Source: EURLEX
Language: en
Format: md

**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** **1**

**SUMMARY** **3**

**CHAPTER I** The protection of minors and human dignity:

Context and issues 6

1. The protection of minors and human dignity 6
2. The changing context 7
3. The extent of the problem by type of services 10

**CHAPTER II** Rules and enforcement measures applicable

to protection of minors and human dignity 12

1. Common general principles 12
2. The rules and resources deployed in the national context 13

2.1. Protection of human dignity 13
2.2. The protection of minors 15
2.3 Media education 20

**CHAPTER** **m** The European Union context 21

1. Principle of free movement of services 21
2. Cooperation in the field of justice and home affairs 22
3. Priority lines for cooperation in the European Union 23

**CONCLUSION** **25**

**ANNEXES**

_**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
incidentally with related public interest issues. For example, the Commission

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.).

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_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.

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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.**_

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See Communication on Harmful and Illegal Content on the Internet.

**A network of**
**networks connecting**

**together** **a** **vaste**
**number of computers**
**worldwide** _**y**_

**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**_ _**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.**_

_**2**_ _**What measures are needed to promote**_ _**transparency**_ _**in the provision of**_
_**services, particularly in framework of**_ _**contractual**_ _**relations between service**_
_**providers and**_ _**material**_ _**providers?**_

_**3**_ _**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**_ _**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?**_

_**7**_ _**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 Society [4] 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-videoon-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](mailto:gregory-paulger@dglO.cec.be)**

**26**

ANNEXES

#### **3}**

**ANNEX I**

**PREPARATORY WORK**

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
States [2] **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 Questionnaire sent to the Member States in October 1995.
2 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-tomultipoint 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

Terminal: TV

+ set-top box

Terminal: TV

_+_ set-top box

Terminal: PC

+ modem

Intermediaries Infrastructure and

networks

Proprietary
broad-band

network

Proprietary
network

**30**

Multimedia services

and material

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)

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)

Internet
(open
architecture)

Terminal: PC

+ modem

**31**

**ANNEX III**

**RULES APPLICABLE TO PROTECTION OF MINORS AND HUMAN**

**DIGNITY**

**I.** **GENERAL PRINCIPLES**

**1.** **Principle of freedom of expression**

Article 10 of the European Convention on Human Rights reads:

"i. _Everyone has the_ _right_ _to freedom of_ _expression._ _This_ _right_ _shall_ _include_
_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._ _The exercise of these freedoms, since it carries with it duties and_
_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 in Rome on_
_4_ _November 1950_ _and_ _as they_ _result from the_ _constitutional traditions common_ _to_
_the Member_ _State,_ _as_ _general principles_ _of_ _Community_ _law_ _";_

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**_

Source ot _national_

provisions

Constitution - Article 13

Spoken or written, print or
pictorial representation

Media/types ol expression

covered

Limits to right

Austria Constitution - Article 13 Spoken or written, print or _Ex post_ legal control

Belgium Constitution - Article 19
(& Article 25 for press)

_Ex post_ legal control

_Ex post_ legal control

_Ex post_ legal control; prior control is

All expression and all

media

All media

All media

Denmark

Finland

Constitution - Section _77_

Constitution - Article 2

Section 10

Section 10 allowed where the protection of

children is imperative
Declaration ot the Rights All media Depends on the particular medium - its
of Man (constitutional technical restraints and "influence"
text) - Article 11

Constitution - Article 5 in

All media

Germany" Constitution - Article 5 Speech, writing and
pictures

Germany" Constitution - Article 5 Speech, writing and _Ex post_ legal controls, in particular laws
pictures aimed at protection of youth and

personal dignity
Constitution - Article 14 TÏÏ e press _Ex post_ control ot material that either
insults Christianity or other known
religions, insults the President,
compromises national security or which
is obscene

Ireland Constitution 

e press

Constitution 
Article 40.6.1

Expression ot convictions
and opinions

Restrictions are allowed to protect
public order or morality (blasphemy,
indecency) and the authority of the

All media Restrictions based on public morality
grounds

Oral expression and the _Ex post_ legal control

Italy

Luxembourg

Netherlands

Constitution - Article 21

Section 1

Constitution - Article 7 Press and broadcasting, and
other media to a somewhat

lesser extent

Constitution - Article 24 Oral expression and the
press, though interpreted
more widely

_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

Portugal Constitution - Article 16 All expression
Spa Constitution - Article 20 Thoughts, ideas and

opinions thrqugh any

medium

RF - general; IF - press;
YGL - film and television,
possibly online media

Sweden

Tjr

Constitution - RF

Section 1; TF Chapter 1
Section 1; YGL
Chapter 1 Section 1

Source: Hydra

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 whole [3] 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:

"7. _Eveiyone_ _shall have the right to hold opinions without_ _interference._
_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)_ _for respect of the rights or reputations of others;_
_(b)_ _for the protection of_ _national_ _security or of public order_ (ordre publique),
_or of public health or_ _morals"_

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:

"7. _Everyone has the right to respect for his private and family life, his home_
_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**

UK

O

M

DK D

H

E EIR

0

M

F GR

0

M

I

0

M

Country

Absolute
prohibition of a
general category
of material

A

**0**

B

**0**

**M**

L

0

NL P S SF

0

**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**

DK

**X**

D

X

E EIR

X

F

X

NL P

X

GR I L

X

B

**X**

S

X

Country

Hatred,

discrimination,

violence

A

**X**

SF

X

UK

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 required [4] ;

**Child pornography**

GR

G

L

G

NL

s

P

G

I

G

SF

G

UK

S

DK

s

D

s

F

G

S

S

Country

Child

pornography
prohibited

A

s

B

s

E

s

EIR

G

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 pornography [5] 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 different [8] 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 minors [10 ]

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 United Kingdom broadcasting monitoring organization (with the exception of the BBC).
**13** 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**

broadcasting [14] 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;_
_(b)_ _during the previous 12 months, the broadcaster has infringed the same_
_provisions on at least two prior occasions"._

In such an event, a specific procedure exists whereby an attempt is made to arrive at an
amicable agreement before the suspension of retransmission is authorized under
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

**ANNEX IV**

**TECHNICAL AND OTHER NON-REGULATORY PROTECTION MEASURES**

**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" chip [1] ;
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
anti-violence chip as no more than a gizmo which would be useless if the
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 EACEM [3] 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 that the imposition of one particular 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.

**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 investment and must be distinguished from the
straightforward provision of access.

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**_

**Cyber** _**L'YEERSme**_ _**Interna**_ _**Utter***_ _**Net**_ _**Nanny**_ _**NetShepherd**_ _**Parental Guidance**_ _**SNAG**_

**Patrol"**

**Surfwatch**

**Price** **TBB"** **T55W** **"TPRTW** **539.95** **M5.M**

**Blocking** **by"**

site

y «

**yes**

**twice-monthly**

**free**

**yes** **yes**

**Blacklist** **weekly** **dBfy**

**update**

**frequency**
**Update cost** **139,»** **p.»-**

**(first six**

**months free)**

**monthly**

**$5.95** **per month**

**PICS.** **RSACi**

**Ratings** **"~**

**compliant****

**Update cost**

**PICS,**

**SafeSurf,**

**RSACi**

**VCR,** **HI'S.**

**SafeSurf.**

**RSACi**

**•PrCSTSiTSSuTT** **Net Shepherd** **McKinley (Jroup**

**Global Ratings**
**Bureau,** **PICS**

**$5.95** **per annum**

**for NSGRB**

**PlCS-based** **keyword (no**

**automatic**

**blocking)**

**keywords""?"**

**file types**

**keyword** **keyword or** **file**

**type**

**Filtering** **keywords""?"** **keyword** **keyword or** **file** **PlCS-based** **keyword (no** **keyword**
**options** **file types** **type** **automatic**

**List/filter**

**Editing**

**Usage**

**monitor**

**yes** yes

- - more limited but free versions of the software are avai able.

Source: Hydra

**yes** **yes** **yes** **yes**

yes

**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

information must be supplied on the material in question
(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.

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 nonproprietary 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**