PAS DEVANT LES ENFANTS: BETTER SAFE THAN SORRY?
Abstract: The paper mentions the standard positions in the censor/don’t censor tango; notes that several recent studies point up the lowly place law should play in this regard in the internet-era; describes an analogous, under noted event during the nineteen-fifties; considers the issue from the standpoint of human/fundamental rights; and, finally, suggests 2 “missing links” in (most) treatments of the topic: understanding how the issue is being dealt with (at least in Europe) requires awareness of “the precautionary principle”; understanding how to deal with the issue demands awareness of and action based on Article 12 of the Convention on the Rights of the Child. Scotland is suggested as a good-ish example of a jurisdiction attempting to grapple with (the latter) issue
The Internet is driven by adult philosophies of free speech and privacy. Protection of children appears to have been an after-thought, rather than a principle guiding society's uptake of the Internet. Adult "rights", rather than the welfare of children, still appear to be guiding much policy in relation to the Internet…[U]nfortunately, how the rights of adults impede on the rights of children, is a question rarely asked.
[see Child Abuse and the Internet
"Where there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent" (Case C-157/96, National Farmers Union, judgment of 5.5.98, ECR 1998, page I-2211, ground 63)
INTRODUCTION
The title of this paper deliberately plays on, using a language of “Old World”, the title of Marjorie Heins’ recent work, Not in Front of the Children: "Indecency", Censorship, and the Innocence of Youth. Concerning censoring sexual material by employing the “protection of minors” standard, Heins asserts
It has a huge number of problems in terms of what age group we're talking about, i.e., what is harmful to a17-year old is not the same as what might be considered inappropriate or harmful–and the words are not clearly distinguished–to a 10-year old. These standards are important now that we have the internet, which has generated a whole new round of extremely problematic censorship laws--basically driven by this widespread fear of kids encountering pornography on the internet. This is something that happens, and probably will continue to happen, as long as kids find sex to be an interesting subject…The basic conclusion is that what any particular culture considers harmful or inappropriate to kids is very much culture driven. And we know very little–objectively–about what, if any, art information, entertainment, expression, is going to have a truly psychological harmful or traumatic effect. Probably those kinds of judgments are just too individualized, and it depends on the child's particular upbringing, temperament and intellect in every case
[see emphasis added]
Broadly speaking, Heins’ conclusion is that there really is no rational basis for, the law (at least) assuming that (sexual) materials should be censored with the aim of protecting minors. Of course, the issue of “inappropriate material” is wider, including, for example, violent and racist material too.
What is rather more interesting than Heins’ defence of the standard liberal/libertarian paradigm, is its in-mixing with “cultural relativism”. This is a controversial position. In particular, the world of “human rights” (infra) regards it as a device for maintaining illegitimate state sovereignty, declaring that “All human rights are universal, indivisible and interdependent and interrelated” (Vienna Declaration on Human Rights, 1993, Para 5
[(See emphasis added]
However, its expression can be found even in sources ostensibly committed to basic human rights. Thus, preambular paragraph nine of the Council of Europe’s Recommendation “on self-regulation concerning cyber content” states that
Bearing in mind the differences in national criminal law concerning illegal content as well as the differences in what content may be perceived as potentially harmful, especially to minors and their physical, mental and moral development, hereinafter referred to as “harmful content”;
[see
Of course, the Heinsian world-view is not universally shared. For example, the official text of the outcome document approved at the United Nations General Assembly’s Special Session on Children (10 May 2002) says all states shall
Encourage measures to protect children from violent or harmful web sites, computer programmes and games that negatively influence the psychological development of children, taking into account the responsibilities of the family, parents, legal guardians and caregivers
[see
(“measures” is, it is true, a general term, which does not refer exclusively to legal measures).
Again, from a rather less absolutist perspective than Heins (and specifically in relation to new media), judge David Harvey, speaking at a recent symposium in New Zealand, suggests that
In confronting new technology the enquiry must be whether or not the law as it stands may apply to new technology or, if it does not what changes need to be made to behaviour within cyberspace consistent with behaviour in the real world
[see Internet Safety: Young People And The Law In An On-Line World,
Legal scholars are well (indeed, overly) familiar with these competing, contradictory approaches to the issue of free speech, censorship and children. Sometimes such views are based on “social science” research. In deciding whether, and how far, to regulate internet speech in the (alleged) interests of minors, might one ask (albeit unreasonably) if such research helps to answer the question?
STUDIES
Several recent research programmes and studies on the use, meaning and characteristics of new media do, indeed, address the “should there be a law against it?” question.
Most recently (September 2002), the BBC; the (UK) Broadcasting Standards Commission and the (UK) Independent Television Commission jointly published Striking a Balance:the control of children’s media consumption. The Report (which deals with “older” media too) concludes that
The Internet as a medium raises more concerns and uncertainties than television for parents. Parents are worried because of the vastness of the Internet. Media publicity had made them cautious about sites featuring pornography and paedophilia, and about chat rooms. Even when they were confident in their children’s ability to regulate their own use of the Internet, they still worried about accidental exposure. Despite their concerns and the availability of control mechanisms, in practice parents did very little to control their children’s Internet usage. Most control, as with television, was informal - such as placing the computer where it was visible or only allowing the parent to switch on the computer. Parents felt this was the most effective way of balancing their anxieties with the educational potential of the Internet. Most parents felt that the current technical tools available for controlling their children’s use of the Internet were too complex to install and lacked simple age categorisation. They wanted simple labelling and easy to use filtering systems.
[see
Also of particular note is the work of the LSE’s Sonia Livingstone (see generally Her consistent refrain is that societies/governments should prioritise “user empowerment” (users here meaning minors) over any (misconceived) efforts to regulate for online safety. At the very least, she urges a “balanced”, “multi-layered” approach to dealing with any problem of perceived harm to children, as against any exclusive reliance on law.
Thus, in People and the Changing Media Environment that drew on a national (UK) survey of 6 -17 year olds, Livingstone concludes that
Our research does not support moral panics about children addicted to computer games or mindless entertainment on television. But today's children need to be screen-wise as well as book-wise. They are developing new skills and need support in doing this
Subsequent work extends the study on the uses and meanings of new media technologies in 12 European countries which involved interviewing and surveying 11,000+ 6-16 year olds, parents and teachers. Following Himmelweit, Oppenheim and Vince's classic Television and the child (1958), Livingstone’s study asks the question: “what is the place of media in children and young people's lives today?” Significantly, she asserts “Empirical research is needed to understand the balance between the opportunities and dangers of new media.” Whilst this affirms the need for research to inform the point of balance, it is less clear precisely how “empirical research” does, in fact, provide a practical answer to the problem.
In “Families and the Internet: A qualitative project-in-progress exploring how children and young people make use of the Internet at home and in school”, Livingstone specifically addresses the issue of “Online Freedom and Safety for Children” (the title of her recent report) arguing that
as a society we [sic] are unsure of our [sic] hopes and visions for the Internet. This lack of clarity leads to inadequate Internet literacy skills and a confused fear of the dangers of surfing the net. Much has been written of the dangers of chatrooms and e-mail especially when used by children. But unfortunately many parents and children are misinformed about the true nature of the dangers of the net and what to do when confronted with them. This ignorance leads to many parents enforcing heavy restrictions on Internet use. This attacks the motivation and confidence to gain the Internet skills that are becoming a prerequisite of everyday life. Fuelling this debate is the much discussed subject of freedom on the world wide web, with compelling arguments put for and against regulation of content and access. This report suggests that the answer is not to regulate but to educate
[see emphasisadded]
Specifically, Livingstone proposes introducing a new policy tool, the “Surfing Proficiency Test”, a community-based initiative with flexibility to be used equally by children and parents at home or school. Other prescriptions are a public-awareness campaign (regarding net dangers) and a co-ordinated community approach (to help isolated, beleaguered parents).
In the USA, too, a similar refrain can be observed. Youth, Pornography, and the Internet has recently been published (May 2002) under the auspices ofthe National Academies.
[see
Launching the publication, Dick Thornburgh (chair of the committee that wrote the report) stated that
The Internet poses special challenges for those concerned about the availability of inappropriate sexually explicit material. It's not nearly as easy for an adult to supervise children who might seek or be inadvertently exposed to sexually explicit materials online as it is when such images are available in books or on the family television set. No single approach can provide a solution, since any one approach alone can be circumvented with enough effort. A balanced mix of strategies is needed
[see emphasis added. Doug Isenberg also picks up the “no single approach” point as the main conclusion of the report in his recently published work, The Giga Law: Guide to Internet Law, p 226]
In order to achieve a “safer internet”, the report concludes that
- An essential element of protecting children from inappropriate material on the Internet -- and one largely ignored in the present debate -- is the promotion of social and educational strategies…The most important step adults can take to help children steer clear of potentially harmful online content is to supervise and be involved in their use of the Internet
- Another important social and educational strategy is for families, schools, libraries, and other organizations to develop acceptable-use policies for the Internet
- Children also need to acquire skills that will allow them to evaluate independently the information and images they are viewing…Children should be educated in Internet safety much as they are taught about their physical safety
- To guide adults, public service announcements and media campaigns could help educate them about the nature and extent of dangers on the Internet and the need for safety measures
- Technology provides parents and other responsible adults with additional choices as to how best to fulfil their responsibilities, but it must be integrated with education for best results
In dealing with the “Legal and Regulatory Dimensions”, the Report concludes that
The Internet poses a more serious problem [as compared with traditional media] because of the difficulty of distinguishing between adults and children in an online environment. Moreover, there is uncertainty about the effectiveness of enforcing obscenity laws, due to the limited number of obscenity prosecutions during the last decade and the increasing amounts of sexually explicit material in all media. Also, the Internet's global reach makes these issues even murkier, because legal control over domestic sites does not necessarily protect children from sites based overseas…Aggressive enforcement of existing anti-obscenity laws can help reduce children's access to certain kinds of sexually explicit material on the Internet. Public policy also could be developed to provide incentives for Internet service and content providers to behave in a more responsible manner with respect to protecting children on the Internet, such as taking greater care to differentiate between adults and minors before granting access to sexually explicit content, the report says. Policies can also be created to promote media literacy and Internet safety education for children, and to support self-regulatory efforts by businesses.
[see ibid.]
Actually, at first blush, this recent Report doesn’t seem to add very much to the earlier published Final Report of the COPA Commission, which concluded that
After consideration of the record, the Commission concludes that the most effective current means of protecting children from content on the Internet harmful to minors include: aggressive efforts toward public education, consumer empowerment, increased resources for enforcement of existing laws, and greater use of existing technologies. Witness after witness testified that protection of children online requires more education, more technologies, heightened public awareness of existing technologies and better enforcement of existing laws.
[see
From this - admittedly scant - review of some contemporary studies, the clear message is: no law - or no law exclusively, in this area, thank-you-very-much! In this issue area at least, a period in human history seems to have been reached when policy-makers informing legislators (and indeed legislators themselves) have decided that a primary social product, law, (or, at least, legislation) is no longer appropriate to deal with certain human/social issues and that, if at all, it can only buttress/complement the main technique, that of “self-regulation” (sometimes, co-regulation) coupled with policies advocating others (here, parents, teachers) to assume their (primary) responsibilities. Benoit Frydman and Isabelle Rorive have recently written, concerning this theme, that this is
the new model of governance that characterises globalisation. It implies a double shift from substantial to procedural regulation and from States’ regulation to global co-regulation.
[seeRegulating Internet Content through Intermediaries in Europe and the USA, in Zeitschrift fur Rechtssoziologie 23 (2002) Heft 1,S]
HISTORY
Regarding free speech and its restrictions in the interests of minors we have, of course, been here before. One under-noted episode springs to mind, which concerns the “forgotten” history of the campaign (and laws) on both sides of the Atlantic against “horror comics” during the 1950s.
In his essay in Lent J (ed) Pulp Demons: International Dimensions of the Postwar Anti-Comics Campaign, [1999, Associated University Presses], Martin Baker notes that there were campaigns against such publications “in at least 17 countries across three continents”, which resulted in legislation in five.
In the UK, the campaign forced the Cabinet to promote, Parliament passed, the still-extant Children and Young Persons (Harmful Publications) Act (1955). It was renewed in the mid-nineteen-sixties. According to Barker (Getting a Conviction: Or, How the British Horror Comics Campaign Only Just Succeeded p 69) the then Home Secretary said that the passage of the Act had been so successful that not one prosecution had been brought! In fact, in 1970 comics’ publisher Lawrence Miller was successfully prosecuted in an east London magistrate’s court, fined £25 and subsequently went out of business (though that might not have been the only reason). Barker’s main conclusion is that the campaign (which included a large number of people who were members of the British Communist Party) was (despite perceptions to the contrary) very “fragile” and that the law passed
mainly for a negative reason: the government of the day had no reason not to pass it. No voices spoke in defense of comics, let alone significant voices.
Noteworthy is also the fact, which Barker derives from his reading of the relevant Cabinet papers, that the government was not at all “gung-ho” about dealing with this phenomenon. Indeed, Barker points (loc.cit., fn 15) to the Government’s “unwillingness” to act. The Home Secretary said that it would not be easy to frame the legislation; it would be, in particular, difficult to define the type of material which should fall within the prohibition. Government action was largely taken to forestall any private Member’s Bill, which would make the Government seem as if it were being unresponsive to a “growing body of public opinion” that the Government do something to restrict the circulation.