The APC European Internet Rights Project
European Union Action Plan on Promoting Safer Use of the Internet
By Chris Bailey (October 1998)
On 24 April 1996 the European Council requested the European Commission "to produce a summary of problems posed by the rapid development of the Internet and to assess, in particular, the desirability of Community or international regulation".
On 23 October 1996 the Commission produced an extensive report on "illegal and harmful content on the Internet" and a Green Paper on "the protection of minors and human dignity in audiovisual services".
On 17 February 1997 the European Council of Ministers welcomed the Commission's report and agreed to undertake a number of actions. Member states were asked to "strengthen administrative cooperation on the basis of joint guidelines" and the Commission was asked to propose, after consulting the European Parliament, "a common framework for self-regulation (of the Internet) at European level". This resulted in an "Action Plan on promoting safe use of the Internet" on 26 November 1997.
This plan has now gone fully through all stages of consultation with the Economic and Social Committee, the Committee of the Regions and the European Parliament. Following a series of amendments by the European Parliament it was adopted by a joint decision of the European Parliament and the European Council on 16 September 1998. It will now be implemented by the European Union and all its member states. It is also proposed that non-EU states, including those in Eastern Europe, can join the plan and there are signs that a number will.
What is in the plan?Basically the plan sets out to "combat" both "illegal" and "harmful" content on the Internet. It plans to do this in the first place through "voluntary self-regulation" of the Internet industry. At this stage, legislation is not planned, but legal implications will be assessed throughout the period of operation of the plan with a view to introducing any necessary legislation after the plan finishes on 31 December 2001.
There are also clearly legal implications involved from the beginning. With regard to "harmful" content, ISPs will be expected to participate in developing filtering and rating systems. On "illegal" content, which will still be defined by national legislation and therefore vary from country to country, ISPs will be expected to comply with a "Code of Conduct" negotiated with the industry, users, police and other authorities. This will be supplemented by the creation of "hotlines" where anyone can report what they consider to be illegal content. A central aspect of the plan concerns bringing about "traceability" "to identify accurately the chain of responsibilities in order to place liability for illegal content on those who create it". It seems pretty clear that what is being offered here is a legal defence for any ISP brought before a court for illegal content that they have adhered to the Code of Conduct. This, of course, would imply responsibility for content if they hadn't complied with the Code.
It is important to note that drafting of the Action Plan was initiated under a section of the EC Treaty (Article 130(3)) dealing with "promoting the conditions necessary for the competitiveness of the Community's industry". It was therefore produced under the direction of Martin Bangemann, the Commissioner for Industrial Policy. Bangemann is a neo-liberal and a member of the German FDP. He is notorious for having little time for social issues and, indeed, these were essentially outside his remit for producing the plan. This is evident in the Action Plan compared with the previous paper on "Illegal and harmful content on the Internet", which contained at least passing reference to the importance of the Internet as a tool for democracy on social question:
Such references have disappeared almost entirely in the Action Plan and it is obvious that it is mainly concerned with preparing the conditions for a commercial growth of the Internet. This does produce some positive features though. The uncertain situation concerning legal liability is obviously a major problem that needs to be addressed if Internet businesses are to develop. The plan does try to do this. Its clear intent is to make the responsibility for illegal content rest with those who create it rather than with ISPs. I think the move in this direction should be strongly supported.
However, it is apparent that ISPs will only avoid liability if they comply with the planned Code of Conduct and it is this question which could pose a major threat to NGOs and other users whose main purpose is to campaign on social issues. Included as material described as "illegal" is content that relates to the issue of "protection of reputation". As part of adhering to the Code of Conduct, ISPs obviously will be required to give guarantees that they will not allow such material.
It seems extremely likely that such a requirement will be used to try to impose the same or worse restrictions on free speech as already exist in other media. It would seem that a company like Biwater will be able to simply phone a "hotline" to complain about what they consider to be "illegal" material threatening their reputation and the ISP would be asked to remove it if some "independent" authority accepts their claim.
Ordinary commercial ISPs will probably have little problem complying with this. They are not primarily concerned with the social issues involved, only with making money. They are likely to be happy with the Action Plan's emphasis on expanding commercial use of the Internet whilst clarifying the legal responsibilities of ISPs. Social campaigning users are likely to be seen increasingly as a minority group and regarded as a liability whose existence on the server causes problems concerning compliance with the Code of Conduct.
The Action Plan and the European ParliamentIt is a well known phenomenon that the European Commission tends to work more "vertically" than "horizontally". The existence of the mass of lobbying companies that have opened up in Brussels is to a large degree dependent on this. A plan produced by a Directorate of the Commission tends to consider only the issues which are its own prime concern. To get other wider issues raised it is necessary to draw them to the attention of other bodies within the EU that might be concerned about them, and get them to raise these issues when the opportunity arises.
As described above, the Action Plan on promoting safe use of the Internet was initiated under the direction of the Commissioner for Industrial Policy, Martin Bangemann. It was produced by DGXIII responsible for "Telecommunications, Information Technologies and Industries". It is not surprising and indeed quite usual that issues outside of industrial policy were largely ignored in the Plan. The only way these would be likely to be addressed would be if other sections of the EU structures concerned about them did so when the opportunities arose.
With regard to raising the social issues involved in the use of the Internet, there are a number of bodies concerned with such matters that could have raised them during the discussion stages of the Action Plan. The relevant bodies are DGV, responsible for "Employment, Industrial Relations and Social Affairs", possibly DGX, responsible for "Audiovisual, Information, Communication and Culture", the Economic and Social Committee, and last but certainly not least sections of the European Parliament concerned with social matters.
There appears to have been little influence from DGV or DGX on the Action Plan. The Economic and Social Committee did examine the plan thoroughly and produced a report on it.(2) Its main input concerned querying the viability of filtering systems. It did not raise at all any questions concerning the importance of the Internet as a democratic forum for public discussion.
Finally, we need to examine the input from the European Parliament.(3) This was substantial. The Parliament proposed 23 amendments to the Action Plan, 20 of which were accepted by the Commission. These amendments certainly did challenge the bias of the plan towards the needs of industry. One amendment even succeeded in changing the section of the European EC Treaty that the plan came under. However, far from improving the plan from the viewpoint of those of us concerned about Internet democracy, the amendments of the European Parliament have considerably worsened the situation. Some of them are nothing short of disastrous.
The main thrust of the Parliament's challenge to the business bias of the Action Plan was to maintain that the central issue to be addressed was "protection of the consumer" rather than "promoting the conditions necessary for the competitiveness of the Community's industry". This was the effect of it insisting that the plan be implemented under Article 129a of the EC Treaty rather than Article 130(3).
Just what was meant by "protecting the consumer" was then made clear in the other amendments. These almost all aimed at moving the thrust of the plan away from "self-regulation of the industry" towards allowing intervention of "the competent authorities", particularly the police, to intervene in "protecting the consumer" from "illegal" and "harmful" content.
The following are the worst of the amendments proposed by the Parliament and accepted by the Commission:
Amendment 23 added a new paragraph:
Police officers' experience should also be included in these examinations."
Finally the Parliament sought to destroy completely the attempt of the original plan to place responsibility for illegal content "on those who create it" rather than ISPs. It proposed in Amendment 7 to change
and in Amendment 12 it proposed to change:
These last two amendments were rejected by the Commission and do not go in the final Action Plan. The Commission rejected them on the following grounds:
This would seem to refer to the eventual discussion on possible new legal measures required that will take place at the end of the Action Plan's period of operation.
In the entire discussion on the Action Plan within the EU structures only one group seems to have even attempted to raise issues concerning the Internet's importance for social campaigning and extending democratic debate. This was the European Parliament's Committee on Women's Rights. Their submission to the Parliament contained the following paragraphs, although these were not translated into amendments:
The committee calls for general information campaigns, but also for special campaigns targeted at women." (6)
This rather muted voice from the Committee on Women's Rights stands out only because it represents a lone attempt to stem the tide of calls from the more vocal elements in the European Parliament calling for regulation, legislation etc, to "protect consumers" from the iniquitous threat apparently posed to them by the Internet!
Notes1 Illegal and harmful content on the Internet. European Commission. 23 October 1996. 2nd paragraph of section 1.
2 Opinion of the Economic and Social Committee on the Proposal for a Council Decision adopting a Multiannual Community Action Plan on promoting safe use of the Internet. 29 April 1998.
3 Report on the Commission proposal for a Council Decision adopting a Multiannual Community Action Plan on promoting safe use of the Internet. European Parliament Committee on Civil Liberties and Internal Affairs. 9 June 1998.
4 Draft Amended proposal for a European Parliament and Council decision adopting a Multiannual Community Action Plan on promoting safer use of the Internet.
5 Opinion of the Committee on Women's Rights. 2 June 1998. Contained in the Opinions section of the Report on the Commission proposal for a Council Decision adopting a Multiannual Community Action Plan on promoting safe use of the Internet. European Parliament Committee on Civil Liberties and Internal Affairs. 9 June 1998.