  majority  of  Member  States,  the  main  problem  caused  by  added-value 
telecommunications  services  is the protection of consumers who complain that their telephone bill 
has  gone  up  unexpectedly.  It  is,  therefore,  difficult  to  balance  the  twin  objectives  of  consumer 
protection  and  protection  of  minors  in certain  legislative  instruments  or  self-regulation  systems. 
For example,  Greece applies a total ban on pornographic  services, which  is clearly  aimed at  more 
than just  the  protection  of  minors. 

42 

In  France,  the  law  provides  only  for  a  system  of  declaring  telematic  services,  but  the 
telecommunications  operator  (France  Telecom),  under  the  supervision  of  the  Comité  de 
la  Télématique  Anonyme, 
implements  the  recommendations  defined  by  the  Conseil 
Supérieur  de  la  Télématique.  Various  rules  on  the  material  are  inserted  in  the  contracts 
concluded  with  service  providers,  and  opt-out  and  opt-in  mechanisms  are  available  for 
different  categories  of  service,  clearly  identified  by  a  specific  numbering  system. 

In Germany, a Treaty  between the Bund and the Lander (the Btx  Treaty)  sets the general 
rules  for  the  provision  of  videotex  services,  while  the  telecommunications  operator 
(Deutsche Telekom) has developed  a system of self-regulation  which is incorporated  into 
its  contracts  with  service  providers. 

* 

Self-regulation  in the international  context 

Both  audiotex  and  videotex  services  have  given  rise  to  self-regulation  initiatives  at 
European  and  international  levels. 

The  Guidelines  for  the  Supervision  of Transfrontier  Audiotex  and  Videotex  Services  of 
1994  were  prepared  under  the  auspices  of  the  European  Association  of  Information 
Industries by télécoms operators and service providers. At the international level, the Code 
of Practice of the International Telemedia Association (1995) pursues the same objectives. 

One of  their  common  fundamental  principles  is that  the  law  of the  country  of  reception 
must  be  observed. 

3.3 

New  services 

The  legal  situation  for  new  services  is  not  yet  very  clear  and  is  still  being  debated  in 
many  Member  States. 

Digital  television  and  new  broadcasting  services  (pay-per-view,  near  video  on  demand) 
are  covered  by  legislation  relating  to  television.  However,  certain  characteristics  of  the 
new services may be taken into consideration, depending on the flexibility  of the national 
system. 

For example, in the United Kingdom, the Independent Television Commission (ITC)12 has 
already  recognized  that  broadcasting  services  no  longer  form  a  homogeneous  whole  in 
view of the new choices available to consumers: a more flexible system than that  applied 
to public access television has already been applied to pay channels.13 Moreover,  the ITC 
has  declared  that  it  is  ready  to  lift  the  constraints  on  programme  scheduling,  on  an 
experimental  basis,  provided  that  alternative  measures  can  be  used  to  control  access  by 
minors. 

The  arrangements  for  video  on  demand  are  much  less  clear.  Member  States  feel  that  it 
would  be  more  appropriate  to  cover  these  types  of  services  using  the  legislation  on 

12 
13 

United Kingdom broadcasting monitoring organization (with the exception of the BBC). 
These services freed from the obligation of showing family programmes from 2000 hours onwards 
(instead of 2100) and from  2200 onwards may broadcast programmes which would not normally 
be authorized  on public access channels. 

43 

broadcasting14  or  telecommunications  services. In  some  cases, a combination  of  the  two 
may be possible.15  In any event, at this stage, the debate centres more on deciding on the 
responsible  authorities  than  on  the  type  of  rules  to  be  applied.  Moreover,  certain 
temporary  legislative  instruments  have  been  introduced  to  facilitate  the  development  of 
pilot  schemes  pending  decisions  on the  specific  needs  of these  new  services. 

On-line  services  and  the  Internet  are  not  subject  to  any  general  regulation  or 
self-regulation  in  the  Member  States.16  General  rules  apply,  but  have  yet  to  be  tested  in 
specific  cases. The only attempt  at the regulation  of the Internet's on-line  services, which 
took place  in the  United  States,  illustrates  particularly  well how fraught  with  difficulties 
the  question  is. 

The  specific  problems  posed  by  the  new  services  (notably  the  decentralized  and  highly 
interactive services, are considered in the Communication on Harmful  and Illegal Content. 

HL 

TELEVISION WITHOUT FRONTIERS  DIRECTIVE 

The protection  of minors  is one of the fields  coordinated by the Directive. There  are also 
a  number  of  rules  governing  respect  for  human  dignity. 

1.1 

Protection  of  minors 

The system  for  the protection  of minors  is based  both on common rules  (Art.  22) and  an 
exceptional  procedure  (Art.  2(2)). 

Article  22  provides  for  a  modulated  regime  distinguishing  the  degree  of  danger  that 
programmes  might  raise  for  minors: 

some programmes are prohibited:  "Member States shall take appropriate measures 
to ensure that television  broadcasts by broadcasters under their jurisdiction  do not 
include programmes  which  might  seriously  impair the physical,  mental  or moral 
development  of minors,  in particular those that involve pornography  or gratuitous 
violence"; 
others  may  be  broadcast  subject  to  certain  precautions:  "This  provision  shall 
extend  to  other programmes  which  are likely  to  impair  the physical,  mental  or 
moral development  of  minors,  except  where it is ensured,  by selecting  the time  of 
the broadcast or by any technical measure, that minors in the area of  transmission 
will  not  normally  hear or see  such  broadcasts. " 

14 

16 

For example, in France, the legislation for  "audiovisual communications" evidently cover VOD, 
as does the Broadcasting  Act in the United Kingdom. 
In the case  of the United  Kingdom,  the VOD system tested by British Telecom  in Ipswich was 
licensed as a telecommunications  system and was registered  for control of material by the ITC. 
In France an Act of 26.7.1996 requires providers of access to the Internet to give their customers 
parental  control  options.  Furthermore,  Internet  self-regulation  initiatives  are  currently  under 
development  in various Member States. 

44 

The  decisive  criterion  is  therefore  the  extent  to  which  broadcasts  may  impair  the 
development  of  minors.  Its  assessment  is  left  primarily  to  the  discretion  of  the  Member 
States.  The  terms  "pornography"  and  "gratuitous  violence"  are  in  this  context  merely 
illustrations  of the type of content which may be considered  likely to seriously  impair the 
development  of  minors  and  are not  covered  by  any  common  definitions. 

Article  2(2)  further  allows  the  Member  States to  suspend  retransmission  of  broadcasts: 

"Member States may provisionally suspend retransmissions of television broadcasts 
if  the following  conditions  are fulfilled: 
(a) 

a  television  broadcast coming from  another  Member  State  manifestly, 
seriously  and gravely  infringes A rticle 22; 
during  the previous  12 months,  the  broadcaster has  infringed  the  same 
provisions  on at least two prior occasions". 

(b) 

In  such  an  event,  a  specific  procedure  exists  whereby  an attempt  is made to  arrive  at  an 
is  authorized  under 
amicable  agreement  before  the  suspension  of  retransmission 
Commission  supervision,  on the basis of an assessment of the conformity  of the measures 
taken  with  Community  law  (proportionality). 

This procedure  has been implemented  on only two  occasions, in both cases  at the  behest 
of  the  United  Kingdom,  in  relation  to  encoded  satellite  broadcasts  of  hard-core 
pornography.  In  the  most  recent  case  (XXXTV),  in  November  1995,  the  suspension 
measures  taken  by  the  United  Kingdom  (legal  ban  on  the  sale  of  decoders  and  decoder 
cards  and  on  the  promotion  of  the  station  in  question)  were  deemed  consistent  with 
Community  law  by  the  Commission  in a formal  opinion.17 

2. 

Protection  of  human  dignity 

The  Directive  (Article  22(2))  lays  down  a general  prohibition  on  incitement  to  hatred: 

"Member  States  shall  ensure  that  broadcasts do  not  contain  any  incitement  to 
hatred on grounds  of  race, sex,  religion or nationality. " 

The  procedure  laid  down  in  Article  2(2),  which  can  be  applied  in  the  event  of  the 
infringement  of this  provision,  has  never  been  implemented  on these  grounds. 

3. 

Amendment  of  the  Directive 

On  the  whole, then,  this  method  of  harmonizing  national  legislation,  accompanied  by  a 
redress  procedure  for  the  receiving  Member  State,  has  worked  well  in  the  familiar 
television environment. As regards the protection of minors, the common position adopted 
by  the  Council  on  11 June  1996  makes  no  changes  to  the  substance  of  Articles  22 
and  2(2).  It  does,  however,  serve  to  clarify  some  terms  and  strengthen  others. 

Article  22 has been  split into two separate paragraphs  in order to clarify  the difference  in 
approach according to whether programmes are likely to seriously impair or, more simply, 

17 

C(95)2678 final,  3 November 1995. 

45 

impair the physical, mental or moral development of minors. An additional  subparagraph 
stipulates  that: 

"Furthermore, when such programmes  are broadcast in unencoded form,  Member 
States shall ensure that they  are preceded by an acoustic warning or are identified 
by  the presence  of  a visual symbol  throughout their duration." 

Moreover,  a new  article  introduces  a twofold  obligation  for  the  Commission: 

it must attach particular importance to the application of the rules on the protection 
of  minors  and  human  dignity  in  its  periodic  report  on  the  application  of  the 
Directive; 
it  must,  in  liaison  with  the  competent  Member  State  authorities,  "carry  out  an 
investigation  of the possible  advantages  and drawbacks  of  further  measures  with 
a  view  to  facilitating  the  control  exercised  by  parents  or  guardians  over  the 
programmes  that  minors  may  watch". 

Furthermore,  the  procedure  provided  for  in  Article  2(2)  has  been  slightly  amended, 
particularly  to  provide  for  a  formal  Commission  decision  on  the  compatibility  with 
Community  law  of  national  suspension  measures  taken  against  stations  which  have 
infringed  the  rules  on  the protection  of  minors  and  human  dignity. 

Given the great store it sets by the protection of minors and human dignity, the European 
Parliament  is likely  to make amendments to this article at second reading  on the basis of 
the  amended  proposal. 

46 

TECHNICAL  AND  OTHER NON-REGULATORY  PROTECTION  MEASURES 

ANNEX  IV 

1. 

Parental  control  devices  applied to television  broadcasting 

Canada has been  a pioneer in this field: in the  1990s the Conseil  de la Radiodiffusion  et 
des Télécommunications (CRTC) launched a strategy to curb violence on television. From 
the  outset  this  strategy  has  been  shaped  by  five  guiding  principles: 

collaboration  based  on  the  principle  that  violence  on  television  is  a  cause  of 
psychological  problems  among  children; 
protection  of  children  and  not  censorship  of  adults; 
concentration  on  gratuitous  or  idealized  violence  without  involving  eroticism  or 
other  moral  considerations; 
involvement  of all those  concerned:  broadcasters,  advertisers, producers, parents, 
teachers  and  specialists  in  mental  health; 
adoption  of  a dual  perspective,  one  short-term  and  one  long-term. 

In  more  practical  terms,  the  strategy  is based  on  a raft  of  complementary  measures: 

- 

, 

codes  of  conduct  worked  out  with  the  industry; 
classification  of  programmes; 
anti-violence  or  "V"  chip1; 
information  campaign  to  increase  public  awareness,  and  media  education 
programme. 

In terms of the relative importance  of these different  measures in the overall  strategy, the 
Canadian  authorities  believe  that  the  first  three  account  for  a  mere  20%  of  the  answer 
(with the V-chip accounting for  10%), the main thing being to change attitudes in the long 
term  through  information,  awareness-raising  and  education  (80%). 

The  United  States,  which  has  been  involved  with  this  Canadian  initiative  from  a  very 
early stage, has up to a point adopted the same approach: the Telecommunication Act was 
amended  to  require  TV  manufacturers  to  incorporate  the  anti-violence  chip  into  their 
products.  Since  then, the  industries  involved  have been working  on the introduction  of a 
programme  classification  and  encoding  system  which  should  be  operational  by  January 

The anti-violence chip is a technical device developed by Professor  Tim Collins at Simon Fraser 
University,  Vancouver.  This  microchip,  incorporated  in a television  set,  a cable  selector  or a 
decoder,  reads the classification  code of each programme. The viewer can programme this chip 
to  block  the  signal  of  programmes  with  a  classification  which  exceeds  the  level  considered 
acceptable  for  that family.  Thus, if the viewer selects the violence level V3, programmes coded 
V4 and  V5 will  not  appear  on the  screen.  Programme  classification  codes  could  be  applied  to 
aspects other than violence as required (nudity,  sex, bad language, etc.). 
It  should  be  noted  that  the  expressions  "ami-violence chip"  or  "V-chip"  relate  directly  to this 
Canadian proprietary  system.  We therefore  prefer,  in relating to a broader  concept,  to refer  to 
parental  control  systems or devices. 

47 

1997.  The  Children's  Programming  Act  also  requires  broadcasters  to  make  an  effort  to 
broadcast  children's  programmes. 

In Europe, as in the USA, the debate at once centred on whether a parental control  system 
should  be  imposed,  whether  at  national  or  Community  level,  before  the  objectives  of  a 
system  of this  type  have  been  clearly  established. 

On the  general philosophy  of the system, the main arguments propounded  in Europe  can 
be  summarized  as  follows: 

Supporters  of  the  system  point  out that  it does  away  with  programme  censorship 
a priori  and  offers  every  parent  the  opportunity  to  control  their  children's  access 
to television  according  to their  own set of values, even in their absence; this  type 
of system would therefore  allow broadcasters greater freedom  of expression  while 
respecting  the  individual  values  and child-rearing  philosophy  of parents.  What  is 
more,  no-one  has  pointed  out  the  advantages  of  such  a  system  for  cross-border 
services  if  it  could  be  used  to  replace  sometimes  incompatible  regulations. 
Opponents  of  the  system  point  out  the  dangers  of  a  complete  transfer  of 
broadcasters'  responsibilities  to  the  parents:  firstly,  the  system  could  be  used  to 
justify  slippages  in  broadcasters'  schedules;  secondly,  not  all  parents  are  willing 
or able to exercise the responsibility that this system would place on them. As this 
is a system  designed  for  use with non-encoded  services, many  minors  could  thus 
be  exposed  to  programmes  harmful  to  their  development. 

This basic controversy  shows how relatively little attention has been paid in Europe to the 
Canadian  experience,  since the  CRTC  defined  and  limited  its strategy  precisely  to  avoid 
this clash of principles. In Canada, the anti-violence chip was considered neither as an end 
in itself nor  as a universal  panacea  capable of resolving  all problems  single-handed.  The 
two  most  important  elements  of  the  Canadian  approach  are  still  the  identification  of  a 
specific  objective  and  the  definition  of  a  long-term  strategy.  Even  the  CRTC  views  the 
if  the 
anti-violence  chip  as  no  more  than  a  gizmo  which  would  be  useless 
awareness-raising  campaign  failed  to  bear  fruit  within  a time  span  of  ten  years  or  so. 

In  addition  to  the  debate  on  the  philosophy  of  parental  control,  various  practical 
difficulties  have  been  highlighted. 

The adoption  of a common  system by several broadcasters implies a common  and 
systematic  classification  of  all  programmes  broadcast.  The  introduction  of  a 
common system raises the question of responsibility for classification,  supervision 
and possible penalties (a central authority or self-regulation  by the operators). This 
question grows  in complexity  as the number of broadcasters  concerned  increases, 
and  culminates  in the  question  of cross-border  operation. 
The  quantity  and  diversity  of  programmes  to  be  classified  raises  a  great  many 
questions  on  how to  evaluate  the impact  of  certain  material  according  to  context 
(e.g.  violent  images  shown  on  the  news)  or  whether  it  is  actually  possible  to 
classify  certain  programmes  (a  live  debate  can  lead  to  unexpected  remarks  or 
behaviour). 
Making  a parental  control  device  compulsory  for  television  sets  would  require  a 
lengthy  transitional  period  depending  on  the  rate  of  renewal  of  existing  sets. 
Moreover, old sets often  end their life in children's rooms. The choice of a  specific 
device  would  concentrate  technological  innovation  in  this  particular  field, 

48 

depriving  consumers  of  solutions  which  might  have  been  better  suited  to  their 
needs. 
Finally,  the  introduction  of  this  type  of  system  would  create  relative  economic 
uncertainty,  since  audience  ratings,  on  which  the  economy  of  broadcasting 
financed  by  advertising  is largely based, would be undermined  to  some extent by 
the  difficulty  of  analysing  the  use parents  would  actually  make  of the  device. 

These various problems are not unsurmountable, since Canada and the United  States have 
decided  to  tackle  them,  but  it  must  be  said  that,  in  the  Member  States  which  have 
discussed  this  matter,  the  compulsory  introduction  of  parental  control  devices  has  been 
rejected  in  favour  of  other  types  of  action.2  The  debate  in  Europe,  launched  by  the 
European  Parliament,  is  still  going  on. 

Consumer  electronics  manufacturers  are  particularly  concerned  by  the  development  of 
parental  control  devices.  The  EACEM3  in particular  has  adopted  very  clear positions  on 
this  matter.  It  recognizes  the  advantages  of  developing  systems  to  provide  parents  with 
better  ways  of controlling  what  children  watch  and  consequently  supports  any  initiative 
on  the  classification  of  material,  including  compulsory  measures.  On  the  other  hand,  it 
points  out 
technical  device  would  be 
counter-productive, notably because a single specific technology cannot be the best option 
for  every  system  for  processing  and  labelling material  now or in the future,  and  because 
a  large  number  of  formulas  are possible  depending  on the way  in which  parents  wish  to 
use  the  information  offered  by  the  classification  of  material. 

imposition  of  one  particular 

that 

the 

2. 

Parental  control  devices  applied to on-line  services 

While the proprietary  on-line  services  and  some information  providers have always been 
conscious of the need to protect minors from  certain types of material, the threat  followed 
by the enactment  of special legislation  in the United States has turned the whole  question 
upside  down. 

The Telecommunication Act, signed by President Clinton on 8 February  1996, introduced 
a number of rules on material circulating on electronic networks.4 In substance, these rules 
made  it  illegal  knowingly  to provide  indecent  or manifestly  shocking  material  to  minors 
via  electronic  computer  networks. 

The  industry  reacted  in two  ways: 

first,  a  coalition  of  publishers,  material  providers,  access  providers  and  civil 
liberties  associations,  attacked  the  legislation,  claiming  it  violated  the  First 
Amendment  (freedom  of  expression),  and  having  the  Act  invalidated  by  the 
Philadelphia  Federal  Court  of  Appeals; 

In  France,  the  CSA  asked  non-encrypted  broadcasters  (private  and  public)  to  develop  common 
classifications  and  identifiers  for  programmes  which  could  be  harmful  to  minors  and  a  code  of 
conduct  for  television  news  programmes. 
European  Association  of  Consumer  Electronics  Manufacturers. 
Attached  to  the  provisions  on  the  V-chip,  these  rules  are  now  known  as  the  Communications 
Decency  Act  (CDA). 

49 

then  it  stepped  up  its efforts  to find an  alternative  solution  to  legislation  as  soon 
as  the  Bill  appeared. 

The  basis  for  the  invalidation  of  the  Act  was  primarily  the  fact  that,  as  there  was  no 
reasonable  way  in  which  information  suppliers  could  ensure  that  no  minor  would  have 
access  to  it,  the  Act  would  require  them  to  censor  all  indecent  material  despite  the  fact 
that  adults  had  a  constitutional  right  to  access  it.5 

Control  mechanisms  have been  developed  at different  levels. 

The  mechanisms  used  at the level  of  information providers  are  as  follows: 

insertion of a warning page alerting the user to the potentially  controversial  nature 
of the site or the material he wishes to access; this is intended more as  information 
than protection, the risk being that it will be more of an incentive than a deterrent, 
particularly  for  minors; 
pre-access  age check: the  information  provider  states the conditions  for  access  to 
the  material  in  a  cover  page.  Many  of  the  commercial  sites  require  a  variety  of 
guarantees  in  the  form  of  written  requests  for  access  (by  e-mail  or  post)  or 
payment by credit card. Some companies are also trying to centralize this process, 
particularly  so that non-commercial  sites can benefit:  on payment of a modest sum 
by  credit  card,  the  user  receives  a personal  identification  code  giving  him  access 
to  all  the  affiliated  sites; 
putting the material  offered  on special  servers (cache-based  systems): in this  case 
an operator creates a closed network giving access only to certain material  selected 
from  all  the  information  available  on the Internet.  This  approved  material  can be 
classified  and  differential  access  given  on  the  basis  of  personal  identification 
codes. Although the choice of material  is limited  to what has been  approved,  this 
type  of  system  provides  a  high  level  of  security.  It  is  particularly  used  for 
providing  cable  and  school  access  to  the  Internet. 

It  is not  the  place  of  access providers,  who  seldom  if ever  provide  material  themselves, 
to introduce  systematic  controls  on information.  They may, however,  be required  to  help 
control  illegal  material  by  blocking  pre-identified  sites  (black  lists).  Apart  from  the 
problems  created  by  the  difficulty  of  constantly  updating  these  lists  and  the  risk  of 
withholding  access  to  legitimate  material,  it is clear that this type  of  measure  would  not 
solve the specific  problem  of protecting  minors (it would require the systematic  blocking 
of  material  which  adults  must  be  able  to access). 

On  the  other  hand,  some  access  providers  can  offer  restricted  access  (for  minors,  for 
example)  by  using  various  filters,  blocks  or  preselection  of  sites.  This  is  an  additional 
service  which  requires  special 
the 
straightforward  provision  of access. 

investment  and  must  be  distinguished  from 

At  user level,  there  are  various  parental  control  systems: 

"A  wealth  of  persuasive  evidence  ...  proved  that  it  is  either  technologically  impossible  or 
economically  prohibitive  for  many  of  the  plaintiffs  to  comply  with  the  CDA  without  seriously 
impeding  their  posting  of  on-line  material  which  adults  have  a constitutional  right  to  access." 

50 

Comparison of the features  offered by  different software packages 

L'YEERSme 

Interna  Utter* 

Net Nanny 

NetShepherd 

Parental Guidance 

SNAG 

Surfwatch 

Cyber 
Patrol" 

TBB" 

T55W 

"TPRTW 

539.95 

y« 

yes 

yes 

yes 

weekly 

dBfy 

139,» p.»-
(first  six 
months  free) 
PICS, 
SafeSurf, 
RSACi 

VCR,  HI'S. 
SafeSurf. 
RSACi 

twice-monthly 

free 

•PrCSTSiTSSuTT 

keywords""?" 
file  types 

keyword 

keyword or  file 
type 

yes 

yes 

yes 

yes 

yes 

Net Shepherd 
Global  Ratings 
Bureau, PICS 
$5.95  per annum 
for  NSGRB 

PlCS-based 

McKinley (Jroup 

PICS.  RSACi 

keyword 

keyword  (no 
automatic 
blocking) 

yes 

yes 

M5.M 

monthly 

$5.95  per month 

Price 

Blocking  by" 
site 

Blacklist 
update 
frequency 
Update cost 

Ratings  "~ 
compliant** 

Update cost 

Filtering 
options 

List/filter 
Editing 

Usage 
monitor 

• - more limited but free  versions of the software  are avai 

able. 

Source: Hydra 

3. 

Media education 

Most of the different  aspects of media education  are relevant to the protection  of  minors 
and  human  dignity  in the new  services. 

Schools  still need  to provide more encouragement  for  the acquisition  of skills  in the use 
of  new  tools,  especially  involving  computers.  The  most  appropriate  method  of  media 
education is still the hands-on approach. However, parental enlightenment is also crucially 
important.  What  is the point  of  a parental  control  device  if the parents  have  to  ask  their 
children to instal or programme it? Education in the visual image would serve to  develop 
a  critical  attitude  in  adolescents  and  a  new  type  of  demand  as  regards  the  quality  and 
diversity  of  audiovisual  content.  Furthermore,  this  type  of  education  would  produce 
long-term  effects  enabling' future  generations  of  parents  to  perform  their  child-rearing 
responsibilities more effectively.  Measures to improve parental awareness and  information 
as to the various types of harm to which their children may be exposed  are an  inevitable 
corollary  to their  increasing  level  of  responsibility. 

There is recurring  debate on these issues in educational  circles in all the Member  States, 
and  experiments  and  research  are  being  run  on a  sporadic  basis, notably  at  local  levels. 
Efforts  to  increase  adult  awareness  and  involvement  in  media  education  are  much  less 
developed, there are a number of measures which offer  themselves as possible examples: 

In the Netherlands, the Kinderkast, a non-governmental  organization, has the task 
of increasing awareness of various aspects of the child/television relationship. This 
organization  performs  a variety  of  activities: production  of  newsletters,  teaching 
materials  for  children,  parents  and  educators,  research  into  children's  viewing 
habits,  monitoring  of  television  programme  schedules, etc; 

51 

In  Spain,  the  Ministry  for  Social  Affairs  has published  an  awareness  booklet  on 
the  place  and  use  of  television  and  the new  services  in the  home;6 
In the United Kingdom, the National Council for Educational  Technology  devises 
measures  to  help  teachers  and pupils  to take  advantage  of the  new  technologies. 
It  has  published  various  papers  on  the  new  communications  networks,  most 
notably  a  schools  booklet  on  the  problems  of  pornography  on  the  Internet 
suggesting  various  initiatives  which  schools  could  take  in  this  area; 
In the United  States, the National  Center for  Missing  and Exploited  Children  and 
the Interactive  Services Association have published a joint booklet entitled  "Child 
Safety  on the Information  Superhighway",  intended  to help parents to  understand 
the  nature  of  on-line  services, the  Internet  and  BBS. 

Apart  from  the organization  of a few  European-scale  meetings on these various  facets  of 
media education, the exchange of information  and good practice and the establishment  of 
networks  on  the  European  or  world  scale  are  still  in their  infancy. 

4. 

Promotion of  high-quality  material  intended for minors 

In  some  Member  States,  analysis  of the  relationship  between  the  media  and  minors  has 
resulted in the improvement of the programme supply for minors being deemed a priority. 
In view of the difficulties  specific  to the production and distribution of such  programmes 
(How  should  programmes  be  adapted  to  different  age  groups?  How  are  programmes 
intended  for  a  segment  of  the  population  which  has  not  yet  the  status  of  solvent 
consumers  to be  funded?  How are outlets to be found  for  these niche programmes?), the 
public authorities and/or the operators themselves have devised policies for the promotion 
of  high-quality  programmes. 

These policies  mainly concern  cinema and television. In the field  of on-line services and 
the  Internet,  everything  still  remains  to  be  done  to  promote  the  development  of 
high-quality  sites  for  minors.  The  classification  and  labelling  of  contents  adapted  to 
minors (particularly  in the form  of white lists) is a first  step in this direction. Other  forms 
of  encouragement  on  the  lines  of  those  introduced  for  other  media  could  also  be 
appropriate. 

* 

Promoting  parental  control  systems  and the labelling  of  material 

The  development  of  filtering  systems  based  on  labelled  material  meets  in  full  the 
preconditions  for  genuine  responsibility  on  the  part  of  parents  and  teachers:  it  provides 
as much  information  as possible  on the material  available  so that  access  can be  selected 
automatically  using  control  devices, on the basis  of the  family's  own  criteria  (children's 
age,  sensitivity  and  educational  choices). These  tools, which  are  vital  in  a  decentralized 
services  environment,  could  also  prove  a useful  adjunct  to  other  systems  in  centralized 
services. 

This  type  of  system  can  be  applied  in practice  only  by  following  certain  steps: 

"<<Qué Miras?,  <,Qué Haces?  -  La  familia,  las  nifias  y  los  ninos  ante  la  television  y  las  nuevas 
pantallas." 

52 

supplied  on 

the  material 

information  must  be 
(classification/labelling); 
this  information  is enclosed  as  a message  with  the  material  (coding); 
the  message  is  transmitted  as  a  substitute  for  access  to  the  material 
(transmission); 
the  message  is read  by  an  control  device  (decoding); 
control  devices  are  supplied  to  users. 

in  question 

Classification/labelling  of material,  irrespective of the media  or networks  transmitting  it, 
is  clearly  a  priority:  without  it  there  is  no  point  in  developing  solutions  for  the  other 
stages  in the process. To ensure perfect  compatibility  of the various sources  of  labelling, 
it would be useful  to define common categories (nudity, sexuality, violence, bad language, 
etc.)  based  on  a  set  of  age-groups. 

The  next  three  stages  (encoding, transmission  and  decoding)  are neutral.  However,  they 
do  raise  the  question  of  the  compatibility  of  labels  from  different  sources  and  the 
proliferation  of  control  devices  (hardware  or  software)  designed  to  use  them.  It  is 
important here to secure the greatest possible degree of compatibility  on the basis of non 
proprietary  open  standards. 

The  provision  of  control  devices  raises  two  separate  issues:  the  first  concerns  their 
development  and  production  by  industry  and  the  second  their  marketing  and  supply  to 
users. 

The  spontaneous  development  of  a  wide  variety  of  parental  control  systems  for  the 
Internet  and  other  services  shows  that  industry  can  very  quickly  come  up  with  systems 
which  take  into  account  users'  needs  and the  general  environment  of  available  services. 
Measures  to promote  standardization  and the  labelling  of material  as outlined  above  can 
only  reinforce  this  tendency  and  bring  product  prices  down.  However,  any  attempt  to 
define  or prescribe  a specific  system  would run the risk of placing  an artificial  barrier on 
promising  developments. 

The  marketing  and  supply  of  parental  control  devices  to  users  raises  more  complex 
questions.  In  services  where  parental  control  devices  are  the  only  effective  means  of 
protecting  minors, they should automatically be supplied - or offered  - to users. However, 
these automatic supply arrangements must not interfere with competition between  different 
types  of  device,  which  is  an  inherent  guarantee  of  progress  in  the  systems  offered. 

53 

ISSN 0254-1475 

COM(96) 483 final 

DOCUMENTS 

EN 

05  06  15 

16 

Catalogue number  :  CB-CO-96-515-EN-C 

ISBN92-78-10180-X 

Office  for Official  Publications  of  the European Communities 

L-2985  Luxembourg 

5"1