COMMUNICATION FROM THE COMMISSION TO THE COUNCIL, THE EUROPEAN PARLIAMENT, THE ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS - Illegel and harmful content on the Internet
Date: 1996-10-16
Institutions: European Commission
Subjects: computer network, consumer protection, crime, disclosure of information, network server

COMMISSION  OF THE EUROPEAN  COMMUNITIES 

Brussels,  16.10.1996 
COM(96) 487  Final 

COMMUNICATION  FROM  THE  COMMISSION 

TO THE COUNCIL,  THE  EUROPEAN  PARLIAMENT, 
THE ECONOMIC  AND SOCIAL  COMMITTEE 
AND  THE  COMMITTEE  OF THE  REGIONS 

Illegal and harmful content on the Internet 

TABLE OF CONTENTS 

INTRODUCTION 

1.  THE OPPORTUNITIES OF THE INTERNET... 

2.  HOW DOES THE INTERNET WORK? 

3.  WHAT CONSTITUTES ILLEGAL AND HARMFUL CONTENT? 

4. 

IDENTIFYING  AND  COMBATING  ILLEGAL  CONTENT  ON  THE 
INTERNET 

5.  DEALING WITH HARMFUL CONTENT ON THE INTERNET 

6.  POLICY OPTIONS/CONCLUSIONS 

3 

5 

7 

9 

11 

16 

23 

INTRODUCTION 

The  symbol  of  the  convergence  between  telecommunications,  computer  and  content 
industries,  and  one  of  its  main  drivers, the  Internet  has  established  itself  as  one  of  the 
main  building  blocks  of  the  Global Information Infrastructure and  as  an essential 
enabler  of  the  Information  Society  in  Europe.  Characterised  by  a  growth  rate 
unprecedented  in  the  history  of  communication  technologies,  the  Internet  now  reaches 
some 60 million users in  160 countries, doubling each year. Its most popular  application, 
the  World-Wide-Web,  based  on  protocols  developed  in  Europe,  is  fast  becoming  a 
standard vehicle for  information  publication and electronic commerce, with an estimated 
10 million  sites  world-wide  in  1995, up  1600% over  the  previous  year.  Driven  by  its 
meteoric  growth,  and  its  rapid  evolution  from  a  government/academic  network  to  a 
broad-based  communication  and 
is  currently 
revolutionising a number of economic sectors, with the emergence of a vibrant and fast-
growing  "Internet Economy".  Simultaneously,  the Internet has also become & powerful 
influence  in  the  social,  educational and  cultural fields  -  empowering  citizens  and 
educators,  lowering  the  barriers  to  the  creation  and  distribution  of  content,  offering 
universal access to ever richer sources of digital  information. 

trading  platform, 

Internet 

the 

Reflecting  these  opportunities,  the  vast  majority  of  Internet  content  is  for  purposes  of 
information  for totally legitimate (and often  highly productive) business or private usage. 
However,  like any other communication  technologies, particularly  in the initial  stages of 
their  development,  the  Internet  carries  an  amount  of  potentially  harmful  or  illegal 
contents  or  can  be  misused  as a vehicle  for  criminal  activities.  Although  statistically  a 
limited phenomenon, a wide range of distinct areas are concerned. These are covered by 
different  legal regimes and instruments at the national and international level, e.g.: 

•  national  security  (instructions  on  bomb-making,  illegal  drug  production,  terrorist 

activities); 

•  protection of minors (abusive forms of marketing, violence, pornography); 
•  protection of human dignity (incitement to racial hatred or racial discrimination); 
•  economic security (fraud,  instructions on pirating credit cards); 
• 
•  protection  of  privacy  (unauthorised  communication  of  personal  data,  electronic 

information security (malicious hacking); 

harassment); 

•  protection of reputation (libel, unlawful  comparative advertising); 
• 

intellectual property (unauthorised distribution of copyrighted works, e.g. software  or 

music) 

While the benefits  of the Internet  far outweigh its negative aspects, these aspects cannot 
be ignored.  They  are pressing  issues  of public, political,  commercial  and  legal  interest. 
Reflecting  these  concerns,  recent  political  discussions  in  the  European  Union  have 
stressed the need for urgent action and concrete solutions. 

Therefore,  most  recently,  on  27  September  1996  the  Telecommunications  Council 
adopted  a resolution on preventing the dissemination  of illegal content on the Internet, in 
particular child pornography. The Council took note that the Commission  would  publish 
a Communication on this issue, and welcomed that initiative. Stressing the need for rapid 
response,  the  Council  urged  the  Commission  to  carry  its  ongoing  work  and  to  present 
practical  measures  in  time  for  the  next  Telecommunications  Council  on  28  November 
1996. 

The  Commission  is  fully  aware  of  the  importance  of  these  issues,  and  of  the  need  to 
strike  the  right  balance  between  ensuring  the  free  flow  of  information  and 
guaranteeing protection of the public interest so as to meet justified  concerns. 

Already,  at the  informal  Council  meeting  held  in  Bologna  on 24 April  1996, European 
Telecommunications and Culture ministers had identified  the issue of illegal and  harmful 
content  on  the  Internet  as  an  urgent  priority.  It  was  considered  that,  while  existing 
national  laws  apply  to the  Internet,  agreement  should  be  reached  in  a  wider  context  to 
address  the  specific  challenges  raised  by  this  "network  of  networks".  The  Commission 
was  therefore  requested  to  produce  a  summary  of  problems  posed  by  the  rapid 
development  of  Internet,  and  to  assess,  in  particular,  the  desirability  of  European  or 
international regulation. 

As  regards  the  distribution  of  illegal  content  on  the  Internet,  it  is  clearly  the 
responsibility of Member States  to  ensure the  application of  existing laws.  What is 
illegal offline remains illegal online, and it is up to Member States to enforce these laws. 
Nevertheless,  given  the  highly  decentralised  and  transnational  nature  of  the  Internet, 
concrete measures to reinforce  co-operation between Member  States should be  launched 
in the context of Justice and Home Affairs. 

At  another  level, the  presence  of  illegal  and  harmful  content  on the  Internet  has direct 
repercussions on  the  workings of the Internal Market. In particular,  the  adoption  by 
Member  States  of  regulations  of  new  Internet  services  intended  to  protect  the  public 
interest may also create risks of distortions of competition  (for  example, through  widely 
divergent  responses  to  the  question  of  potential  liability  of  Internet  service  providers), 
hamper  the  free  circulation  of  these  services,  and  lead  to  a  re-fragmentation  of  the 
Internal Market. If unsolved, such problems may justify  Community intervention. Like in 
any new and fast-growing  industry, legal and regulatory certainty is the conditio sine qua 

non to foster  investments, guarantee the development  of a competitive  Internet  services 
sector, and ensure the growth of a wider Internet-based economy in Europe. 

It  is  widely  recognised  that  the  international  nature  of  the  Internet  and  its  unique 
characteristics (extremely decentralised  structure, resistance to tampering, high degree of 
automation,  global reach, wide usage) clearly pose novel, and specific,  problems. These 
problems need  innovative, and  specific,  solutions which  should  be put  in place  rapidly, 
anda co-ordinated response at EU and international level. 

Complementary  to  the  present  initiative,  issues  of  protection  of  minors  stricto sensu  -
themselves a subset of wider issues of illegal and harmful  content - will be addressed  in 
the  Green Paper on  the Protection of Minors and Human Dignity  in Audiovisual and 
Information Services. That  Green  Paper takes  a horizontal  approach,  and  will  initiate  a 
long term reflection  on this issue across all electronic media. 

This  Communication  assesses  the  opportunities  offered  by  the  Internet,  identifies 
different  variations of illegal and harmful  content, describes the technical environment of 
the Internet  and gives policy  options  for  immediate  action on a technology  and/or legal 
base to fight against such content on the Internet. 

1. THE OPPORTUNITIES OF THE INTERNET 

The potential of the Internet to inform, educate, entertain and conduct business on a 
global scale is considerable. At a relatively  modest  cost,  vast  quantities  of  information 
can  be  sent  around  the  world  in  new  multi-media  communications.  A  number  of 
countries  in the world,  and  in particular  in the European  Union, have already  seized  on 
these radical new opportunities. 

In  social  terms,  the  Internet  represents  significant  potential  benefits.  It  offers 
unprecedented  opportunities  for  empowering  citizens,  and  for  connecting  them  to  ever 
richer  sources  of  digital  information.  The  Internet  has  been  used  by  great  effect  in  a 
number of Member States to connect administrations and citizens. Lowering the barriers 
of entry to the dissemination  of information  on the local, as well  as on the  global  scale, 
the Internet allows individuals or associations to publish information  about their activities 
to a wide audience at modest cost. In the field of culture, the Internet already  contributes 
significantly  to  the  creation  and  dissemination  of  European  digital  multimedia  content, 
fostering  linguistic diversity, and the rayonnement of European cultures in the world. As 
exemplified  by  a  number  of  innovative  projects  linking  libraries,  schools  and 
universities  in Europe, the  Internet  is  similarly  the  key  to  a new  "electronic  literacy", 
and, as such, the cornerstone of the new and far-reaching  European Union  initiative, the 
Action Plan  "Learning in the Information Society  ". 

Currently  revolutionising  electronic commerce, the  "network  of  networks"  is  likely  to 
play a crucial role for  the European economy. This is directly linked to the liberalisation 
of  Europe's  telecommunications  market,  which  should  translate  into  lower  operating 
costs  for  Internet  users  and  service  providers1. As the US market  already  demonstrates, 
the  Internet  is  directly fostering  a  new and fast-growing  Internet economy2, creating 
new categories  of businesses  and new jobs  (Internet  infrastructure  and software,  Internet 
access providers,  consumer  and business  content  distribution,  online retail  and  financial 
services).  Beyond  this  "core  Internet  economy"  of  businesses  which  create  revenues 
directly  from  the  Internet,  the  Internet  is  having  an  indirect impact on  a  much wider 
"Internet sphere of influence'9.  The Internet  is thus radically  transforming  a number  of 
existing  economic  sectors  (travel  services,  insurance,  direct  retailing,  electronic 
publishing), creating  new markets, reducing  costs and  improving  customer  service. It is, 
in particular,  generating  new  opportunities for  European SMEs, a growing  number  of 
which are now eagerly capitalising on unprecedented  access to global markets offered  by 
the  World  Wide  Web.  Similarly,  large  economic  sectors,  such  as  the  direct  marketing 
industry  in Europe (which represented a total income of ECU 37 billion in  19943), and in 
particular  the traditional  catalogue  business, are actively  integrating  the Internet  in their 
marketing  and fulfilment  strategies, and planning  gradually  to migrate a substantial  part 
of their activities to the Internet. 

In the  field  of advertising and marketing,  the  Internet  presents  a number  of  significant 
and  well  documented  advantages.  Because  of  its  interactive  nature,  and  the  immediacy 
and  ease  of  communication,  advertising  messages  can  be  targeted  at  audiences  much 
more precisely  than has been possible  until now, and feedback  obtained  from  current  or 
potential  customers.  Similarly,  when  used  for  executing  transactions  or  even  delivering 
content  on  line,  the  Internet  offers  considerable  cost  savings  for  both  businesses  and 
customers. 

One of the key factors  in the development  of the Internet market in the US has been the lower cost of 
telecommunications  (lower  costs  of  leased  lines  for  professional  users;  of  local  calls  for  individual 
customers). 

An estimate by Forrester Research  concludes that the Internet "core economy" will generate  in the US 
alone  some $2.2  billion  in  1996. By the year 2000, some $45.5 billion will be directly  attributable  to 
Internet  activity  - a twenty-fold  increase in five years. According to Forrester Research, the  Internet's 
most  intense economic activity will center on Internet  infrastructure  ($  14.2 billion), consumer content 
($2.8  billion,  including  Internet  advertising  and  rights  purchases),  business  content  ($  6..9  billion, 
including  business  intelligence  now  supplied  on  proprietary  networks),  online  trade  ($  21.9  billion, 
including  $  6.9  billion  from  new  electronic  retail  activities  and  $  15 billion  from  the  migration  of 
traditional  EDI  systems),  and  financial  services  (management  through  the  Internet  of  an  estimated  $ 
46.2 billion  in assets and savings) 

Source: Study on the Extent of Direct Marketing in the European Union,  interim report by FEDIM  for 
the European Commission. 

Enlarging  the scope ol  electronic commerce to the general public on global  markets, the 
Internet  is,  at  the  same  time,  bringing  radical  changes  in  business-to-business 
transactions, as companies migrate from proprietary networks and closed protocols (such 
as traditional EDI) to the Internet and to corporate "Intranets". This  business-to-business 
sector is currently the fastest  growth area in the global Internet economy. It is a sector 
of  crucial  strategic  importance  for  European  companies  competing  on  world-wide 
markets. 

As  any  other  sector  of  activities,  the  Internet  may  be  used  for  legitimate  purposes  or 
misused  by  some  elements  of  the  society.  The  framework  for  the  Internet  should, 
therefore, foster  economic development, while  taking  account  of justified  social  and 
societal concerns. Consumers and businesses must be reassured that the Internet is a safe 
and secure place to work, learn and play. 

This Communication, therefore, aims 

•  firstly  to describe briefly the different types of illegal and harmful content, 

•  secondly to examine the technical context in which action can be taken to deal with 

illegal and harmful content, and 

•  finally 

to  suggest  a  number  of  practical  measures  designed  to  be  rapidly 

implemented 

In the following  sections, section 2 describes the different  Internet applications, section 3 
defines  what  is  meant  by  "illegal  and  harmful  content",  section  4  deals  with  ways  in 
which to combat illegal content, section 5 explains issues related to harmful  content and 
section 6 presents a number of proposals. 

2.  HOW DOES THE INTERNET WORK? 

The Internet is the most visible example of an international  computer network. Although 
it is neither the first nor the only such network, it is distinguished by the fact that nobody 
"owns" it and by the fact that over the past few years "ordinary" users, private individuals 
and businesses, and not just  the scientific  or academic community, have started to use it 
widely,  causing  a dramatic  increase  in the number  of computers  linked  to the Internet  . 

The increase in the numbers of servers providing Web content and in the number of users connected to 
the  network  is  startling.  In  Europe  alone,  the  number  of  servers  increased  by  60%  over  the  period 
January  1995  -  January  1996.  See  also  statistics  referred  to  in  IPSO  newsletter  July  issue 
(http://www.ispo.cec.be/ispo/newsletter/ISPOJULY/ISPOJULY04.html  - 5 million  new  servers  in  the 
last  12 months). 

Unlike  other  traditional  networks  such  as  broadcasting,  the  Internet  is  essentially  user-
driven, with users themselves, rather than established  publishers, generating a substantial 
part of the "content". 

A unique  characteristic  of  the  Internet  is that  M functions  simultaneously as a medium 
for  publishing  and for  communication. Unlike  in  the  case  of  traditional  media,  the 
Internet  supports a variety of communication  modes: one-to-one, one-to-many, many-to-
many.  An  Internet  user  may  "speak"  or  "listen"  interchangeably.  At  any  given  time,  a 
receiver  can  and  does  become  content  provider,  of  his  own  accord,  or  through  "re-
posting"  of  content  by  a third  party.  The  Internet  therefore  is  radically different from 
traditional broadcasting.  It also differs radically from  a traditional telecommunication 
service. This constant  shift  from  "publishing  mode" to "private communication  mode"  -
two modes governed traditionally by very different  legal regimes -  constitutes one of the 
main challenges of Internet regulation. 

The  many  different  ways  of  distributing  Internet  content  reflect  the  structural  and 
historical  idiosyncrasies  of this network.  The extent  to which technical  measures  can be 
used  to  detect,  track  down  or  intercept  illegal  and  harmful  content  also  significantly 
differs  from  application to application. 

Most individual users will not have permanent direct access to the Internet. They will go 
through an access provider. This includes: 

• 

Internet access providers, specialised in offering  access to the Internet ; 

• 

Internet  service providers,  who  offer  additional  services  such  as  hosting  content 
produced  by  themselves,  or by  users or by third  parties  (those  who produce  content 
are referred  to here as content providers); 

•  On-line service providers, who provide  proprietary  content  for  subscribers  on their 

closed systems, and now also offer  them Internet access. 

The term  "Internet  service provider"  is often  used generically, without a clear  distinction 
being  made  between  the  service of providing  access to  the Internet and  the  service of 
hosting  content. The  terms  "access  provider"  and  "host  service  provider"  will  be  used 
here to differentiate.  The same organisation can of course fall within both categories. 

5 

Such  "proprietary  content"  may  be  produced  by  the  online  service  provider  itself,  or  produced 
contractually  for  that  provider  by a third  party  (entertainment  company,  financial  services  institution, 
airline,  etc.). The  online  service  operator  generally  assumes  editorial  responsibility  for  such  content, 
like a traditional publisher. 

Both  "access provider"  and  "host service provider" will  connect  to  the  Internet  via  a 
leased line, a telecommunications connection made available by the  "network operator", 
such as British Telecom. 

The World Wide Web (WWW or Web) is the area where pages with text, graphics and even 
sound  and  video  clips  may  be  viewed.  Pages  are  linked  to  each  other  by  a  series  of 
"hyper-links" offering  a congenial and highly interactive way of navigating through Web 
content. These pages may be published by anyone who has access to  storage  space  on a 
"host"  computer  connected  to  the  Internet  running  the  appropriate  software  (a  "Web 
server" or  "site"). This possibility  to become a "content publisher" is often  given at low 
cost  as  an  additional  service  by  Internet  access  providers,  and  individuals  in  this  way 
have  the  same  potential  to  distribute  information  as  large  corporations.  The  pages 
published in this way are available to any Internet user who chooses to consult them, and 
are identifiable  by an address which is used in order to consult them directly, or to reach 
the page through hyperlinks. 

Electronic mail allows  communication  between  individuals.  It  is  also  easy  to  send  out 
the  same  message  to  multiple  addresses  using  mailing  lists.  Although  in  general  the 
author  of  the  correspondence  will  be  identified  by  his  e-mail  address,  "anonymous 
remailer"  systems  have  been  set  up  where  the  sender's  identity  is  not  passed  to  the 
recipient. Messages sent to an Internet address are stored in the recipient's mailbox on the 
mail server maintained by the access provider until the recipient reads them. 

In some  15,000 newsgroups, the content  is provided by  individuals who  send  messages 
(which  may  be  simple  text,  but  can  include  graphics  encoded  so  that  they  can  be 
transferred).  These  messages  are  not  stored  in  a  single  place,  but  copied  from  one 
newsgroup server to another. Because of the enormous storage requirements, host service 
providers  will  often  only  keep  such  messages  on  their  newsgroup  servers  for  a  limited 
period  and  may  well  not  carry  all  newsgroups.  There  are also  sites  on  the  World  Wide 
Web where archives of newsgroup contents are stored and can be searched. 

Additionally,  Internet  Relay  Chat  (IRC)  allows  direct  communication  in  real  time 
between Internet subscribers, and may be used to organise face to face  meetings  and the 
exchange  of  content.  IRC  can  now  support  low  resolution  video  technologies  such  as 
CUSeeMe. 

All of these means can be used to distribute illegal and harmful  content, and the extent to 
which they can be controlled will be pointed out in the following sections. 

3. 

ILLEGAL AND HARMFUL CONTENT ON INTERNET 

The  Internet  is  a  new  form  of  distribution  and  communication.  Like  any  other 
communication  technologies,  particularly  in the  initial  stages  of their  development,  the 
Internet  carries  an  amount  of potentially  harmful  or  illegal  contents  or  is  misused  as a 
vehicle  for  criminal  activities.  Like  any  other  communication  technology,  such  as  the 
telephone or GSM, the Internet can be used by criminals to facilitate their activities. 

All these activities fall  under the existing legal framework.  Therefore, the Internet does 
not exist in a legal vacuum, since all those involved (authors, content providers, host 
service providers  who actually store the documents and make them available,  network 
operators, access providers  and  end  users) are subject  to  the  respective laws  of  the 
Member States. 

In  terms  of  illegal  and  harmful  content,  it  is  crucial  to  differentiate  between  content 
which  is  illegal  and  other  harmful  content.  These different categories of  content pose 
radically  different  issues  of  principle,  and  call  for  very  different  legal  and 
technological responses. It would be dangerous to amalgamate separate issues such as 
children accessing pornographic content for  adults, and adults accessing pornography 
about children. Priorities should clearly be set and resources mobilised to tackle the most 
important  issues,  that  is the  fight  against  criminal  content  - such  as  clamping  down  on 
child pornography, or use of the Internet as an new technology for criminals. 

a. Illegal Content 

There  exists  a  whole  range  of  rules  which  limit  for  different  reasons  the  use  and 
distribution  of a certain  content. The infringement  of these rules  lead to the illegality  of 
the content. 

Certain  issues  do not  involve protection  of public  order, but rather the protection  of the 
rights  of  individuals  (protection  of  privacy  and  reputation)  and  of  an  environment 
allowing creation of content to flourish (intellectual property). Content such as breach of 
copyright,  libel, invasion  of privacy or unlawful  comparative  advertising  will usually  be 
dealt  with  at the  initiative  of the person whose rights  are infringed  by  a civil  action  for 
damages or an injunction,  although there may also be remedies under the criminal law or 
administrative  law  (data  protection).  Host  service  providers  may  also  be  drawn  into 
disputes  over  such  content,  because  they  may  be  accused  of  having  facilitated  its 
distribution. 

Certain content is - in addition - considered as criminal by the laws of Member States. 

10 

This  is  the  case  for  example  with  child  pornography,  trafficking  in  human  beings, 
dissemination  of racist  material  or  incitement  to racial  hatred,  terrorism  or  all  forms  of 
fraud  (e.g. credit-card  fraud). 

The  exact  definition  of  offences  varies  from  country  to  country.  Within  the  EU,  even 
child  pornography,  for  example,  where a high  degree of consensus  exists,  is covered  by 
specific  legislation  in  some  Member  States  and  by  more  general  rules  relating  to 
obscenity in others. 

Where certain acts are punishable under the criminal law of one Member State, but not in 
another  , practical difficulties  of enforcing the law may arise. 

b.  Harmful  content 

Various  types  of  material  may  offend  the  values  and  feelings  of  other  persons:  content 
expressing political opinions, religious beliefs or views on racial matters etc. 

What  is  considered  to  be  harmful  depends  on  cultural  differences.  Each  country  may 
reach  its own conclusion  in defining  the borderline  between what  is permissible  and not 
permissible.  It  is  therefore  indispensable  that  international  initiatives  take  into  account 
different  ethical  standards  in  different  countries  in  order  to  explore  appropriate  rules  to 
protect people against offensive  material whilst ensuring freedom  of expression. 

In this context it is understood that the fundamental  rights, especially the right of  freedom 
of  expression  have  to  be  fully  respected  (limitations  in  the  Member  States  see  Green 
Paper  on the  Protection  of  Minors  and  Human  Dignity  in  Audiovisual  and  Information 
Services, Annexe III) 

4. 

IDENTIFYING  AND COMBATING ILLEGAL CONTENT ON INTERNET 

It  is  a  matter  for  Member  States  to  define  what  is  illegal  by  law  and  to  enforce  it  by 
detecting  illegal activity  and punishing  offenders.  However the special  characteristics  of 
the Internet mean that law-enforcement  is more complicated than where more traditional 
means are used. 

6 

See  Green  Paper  on  the  Protection  of  Minors  and  Human  Dignity  in  Audiovisual  and  Information 
Services 

For example publication of Mein Kampj'by Adolf Hitler or "revisionism" i.e. denying the reality of the 
Holocaust. These are forbidden  in some Member States, e.g. Germany, but not in others. 

11 

While detecting breaches of the law in public applications of Internet (World Wide Web) 
is  straightforward,  detection  is  not  easy  in  private  applications  (e-mail,  for  instance). 
Similarly, while enforcement  of the law is relatively easy within national boundaries, it is 
much more difficult  in an international context. 

a.  Technical  limits to  law-enforcement 

The technical  features  of the Internet  make certain types of control  ineffective.  Because 
of the way in which Internet messages can be re-routed, control can really only occur at 
the entry  and exit points to the Network  (the server through which the user  gains access 
or on the terminal used to read or download the information  and the server on which the 
document is published). 

Even  if a published  document  is removed  from  one server  as a result  of intervention  by 
the authorities, it can easily and quickly be copied to other servers in other jurisdictions, 
so  that  it  continues  to  be  available  unless  and  until  such  sites  are  also  blocked.  Thus 
additional international co-operation is required to avoid "safe havens "for documents 
contrary to general rules of criminal law. 

b.  The role of Internet access providers and host service providers 

Internet access providers  and  host  service providers play  a  key  role  in giving  users 
access  to  Internet  content.  It  should  not  however  be  forgotten  that  the  prime 
responsibility for  content  lies  with  authors  and  content providers.  It  is  therefore 
essential  to  identify  accurately  the  chain  of  responsibilities  in  order  to  place  the 
liability for  illegal content on those who create it. 

i)  Legal  responsibilities  of  Internet access  providers  and  host  service 

providers 

The general regime for  legal responsibility,  which could also be applicable to Internet 
access providers  and host  service  providers  for  illegal  content  (of  whatever  form,  be  it 
child pornography, copyright infringements,  fraudulent  offers,  libel etc.) takes, according 
to the circumstances a number of different  forms: under the criminal  law, under civil law 
(an  action  for  damages  for  breach  of copyright  or  libel, or a dispute  arising  under  their 
contracts  with users or with network  operators)  or under administrative  law (the  system 
of  regulation  in  place  in  the  country  where  the  access  providers  and  host  service 
providers  operate).  Although  access  providers  do  not  directly  control  the  content 
available  on the  Internet,  or  what  part  of  it their  customers  choose  to  consult,  in  some 
cases  they  have  been  investigated  by  the  authorities  because  of the  existence  of  illegal 
and  harmful  content  which  users  can  access  through  the  providers'  technical  facilities. 
The law may  need to be changed  or clarified  to assist  access providers  and host  service 

12 

providers,  whose  primary  business  is to  provide  a  service  to  customers,  to  steer  a path 
between accusations of censorship and exposure to liability. 

Where host service providers themselves provide content on the World Wide Web or on 
newsgroups, they  are of course liable for  this in the  same way as any  author  or  content 
provider.  Where the content is provided  by third  parties, host  service providers'  liability 
needs to be clear. 

o 

In  a number  of  Member  States  , legislation  has  been  adopted  or proposed  defining  the 
legal responsibilities of host service providers in such a way that they are only  liable  for 
an  item  of  content  hosted  on their  server  where  they  can  reasonably  be  expected  to  be 
aware  that  it  is prima facie  illegal  or  fail  to  take  reasonable  measures  to  remove  such 
content once the content in question has been clearly drawn to their attention. 

Some  rules  go  further  and  appear  to  require  access providers  to restrict  access  to  other 
sites which contain illegal content. 

Network operators, on the other hand, are not normally exposed to liability in criminal or 
civil  law for  the  content  carried  over their  networks, although they  may be required  by 
the terms of the relevant legislation or licenses to take steps in relation to their  customers 
(access providers) if the latter use facilities to carry illegal content. 

The degree  of  liability  for  content  such as unlawful  comparative  advertising  and  breach 
of  copyright  must  also  be  considered  in  the  light  of  the  detailed  examination  by  the 
Commission of the effects  on the internal market of the different  national rules relating in 
particular to commercial communications and copyright  . 

ii)  Self-regulation  on a national,  European and international level 

In  a  number  of Member States, Internet access providers  and host service  providers 
have already set  up systems of self-regulation. In the United Kingdom, at the initiative 
of  the  Industry,  a Code  of  Conduct  has  been  agreed.  An  independent  body,  the  Safety 
Net Foundation has been set up to provide a rating service for newsgroups and a hot-line 
to  which  members  of  the  public  can  report  content  they  consider  illegal.  Similar  steps 
have been taken in Germany and in the Netherlands  . 

Austria, Germany, France, UK.(Defamation  Bill). 

Proposal for a directive on commercial  communications, draft  communication  on the Follow-up to the 
Green Paper on Copyright and Related Rights in the Information  Society. 

10 

In  France,  a  Code  of  Conduct  has  similarly  been  proposed  in  the  Rapport  de  la  Mission 
Interministérielle sur l'Internet. Text available at  http://www.telecom.gouv.fr/english/sommaire.htm 

13 

The  Commission  welcomes  this  general  move  towards  self-regulation  and  has 
encouraged the setting-up of a  European network of associations of  Internet Access 
Providers. This  co-operation  could  further  be  extended  to the  wider  international  level. 
Facing .common problems, industry self regulating bodies could usefully  co-ordinate their 
the  highly 
approach, 
decentralised Internet environment, Internet Users have a very important role to play  in 
contributing to industry  self-regulation. 

technical  solutions.  Similarly, 

in  particular  regarding 

in 

Hi) 

Removal affiles from  the servers 

Once  a  host  service  provider  becomes  aware  of  the prima  facie  illegality  of  content 
hosted  on  his  server,  in  principle  the  legislation  in  the  Member  States  foresee  that  he 
must  clearly  take  steps  to  remove  the  content  in  question.  This  information  might  be 
received  from  the national  self-regulatory  body set up to identify  illegal  content or  from 
an  equivalent  body  in  another  country.  Since  content  can  easily  be  copied  to  other 
servers, this approach needs to be followed  by other host service providers not just in the 
country  involved,  but  world-wide.  An  international  network  of  self-regulatory  bodies 
would greatly  assist this process, although  it will no doubt take time for  such a network 
to be put into place . 

iv) 

Blocking access at the level of access providers 

If  the  illegal  content  cannot  be  removed  from  the  host  server,  for  instance  because  the 
server  is  situated  in  a  country  where  the  authorities  are  not  willing  to  co-operate,  or 
because the content  is not illegal  in that country, an alternative might be to block  access 
at the level of access providers. 

It is as yet unclear how far  it is technically  possible to block  access to content once it is 
identified  as  illegal.  This  is  a problem  which  also  affects  the  degree  of  liability  of  the 
access  providers.  The  lack  of  clarity  on the  technical  feasibility  has  not  prevented  this 
approach being implemented in certain countries because access providers are a relatively 
small and identifiable group. 

Some third  countries  have introduced  wide-ranging  legislation  to block  all direct  access 
to Internet  via access providers by introducing  a requirement  for  "proxy  servers" similar 
to  those  used  by  large  organisations  for  security  reasons,  combined  with  centralised 
blacklisting of documents, for reasons which go far beyond the limited category of illegal 
content as defined  in this communication. Such a restrictive regime is inconceivable for 

14 

Europe  as  it  would  severely  interfere  with  the freedom  of  the  individual  and  its 
political traditions. Due to Europe's complex and open communication  infrastructure  the 
practical feasibility  of such an approach also remains open to question. 

A second  approach which involves requiring  access providers to block their  subscribers' 
access  to  illegal  content  on  a  case-by-case  basis  has  been  followed  recently  by  law 
enforcement  authorities in Germany. 

In the CompuServe case the public prosecutors considered that certain items available on 
newsgroups  were  illegal,  and  requested  CompuServe"  to  block  access  to  these 
newsgroups.  Since  CompuServe's  software  did  not  initially  make  it  possible  to 
differentiate  between  German  subscribers  and  others  for  access  to  newsgroups, 
CompuServe  suspended  access to a number  of newsgroups  to  all  its  subscribers  world 
wide, which created  wide-spread protests that German  standards  of morality  were  being 
exported. Subsequently, CompuServe restored access to most of these newsgroups except 
to its German subscribers. No action was apparently taken against other access providers 
based  in  Germany,  so  their  subscribers  could  continue  to  consult  this  content,  if  the 
access provider chose to carry the newsgroup in question. 

In  a  recent  case,  the  German  public  prosecutors  threatened  to  prosecute  the  German 
Internet  access providers unless they  blocked  access to a magazine  published  on a Web 
site  on  a  server  in  the  Netherlands  which  allegedly  promoted  terrorist  violence.  Under 
protest,  the  access  providers  did  so. However, this meant blocking  access to  all  content 
on  the  Dutch  server,  including  harmless  content,  while  the  document  continues  to  be 
available to Internet users outside Germany. A number of anti-blocking tactics were also 
It is not clear whether the content is contrary to Dutch law - at 
immediately put in place. 
all events the Dutch authorities have not intervened. The Dutch host service provider has 
complained that the action of the German authorities constitutes  an interference  with the 
free movement of services within the EU. 

Upstream  blocking  of sites may therefore  present  a number of significant  shortcomings. 
It may not prevent, in particular, criminal users from  "hopping" from  one Internet mode 
to the other, i.e. from a Web page, to a Usenet newsgroup, to standard e-mail. 

11  A  large  US-based  international  commercial  online  service  provider  which  also  provides  Internet 

access, and has a substantial number of subscribers in Germany 

12  At the  latest  count,  the  document  is mirrored  on 43  WWW  sites  and  2  newsgroups  and  is  available 

from  an e-mail listserver. 

15 

This  demonstrates  that  there  is  a need for  co-operation between the  authorities and 
Internet  access providers  in  order  to  ensure that  measures are effective and  do not 
exceed what is required. 

c. 

Anonymous use of Internet 

Users of the Internet are normally identified,  by stating the author of a World Wide Web 
home page or by the  identifying  address of the page ("URL")  or in the mention of an e-
mail address for electronic mail or a newsgroup message. This is desirable in accordance 
with  the  democratic  principle  that  individuals,  while  free  to  express  their  thoughts  and 
beliefs,  should  nevertheless  be  accountable  for  their  actions.13  The  principle  of  legal 
traceability  should,  therefore,  be  incorporated  into  national  or  European  Codes  of 
Conduct for remailing activities. 

Law enforcement  authorities have expressed  concern  at various techniques  which  allow 
anonymous  use of the  Internet.  This may  facilitate  sending  illegal  content  by making  it 
difficult  or impossible to identify  the  offender. 

This  problem  does  not  concern  the  World-Wide  Web,  where  a  host  service  provider 
knows, or at least has the means of knowing, the content provider.  However  anonymity 
allows  users  to  send  electronic  mail  or  a  message  to  a  Usenet  newsgroup  without  the 
recipient  knowing  their  name  or  their  e-mail  address,  because  an  intermediary  (the 
anonymous remailer) has removed this  information 

There  are  legitimate  reasons  why  a user  might  wish  to  remain  anonymous  4  (including 
fear  of  retaliation  for  views  expressed  or  lack  of  confidence  in  the  use  to  which  his 
personal details might be put by the recipient).15 

13 

In  the  proposed  Distance  Selling  Directive  a  requirement  is  made  that  those  offering  goods  and 
services at a distance (including electronically) should identify themselves. 

Moreover, the European Convention on Human Rights contains relevant provisions affirming  the right 
to  privacy  and  to  the  secrecy  and  to  the  secrecy  of  the  correspondance.  The  same  principle  is 
enshrined  in  the  constitutions  or  in  the  constitutional  traditions  of  all  Member  States.  Subject  to 
exceptions  necesssary  in  a  democratic  society,  they  have  been  respected  in  the  postal  and 
telecommunications sector. 

In  the  decision  granting  a preliminary  injunction  against  the  US Computer  Decency  Act,  the judges 
affirmed  the importance of anonymity  on the Internet:  "Anonymity is important to Internet users who 
seek  to access sensitive information,  such as users of the Critical Path AIDS Project's  Web site, the 
users, particularly gay youth, of Queer Resources Directory,  and users of Stop Prisoner Rape (SPR)." 

See paras 29 and 30 of the UK "R-5 Safety-Net" proposals 

<http://www.ispa.org.uk> 

16 

However, the legitimate  need  for  anonymity  should  be reconciled  with  the principles  of 
legal traceability.  The recent  Safety  Net proposals16 in the United  Kingdom  address  this 
double  concern.  They  take  the  view  that  use  of truly  anonymous  accounts  is  a  danger, 
while  use  of  pseudonyms  which  are  traceable  is  not.  They  propose  measures  to  close 
known loopholes and improve traceability and that anonymous remailers record details of 
identity. These details would be subject  to data protection legislation and therefore  made 
available to the police under appropriate legal  safeguards. 

The question of legal traceability  needs work both on technical  issues and on global  co 
operation in order for measures to be  effective. 

d. 

Judicial and police co-operation at EU and international level 

As mentioned above, the definition  of offences  varies from country to country. Due to the 
international  nature  of  Internet,  even  if the  legislation  of the concerned  country  forbids 
such  contents  and  require  criminal  prosecution,  it  may  also  occur  the  author,  content 
provider,  and  the  host  service  provider,  may  all  be  beyond  the  reach  of  national  law 
enforcers.  Criminal  law  only  operates  within  national  frontiers.  In  order  to  avoid 
loopholes  for  criminal  activities,  it  would  be  therefore  important,  that  Member  States 
would define certain minimum common standards in their penal legislation. 

Furthermore,  penal  judicial  co-operation  and  police  co-operation  should  be  reinforced 
among  EU  Member  States  and  international  co-operation  with  our  main  third  country 
partners  should  be  envisaged,  for  instance  on  the  basis  of  conventions  or  new 
international legal instruments. 

In  this  context  it  would  be  useful  to  extend  the  co-operation  also  to  the  prevention  of 
criminal practices using the Internet as a new vehicle for their activities. 

Technical  expert  sand criminal  law experts  could also meet in order to  look  at the  most 
appropriate  ways to reach  some common penal  standards. An improved  co-operation  at 
EU  level  between  industry  and  law  enforcement  authorities  should  equally  be 
encouraged. 

The agreement  by  Justice  and  Home Affairs  ministers  in Dublin  to reinforce  police  co 
operation,  within  the  framework  of  EUROPOL,  against  paedophilia  and  trafficking  in 
children  and  women,  and  to  endeavour  to  set  common  minimum  standards  for  the  law 

"R3 Safety-Net: Rating, Reporting, Responsibility  For Child Pornography and Illegal  Material on 

the Internet", September  1996 

17 

against  sexual  abuse  of  minors,  should  be  seen  as  an  encouraging  first  step  in  this 
direction. 

Similarly,  the  declaration  of  the  World  Congress  Against  the  Sexual  Exploitation  of 
Children recently held in Stockholm should form a basis for common action. 

5.  DEALING WITH HARMFUL CONTENT ON INTERNET 

The main weapon for dealing with harmful  content is in ensuring that practical means are 
available to limit access by the vulnerable to such content. 

a. The principle of freedom of expression. 

The European Convention on Human Rights, signed by all Member States and part of 
the general principles  of  Community  law, contains relevant provisions  affirming the 
right to freedom  of expression. These rights can be subject to some conditions, are not 
absolute and are subject to important qualifications, for instance permitting licensing of 
broadcasting,  television  or  cinema  enterprises.  The  same  principle  is  enshrined  in  the 
constitutions or the constitutional tradition of all Member States. 

The borderline between what is protected by free  speech and what can be restricted may 
not be easy to draw by the Member States. 

the  provisions  of  the 
In  France,  the  Constitutional  Council  recently  annulled 
Telecommunications  Law  which  set  out  the  conditions  under  which  access  providers 
(including  Internet  access  providers)  were to be  free  of criminal  liability  for  content  to 
which they gave access. The law gave power to the Conseil  Supérieur de la Télématique 
to make recommendations  on what types of content was permissible. The Constitutional 
Council  took  the  view  that  this  provision  needed  to  be  drafted  more  carefully,  since 
17 
questions of individual liberty were involved. 

One general conclusion is that any regulatory action intended to protect minors should 
not take the form  of an unconditional prohibition of  using the Internet to distribute 
certain  content  that  is  available freely  in  other  media.  Another  conclusion  is  that 

Le  Conseil  Constitutionnel  a  décidé  de  supprimer  les  articles  43-2  et  43-3  de  la  loi  sur  la 
réglementation  des  télécommunications  au  motif  «que  la  loi  a  confié  au  Conseil Supérieur  de  la 
Télématique le soin  d'élaborer et  de proposer  à  l'adoption du  Conseil Supérieur de l'Audiovisuel, 
auprès duquel il est placé, des recommandations propres à assurer le respect par  certains services de 
communication de règles déontologiques,  sans fixer  à la détermination de ces recommandations, au 
regard desquelles des  avis susceptibles d'avoir des  incidences pénales pourront  être  émis, d'autres 
limites que celles, de caractère très général,  résultant de l'article 1 de la loi susvisée du 30 septembre 
1986». 

18 

existing  rules  on  content  regulation  need  to  be  examined  to  see  whether  they  can  be 
applied  by  analogy,  and  that  the  most  restrictive  rules  should  not  be  applied  simply 
because of Internet's wide potential reach. 

Reflecting  similar concerns elsewhere in the World, in the United  States, a District Court 
ruled the key provisions of the Communications  Decency Act intended to protect minors 
to be unconstitutional, relying on the principle of free  speech in the First Amendment to 
the  US  Constitution.  The  Act  was  held  to  have  been  drafted  too  widely,  because 
although  it  was  legitimate  to  protect  minors,  host  service  providers  could  not  identify 
whether  a  user  was  a  minor,  so  that  in  practice  "adult"  content  could  not  safely  be 
published at all, thus interfering with constitutionally protected free speech. 

b. The legal framework of the Internal Market 

As the circulation  of information  on networks  covering  more than one country  is cross-
border by  nature,  it  is governed by  the  legal framework  of  the Internal Market  and 
competition rules. In particular, it is protected by the principle of the free  provision of 
services. National  authorities  can  take  measures  limiting  this  fundamental  freedom  for 
example  for  the  protection  of  minors,  but  only  if  the  measure  is  proportional.  In  other 
words,  the  measure  must  be  appropriate  to  achieve  the  pursued  objective  and  may  not 
exceed what is necessary to achieve this aim. 

In this perspective, the Commission has recently  adopted  a proposal  for  a Directive on 
the  establishment  of  an  information  and  a  co-operation  procedure  between  Member 
States  and  the  Commission  on new  regulatory  issues  concerning  Information  Services. 
By  providing  regulatory  transparency  and  preventing  a re-fragmentation  of the  Internal 
Market, this proposal aims to ensure a more effective  protection of the general interest in 
this  field,  and  a  more  focused  reply  to  emerging  regulatory  needs.  In  addition,  the 
proposed  administrative  co-operation  system  between  the  Member  States  and  the 
Commission  would  enable  the European  Union to  deliver  a more  coherent  message  on 
these issues on the international  level. 

c. Parental control software: empowering parents to protect minors 

Fortunately,  technical  means  exist  which will  allow  differences  in moral  standards, not 
only between national  legal  systems but also between the subjective judgments of users, 

US  District  Court  for  Eastern  Pennsylvania  ACLU  v.  Reno,  11  June  1996.  Full  text  available  at 
<http://aclu.org/> 

19 

COM(96) 392 final,  30.8.1996 

19 

to be taken into account. This will allow the aims of free flow of information  and respect 
for individual preferences to be pursued simultaneously. 

In response to public demands, a number of technologies have been developed over the 
past  two years  to enable parents to control Internet content coming into their homes. 
Contrasting  with  "upstream  censorship"  by  official  agencies  (preventing  illegal  content 
from  being published  at  all),  filtering  provides  for  "downstream  control"  by  parents 
(preventing  harmful  content from  reaching minors). The filtering model - which  stresses 
parental responsibility rather than government intervention  - is strongly  advocated  by 
the industry and by civil liberties groups as the most effective  way of solving the  specific 
challenges of the Internet and of taking into account the differences  in standards of taste 
and decency between countries, communities and families.  It is a pragmatic, not a legal, 
response  to  the  presence  of  harmful  content  on the  Internet  - although  the  provision  of 
filtering devices  could  have  in  some  cases  a  legal  impact  (exoneration  of  liability  for 
access providers who offer  such devices). 

Useful  as a "line of defence"  at the end-user  level, filtering software  can also be applied 
at  various  stages  in the  transmission  process,  for  example  by  host  service  providers  or 
access providers. 

Filtering software  follows three main models:  "blacklisting" (where access to listed sites 
is  blocked),  "whitelisting"  (where  access  is  only  possible  to  listed  sites)  and  "neutral 
labelling"  (where sites are labelled or rated, but it is up to the user to decide how to use 
the label or rating). 

"Blacklisting"  technique  has  been  widely  used  in  the  first  generation  of  standalone 
filtering packages such as Cyber Patrol. Introduced  in August  1995, Cyber  Patrol  works 
with both direct Internet access providers and commercial online services. Its CyberNOT 
list  contains  approximately  7000  sites  in  twelve  categories  (violence/profanity,  nudity, 
sexual  acts,  gross  depictions, 
satanic/cult,  drugs, 
racism/ethnic 
militant/extremist,  gambling,  questionable/illegal,  alcohol/tobacco).  Parents  can 
selectively  block  access  to  any  or  all  twelve  categories  by  checking  boxes  in  the 
programme manager. 

impropriety, 

"Whitelisting"  works  on  the  reverse  principle.  "Whitelisting"  software  blocks  out  all 
Internet  content,  except  expressly  authorised  sites  on  a  "whitelist".  This  technique  is 
highly  limitative, and runs contrary  to the  logic of the  Internet.  It is however  very  safe, 
and has been used, in particular in the school environment. 

"Neutral labelling" Contrasting with early standalone filtering  software,  a new industry 
wide  standard, the Platform  for  Internet  Content  Selection  (PICS) has recently  emerged 

20 

to provide a standard  infrastructure  for  "neutral  labelling" and filtering Internet  content. 
Separating the two functions  of rating of sites and filtering of sites, and allowing a high 
degree  of  flexibility  and  security,  PICS  is  undoubtedly  the  most  comprehensive  and 
innovative solution yet to tackle Internet contents issues. 

Inappropriate material 

Content selection 
software 

Appropriate material 

Figure  T.  selection software  automatically blocks access to  some  documents,  but not 
others. 

d. PICS: a global industry standard 

The Platform for  Internet Content Selection (PICS) which was officially launched in 
May by the  World Wide Web Consortium  , is an industry-wide attempt to establish a 
global  standard.  Offering  "Internet  access  control  without  censorship",  PICS  is 
supported  by a wide coalition of hardware and software  manufacturers,  access providers 
and online commercial  services, publishers and content providers. It is now included as a 
standard  feature  in the latest  generation of Internet browsers  such as Microsoft  Explorer 
3.0 and Netscape 3.0, and is also supported by a number of filtering packages. 

In contrast with the first generation  of filtering software  which relied  on key words and 
"black lists",  PICS  works  on  the principle  of  "neutral  labelling" and filtering  of  all 

20 

21 

These graphics, provided by Netscape are published on the WWW Consortium  pages refering to PICS. 
This site provides extensive techical specification  on the PICS standard. 
(http://www.w3 .org/pub/www/PICS) 

The  W3C  is  an  industry  consortium  which  seeks to promote  standards  for  the  evolution  of the  Web 
and interoperability between  WWW products by producing specifications  and reference  software.  The 
Consortium  is international; jointly hosted by the MIT Laboratory for Computer Science in the United 
States  and  in  Europe  by  INRIA  who  provide  both  local  support  and  performing  core  development. 
The W3C was  initially  established  in collaboration  with  CERN, where the  Web originated,  and with 
support from  DARPA and the European  Commission. 

21 

types of sites with an Internet  "address"  (URL)  (Web pages, FTP, Usenet newsgroups). 
PICS  effectively  "tags"  sites  with  "value-neutral  labels".  These  labels  can  support 
different  types  of  information:  ratings  (for  instance, evaluating  language, nudity,  sexual 
content,  violence),  or  pointers  (identifying  contents  according  to  their  relevance  or 
interest  for various constituencies of users). To be viewed, the site must (1) carry a PICS 
label, (2) be within the parameters  set by parents on the home computer.  Ratings can be 
established  by content providers themselves  (such as entertainment  companies  operating 
family-oriented  web  sites)  or  by  third  parties  (such  as  religious  groups  or  parents' 
associations). Each family  decides which ratings systems it wishes to use and then, using 
the parameters, what is acceptable and what is not. 

These ratings can be distributed  and upgraded  via a number of channels, online or off  line 
(diskettes, CD ROMS). 

Parents and educators can restrict access to sites that (1) carry a PICS label, (2) match the 
parameters  set  by  the  parents  on  the  home  computer.  For  the  Recreational  Software 
Advisory Council (RSAC), which provides the ratings for video games and Web content, 
parameters  can  be  set  by  parents  using  cursors  with  values  from  0 to 4 on  four  sets  of 
criteria  (language,  nudity,  sexual  content,  violence).  Each  family  decides,  using  these 
parameters, what is acceptable and what is not. 

Unlike the V-chip for television (which relies on hardware to provide blanket blocking of 
programmes),  or  most  existing 
(which  block 
standalone 
indiscriminately  through  key  words), PICS-compatible applications therefore provide 
an effective technology for  the indexing and screening of content - and a flexible and 
inexpensive solution  to  the  differences of sensibilities  between various families  and 
cultures. Although the Internet may have created new risks, these techniques also offer 
new opportunities not available for other means of content delivery. 

software  packages 

Content 

Parent selects 
rating method 

Chid using 
Internet 

label reading software 

| 

- 

^^K*mm^Mimiim:irt-'^">^,m^ 

22 

Figure 2:  selection software  blocks based on labels provided  by publishers  and third-
party labelling services, and on selection criteria set by the parent. 

Work on labelling and rating systems in the computer environment is also showing great 
promise  in other  digital  applications  particularly  in the field of digital  television.  These 
important developments  are covered in the Green Paper on the Protection of Minors and 
Human Dignity in Audiovisual and Information  Services. 

e. The extent to which filtering can be used 

Since  the  early  prototypes  based  on  key  words  -  which  did  not  discriminate  between 
pornographic  and  medical  sites  -  filtering  software  has  improved  considerably. 
However,  although  parental  control  software  can  now  efficiently  screen  for  suggestive 
words or for known sites, it cannot at this stage screen for explicit images unaccompanied 
by  suggestive  text,  unless  those  who  configure  the  software  are  aware  of the  particular 
site. Of course rating agencies can label sites on the basis of visual content, thus bringing 
them within the scope of PICS filtering. 

Similarly,  the  opponents  of  filtering  approach  underline  two  main  risks:  that  existing 
unacceptable  content  on  the  Internet  could  be  always  be  accessed  from  an  unprotected 
computer;  and  that  in  most  homes  computer-aware  children  may  always  disable  their 
parents'  best  efforts.  This  concern  has  been  addressed  by  PICS,  which  claim  that  the 
system is  tamper-proof. 

However, despite some  limitations, currently  available  user-based  software  suggests  that 
an  effective  method  of  empowering  parents  and  protecting  their  children  from 
inappropriate content is already widely and cheaply available. 

f. European  rating  systems 

In order to ensure that users have access to rating  systems suitable to their needs, and in 
order to avoid a situation whereby they have to rely on rating  systems developed  for  the 
US  where  there  may  be  a  different  approach  on  what  is  suitable  content  for  minors, 
encouragement should  be given to setting up European rating systems. This should not 
however  be a single  monolithic  system,  since this would  run counter to the principle  of 
subsidiarity  and  be  seen  as  an  attempt  to  impose  moral  uniformity.  Rather,  European 
content providers, as well as European  rating agencies, should  be actively encouraged 
to set up their own rating systems. In any case, it should be ensured that rating, listing or 
self-control  systems  are  based  on  open  standards  developed  on  a  European  or 
international basis rather than proprietary standards. 

23 

In  parallel,  development  of  European  filtering  and  tracking  software  (in  order  to  trace 
where illegal content comes from)  should be encouraged in the framework  of Community 
R&D programmes. 

Reporting  mechanisms  ("hot  lines")  should  be  established,  to  encourage  the  public  in 
detecting  and  reporting  illegal  and  harmful  sites.  In the  US, voluntary  watchgroups  are 
already playing a useful  part in the updating of lists and verification  of ratings. 

g. Educating the public 

Neither the strict application of laws, nor blind reliance on technology  will entirely  solve 
the  issue  of  illegal  and  harmful  content  on  the  Internet.  Public  education  will  play  a 
crucial  role.  Awareness  activities  should  therefore  be  encouraged  so  that  users 
understand the  opportunities  as  well  as  the  drawbacks of  the  Internet.  Parents  and 
educators,  in  particular,  should  be  sufficiently  informed  so  as  to  be  able  to  take  full 
advantage of parental control software  and rating systems. 

6.  POLICY  OPTIONS/CONCLUSIONS 

The  Commission  considers  that  the  following  actions  to  reduce  the  flow  of  illegal  and 
harmful  content on the Internet should be taken. They aim to enhance the benefits  which 
Citizens of the European Union will obtain from increased access to information  through 
Internet and should be adopted  - according their respective nature - under the provisions 
of  the  EC  Treaty  (free  movement  of  services)  or  within  the  framework  of  Justice  and 
Home Affairs. 

This  is  a first  set  of  measures for  immediate action.  They  do  not  prejudice  further 
proposals  as  a  result  of  discussions  initiated  by  the  Green  Paper  on  the  Protection  of 
Minors and Human Dignity in Audiovisual and Information Services. 

1. Illegal content 

a). Co-operation between Member States 

Co-operation  between  Member States is vital to combat the sources from  where criminal 
content comes and in restricting distribution of copies. 

There is a need to reinforce  co-operation  in the context of Justice and Home Affairs  with 

a view to: 

•  exchange information on those providing  criminal  content and enforce  existing  laws 

relating to criminal material 

24 

•  encourage  Member  States  to  define  minimum  European  standards  on  criminal 

content. 

b) Liability of access providers and host service providers 

The  need  for  a  common  European  framework  to  clarify  the  administrative  rules  and 
regulations  which  apply  to  access  providers  and  host  service  providers  should  be 
assessed. 

c. Encourage self-regulation 

The  Commission  will  continue  to  encourage  co-operation  between  associations  of 
Internet access providers to help the process of self-regulation. This process  should  be 
put in motion  in those  Member States where it has not yet started. The Commission  will 
encourage discussion and  research into technical issues concerning  access  providers' 
and host service providers' role in limiting distribution of illegal content. 

2. Harmful  content 

Community action to support use of filtering software and rating systems 

•  A  Council  recommendation  could  be  envisaged  setting  out  a clear  political  message 
encouraging  the  use  of filtering  software  such  as  PICS,  and  for  one  or  more 
European  rating  systems.  The  Commission  has  already  called  upon  the  industry  to 
form a common platform  enabling the use of filtering  systems Community-wide. 

•  European  content producers  should  be  encouraged  to  co-operate  in  this  system  by 
adopting their own Code of Conduct for  content published on the Internet, including 
systematic self-rating  of content. 

•  A  Commission  initiative  will  support  national awareness actions for  parents  and 

teachers 

3. International issues 

a) An International Conference 

At  the  Industry  Council  of  8  October  1996,  the  invitation  by  Germany  to  host  an 
International  Conference  was  accepted.  This  will  involve  representatives  of  law-
enforcement  authorities,  together  with  representatives  of  access  providers,  host  service 
providers and users. It will concentrate on: 

•  feasibility  of  immediate  measures  including  a framework  for  international  co 

operation, using the existing legal  framework 

25 

•  discussion on the possibility  of an international convention on illegal and harmful 

content.. 

b) Extension of the dialogue 

Since  this  dialogue  must  include  the  largest  number  of  countries  possible,  it  could  be 
extended  to  a  body  with  a  larger  membership  such  as  the  OECD,  the  World  Trade 
Organisation, the United Nations, or one of the more specialised United Nations bodies. 

4. Support actions 

a) Transparency mechanism 

Regulatory  issues  should  be  examined  at  Community  level  in  a  systematic  and 
transparent manner, so as to elaborate coherent and effective  legal solutions. 

b) Information Web site 

A  site  will  be  set  up  on  the  World  Wide  Web  (hosted  by  a  Commission  server) 
containing  original  content  and  links  to  appropriate  pages  on other  sites.  This  Web site 
will be part of a comprehensive set of Web pages dedicated to broad range of  information 
and  related  topics,  which  will  be  established  in  the  framework  of  the  action  plan 
Learning in the Information Society recently adopted by the Commission. 

The  type  of  content  available  could  include  a)  information  and  guidance  for  parents, 
teachers and  children  b) parental  control  software  c) information  on activities of  official 
bodies  (EU  institutions,  Member  States, third  countries,  international  organisations  and 
non-governmental organisations). 

26 

ISSN 0254-1475 

COM(96) 487 final 

DOCUMENTS 

EN 

IS  16  06 

Catalogue number  : CB-CO-96-517-EN-C 

ISBN 92-78-10301-2 

Office for Official Publications of the European Communities 

L-2985 Luxembourg