Internet Content Regulation: Is a Global Community Standard a Fallacy or the Only Way Out?1

1. This article is a substantially revised version of the paper presented at the 21st Annual BILETA Conference, Malta in April 2006.

Abstract

One of the major factors that render it difficult to regulate content on the Internet is its borderless nature. The concept of ‘contemporary community standards’ was initially seen as unworkable in the Internet context. While the line of argument that if a publisher chooses to send its material into a particular community, it is the publisher's responsibility to abide by that community's standards was the accepted norm in the traditional forms of media, this was considered too harsh an approach to be applied for the Internet. There has been a shift in this rigid position over the years, which was reflected in the US Supreme Court decision in Ashcroft v. ACLU when the court held that reliance on community standards to identify material that is harmful to minors does not by itself render the statute substantially overbroad for purposes of the First Amendment. Protection of children is at the core of all arguments for regulating content, so there has been no dearth for analogies drawn to the considerable uniform standard already achieved in other areas such as child pornography. The article will examine the strength of different arguments in favour of establishing a global community standard for the Internet, and in particular will analyse this in the context of sovereignty of states, free expression rights, and the rights children already enjoy in the offline world but unfortunately not so much in the online world. It is argued that while a global standard is difficult to achieve, it is not impossible and there are factors that are worthy of consideration that should prompt us to look towards this direction.

Notes

1. This article is a substantially revised version of the paper presented at the 21st Annual BILETA Conference, Malta in April 2006.

2. 47 U.S.C. §223 (1996) (amended by 47 U.S.C. §223 (1999).

3. 47 U.S.C. §231 (2000).

4. There are various human rights instruments as well as European Union level and other multilateral conventions that ban child pornography, including the United Nations Convention on the Rights of the Child that has about 185 signatory countries.

5. This is usually the argument advanced by civil libertarians and free speech activists in their pursuit to prevent any restriction on speech on the Internet.

6. In the USA, courts consider whether the law serves a ‘compelling interest’ for the State in order to judge if it meets the standard of ‘strict scrutiny’ for First Amendment purposes.

7. Miller v. California 413 US 15 (1973).

8. In ACLU v. Reno, the District Court of Pennsylvania in its finding of facts looked at the way the Internet and the World Wide Web operates in great detail, which highlighted its unique features compared to other forms of media.

9. ACLU v. Reno 929 F Supp 824 (1996) US DC Penn.

10. Reno v. ACLU 136 L Ed 2d 436 (1997) US Supreme Court.

11. 47 USC s 231 (e)(2)(A).

12. 47 USC s 231 (e)(6).

13. ACLU v. Reno 31 F Supp 2d 473.

14. ACLU v. Reno 217 F3d162 US Ct App 3rd Cir (2000).

15. Miller, op cit, note 7.

16. 322 F 3d 240, (3rd Cir. 2003).

17. Ashcroft v. ACLU, 124 S Ct 2783, US Supreme Court (2004).

18. Article 19 of UN Universal Declaration of Human Rights 1948.

19. Article 10.

20. Article 10, ECHR 1950.

21. Yahoo! Inc. v. LICRA, 145 F. Supp. 2d 1181 (N.D. Cal 2001).

22. L'Union des Etudiants Juifs de France (UEJF), la Ligue Contre le Racisme et L'Antisemitisme (LICRA) v. Yahoo!, Inc. et Yahoo France, T.G.I. Paris, Nov. 20, 2000, (Reporter) 05308, Gaz. Pal. 2000, somm. jurispr. 1307.

23. See, U Kohl ‘Yahoo!—but no hooray! for the international online community’ Australian Law Journal, Vol 75, No 7, pp 411–116, 2001.

24. Resolution 56/183.

25. See, A Shytov ‘Indecency on the Internet and international law’ International Journal of Law and Information Technology, Vol 13, No 2, pp 260–280, 2005.

26. Ibid.

27. CETS No 185 ‘Convention on Cybercrime’, available at http://conventions.coe.int/Treaty/en/Treaties/Html/185.htm

28. CETS No 189 ‘Additional protocol to the Convention on cyber crime, concerning the criminalisation of acts of a racist or xenophobic nature committed through computer systems’, available at http://conventions.coe.int/Treaty/en/Treaties/Html/189.htm

29. C Norchi A Global Agenda, United Nations Association Books, 1993

30. D Ayton-Shenker ‘The challenge of human rights and cultural diversity’ United Nations Background Notes, available at http://www.un.org/rights/dpi1627e.htm

31. UK Children Go Online ‘Sonia Livingstone and Magdalena Bober, April 2005’, available at www.children-go-online.net (accessed 2 April 2006).

32. W H Dutton, C di Gennaro and A Millwood Hargrave ‘Oxford Internet Survey 2005 Report: Internet in Britain’ Oxford Internet Institute, available at http://www.oii.ox.ac.uk/research/publications.cfm

33. R v. Coutts 2005 EWCA Crim 52.

34. The Home Office Public Consultation on the Possession of Extreme Pornographic Material, a summary of which is available online at http://www.homeoffice.gov.uk/documents/cons-extreme-porn-3008051/Gvt-response-extreme-porns2.pdf?view=Binary.

35. A summary of responses to the Consultation is available at www.homeoffice.gov.uk/documents/cons-extreme-porn-3008051/Gvt-response-extreme-porn2.pdf?view=Binary

36. See, Interpol Media Release, 17 January 2007, available at http://www.interpol.int/Public/ICPO/PressReleases/PR2007/PR200701.asp

37. Speech given by Interpol Secretary General Ronald K Noble ‘The fight against sexual exploitation of children via the Internet’, Paris Meeting on Missing and Sexually Exploited Children, 17 January 2007, available at http://www.interpol.int/Public/ICPO/speeches/SGChildren20070117.asp

38. See, Oxford Internet Institute ‘The Oxford Consensus’, Summary Report of Oxford Internet Institute Forum entitled ‘The struggle for internet governance: searching for common ground’ Held at the Oxford Internet Institute, University of Oxford, 6 May 2005, available at http://www.oii.ox.ac.uk/collaboration/specialevents/20050505_Internet_Governance_Summary_Report.pdf (accessed 1 April 2006).

39. See, W H Dutton and M Peltu ‘The emerging Internet governance mosaic: connecting the pieces’ Forum Discussion Paper No 5, Oxford Internet Institute, November 2005.