Source: EURLEX
Language: en
Format: md

**COMMISSION OF THE EUROPEAN COMMUNITIES**

**Brussels,** **16.10.1996**
COM(96) 487 Final

**COMMUNICATION FROM THE COMMISSION**

**TO THE COUNCIL, THE EUROPEAN PARLIAMENT,**

**THE ECONOMIC** **AND** **SOCIAL COMMITTEE**

**AND THE COMMITTEE** **OF** **THE REGIONS**

## Illegal and harmful content on the Internet

**TABLE OF CONTENTS**

INTRODUCTION 3

1. THE OPPORTUNITIES OF THE INTERNET... 5

2. HOW DOES THE INTERNET WORK? 7

3. WHAT CONSTITUTES ILLEGAL AND HARMFUL CONTENT? 9

4. IDENTIFYING AND COMBATING ILLEGAL CONTENT ON THE

INTERNET 11

5. DEALING WITH HARMFUL CONTENT ON THE INTERNET 16

6. POLICY OPTIONS/CONCLUSIONS 23

**INTRODUCTION**

The symbol of the convergence between telecommunications, computer and content

industries, and one of its main drivers, the Internet has established itself as one of the

_**main building blocks of the Global Information Infrastructure**_ **and as an** _**essential**_

_**enabler of the Information Society in Europe.**_ Characterised by a growth rate

unprecedented in the history of communication technologies, the Internet now reaches

some 60 million users in 160 countries, doubling each year. Its most popular application,

the World-Wide-Web, based on protocols developed in Europe, is fast becoming a

standard vehicle for information publication and electronic commerce, with an estimated

10 million sites world-wide in 1995, up 1600% over the previous year. Driven by its

meteoric growth, and its rapid evolution from a government/academic network to a

broad-based communication and trading platform, the Internet is currently

revolutionising a number of _**economic**_ _sectors,_ with the emergence of a _**vibrant and**_ _fast-_

_**growing**_ _**"Internet**_ _**Economy".**_ Simultaneously, the Internet has also become _&_ _**powerful**_

_**influence in the**_ _**social,**_ _**educational and cultural**_ _**fields**_ - empowering citizens and

educators, lowering the barriers to the creation and distribution of content, offering

universal access to ever richer sources of digital information.

Reflecting these opportunities, the vast majority of Internet content is for purposes of

information for totally legitimate (and often highly productive) business or private usage.

However, like any other communication technologies, particularly in the initial stages of

their development, the Internet carries an amount of potentially harmful or illegal

contents or can be misused as a vehicle for criminal activities. Although statistically a

limited phenomenon, a wide range of distinct areas are concerned. These are covered by

different legal regimes and instruments at the national and international level, e.g.:

- _national security_ (instructions on bomb-making, illegal drug production, terrorist

activities);

- _protection of minors_ (abusive forms of marketing, violence, pornography);

- _protection of human dignity_ (incitement to racial hatred or racial discrimination);

- _economic_ _security_ (fraud, instructions on pirating credit cards);

- _information_ _security_ (malicious hacking);

- _protection of privacy_ (unauthorised communication of personal data, electronic

harassment);

- _protection of reputation_ (libel, unlawful comparative advertising);

- _intellectual property_ (unauthorised distribution of copyrighted works, e.g. software or

music)

While the benefits of the Internet far outweigh its negative aspects, these aspects cannot

be ignored. They are pressing issues of public, political, commercial and legal interest.

Reflecting these concerns, recent political discussions in the European Union have

stressed the need for urgent action and concrete solutions.

Therefore, most recently, on 27 September 1996 the Telecommunications Council

adopted a resolution on preventing the dissemination of illegal content on the Internet, in

particular child pornography. The Council took note that the Commission would publish

a Communication on this issue, and welcomed that initiative. Stressing the need for rapid

response, the Council urged the Commission to carry its ongoing work and to present

practical measures in time for the next Telecommunications Council on 28 November

1996.

The Commission is fully aware of the importance of these issues, and of the need to

strike the _**right balance between ensuring the free flow of information and**_

_**guaranteeing protection of**_ _**the**_ _**public interest**_ so as to meet justified concerns.

Already, at the informal Council meeting held in Bologna on 24 April 1996, European

Telecommunications and Culture ministers had identified the issue of illegal and harmful

content on the Internet as an urgent priority. It was considered that, while existing

national laws apply to the Internet, agreement should be reached in a wider context to

address the specific challenges raised by this "network of networks". The Commission

was therefore requested to produce a summary of problems posed by the rapid

development of Internet, and to assess, in particular, the desirability of European or

international regulation.

As regards the distribution of _**illegal content**_ on the Internet, it is clearly the

_**responsibility of Member States to ensure the application of existing laws. What is**_

_**illegal**_ _**offline**_ _**remains**_ _**illegal**_ _**online,**_ and it is up to Member States to enforce these laws.

Nevertheless, given the highly decentralised and transnational nature of the Internet,

concrete measures to reinforce co-operation between Member States should be launched

in the context of Justice and Home Affairs.

At another level, the presence of illegal and harmful content on the Internet has _**direct**_

_**repercussions on the workings of the Internal Market.**_ **In** particular, **the** adoption by

Member States of regulations of new Internet services intended to protect the public

interest may also create risks of distortions of competition (for example, through widely

divergent responses to the question of potential liability of Internet service providers),

hamper the free circulation of these services, and lead to a re-fragmentation of the

Internal Market. If unsolved, such problems may justify Community intervention. Like in

any new and fast-growing industry, legal and regulatory certainty is the _conditio sine qua_

_non_ to foster investments, guarantee the development of a competitive Internet services

sector, and ensure the growth of a wider Internet-based economy in Europe.

It is widely recognised that the international nature of the Internet and its unique

characteristics (extremely decentralised structure, resistance to tampering, high degree of

automation, global reach, wide usage) clearly pose novel, and specific, problems. These

problems need innovative, and specific, solutions which should be put in place rapidly,

anda co-ordinated response at EU and international level.

Complementary to the present initiative, issues of protection of minors _stricto sensu_ 
themselves a subset of wider issues of illegal and harmful content - will be addressed in

the _Green Paper on the Protection of_ _Minors_ _and Human Dignity in Audiovisual and_

_Information_ _Services._ That Green Paper takes a horizontal approach, and will initiate a

long term reflection on this issue across all electronic media.

This Communication assesses the opportunities offered by the Internet, identifies

different variations of illegal and harmful content, describes the technical environment of

the Internet and gives policy options for immediate action on a technology and/or legal

base to fight against such content on the Internet.

#### **`1. THE OPPORTUNITIES OF THE INTERNET`**

_**The**_ _**potential of**_ _**the**_ _**Internet to inform, educate, entertain and conduct business on a**_

_global scale is considerable._ At a relatively modest cost, vast quantities of information

can be sent around the world in new multi-media communications. A number of

countries in the world, and in particular in the European Union, have already seized on

these radical new opportunities.

In _social terms,_ the Internet represents significant potential benefits. It offers

unprecedented opportunities for empowering citizens, and for connecting them to ever

richer sources of digital information. The Internet has been used by great effect in a

number of Member States to connect administrations and citizens. Lowering the barriers

of entry to the dissemination of information on the local, as well as on the global scale,

the Internet allows individuals or associations to publish information about their activities

to a wide audience at modest cost. In the _field of culture,_ the Internet already contributes

significantly to the creation and dissemination of European digital multimedia content,

fostering linguistic diversity, and the _rayonnement_ of European cultures in the world. As

exemplified by a number of innovative projects linking _libraries, schools and_

_universities_ in Europe, the Internet is similarly the key to a _new_ _"electronic_ _literacy",_

and, as such, the cornerstone of the new and far-reaching European Union initiative, the

Action Plan _**"Learning**_ _**in the**_ _**Information**_ _**Society**_ _**".**_

Currently revolutionising _**electronic commerce,**_ the "network of networks" is likely to

play a _**crucial**_ _**role**_ _**for the**_ _**European**_ _**economy.**_ This is directly linked to the liberalisation

of Europe's telecommunications market, which should translate into lower operating
costs for Internet users and service providers [1] . As the US market already demonstrates,
the Internet is _**directly**_ _**fostering a new and fast-growing Internet**_ _**economy**_ _**[2]**_ _**,**_ creating

new categories of businesses and new jobs (Internet infrastructure and software, Internet

access providers, consumer and business content distribution, online retail and financial

services). Beyond this "core Internet economy" of businesses which create revenues

directly from the Internet, the Internet is having an _**indirect impact on a much wider**_
_**"Internet**_ _**sphere of**_ _**influence'**_ _**[9]**_ _**.**_ The Internet is thus radically transforming a number of

existing economic sectors (travel services, insurance, direct retailing, electronic

publishing), creating new markets, reducing costs and improving customer service. It is,

in particular, generating _new_ _**opportunities**_ _**for European SMEs,**_ a growing number of

which are now eagerly capitalising on unprecedented access to global markets offered by

the World Wide Web. Similarly, large economic sectors, such as the direct marketing
industry in Europe (which represented a total income of ECU 37 billion in 1994 [3] ), and in

particular the traditional catalogue business, are actively integrating the Internet in their

marketing and fulfilment strategies, and planning gradually to migrate a substantial part

of their activities to the Internet.

In the field of _**advertising and**_ _**marketing,**_ the Internet presents a number of significant

and well documented advantages. Because of its interactive nature, and the immediacy

and ease of communication, advertising messages can be targeted at audiences much

more precisely than has been possible until now, and feedback obtained from current or

potential customers. Similarly, when used for executing transactions or even delivering

content on line, the Internet offers considerable cost savings for both businesses and

customers.

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

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

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

Enlarging the scope ol _**electronic**_ _**commerce**_ to the general public on global markets, the

Internet is, at the same time, bringing radical changes in business-to-business

transactions, as companies migrate from proprietary networks and closed protocols (such

as traditional EDI) to the Internet and to corporate "Intranets". This _business-to-business_

_sector is_ _**currently the fastest growth area**_ in the global Internet economy. It is a sector

of crucial strategic importance for European companies competing on world-wide

markets.

As any other sector of activities, the Internet may be used for legitimate purposes or

misused by some elements of the society. The framework for the Internet should,

**therefore,** _**foster economic development,**_ **while taking account of** _**justified social and**_

_**societal**_ _**concerns.**_ Consumers and businesses must be reassured that the Internet is a safe

and secure place to work, learn and play.

_**This**_ _**Communication,**_ _**therefore,**_ _**aims**_

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

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

_**illegal and harmful**_ _**content,**_ _**and**_

_**• finally to suggest a number of practical measures designed to be rapidly**_

_**implemented**_

In the following sections, _section 2_ describes the different Internet applications, _section 3_

defines what is meant by "illegal and harmful content", _section 4_ deals with ways in

which to combat illegal content, _section 5_ explains issues related to harmful content and

_section 6_ presents a number of proposals.

**2.** **HOW DOES THE INTERNET WORK?**

The Internet is the most visible example of an international computer network. Although

it is neither the first nor the only such network, it is distinguished by the fact that nobody

"owns" it and by the fact that over the past few years "ordinary" users, private individuals

and businesses, and not just the scientific or academic community, have started to use it

widely, causing a dramatic increase in the number of computers linked to the Internet .

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

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

part of the "content".

A unique characteristic of the Internet is that _M_ _**functions simultaneously as a medium**_

_**for publishing and for communication.**_ Unlike in the case of traditional media, the

Internet supports a variety of communication modes: one-to-one, one-to-many, many-to
many. An Internet user may "speak" or "listen" interchangeably. At any given time, a

receiver can and does become content provider, of his own accord, or through "re
posting" of content by a third party. The Internet therefore is _**radically**_ _**different**_ _**from**_

_**traditional**_ _**broadcasting.**_ It also _**differs radically from a traditional**_ _**telecommunication**_

_service._ This constant shift from "publishing mode" to "private communication mode" 
two modes governed traditionally by very different legal regimes - constitutes one of the

main challenges of Internet regulation.

The many different ways of distributing Internet content reflect the structural and

historical idiosyncrasies of this network. The extent to which technical measures can be

used to detect, track down or intercept illegal and harmful content also significantly

differs from application to application.

Most individual users will not have permanent direct access to the Internet. They will go

through an access provider. This includes:

- _**Internet**_ _access_ _**providers,**_ specialised in offering access to the Internet ;

- _**Internet service providers,**_ who offer additional services such as hosting content

produced by themselves, or by users or by third parties (those who produce content

are referred to here as content providers);

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

closed systems, and now also offer them Internet access.

The term "Internet service provider" is often used generically, without a clear distinction

being made between the _service of providing access to the Internet_ and the _service of_

_hosting content._ The terms "access provider" and "host service provider" will be used

here to differentiate. The same organisation can of course fall within both categories.

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

Both _"access_ _**provider"**_ and _**"host service**_ _**provider"**_ will connect to the Internet via a

leased line, a telecommunications connection made available by the _**"network**_ _**operator",**_

such as British Telecom.

The _World Wide Web_ (WWW or Web) is the area where pages with text, graphics and even

sound and video clips may be viewed. Pages are linked to each other by a series of

"hyper-links" offering a congenial and highly interactive way of navigating through Web

content. These pages may be published by anyone who has access to storage space on a

"host" computer connected to the Internet running the appropriate software (a "Web

server" or "site"). This possibility to become a "content publisher" is often given at low

cost as an additional service by Internet access providers, and individuals in this way

have the same potential to distribute information as large corporations. The pages

published in this way are available to any Internet user who chooses to consult them, and

are identifiable by an address which is used in order to consult them directly, or to reach

the page through hyperlinks.

_**Electronic mail**_ allows communication between individuals. It is also easy to send out

the same message to multiple addresses using mailing lists. Although in general the

author of the correspondence will be identified by his e-mail address, "anonymous

remailer" systems have been set up where the sender's identity is not passed to the

recipient. Messages sent to an Internet address are stored in the recipient's mailbox on the

mail server maintained by the access provider until the recipient reads them.

In some 15,000 _newsgroups,_ the content is provided by individuals who send messages

(which may be simple text, but can include graphics encoded so that they can be

transferred). These messages are not stored in a single place, but copied from one

newsgroup server to another. Because of the enormous storage requirements, host service

providers will often only keep such messages on their newsgroup servers for a limited

period and may well not carry all newsgroups. There are also sites on the World Wide

Web where archives of newsgroup contents are stored and can be searched.

Additionally, _**Internet Relay Chat**_ (IRC) allows direct communication in real time

between Internet subscribers, and may be used to organise face to face meetings and the

exchange of content. IRC can now support low resolution video technologies such as

CUSeeMe.

All of these means can be used to distribute illegal and harmful content, and the extent to

which they can be controlled will be pointed out in the following sections.

**3.** **ILLEGAL AND HARMFUL CONTENT ON INTERNET**

The Internet is a new form of distribution and communication. Like any other

communication technologies, particularly in the initial stages of their development, the

Internet carries an amount of potentially harmful or illegal contents or is misused as a

vehicle for criminal activities. Like any other communication technology, such as the

telephone or GSM, the Internet can be used by criminals to facilitate their activities.

_**All these activities fall under the existing legal framework.**_ _**Therefore,**_ _**the Internet does**_

_**not exist in a legal vacuum, since all those involved**_ _**(authors,**_ _**content providers, host**_

_**service providers who actually store the documents and make them available, network**_

_**operators, access providers and end users) are subject to the respective laws of the**_

_**Member States.**_

In terms of illegal and harmful content, it is crucial to differentiate between content

which is illegal and other harmful content. _**These different categories of content pose**_

_**radically different issues of principle, and call for very different legal and**_

_**technological**_ _**responses.**_ **It would be dangerous to amalgamate** _**separate issues such as**_

_**children accessing pornographic content for adults, and adults accessing pornography**_

_**about**_ _**children.**_ Priorities should clearly be set and resources mobilised to tackle the most

important issues, that is the fight against criminal content - such as clamping down on

child pornography, or use of the Internet as an new technology for criminals.

**a. Illegal Content**

There exists a whole range of rules which limit for different reasons the use and

distribution of a certain content. The infringement of these rules lead to the illegality of

the content.

Certain issues do not involve protection of public order, but rather the protection of the

rights of individuals (protection of privacy and reputation) and of an environment

allowing creation of content to flourish (intellectual property). Content such as breach of

copyright, libel, invasion of privacy or unlawful comparative advertising will usually be

dealt with at the initiative of the person whose rights are infringed by a civil action for

damages or an injunction, although there may also be remedies under the criminal law or

administrative law (data protection). Host service providers may also be drawn into

disputes over such content, because they may be accused of having facilitated its

distribution.

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

**10**

This is the case for example with child pornography, trafficking in human beings,

dissemination of racist material or incitement to racial hatred, terrorism or all forms of

fraud (e.g. credit-card fraud).

The exact definition of offences varies from country to country. Within the EU, even

child pornography, for example, where a high degree of consensus exists, is covered by

specific legislation in some Member States and by more general rules relating to

obscenity in others.

Where certain acts are punishable under the criminal law of one Member State, but not in

another, practical difficulties of enforcing the law may arise.

**b.** **Harmful content**

Various types of material may offend the values and feelings of other persons: content

expressing political opinions, religious beliefs or views on racial matters etc.

What is considered to be harmful depends on cultural differences. Each country may

reach its own conclusion in defining the borderline between what is permissible and not

permissible. It is therefore indispensable that international initiatives take into account

different ethical standards in different countries in order to explore appropriate rules to

protect people against offensive material whilst ensuring freedom of expression.

In this context it is understood that the fundamental rights, especially the right of freedom

of expression have to be fully respected (limitations in the Member States see Green

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

Services, Annexe III)

**4.** **IDENTIFYING AND COMBATING ILLEGAL CONTENT ON INTERNET**

It is a matter for Member States to define what is illegal by law and to enforce it by

detecting illegal activity and punishing offenders. However the special characteristics of

the Internet mean that law-enforcement is more complicated than where more traditional

means are used.

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

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

**11**

While detecting breaches of the law in public applications of Internet (World Wide Web)

is straightforward, detection is not easy in private applications (e-mail, for instance).

Similarly, while enforcement of the law is relatively easy within national boundaries, it is

much more difficult in an international context.

a. **Technical limits to law-enforcement**

The technical features of the Internet make certain types of control ineffective. Because

of the way in which Internet messages can be re-routed, control can really only occur at

the entry and exit points to the Network (the server through which the user gains access

or on the terminal used to read or download the information and the server on which the

document is published).

Even if a published document is removed from one server as a result of intervention by

the authorities, it can easily and quickly be copied to other servers in other jurisdictions,

so that it continues to be available unless and until such sites are also blocked. Thus

_**additional international**_ _**co-operation**_ _**is required to avoid**_ _**"safe**_ _**havens**_ _**"for**_ _**documents**_

_**contrary to general rules of criminal law.**_

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

_**Internet access providers and host service providers play a key role in giving users**_

_**access to Internet content. It should not however be forgotten that the prime**_

_**responsibility for content lies with authors and content providers. It is therefore**_

_**essential to identify accurately the chain of responsibilities in order to place the**_

_**liability for illegal content**_ _**on**_ _**those who create it.**_

_**i)**_ _**Legal responsibilities of**_ _**Internet**_ _**access providers and host service**_

_**providers**_

_**The**_ _**general regime for legal**_ _**responsibility,**_ _**which could also be applicable to Internet**_

_access_ _**providers**_ and host service providers for illegal content (of whatever form, be it

child pornography, copyright infringements, fraudulent offers, libel etc.) takes, according

to the circumstances a number of different forms: under the criminal law, under civil law

(an action for damages for breach of copyright or libel, or a dispute arising under their

contracts with users or with network operators) or under administrative law (the system

of regulation in place in the country where the access providers and host service

providers operate). Although _access_ _**providers**_ do not directly control the content

available on the Internet, or what part of it their customers choose to consult, in some

cases they have been investigated by the authorities because of the existence of illegal

and harmful content which users can access through the providers' technical facilities.

The law may need to be changed or clarified to assist access providers and host service

**12**

providers, whose primary business is to provide a service to customers, to steer a path

between accusations of censorship and exposure to liability.

Where _**host**_ _**service**_ _**providers**_ themselves provide content on the World Wide Web or on

newsgroups, they are of course liable for this in the same way as any author or content

provider. Where the content is provided by third parties, host service providers' liability

needs to be clear.

**o**

In a number of Member States, legislation has been adopted or proposed defining the

legal responsibilities of host service providers in such a way that they are only liable for

an item of content hosted on their server where they can reasonably be expected to be

aware that it is _prima facie_ illegal or fail to take reasonable measures to remove such

content once the content in question has been clearly drawn to their attention.

Some rules go further and appear to require access providers to restrict access to other

sites which contain illegal content.

_**Network operators,**_ on the other hand, are not normally exposed to liability in criminal or

civil law for the content carried over their networks, although they may be required by

the terms of the relevant legislation or licenses to take steps in relation to their customers

(access providers) if the latter use facilities to carry illegal content.

The degree of liability for content such as unlawful comparative advertising and breach

of copyright must also be considered in the light of the detailed examination by the

Commission of the effects on the internal market of the different national rules relating in

particular to commercial communications and copyright .

_ii)_ _Self-regulation_ _on a_ _national,_ _European and_ _international_ _level_

_**In a number of Member States, Internet access providers and host service providers**_

_**have already set up systems of self-regulation.**_ **In the United Kingdom,** _**at the initiative**_

_of the_ _**Industry,**_ a Code of Conduct has been agreed. An independent body, the Safety

Net Foundation has been set up to provide a rating service for newsgroups and a hot-line

to which members of the public can report content they consider illegal. Similar steps

have been taken in Germany and in the Netherlands .

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

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

**10**

In France, a Code of Conduct has similarly been proposed in the _Rapport de la Mission_
_Interministérielle_ _sur l'Internet._ [Text available at http://www.telecom.gouv.fr/english/sommaire.htm](http://www.telecom.gouv.fr/english/sommaire.htm)

**13**

_**The Commission welcomes this general move towards self-regulation and has**_

_**encouraged the setting-up of a European network of**_ _**associations**_ _**of Internet**_ _Access_

_Providers._ This co-operation could further be extended to the wider international level.

Facing .common problems, industry self regulating bodies could usefully co-ordinate their

approach, in particular regarding technical solutions. Similarly, in the highly

**decentralised Internet environment,** _**Internet**_ _**Users**_ _**have a very important role**_ _**to**_ _**play**_ in

contributing to industry self-regulation.

_Hi)_ _Removal affiles from the servers_

Once a host service provider becomes aware of the _prima facie_ illegality of content

hosted on his server, in principle the legislation in the Member States foresee that he

must clearly take steps to remove the content in question. This information might be

received from the national self-regulatory body set up to identify illegal content or from

an equivalent body in another country. Since content can easily be copied to other

servers, this approach needs to be followed by other host service providers not just in the

country involved, but world-wide. An international network of self-regulatory bodies

would greatly assist this process, although it will no doubt take time for such a network

to be put into place .

_iv)_ _Blocking_ _access_ _at_ _the level_ _of access providers_

If the illegal content cannot be removed from the host server, for instance because the

server is situated in a country where the authorities are not willing to co-operate, or

because the content is not illegal in that country, an alternative might be to block access

at the level of access providers.

It is as yet unclear how far it is technically possible to block access to content once it is

identified as illegal. This is a problem which also affects the degree of liability of the

access providers. The lack of clarity on the technical feasibility has not prevented this

approach being implemented in certain countries because access providers are a relatively

small and identifiable group.

Some third countries have introduced wide-ranging legislation to block all direct access

to Internet via access providers by introducing a requirement for "proxy servers" similar

to those used by large organisations for security reasons, _combined with centralised_

_blacklisting_ of documents, for reasons which go far beyond the limited category of illegal

content as defined in this communication. _**Such a restrictive regime is inconceivable**_ _for_

**14**

_**Europe as it would severely interfere with the freedom of the individual and its**_

_**political**_ _**traditions.**_ Due to Europe's complex and open communication infrastructure the

practical feasibility of such an approach also remains open to question.

A second approach which involves requiring access providers to block their subscribers'

access to illegal content on a case-by-case basis has been followed recently by law

enforcement authorities in Germany.

In the CompuServe case the public prosecutors considered that certain items available on

newsgroups were illegal, and requested CompuServe" to block access to these

newsgroups. Since CompuServe's software did not initially make it possible to

differentiate between German subscribers and others for access to newsgroups,

CompuServe suspended access to a number of newsgroups to all its subscribers world
wide, which created wide-spread protests that German standards of morality were being

exported. Subsequently, CompuServe restored access to most of these newsgroups except

to its German subscribers. No action was apparently taken against other access providers

based in Germany, so their subscribers could continue to consult this content, if the

access provider chose to carry the newsgroup in question.

In a recent case, the German public prosecutors threatened to prosecute the German

Internet access providers unless they blocked access to a magazine published on a Web

site on a server in the Netherlands which allegedly promoted terrorist violence. Under

protest, the access providers did so. However, this meant blocking access to all content

on the Dutch server, including harmless content, while the document continues to be

available to Internet users outside Germany. A number of anti-blocking tactics were also

immediately put in place. It is not clear whether the content is contrary to Dutch law - at

all events the Dutch authorities have not intervened. The Dutch host service provider has

complained that the action of the German authorities constitutes an interference with the

free movement of services within the EU.

Upstream blocking of sites may therefore present a number of significant shortcomings.

It may not prevent, in particular, criminal users from "hopping" from one Internet mode

to the other, i.e. from a Web page, to a Usenet newsgroup, to standard e-mail.

11 A large US-based international commercial online service provider which also provides Internet
access, and has a substantial number of subscribers in Germany

12 At the latest count, the document is mirrored on 43 WWW sites and 2 newsgroups and is available
from an e-mail listserver.

**15**

**This demonstrates that there is a** _**need for co-operation between the authorities and**_

_**Internet access providers in order to ensure that measures are effective and do not**_

_**exceed what is required.**_

**c.** **Anonymous use of Internet**

Users of the Internet are normally identified, by stating the author of a World Wide Web

home page or by the identifying address of the page ("URL") or in the mention of an e
mail address for electronic mail or a newsgroup message. This is desirable in accordance

with the democratic principle that individuals, while free to express their thoughts and
beliefs, should nevertheless be accountable for their actions. [13] The principle of legal

traceability should, therefore, be incorporated into national or European Codes of

Conduct for remailing activities.

Law enforcement authorities have expressed concern at various techniques which allow

anonymous use of the Internet. This may facilitate sending illegal content by making it

difficult or impossible to identify the offender.

This problem does not concern the World-Wide Web, where a host service provider

knows, or at least has the means of knowing, the content provider. However anonymity

allows users to send electronic mail or a message to a Usenet newsgroup without the

recipient knowing their name or their e-mail address, because an intermediary (the

anonymous remailer) has removed this information

There are legitimate reasons why a user might wish to remain anonymous [ 4] (including

fear of retaliation for views expressed or lack of confidence in the use to which his
personal details might be put by the recipient). [15 ]

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

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

In the decision granting a preliminary injunction against the US Computer Decency Act, the judges
affirmed the importance of anonymity on the Internet: _"Anonymity is important to Internet users who_
_seek to access sensitive_ _information,_ _such as users of the Critical Path AIDS Project's Web site, the_
_users,_ _particularly gay_ _youth,_ _of_ _Queer Resources_ _Directory,_ _and_ _users_ _of Stop Prisoner Rape_ _(SPR)."_

See paras 29 and 30 of the UK "R- [5] Safety-Net" proposals [<http://www.ispa.org.uk>](http://www.ispa.org.uk)

**16**

However, the legitimate need for anonymity should be reconciled with the principles of
legal traceability. The recent Safety Net proposals [16] in the United Kingdom address this

double concern. They take the view that use of truly anonymous accounts is a danger,

while use of pseudonyms which are traceable is not. They propose measures to close

known loopholes and improve traceability and that anonymous remailers record details of

identity. These details would be subject to data protection legislation and therefore made

available to the police under appropriate legal safeguards.

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

**d.** **Judicial and police co-operation at EU and international level**

As mentioned above, the definition of offences varies from country to country. Due to the

international nature of Internet, even if the legislation of the concerned country forbids

such contents and require criminal prosecution, it may also occur the author, content

provider, and the host service provider, may all be beyond the reach of national law

enforcers. Criminal law only operates within national frontiers. In order to avoid

loopholes for criminal activities, it would be therefore important, that Member States

would define certain minimum common standards in their penal legislation.

Furthermore, penal judicial co-operation and police co-operation should be reinforced

among EU Member States and international co-operation with our main third country

partners should be envisaged, for instance on the basis of conventions or new

international legal instruments.

In this context it would be useful to extend the co-operation also to the prevention of

criminal practices using the Internet as a new vehicle for their activities.

Technical expert sand criminal law experts could also meet in order to look at the most

appropriate ways to reach some common penal standards. An improved co-operation at

EU level between industry and law enforcement authorities should equally be

encouraged.

The agreement by Justice and Home Affairs ministers in Dublin to reinforce police co
operation, within the framework of EUROPOL, against paedophilia and trafficking in

children and women, and to endeavour to set common minimum standards for the law

_"R3 Safety-Net: Rating, Reporting, Responsibility For Child Pornography and Illegal Material on_
_the Internet",_ September 1996

**17**

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

direction.

Similarly, the declaration of the World Congress Against the Sexual Exploitation of

Children recently held in Stockholm should form a basis for common action.

**5.** **DEALING WITH HARMFUL CONTENT ON INTERNET**

The main weapon for dealing with harmful content is in ensuring that practical means are

available to limit access by the vulnerable to such content.

**a. The principle of freedom of expression.**

_**The European Convention**_ _**on Human Rights, signed by all**_ _**Member**_ _**States and part of**_

_**the general principles of**_ _**Community**_ _**law, contains relevant provisions affirming the**_

_**right to freedom of expression.**_ _**These**_ _**rights can be subject to some**_ _**conditions,**_ _**are not**_

_**absolute and**_ _**are**_ _**subject to**_ _**important**_ _**qualifications,**_ **for instance permitting licensing of**

broadcasting, television or cinema enterprises. The same principle is enshrined in the

constitutions or the constitutional tradition of all Member States.

The borderline between what is protected by free speech and what can be restricted may

not be easy to draw by the Member States.

In France, the Constitutional Council recently annulled the provisions of the

Telecommunications Law which set out the conditions under which access providers

(including Internet access providers) were to be free of criminal liability for content to

which they gave access. The law gave power to the Conseil Supérieur de la Télématique

to make recommendations on what types of content was permissible. The Constitutional

Council took the view that this provision needed to be drafted more carefully, since

**17**
questions of individual liberty were involved.

**One general conclusion is that** _**any**_ _**regulatory**_ _**action intended**_ _**to**_ _**protect minors should**_

_**not take**_ _**the**_ _**form of**_ _**an unconditional prohibition**_ _**of**_ _**using**_ _**the Internet to distribute**_

_**certain content that is available freely in other media.**_ **Another conclusion is that**

Le Conseil Constitutionnel a décidé de supprimer les articles 43-2 et 43-3 de la loi sur la
réglementation des télécommunications au _motif «que la loi a confié au Conseil Supérieur de la_
_Télématique le soin d'élaborer et de proposer à l'adoption du Conseil Supérieur de l'Audiovisuel,_
_auprès duquel il_ _est_ _placé,_ _des_ _recommandations_ _propres à assurer le respect par certains services de_
_communication de règles_ _déontologiques,_ _sans_ _fixer à la détermination de ces_ _recommandations,_ _au_
_regard desquelles des avis susceptibles d'avoir des_ _incidences_ _pénales pourront être émis, d'autres_
_limites que_ _celles,_ _de caractère très_ _général,_ _résultant de l'article 1 de la loi_ _susvisée_ _du 30 septembre_
_1986»._

**18**

existing rules on content regulation need to be examined to see whether they can be

applied by analogy, and that the most restrictive rules should not be applied simply

because of Internet's wide potential reach.

Reflecting similar concerns elsewhere in the World, in the United States, a District Court

ruled the key provisions of the Communications Decency Act intended to protect minors

to be unconstitutional, relying on the principle of free speech in the First Amendment to

the US Constitution. The Act was held to have been drafted too widely, because

although it was legitimate to protect minors, host service providers could not identify

whether a user was a minor, so that in practice "adult" content could not safely be

published at all, thus interfering with constitutionally protected free speech.

**b.** **The legal framework of** **the** **Internal Market**

As the circulation of information on networks covering more than one country is cross
**border by nature, it is** _**governed by the legal framework of the Internal Market and**_

_**competition rules.**_ **In particular, it is** _**protected by the principle of the free provision of**_

_services._ National authorities can take measures limiting this fundamental freedom for

example for the protection of minors, but only if the measure is proportional. In other

words, the measure must be appropriate to achieve the pursued objective and may not

exceed what is necessary to achieve this aim.

In this perspective, the Commission has recently adopted a proposal for a Directive on

the establishment of an information and a co-operation procedure between Member

States and the Commission on new regulatory issues concerning Information Services.

By providing regulatory transparency and preventing a re-fragmentation of the Internal

Market, this proposal aims to ensure a more effective protection of the general interest in

this field, and a more focused reply to emerging regulatory needs. In addition, the

proposed administrative co-operation system between the Member States and the

Commission would enable the European Union to deliver a more coherent message on

these issues on the international level.

**c. Parental control software: empowering parents to protect minors**

Fortunately, technical means exist which will allow differences in moral standards, not

only between national legal systems but also between the subjective judgments of users,

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

**19**

COM(96) 392 final, 30.8.1996

**19**

to be taken into account. This will allow the aims of free flow of information and respect

for individual preferences to be pursued simultaneously.

In response to public demands, _**a number of**_ _**technologies**_ _**have been developed over the**_

_**past two years to enable parents to control Internet content coming into their homes.**_

Contrasting with "upstream censorship" by official agencies (preventing illegal content

_from being published_ at all), filtering provides for "downstream control" by parents

(preventing harmful content _from reaching_ _minors)._ The filtering model - which stresses

_**parental responsibility rather than government**_ _**intervention**_ - is strongly advocated by

the industry and by civil liberties groups as the most effective way of solving the specific

challenges of the Internet and of taking into account the differences in standards of taste

and decency between countries, communities and families. It is a pragmatic, not a legal,

response to the presence of harmful content on the Internet - although the provision of

filtering devices could have in some cases a legal impact (exoneration of liability for

access providers who offer such devices).

Useful as a "line of defence" at the end-user level, filtering software can also be applied

at various stages in the transmission process, for example by host service providers or

access providers.

Filtering software follows three main models: _"blacklisting"_ (where access to listed sites

is blocked), _"whitelisting"_ (where access is only possible to listed sites) and _"neutral_

_labelling"_ (where sites are labelled or rated, but it is up to the user to decide how to use

the label or rating).

_**"Blacklisting"**_ technique has been widely used in the first generation of standalone

filtering packages such as Cyber Patrol. Introduced in August 1995, Cyber Patrol works

with both direct Internet access providers and commercial online services. Its _CyberNOT_

list contains approximately 7000 sites in twelve categories (violence/profanity, nudity,

sexual acts, gross depictions, racism/ethnic impropriety, satanic/cult, drugs,

militant/extremist, gambling, questionable/illegal, alcohol/tobacco). Parents can

selectively block access to any or all twelve categories by checking boxes in the

programme manager.

_**"Whitelisting"**_ works on the reverse principle. "Whitelisting" software blocks out all

Internet content, except expressly authorised sites on a "whitelist". This technique is

highly limitative, and runs contrary to the logic of the Internet. It is however very safe,

and has been used, in particular in the school environment.

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

**20**

to provide a standard infrastructure for "neutral labelling" and filtering Internet content.

Separating the two functions of rating of sites and filtering of sites, and allowing a high

degree of flexibility and security, PICS is undoubtedly the most comprehensive and

innovative solution yet to tackle Internet contents issues.

**Inappropriate** **material**

**Content selection**
**software**

**Appropriate** **material**

_**Figure**_ _T. selection software automatically blocks access to some documents, but not_

_others._

**d. PICS: a global industry standard**

_**The Platform for Internet Content**_ _**Selection**_ _**(PICS) which was officially launched in**_

_**May by the World Wide Web Consortium, is an industry-wide attempt to establish a**_

_**global standard.**_ Offering _"Internet access control without censorship",_ PICS is

supported by a wide coalition of hardware and software manufacturers, access providers

and online commercial services, publishers and content providers. It is now included as a

standard feature in the latest generation of Internet browsers such as Microsoft Explorer

3.0 and Netscape 3.0, and is also supported by a number of filtering packages.

In contrast with the first generation of filtering software which relied on key words and

_"black lists",_ PICS works on the _**principle of**_ _**"neutral**_ _**labelling" and filtering of all**_

**20**

**21**

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

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

**21**

_**types of sites with an Internet**_ _**"address"**_ _**(URL)**_ (Web pages, FTP, Usenet newsgroups).

PICS effectively "tags" sites with "value-neutral labels". These labels can support

different types of information: ratings (for instance, evaluating language, nudity, sexual

content, violence), or pointers (identifying contents according to their relevance or

interest for various constituencies of users). To be viewed, the site must (1) carry a PICS

label, (2) be within the parameters set by parents on the home computer. Ratings can be

established by content providers themselves (such as entertainment companies operating

family-oriented web sites) or by third parties (such as religious groups or parents'

associations). Each family decides which ratings systems it wishes to use and then, using

the parameters, what is acceptable and what is not.

These ratings can be distributed and upgraded via a number of channels, online or off line

(diskettes, CD ROMS).

Parents and educators can restrict access to sites that (1) carry a PICS label, (2) match the

parameters set by the parents on the home computer. For the Recreational Software

Advisory Council (RSAC), which provides the ratings for video games and Web content,

parameters can be set by parents using cursors with values from 0 to 4 on four sets of

criteria (language, nudity, sexual content, violence). Each family decides, using these

parameters, what is acceptable and what is not.

Unlike the V-chip for television (which relies on hardware to provide blanket blocking of

programmes), or most existing standalone software packages (which block

indiscriminately through key words), _**PICS-compatible**_ _**applications therefore provide**_

_**an effective technology for the indexing and screening of content - and a flexible and**_

_**inexpensive solution to the differences of sensibilities between**_ _**various**_ _**families and**_

_**cultures.**_ Although the Internet _**may have created new risks, these techniques also offer**_

_new opportunities_ not available for other means of content delivery.

**Content**

**Parent selects**
**rating method**

**Chid using**
**Internet**

**label reading software**

|                                                                                   - _^^_ _[K]_ _*m_ _m_ _^Mimiim:irt-'^">^_ _[,m]_ _^_

**22**

_**Figure 2:**_ _selection software_ _blocks_ _based on labels provided by publishers and_ _third-_

_party labelling_ _services,_ _and_ _on_ _selection_ _criteria_ _set by the parent._

Work on labelling and rating systems in the computer environment is also showing great

promise in other digital applications particularly in the field of digital television. These

important developments are covered in the Green Paper on the Protection of Minors and

Human Dignity in Audiovisual and Information Services.

**e. The extent to which filtering can be used**

Since the early prototypes based on key words - which did not discriminate between

pornographic and medical sites - _**filtering software has improved considerably.**_

However, although parental control software can now efficiently screen for suggestive

words or for known sites, it cannot at this stage screen for explicit images unaccompanied

by suggestive text, unless those who configure the software are aware of the particular

site. Of course rating agencies can label sites on the basis of visual content, thus bringing

them within the scope of PICS filtering.

Similarly, the opponents of filtering approach underline two main risks: that existing

unacceptable content on the Internet could be always be accessed from an unprotected

computer; and that in most homes computer-aware children may always disable their

parents' best efforts. This concern has been addressed by PICS, which claim that the

system is tamper-proof.

However, despite some limitations, currently available user-based software suggests that

an _effective_ _**method of empowering parents and protecting their children from**_

_**inappropriate content is already**_ _**widely**_ _**and**_ _**cheaply**_ _**available.**_

f. European rating systems

In order to ensure that users have access to rating systems suitable to their needs, and in

order to avoid a situation whereby they have to rely on rating systems developed for the

US where there may be a different approach on what is suitable content for minors,

_encouragement should be given to setting_ _**up European rating**_ _systems._ This should not

however be a single monolithic system, since this would run counter to the principle of

subsidiarity and be seen as an attempt to impose moral uniformity. Rather, _European_

_content_ _providers,_ _as well as European rating agencies, should be actively encouraged_

_to set up their own rating_ _systems._ In any case, it should be ensured that rating, listing or

self-control systems are based on open standards developed on a European or

international basis rather than proprietary standards.

**23**

In parallel, development of European filtering and tracking software (in order to trace

where illegal content comes from) should be encouraged in the framework of Community

R&D programmes.

Reporting mechanisms ("hot lines") should be established, to encourage the public in

detecting and reporting illegal and harmful sites. In the US, voluntary watchgroups are

already playing a useful part in the updating of lists and verification of ratings.

**g. Educating the public**

Neither the strict application of laws, nor blind reliance on technology will entirely solve

the issue of illegal and harmful content on the Internet. Public education will play a

crucial role. _**Awareness activities should therefore be encouraged so that users**_

_**understand the opportunities as well as the drawbacks of the Internet.**_ Parents and

educators, in particular, should be sufficiently informed so as to be able to take full

advantage of parental control software and rating systems.

**6.** **POLICY OPTIONS/CONCLUSIONS**

The Commission considers that the following actions to reduce the flow of illegal and

harmful content on the Internet should be taken. They aim to enhance the benefits which

Citizens of the European Union will obtain from increased access to information through

Internet and should be adopted - according their respective nature - under the provisions

of the EC Treaty (free movement of services) or within the framework of Justice and

Home Affairs.

This is a _**first set of measures for immediate action.**_ They do not prejudice further

proposals as a result of discussions initiated by the Green Paper on the Protection of

Minors and Human Dignity in Audiovisual and Information Services.

**1.** **Illegal content**

_**a).**_ _**Co-operation**_ _**between**_ _**Member States**_

Co-operation between Member States is vital to combat the sources from where criminal

content comes and in restricting distribution of copies.

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

a view to:

 - _**exchange information**_ on those providing criminal content and enforce existing laws

relating to criminal material

**24**

- encourage Member States to define _**minimum European standards**_ on criminal

content.

_**b) Liability of**_ _**access**_ _**providers and host service providers**_

The need for a common European framework to clarify the administrative rules and

regulations which apply to access providers and host service providers should be

assessed.

_**c. Encourage**_ _**self-regulation**_

The Commission will continue to _**encourage co-operation between associations of**_

_**Internet access providers to help the process of**_ _**self-regulation.**_ This process should be

put in motion in those Member States where it has not yet started. The Commission will

_**encourage discussion and research into technical issues**_ concerning access providers'

and host service providers' role in limiting distribution of illegal content.

**2.** **Harmful content**

_**Community action to support use of filtering software and rating systems**_

- A Council recommendation could be envisaged setting out a clear political message

_**encouraging the use of filtering software such as PICS,**_ and for one or more

European rating systems. The Commission has already called upon the industry to

form a common platform enabling the use of filtering systems Community-wide.

- European _**content producers**_ should be encouraged to co-operate in this system by

adopting their own _**Code of Conduct for content published**_ _**on**_ _**the Internet,**_ including

systematic self-rating of content.

- A Commission initiative will _**support national awareness actions for parents and**_

_**teachers**_

**3.** **International issues**

_**a)**_ _**An International**_ _**Conference**_

At the Industry Council of 8 October 1996, the invitation by Germany to host an

International Conference was accepted. This will involve representatives of law
enforcement authorities, together with representatives of access providers, host service

providers and users. It will concentrate on:

- feasibility of _**immediate measures including a framework for international**_ _**co-**_

_**operation,**_ using the existing legal framework

**25**

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

_**content..**_

_**b) Extension of the dialogue**_

Since this dialogue must include the largest number of countries possible, it could be

extended to a body with a larger membership such as the OECD, the World Trade

Organisation, the United Nations, or one of the more specialised United Nations bodies.

**4.** **Support actions**

_**a)**_ _**Transparency**_ _**mechanism**_

Regulatory issues should be examined at Community level in a systematic and

transparent manner, so as to elaborate coherent and effective legal solutions.

_**b) Information**_ _**Web**_ _**site**_

A site will be set up on the World Wide Web (hosted by a Commission server)

containing original content and links to appropriate pages on other sites. This Web site

will be part of a comprehensive set of Web pages dedicated to broad range of information

and related topics, which will be established in the framework of the action plan

_Learning in the Information Society_ recently adopted by the Commission.

The type of content available could include a) information and guidance for parents,

teachers and children b) parental control software c) information on activities of official

bodies (EU institutions, Member States, third countries, international organisations and

non-governmental organisations).

**26**

##### **ISSN 0254-1475**

## **COM(96) 487 final**

# **DOCUMENTS**

### **EN IS 16 06** **Catalogue number : CB-CO-96-517-EN-C** **ISBN 92-78-10301-2**

**Office for Official Publications of the European Communities**

**L-2985** **Luxembourg**