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'Governance of controversial Internet content in the
European Union.'
By Daniel Dunne.
The aim of this dissertation is to critically evaluate policy initiatives of the European Union in the area of controversial Internet content. I have chosen to use the general term 'controversial' in the interests of scholarly detachment, especially in cases where there is a lack of consensus on the particular type of material. These policy initiatives will be studied with a view to assessing the instrumental capacity of public power to govern communication in the new medium. What implications, it is asked, does the new communicative infrastructure have on governance in Europe? How are the actions of the liberal democratic state delimited in this context, including the European Union as a putative state or 'part-formed polity'?
For the European Union the potential obstacles to this capacity are both political and technical. Politically, a common approach must be found in a context of diversity in national legal and moral cultures, and in the context of the justice co-operation parameters of the Union Treaty. Technically, the infrastructure of the Internet poses huge challenges for the enforcement of policy. Moreover, difficulties in applying existing norms to the Internet raise issues such as appropriate allocation of liability. These two limiting factors will be examined in detail with a view to assessing the degree of limitation placed on liberal democratic governance in this area. In this light, the prospect for the development of substantial policy instruments is addressed. At the outset it is worth noting that the technical and political issues are intimately interconnected. It is the transnational nature of the Internet that creates the rationale for a transposition of this policy arena from the national to the European level.
European Union initiatives in the area of controversial Internet content are a recent phenomenon. They have as of yet received little academic scrutiny, save brief accounts in the work of Yaman Akdeniz (1996,1997). This will be the first serious appraisal so far as this writer is aware. Furthermore, scholarly inquiry generally on the ramifications of the Internet on the policies of nation states and on international institutions is in its infancy. This is hardly surprising given that the Internet as we know it is itself such a recent development. Studies are most developed in the US context which one could call the core of the Internet, being the origin of the Internet's 'architecture' and where half of those connected reside. However, the rate of the Internet's expansion and it's revolutionary nature as a medium mean, in my view, that this is an important area for research. The fact that the Internet is a precursor to an incipient 'information super highway' brings even greater significance to these inquiries (Saxby 1990, 1996; Gates, 1996). The ultimate development of such a broadband network - allowing high quality video on demand- could see the eclipse of television, rendering the Internet as the medium of the twenty first century. I have decided not to focus ethical issues, not only for reasons of space, but also because regulation of controversial content on the Internet raises the same ethical dilemmas and well-rehearsed lines of argument as does controversial content in more traditional media. The practical questions of governance in the new context, however, raise new issues, and present researchers and politicians alike with a steep learning curve. It is hoped that this present work will be a useful contribution in an embryonic area of research.
There is a vast array of literature available on subjects relevant to this dissertation, much of it in the form of online documents. However a relatively small amount of this is of a serious scholarly nature, and rarely transcends the polemical. Some of the more cogent contributions of this type, which focus on discrete areas of policy, will be critically evaluated in the main chapters of this study when the pertinent issues arise. The present review will focus on scholarship which offers general theoretical accounts of direct relevance to this research.
Authors in the legal field have produced by far the most considered reflections on Internet content regulation, and regulation in general. A new discipline of 'cyberlaw' has been born, with some of its journals are now published exclusively in cyberspace, for example the Journal of Information Law and Technology. Of some significance for this study is the fact that some of these authors (e.g. Saxby, Perritt and Reidenberg) have been engaged by the European Commission as advisors, following its practice of creating 'epistemic communities' (Wallace and Wallace, 1996), making this an important pool of discourse. It should be noted that many of the contributions go beyond merely legal considerations and extending into the wider political impact of the Internet. Some of the contributions are of central relevance to the questions about governance raised in this study.
A. Michael Froomkin (1997) argues that the net effect of the continuing internationalization of the Internet will be to promote liberal democratic values of openness and freedom. However, in a liberal democratic context, the Internet allows for a process which Froomkin calls 'regulatory arbitrage'. This process means that communicants can avoid domestic regulations by virtue of the Internet's decentralised architecture, structuring their communications or transactions to take advantage of foreign regulatory regimes. This encourages free speech and makes censorship very difficult, especially given the availability of anonymous remailers and encryption software, which Froomkin explains in depth. Regulatory arbitrage 'reduces the policy flexibility of nations by making certain types of domestic rules difficult to enforce'. It is shown that totalitarian governments - a range is surveyed - will incur high costs if they seek to aggressively filter content, reducing the economic and intellectual value of being connected considerably. In liberal democracies the inability to enforce a ban on anonymous Internet communication will impose real costs in untraceable libel, and hate speech.
Froomkin's contention that the Internet will promote liberal democratic values of openness and freedom is supported by the work of Christopher Kedzie (1996,1997). Kedzie argues (1997) that there is empirical evidence that information interconnectivity is a 'powerful predictor of democracy'. Kedzie roots his strongly statistical argument in a conjunction of Samuel Huntington's (1991a,b) and Alvin Toffler's (1980) diverse notions of the 'third wave'. Toffler's concept based on the information revolution is combined with Huntington's wave of 'transition of some thirty countries from nondemocratic to democratic political systems' (1991a: xiii).
Henry Perritt (1996) examines the current law (in this case, United States law) and applies it to the novel situations encountered in the 'Information Superhighway'. In common with others, for instance Kaspersen (1996), Professor Perritt compares the Superhighway to a network of roads. Vehicle accident law translates into an examination of laws ranging from defamation to misleading advertising. Network access providers are compared to those who paint lane markings on the roads and with those who ensure that the ends of the roads meet so that drivers can pass from one highway to another without worrying that the uneven road surfaces will cause the car radiator to jump through the bonnet. Civil dispute resolution and procedure, criminal law and International law are addressed. Perritt's approach is that the current law can deal with the Information Superhighway 'with no more difficulty than it had dealing with ocean commerce, international civil aviation or telecommunications when they were new' (1996:31). The author contends that 'intermediaries', that is access providers, should not face sanctions for activities they cannot prevent. Private dispute resolution systems currently emerging are examined in a positive light (1997:164) but it is conceded that conventional judicial sanctions must be available, enforced by state coercion. Perritt sees a role for the embryonic International Criminal Court being discussed under UN auspices (1997: 189). Ultimately both private and public international institutions must emerge to effectively police cyberspace (1997: 192).
Victor Mayer-Schönberger and Teree Foster (1997) examine the restriction of free speech on the 'Global Information Infrastructure' (GII) by various national regimes. They argue that the GII places constraints on both regulators and free speech absolutists, the latter affected by the consequences of national laws being imposed on international audiences. For governments 'an escalating national de jure regulation of speech meets a pervasive de facto futility of enforcement.' Some global system of regulation is advocated, and it is argued that the international law concept of jus cogens could form the basis of such. For Mayer-Schönberger and Foster liability must lie with the originator of the communicative act and not with the carrier or receiver.
David Johnson and Professor David Post (1997) argue that Cyberspace requires a system of rules quite distinct from the laws that regulate physical, geographically defined territories. Cyberspace challenges the law's traditional reliance on territorial borders; it is a 'space' bounded by screens and passwords rather than physical markers. Professors Johnson and Post argue that 'taking Cyberspace seriously' as a unique place can lead to the development of both clear rules effective legal institutions. Post (1995) addresses the question as to who will make and enforce the rules that will govern cyberspace. He examines various 'controllers', or points from which rules can issue, ranging from technical network protocols, to private organisations like universities, to Congressional statutes. These controllers vary in their ability to enforce whatever rules they choose to adopt, depending on the existence of conflicting higher-level controllers, and on the possibility that those who are subject to the rules can change jurisdictions to seek a more favourable rule set. The Internet allows a relatively easy change of jurisdiction, or 'exit', from any given controller, leading to the unprecedented - and unpredictable - situation of a 'free market' in rule sets.
Joel Reidenberg[footnote 1] (1996) also examines the issue of rule-making, pointing to the 'emergence of a complex mix of rule-makers' (1996: 926). Governance in global networks should be seen as a mix of state, technical, business and citizen forces. Though national borders have less meaning in an 'Information Society', states retain a critical ability to influence rule making. They can provoke the creation of network standards mainly through incentives or allocations of liability on service providers, but also through technical standardisation. States retain physical power over persons and infrastructure and thus can exercise control over key network 'situs' points. A key example of state action in the European context for Reidenberg is the CompuServe case in Germany which we will deal with below. For Reidenberg, global communications networks challenge traditional sovereignty paradigms. Territorial borders 'disintegrate'. In the new situation 'the identities of the rule makers and the instruments used to establish rules will not conform to classic patterns of regulation.' A new paradigm is postulated:
[A] new network governance paradigm must emerge to recognise the complexity of regulatory power centers, utilise new policy instruments such as technical standardisation to achieve regulatory objectives, accord status to networks as semi-sovereign entities, and shift the role of the state toward the creation of an incentive structure for network self regulation. (1996: 930)
Professor Clive Walker, while dealing with the substantive issue of fair trials in the 'new audio-visual media' seeks to 'identify the problematic capacities they have developed in relation to established forms of regulation, both national and international' (1996: 519). Problems arise from the new modes of information transfer and from the consequent inability of traditional forms of governance, whether national or international, to respond effectively to them, he argues (1996: 520). This delimitation of traditional regulatory powers is associated with the tendency towards transnational media configurations, and can be seen as part of a general dialectical decline in the operational structures and concerns of sovereign nation states.
The discourse of postmodernism (which might be linked here with economic analysis in terms of post-Fordism (Jessop, 1994) ...) would suggest a trend towards fragmentation within the state and the emergence of 'bubbles of governance' at local, regional, international and global levels along side the semi-sovereign state (Rhodes, 1994; Jessop, 1994: 274).
Walker goes on to maintain, however, that fragmentation does not necessarily mean loss of power and authority, and that the case made for the 'hollowing out' of the state (Rhodes, 1994) is contestable. A more accurate view he contends is that the fragmentary state can respond to challenges by more imaginative forms of governance. These could deal with post-modern and post-Fordist changes in ways which reach beyond the traditional mechanisms of the sovereign nation state, and the state could maintain for itself 'crucial functions in terms of managing the political linkages in governance.' In a later article (1997) Walker reiterates his case arguing that one can expect a trend towards 'governance' rather than the 'government', in which the role of the nation state is not exclusive but 'may need further sustenance by the activation of more varied levels of power at second hand'.
Yaman Akdeniz (1997) draws on the work of Reidenberg and Walker in his survey of the regulation of pornography and child pornography on the Internet. He argues that there is no settled definition of pornography in a multi-national environment such as the Internet. Cultural, moral and legal variations all around the world make it difficult to define 'pornographic content' in a global society. Akdeniz is the only author to date who comments on the European Commission's contributions. Following the Commission's Green Paper (1996b) he discusses two different issues within one context: the regulation of harmful content such as pornography and regulation of illegal content such as child pornography. He avoids any conflation of the two issues, arguing that 'any regulatory action intended to protect a certain group of people, such as children, should not take the form of an unconditional prohibition of using the Internet to distribute certain content that is freely available to adults in other media'. A case study of the regulation of child pornography in the UK is undertaken. Influenced by the writings of Reidenberg and Walker, Akdeniz proposes a multi-layered solution for the regulation of pornographic content on the Internet. This 'may involve the on-line users, Internet Service Providers, codes of practice, self-regulatory bodies, technical solutions, the Government, and the European Union in the near future' (1997: 2). However the role of the European Union is not analysed in any depth. For Akdeniz the Internet is a 'complex, anarchic, and multi-national environment where old concepts of regulation, reliant as they are upon tangibility in time and space, may not be easily applicable or enforceable' (1997: 15). For this reason, he regards the wider concept of governance as being more suitable. He goes on to treat of the rationale for, and complex difficulties involved in particular policy instruments such as the Platform for Internet Content Selection (PICS) which I will also treat of below.
The above literature presents a starting point for research. There is a consensus among many of the authors on the fact that the Internet poses huge problems of enforcement for the traditional nation state. Whether understood in terms of 'safe havens', David Post's concept of 'exit' or Froomkin's 'regulatory arbitrage', the traditional congruence between national territory and functionality is under challenge. Professors Walker and Reidenberg have made an important contribution in postulating new types of governance in this new context. I will refer to the consensus emerging from their arguments as the argument for a 'network governance paradigm'.
Methodology
Central to this enterprise is an attempt to elicit a clear understanding of the Internet as a medium and the implications of its structure on communications policy in a liberal democratic context. If regulatory arbitrage is as significant as Froomkin maintains, what can the state do at a European level that does not suffer from the same drawbacks as national action? To what extent do European initiatives conform to the paradigm advocated by Reidenberg and Walker? Is the European Commission 'managing the political linkages' in governance, as Walker would have it, and activating more varied levels of power at second hand? The contributions of the European Commission are assessed in terms of their technical cogency and in terms of their success in attaining a feasible and implementable common position. To what extent does policy rely on incentives to access providers or allocations of liability, or on promoting technical standards? As regards regulatory arbitrage, what is Europe's role on the global stage?
This study will begin with chapters on the two major shaping influences of European policy on Internet content, namely the nature of the Internet itself and the pre-given structures of European governance. Chapter 2 introduces the Internet, its history and its uses. A discussion as to what metaphor is appropriate to it as a medium is undertaken. The difficulties posed by the technical architecture of the Internet for would be regulators are dealt with, in particular difficulties related to the allocation of liability. In Chapter 3 the various contexts in which European policy making in this area takes place are examined. Political and constitutional contexts are examined with an emphasis on the different interests at play. In Chapter 4 the categories of illegal and harmful content, as adopted in European policy are critically evaluated, and the different issues of principle and technique which these raise will be introduced. European level initiatives with regard to illegal content, including justice co-operation, are critically assessed. Substantive policy and the policy process are both addressed with a view to answering some of the questions above. Chapter 5 deals with the issue of protecting children from adult content, evaluating the Union's role in promoting the Platform for Internet Content Selection (PICS) standard. In my concluding chapter I will examine the evidence to ascertain whether Reidenberg's network governance paradigm is borne out in this context. I will also offer some speculations on the prospects for global instruments of governance in this area and Europe's role in the promotion of such.
Footnotes
1. I am very grateful to Professor Reidenberg for posting me his indispensable article.
Daniel
Dunne.com