'Governance of controversial Internet content in the European Union.'
A hypothesis which this research seeks to test is that the Internet limits the instruments available to the liberal-democratic state to control communication. The view of the state being taken here is a fairly neutral, instrumentalist, one. The state is looked at as an instrument through which policy goals may, or may not be achieved. This allows a certain distinction between means and ends. The state is a powerful instrument, with potential to enforce policies whether positive or negative. State regulations in the communications arena may inspire acceptance or rejection, depending on one's viewpoint and the circumstances. Policy may be aimed towards the enforcement of hegemonic mores, towards the protection of children, consumers, or 'human dignity'. But the crucial issue in this study is the enforceability of policy.
Of course the state is more than a neutral instrument of policy. As an institution it is intertwined at times with specific interests. But in order to understand the interests that influence the state at a European level, it is necessary to ask what is meant when one treats the European Union as a state. The European Union is a unique case in this regard, since it cannot be called a state in the traditional sense of the word. For instance it does not hold the classic monopoly on instruments of coercion. Authors refer to a 'part-formed', or 'would-be' polity (Lindberg, 1970), and to 'putative' statehood. Streeck and Schmitter refer to the Community's 'quasi-state' or 'nonstate' (1991: 142).
The union is a mix of supranational and intergovernmental elements. The key to understanding the interests at play in this framework is to look at the institutions of the Union. The European Commission, the Union's policy entrepreneur, is a supranational body, bound to seek the overall European interest. The Commission has an interest in expanding its own supranational political territory:
...the move of organised interests onto the European scene was expected to be further accelerated by European bureaucrats who, in their search for a constituency, would be more than willing to promote interest organisation on a scale coterminous with their supranational jurisdiction. (Streeck and Schmitter, 1991: 134)
This view is offered in the context of neo-functionalist theory of 'spill-over' (Hass, 1958). In that theory supranational interest-group formation was expected to serve as an indispensable substitute for popular identification with the emerging political entity, above and beyond the nation state. As it turns out, the relationship between the managers of European collective interests and European bureaucrats has been very intimate, a relationship smoothed by similarity among the personnel. Both groups are 'appointed rather than elected, both experts and technocrats, both susceptible to a cosmopolitan lifestyle, and both professionally interested in the smooth management of complex interdependencies ...' (Streeck and Schmitter, 1991:134)
The European Parliament, like the Commission, is a supranational body. Like the Commission, it has been concerned with the expansion of its own political territory, having won increased powers in successive treaties. Its case for increased powers is strengthened by the fact that, in contrast to the Commission, it is the Union's only democratically elected representative body. It confers legitimacy, and brings democratic accountability to the Union. Charged with pursuing the will of the Unions citizens, the Parliament sees itself as representing the public interest. It has a strong record of promoting human rights and it is worth pointing out that its make up, a social-democratic led majority, often its influences policy emphases, as shall be seen below.
Attempts by these two supranational institutions to enhance their own status as incipient organs of sovereign government are limited by the existence of the intergovernmental Council of Ministers. Streeck and Schmitter see this as a strong 'centrifugal centre' in the Union's quasi state. No comparable barrier to central state formation and state growth has ever been present in a traditional nation state. (1991:142). Above all, the Ministers in the Council pursue the perceived interests of the respective member states, or more accurately, the member governments. The national pull in the community is strengthened by the fact the procedure of governance based on Directives, which must be nationally enacted and nationally enforced (often with different degrees of enthusiasm). According to Joel Reidenberg (1996: 925) directives do not in themselves create supranational rights that can be invoked by citizens, however the developing role of the European Court of Justice (a third supranational institution of the Union) should not be overlooked.
A complex mix of interests is at play in the European Union, complicated by of competition between the constitutive institutions. As Streeck and Schmitter describe the situation:
Together with the member states, regional and supranational political entities share in the diffuse and fragmented sovereignty of the Community, blending into a highly interdependent but incompletely unified, loosely coupled, and diverse institutional complex - the new type of state that is the European Community. (Streeck and Schmitter, 1991:153)
The European Union as a state is closely identified with both liberal democracy and capitalism. As we shall see below, liberal democratic norms are integrated into the Union's structures. Liberal democracy and capitalism do not logically necessitate each other (though the protection of property rights is crucial), but on a practical level there is substantial dovetailing between the two. In the European context, it has been argued that the integration project is closely linked with a capitalist project of deregulation:
In the 1992 compromise, the project of European integration became finally and formally bound up with a deregulation project. (Streeck and Schmitter, 1991: 149)
European Union Telecommunications policy is highly developed. Indeed the Internet is seen as instrumental in developing economic growth in the services industries. This is closely allied to the aim of completing and maintaining the single market and the free movement of goods and services. What is to be drawn from this is that beyond the interests of policing and justice, other interests are likely to impinge on the outcome of any policy designed to regulate Internet content.
But how do these limit the state's room for manoeuvre? Froomkin, having surveyed the situation in Asian non liberal democratic regimes concludes that totalitarians will fare worst in this new world, as they will be forced to choose between, on the one hand, limiting access and paying a substantial price in economic growth (Kedzie, 1996) or, on the other hand, letting go of their control of information, a traditional tool of social control (Froomkin, 1997). However, while for Froomkin the promotion of openness and free speech by the Internet is tantamount to the promotion of liberal democracy this deduction is questionable, since social control is not the only goal involved in the regulation of communication. The protection of individual rights, something integral to liberal democracy may also involve the regulation of communication, and is one of the aims involved in the policies under review in this study. Thus while the free speech promoted by the Internet may undermine authoritarian regimes, it is possible that the infrastructure may at the same time limit liberal democratic governance in areas concerning individual rights. What of the states ability to protect, say children and minorities? The fact that the European Convention on Human Rights (ECHR) is a constraining influence in Europe is an important factor. The state is working in a rights-based context. This means that there are legal constraints on policy as well as those dictated by economic interest (Froomkin, 1997).
An important constitutional context is provided by Title VI of the Treaty of European Union (TEU) which sets out the provisions for Justice and Home Affairs co-operation. It states that co-operation in all the listed policy areas 'shall be dealt with in compliance with the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950' (Treaty of European Union, 1992). The regulation of Internet content involves these fundamental rights in particular rights to free expression and privacy, which as we shall see below, must delimit any policy. In fact the European Convention is binding on all member states who are signatories and thus circumscribes regulation norms of the traditional media in Europe. Policies on Internet content regulation take place in this context of foregoing content regulation in the more traditional media in national regimes and to some extent at a European level. Existing media regulation takes place in the convention framework. Article 10 of the European Convention on Human Rights reads:
1. 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. (Council of Europe, 1993)
This principle has been incorporated into the TEU (TEU Article F(2)), community law as expressed by the European Court of Justice, and into the constitutions of the member states where a written constitution applies (Commission, 1996b). The UK has recently announced its intention to incorporate the convention into domestic law (Adonis and Wintour, 1997). As is apparent in Article 10 the principle of freedom of expression is not an absolute one. Restrictions by the state are allowable but are however, as stated in the green paper, 'circumscribed by a very precise set of combined criteria that have been clearly enunciated by the ECHR' (Commission, 1996b). Restrictions must be: prescribed by the law (transparency, to the exclusion of the arbitrary); necessary, that is to say they must meet a genuine social need and respect the values inherent in a democratic society; and 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. Thus any restrictive measure must be necessary, not just 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.' (Commission 1996b)
The principle of respect for privacy is enunciated in Article 8 of the Convention:
Everyone has the right to respect for his private and family life, his home and his correspondence. 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. (Council of Europe, 1993)
Restrictions are allowed on much the same terms as in the case of freedom of expression. Restrictions on the principle are possible (for instance to identify and punish private communications for criminal purposes), though once again the proportionality test, as developed in the case law of the European Court of Human Rights, must be passed. The Commission argues in its green paper (Commission, 1996b) that in the absence of common rules these principles constitute a highly significant 'European core'. Beyond these core principles the legal regimes in the Member States 'vary greatly and reflect differences in cultural and moral standards'. In its green paper the Commission sees the proportionality test as a 'powerful factor for convergence' between the Member States.
Another context is the constitutional framework of the European Union itself and the resulting decision making mechanisms. While such areas of policy as free movement of services and common standards come under the ambit of the 'first pillar' of the Union, the highly developed and integrated structures of the traditional communities, Justice and Home Affairs co-operation falls under the 'third pillar' created under Title VI of the (Maastricht) Treaty of European Union (Wallace and Wallace, 1996). Before this treaty Justice and Home Affairs had not been part of the community framework being handled under the more opaque and informal structures of the 'Trevi' network. This was co-ordinated by the Council Presidency but had little accountability and few links with institutions (den Boer, 1996). Co-operation on justice issues has been spurred by increasingly internationalised processes of which the Internet is but one. Kapteyn (1995) has argued that globalization has enabled a variety of social actors to have access to an international arena as an extension or as an alternative to the state arena. This has generated new kinds of policy issues and new forms of political interaction. Helen Wallace 1996: 17) points out how globalization in the economic and security arenas and in the new 'global issues' such as ecology induces needs for transnational co-operation. Such globalising trends, moreover, have 'weakened the link between national identities and state capacities' (Wallace and Wallace, 1996: 439). To these global issues must be added the regulation of the Global Information Infrastructure. The links between the information revolution and the increased mobility of capital on a global scale should not be overlooked. As one writer describes the situation:
Technology has made us a 'global' community in the literal sense of the word. ..[M]ankind now has a completely integrated financial and information marketplace capable of moving money and ideas to any place on this planet in minutes. (Wriston, 1992: 61-2)
The price for the inclusion of Justice and Home Affairs in the new Treaty was, as Wallace (1996:55) points out, its subjection to a weaker institutional regime. The 'third pillar' is more intergovernmental than the first, and more co-operative. The Commissions role is lighter than in the first pillar, while the Parliament's role is that of offering comment. The key institution is ultimately the Council at whose request the Commission must act. The type of policy (revise this) instrument which co-operation under Title VI can produce differs from those of the traditional communities, leading to conventions rather than directives. All of these restrictions reflect the sensitivity of justice matters, representing 'high politics' and close as they are to the core of traditional national sovereignty. They impinge closely on the key attribute of statehood in Weberian terms: the monopoly of coercive power. Another reason for the sensitivity of justice issues is the range of differences among national police and legal cultures (den Boer 1996). There are also sensitivities regarding civil liberties and democratic accountability.
The issue of illegal and harmful content on the Internet was first identified as an urgent priority at an informal Council of Telecommunications and Culture ministers held in Bologna on 24 April 1996. The Council requested that Commission produce a summary of the particular problems and challenges posed by the rapid development of Internet, and that it assess, in particular, the desirability of European or international regulation. The Commission set up a Working Party to fulfil this task (Commission, 1996c). Also in April 1996, UNICEF and the Council of Europe organised a joint meeting to discuss the commercial exploitation of children. Here, the Irish Minister of State for European Affairs, Gay Mitchell, called on the EU to investigate controls on the transmission of child pornography on the Internet (Smyth, 1996; Akdeniz, 1996). The Commission's work resulted in the publication of three documents. The first, a Communication on 'Illegal and harmful content on the Internet'(Commission, 1996a) attempts to address controversial content generally. The second document, the Green Paper On The Protection Of Minors And Human Dignity In Audio-visual And Information Services (Commission, 1996b), as its tile suggests is confined to the protection of children. Its scope, however, extends beyond the Internet. The third, the Report of the Working Party (Commission, 1996c) contains substantive recommendations, elaborating on some of the proposals of the other two texts 'in practical terms'.
The Autumn of 1996 saw various specialised ministerial Councils (Industry, Justice and Home Affairs, Culture and Telecommunications) discuss subjects relevant to the regulation of Internet content. This shows that the complexity of the topic cuts across narrow functional boundaries. It also reflects political response to heightened public awareness of child protection issues in the wake of Belgian Child abuse scandals which were associated with Internet use. The increased awareness of child protection and justice issues was also obvious in the Irish administration which was President of the Council of Ministers during the second half of 1996. The Telecommunications Council of 27 September had 'a broad exchange of views' on the question of preventing the dissemination, via the Internet or similar networks, of illegal material and in particular material containing, or likely to lead to, violence against or sexual exploitation of children. It noted the transnational dimension of this problem and the consequent need to address it at national, European as well as international level (Commission, 1996c). The Council agreed to extend the Working Party, and politically agreed a resolution based heavily on its report's recommendations.
Daniel
Dunne.com