Status Report for MPs

June 2004

Current Internet Regulation Issues

Introduction

Over 10% of the world’s population, including half the population of western nations such as the UK - and even the odd MP - now use the Internet. In little more than a decade it has evolved from a tool used mainly by academic researchers and technical enthusiasts to being part of everyday life. What the Internet offers us is the world at our screens – news, entertainment, comment and opinion, and the chance to communicate with people from vastly different cultures and backgrounds to our own.

The most common uses of the Internet are email and accessing the World Wide Web. Email (electronic mail) is the transmission of electronic messages from one computer to another via an electronic network. The World Wide Web is a collection of electronic documents, or "pages," that can be viewed on your computer using a Web browser. The documents are kept on servers and can be delivered to the users’ computer in response to a request from the user. There is often confusion with people thinking the World Wide Web and the Internet is the same thing. In actual fact, the World Wide Web is only part of the Internet.

Recently there has been increasing focus on the presence of, and ability to gain access to, illegal and harmful content online. This has been followed by calls to prevent access to such material and to regulate the Internet. Such calls often ignore the technical and / or legal barriers to doing so, and fail to take into account the collective responsibility of society in general for the Internet ‘cleaning up its act’.

We need to recognise that this is an international problem, and that the UK is leading the way in industry and law enforcement co-operation. Since 1997, UK hosted potentially illegal content is down from 18% to less than 1%. 99% of illegal content reported is traced to outside the UK.

Child abuse content traced to the USA is now 55%, while content traced to Russia is 23%. International co-operation between law enforcement agencies is therefore a crucial component and one which may be hampered by lack of expertise or resources from country to country.

There are particular difficulties in dealing with Internet content. The Internet is designed to be open to anyone, so that people can connect without detailed controls. An aim to control something with architecture specifically designed to be uncontrollable creates significant problems and will not be solved by penalising UK industry. It is essential that responsible UK businesses are not damaged by regulations which will not solve the problems they are meant to address.

The purpose of this paper is to inform decision makers of current activity, setting out the current regulatory framework, including self and co-regulatory schemes, and the role of enforcement agencies, technology and education in making the Internet a safer place.

A. ENFORCMENT & INTERNATIONAL CO-OPERATION

A variety of enforcement measures are available in the UK. The principle is: if it is illegal in the real world (off-line) it is illegal online.

Self and Co-regulatory Schemes

The Internet Watch Foundation (IWF)

The problem of the distribution and viewing of child abuse images via the Internet has long been the focus on law enforcement, Government, industry, child protection organisations and charities working in co-operation to develop initiatives to counter this problem.

One of the most successful initiatives in this area has been the Internet Watch Foundation (IWF).

The IWF works in partnership with Government, Internet Service Providers (ISPs), telecommunication companies, mobile operators, software providers and police to minimise the availability of illegal Internet content, particularly child abuse images.

The IWF operates a hotline enabling the public to report instances of potentially illegal child abuse images hosted anywhere in the world and criminally obscene or racist content hosted in the UK only. It essentially acts as a ‘clearing house’ for complaints of this nature, saving the UK police considerable time and money.

If the reported content is within its remit the IWF will assess and locate the reported content and if the content is potentially illegal under UK law then, if hosted within the UK, a notification will be sent to the UK police while the hosting ISP company is informed of the presence of potentially illegal content on their servers and they usually remove such material immediately.

If the content is not hosted in the UK, then notification will be sent to the National Criminal Intelligence Service and then disseminated to Interpol.

The IWF is not a Government body. Its main source of funding is the subscription and sponsorship fees paid by the industry stakeholders mentioned above.

INHOPE is an organisation supported by the European Union. It consists of seventeen countries with nineteen members who are providers of Internet hotline services that deal with illegal content online. It aims to facilitate discussion between hotline providers enabling them to share expertise and develop effective common procedures for receiving and processing reports.

Members include IWF (UK), Cybertipline (USA), Stopline (Austria), Protegeles (Spain), Child Focus (Belgium) and representative groups from Australia, Denmark, Finland, Germany, Greece, France, Iceland, Italy, Holland, South Korea, Spain and Sweden.

Internet Crime Forum

The Internet Crime Forum (ICF) exists to promote, maintain and enhance an effective working relationship between industry and law enforcement to tackle crime and foster business and public confidence in the use of the Internet.

As far back as 1999, the group considered ways to protect child users of online chat. The ICF produced the Chatwise, Streetwise Report, which identified a number of key safety messages and recommendations for children’s chatroom activity, which included the establishment of the Internet Task Force.

Home Office Internet Task Force on Child Safety

The Home Office Internet Task Force on Child Safety has two main aims: to make the UK the best and safest place in the world for children to use the Internet, and to help protect children the world over from abuse fuelled by criminal misuse of new technologies.

The Task Force is chaired by a Minister (currently Paul Goggins MP) and is a partnership between representatives of the Internet industry, child welfare organisations, the police and Government.

To date the group has commissioned a major public awareness campaign, which included radio and cinema advertisements as well as:

§ Thinkuknow.co.uk - a website for young people containing information about staying safe online;

§ Keep Your Child Safe on the Internet – an online leaflet of practical guidance for parents and carers;

§ Good practice models and guidance for the industry which contains guidance on chatrooms, instant messaging and web based services that encourages clear safety messages and advice, and user-friendly ways of reporting abuse.

Current industry funded initiatives to ensure that the Internet is safer for their customers can be viewed as akin to those of local businesses joining together to clean up a high street or shopping mall. Their success depends on law enforcement and the public sector also playing their part.

Law Enforcement

A recent joint study produced by EURIM and the Institute of Public Policy Research (IPPR) on E-crime has produced a discussion paper titled ‘Supplying the Skills for Justice’. The paper found that of 140,000 police officers in the UK, only 1000 are trained to handle digital evidence and a mere 250 are with Computer Crime Units or have higher level forensic skills. This has led to forensic backlogs of 6 to 12 months. There is clearly a major resource issue for law enforcement which was brought to the fore with Operation Ore, a major scale investigation which involved the investigation of some 6000 UK citizens on suspicion of child pornography charges.

The paper recommends the UK act rapidly to solve the skills shortage and identifies the new Criminal Justice Sector Skills Council – Skills for Justice – as best placed to sort the “current confusion of bodies and agencies with responsibilities for specifying, delivering and assessing the skills needed”.

Regulating criminal content online is an international problem for law enforcement. Given the nature of the Internet, material can of course be sent cross-jurisdictions with ease. This means that there is a problem of which jurisdiction any crime has been committed in and that what is legal in one country is not in another. A recent report by the All Party Internet Group on SPAM recommended a number of ways forward. The report also identified worrying signs of the way organised crime is using the Internet.

The UK leads the way with its development of the National High Tech Crime Unit and its efforts to further international co-operation between law enforcement agencies. Recently, the Foreign Office and National Crime Squad recently co-funded a conference for international law enforcement experts, NGOs and officials concerning child abuse and the Internet. The National Crime Squad is also engaged in a global initiative with partner countries including Canada, USA, Australia and Interpol to establish new methods to combat and reduce child abuse online and produce a virtual police presence.

B TECHNOLOGY

The Role of ISPs

The industry has long been involved in many of the initiatives aimed at making the Internet a safer place. The major UK ISP trade association, ISPA, helped set up the Internet Watch Foundation in 1996 and continues to represent its members on the Funding Council, and in the Internet Crime Forum and the Home Office Internet Task Force.

ISPA was established in 1995 and aims to promote competition, self-regulation and the development of the Internet industry. All members of ISPA agree to abide by the Association’s Code of Practice, which obligates members to provide the IWF with a point of contact to receive notices of illegal material and to remove such material where it is technically possible to do so. The Code also requires members to take careful consideration of all other IWF notices and recommendations. The ISPA Code of Practice also includes clauses relating to the decency and legality of material held on members’ servers.

Individual ISPs provide additional safety features for users. The majority of ISPs have Acceptable Use Policies, which users have to agree to before using the ISP’s services. These can include conditions which go further than that which is legally required, for example, “the customer must ensure that any page on the customer website liable to offend or containing links to adult material must display a clearly readable warning page” [Thus Plc.]

However, ISPs are not publishers. They do not have control over content posted on their servers by a third party. As such, ISPs are not considered to be liable for third party content held on their networks. This is recognised by the e-commerce Directive, which states that ISPs are ‘mere conduits’ – i.e. carriers – of information akin to the postal service. The E-commerce Directive also states that ISPs are not required to undertake monitoring of the content on their servers. It is currently estimated there are approx. 4bn websites across the world. Monitoring this vast amount of material, which can be modified in an instant, is not technically possible.

ISPs are not liable for illegal content on their servers unless they have ‘actual knowledge’ of it, at which point they are expected to act ‘expeditiously’ to remove it. To fit this requirement, ISPs follow a ‘notice and takedown’ policy.

They offer points of contact within their abuse teams where users can notify content they believe has breached the ISP’s Acceptable Use Policies and / or is illegal. Criminally illegal content is easy to assess. However content that is not criminally illegal is often harder to decide and the ISP can often be left in the position of acting as ‘judge and jury’. ISPA has called on the Government to develop formal procedures governing the removal of illegal material to further clarify the rights and responsibilities of service providers.

The European Internet Services Providers Association

EUROISPA is the pan-European association of the Internet Services Providers’ associations of the other countries of the European Union. Its members include Spain, France, UK, Italy, Austria, Netherlands, Ireland and Germany. Romania is due to join shortly.

It develops Memorandums of Understanding with other ISP associations and has recently developed MoUs with Hong Kong, USA and South Africa regarding Spam and Notice and Takedown.

Labelling and Filtering

Access to certain content can be restricted or blocked using technology. Access can be blocked at four different levels: users’ computers, servers, search engines and at the network level.

1. User level

Many technology companies and some ISPs offer filtering systems to enable the user and /or parent or carer to determine which content is accessible via the Internet. Filtering systems exist in a variety of different guises including:

§ “walled gardens” this is the most restrictive type of filtering, providing access only to pre-screened safe sites;

§ “keyword matching / blocking” here the filter analyses downloaded material and blocks any sites containing words or phrases that have previously been determined unacceptable;

§ “site blocking” some filters are able to block at the domain or host level whilst others can block down to the directory or file level.

There are obvious advantages and disadvantages to all of the systems offered. They are not failsafe and may allow pictures or disguised text through. In other circumstances they may deny access to legitimate material, called a ‘false positive’ – information regarding Middlesex, breast cancer or the sexual offences bill, for example. However, they can provide useful assistance to parental monitoring and educational awareness schemes.

2. Server level

Server level ‘policing’ is used by ISPs to take down sites on which illegal content is posted (see role of ISPs above). ISPs in the UK act responsibly and remove sites held on their servers which break UK law or their acceptable use policy.

The credit card companies also have a role to play at this level, by removing payment mechanisms of sites which offer ‘pay-per-view’ facilities for illegal content. There is some criticism of the credit card industry that people convicted of using their credit cards to buy illegal images on the Internet are unlikely to have access to their credit card removed. However law enforcement agencies often follow the money trail to track down the originator of the problem.

3. Search Engines

Concern has been expressed at the ease at which illegal and / or offensive content could be accessed through the use of a search engine. Some search engines, such as Yahoo! UK, are now excluding all pornographic items from their operation. The IWF has also been working in building its expertise in search engine technologies in order to eventually provide a service to search engine companies to prevent potentially illegal content from being located through their facilities. The IWF is also developing ‘key words’ and ‘trends’ in order that search engine companies can protect consumers from being exposed to potentially illegal or unwanted content but none of this stops a person who wants access to these sites from getting it.

4. Network Level

This is the final and most controversial way of blocking access. It poses problems concerning cost-benefit, who decides what should be blocked and regarding legal protection for ISPs if they do block. The Government objective of achieving mass Internet access at an affordable level is unlikely to be successful if this method is pursued. Again, it can also put ISPs in the position of acting as ‘judge and jury’ especially where material some people expect to be blocked may be offensive, but not illegal. There is also a risk that ISPs may unintentionally block legitimate sites and be liable for the loss of business a company whose site has been mistakenly blocked has experienced.

The Internet Content Rating Association (ICRA)

The Internet Content Rating Association was created in 1999 with the backing of many Internet companies, as well as funding from the EU Safer Internet Action Plan. ICRA’s aim was to develop a system enabling content providers to describe their website using an “internationally acceptable, cross-cultural language”. Webmasters are invited to visit the ICRA site and fill in a questionnaire about their website. Questions are of the yes / no variety and cover the presence of nudity, sexual content etc. Once the questionnaire is completed, ICRA generate a PICS label which can be added to their content. Filters can then read these labels and take action according to the settings.

C. LEGISLATION

Protection of Children Act 1978

S.1 makes it a criminal offence to take, permit to be taken, distribute, show, advertise or possess for distribution any indecent photograph or pseudo-photograph of a child under 18.

Sex Offences Act 2003

S.15 created a new offence of “grooming”, following recommendations from the Home Office Internet Task Force on Child Protection. Grooming, in this context, is intended to cover situations when an adult contacts a child, using various means of communication including the Internet, in order to gain the child’s trust so that he can arrange to meet the child for the purpose of committing a “relevant offence” against the child. This section of the Act came into effect at the beginning of May 2004.

S.45 raised the age of a “child” for the purposes of the PCA 1978 Act from 16 to 18 years of age.

S.46 reversed the burden of proof for offences under S1 PCA 1978. Now the onus is on the defendant to prove it was necessary for him to download indecent images of children for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings rather than the prosecution having to prove their guilt.

Obscene Publications Act 1959 & 1964

Under this Act, commercial dealings in obscene items, or possession of them for these purposes is an offence. The test of obscenity centres on whether the article has a tendency to corrupt or deprave the persons who are likely to read, see or hear it. This is usually interpreted by courts as the tendency to corrupt or deprave a ‘normal’ adult. Recently there have been calls for this test to be extended to include the tendency to corrupt or deprave a child.

E-Commerce Directive

Implemented under the E-Commerce Regulations in the UK in 2001. Its purpose is to ensure the free movement of “information society services” across the European Community and to encourage greater use of e-commerce services. It aimed to harmonise the extent of “content liability” for internet service providers such that industries in EC countries were under similar obligations.

D. EDUCATION

The Role of Ofcom and Media Literacy

During the passage of the Communications Act 2003, there were calls from some for the Internet to be included under Ofcom’s remit and regulated as a ‘television licensable content service’. Such calls were resisted given the difficulty of regulating a system which does not follow the traditional system of linear broadcasting, and has the architecture of the Internet.

Ofcom does have a role to play however and section 11 of the Communications Act gives Ofcom a ‘duty to promote media literacy’. Part of this duty is to being about ‘the development of better public awareness of the available systems by which persons to whom such material is made available may control what is received.’ The regulator is also charged with encouraging the development of such ‘available systems’ which are ‘effective and easy to use’.

Ofcom is expected to publish a consultation on media literacy in Summer 2004.

Other Initiatives

Other groups which have a self or co-regulatory role such as the IWF and the Home Office Internet Task Force also have an educational element. The IWF works with other national Internet safety and child protection bodies to promote safer Internet use and to educate the public, particular parents and children, on tools that are available to protect them online.

There are many educational websites aimed at promoting awareness in schools, amongst children and parents. These include:

Kidsmart – a practical Internet safety website for schools, provided by the children’s charity ChildNet

Gridclub – a site provided by the DfES, which gives children the opportunity to obtain an Internet proficiency certificate.

Thinkuknow.co.uk – an Internet site which provides information for both children and parents, produced through the Home Office Internet Task Force

Parents Online – a site provided by the DfES, which aims to promote parental awareness of the benefits of safe use of information communications technology for learning at home.

Conclusion

None of the above initiatives will solve the problems that increasing use of the Internet is causing but action in each area will contribute. The debate is ongoing, and there is a need to ensure the massive benefits and opportunities that global communication brings are not undermined by criminal activity. The need to tackle these issues must be done alongside measures to ensure that the UK remains the best place to do e-business and avoids excluding certain groups.

© Copyright EURIM 2004. All Rights Reserved. For written permission to reproduce any part of this publication please contact the Administrative Secretary, EURIM, (email: admin@eurim.org; fax 01984 618383). This will normally be given provided EURIM is fully credited. Whilst EURIM has tried to ensure the accuracy of this publication, it cannot accept responsibility for any errors, omissions, mis-statements or mistakes.

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