The fight against the dissemination of content offensive to human dignity and the protection of minors against exposure to content that is harmful to their development are of fundamental importance in enabling new audiovisual and information services to develop in a climate of trust and confidence. If effective measures to protect the public interest in these fields are not rapidly identified and implemented we run the risk of these new services not reaching their full economic, social and cultural potential.
Chapter I of this Green Paper identifies those aspects of the development of new audiovisual and information services that are relevant for the protection of minors and of human dignity and analyzes the categories of content that may give rise to problems. It underlines the need not to confuse problems that are different in nature, such as child pornography, which is illegal and subject to penal sanctions, and children accessing pornographic content for adults, which while being harmful for their development may not be illegal for adults. Solutions have to be designed to take account of the type of content in question.
They also have to be adapted as a consequence of the evolution of the service environment. New television services, such as pay-per-view, provide greater individual choice. They are evolving away from the mass media model, where the viewer's choice is between watching a programme or not, towards a model that is closer to publishing i.e. where the viewer selects his or her programme from a wider choice. On-line services take this evolution further towards the individual communication model. In geographical terms distribution networks are less national and increasingly global in nature, Internet being a world-wide network of networks. Moreover, new types of content are emerging. A traditional television programme that is watched from beginning to end is linear in nature whereas interactivity allows one to navigate through alternative scenarios. Hybrid forms of content are coming into existence, for example combining games, advertising and information in new ways.
The development of new services requires a flexible framework, notably in regulatory terms. A functional analysis of the characteristics of each new type of service is required in order to identify new solutions. Any new risks inherent to the nature of new services have to be carefully evaluated. Concerns about the protection of minors and of human dignity in relation to new emerging audiovisual and information services justify vigilance on the part of public authorities and citizens alike. However, the problem should not be overstated - the difficulty often resides more in the characteristics of new services as compared to traditional media than in their content.
Chapter II provides an analysis of existing legal and constitutional arrangements at European and national level. It points out that national arrangements in Europe are all set against the background of the fundamental rights enshrined in the European Convention of Human Rights (ECHR) which are incorporated as general principles of Community law by Article F.2 of the Treaty on European Union. In particular, Article 10 ECHR guarantees the right to freedom of expression. It also provides that the exercise of this right may be subject to certain limitations for specified reasons, including the protection of health or morals and the prevention of crime. Accordingly, freedom of expression is nowhere absolute in the European Union and is subject to restrictions. The case law of the European Court of Human Rights has developed the principle of proportionality the crucial test of conformity of any restrictive measures with the fundamental principles laid down in the ECHR. Europe therefore has a basis for a common approach - the principle of freedom of expression and the test of proportionality. Beyond this common basis the actual regimes in the Member States vary greatly and reflect differences in cultural and moral standards.
In general terms, the new services can create specific new problems with regard to the enforcement of legal provisions. An example is the increased difficulty of determining liability where there are several different operators involved in the communications chain (network provider, access provider, service provider, content provider). Such difficulties are more acute when the different elements of the chain are in different countries.
This Chapter then goes on to examine the problems related to the protection of minors against harmful, but not necessarily illegal, content such as adult erotica. In some Member States, the principle of protection of minors is incorporated into general provisions, whatever the media involved, which forbid the supply to minors of material likely to harm their development (but which may be legally accessed by adults). Other Member States have provisions that are media specific. In all cases, the implementation of measures to protect minors requires the identification of ways of ensuring that minors do not access harmful material while allowing adults access. Recent technological developments can provide new solutions through greater, parental control, both in the television (v-chip) and on-line (PICS) environments. In both cases, content rating is a key part of the system. The new technical possibilities are more limited in the television than in the on-line environment, but both have the advantage of offering "bottom-up" rather than "top down" solutions that obviate the need for prior censorship and increase the potential effectiveness of self-regulation.
Chapter III analyzes the situation at the level of the European Union both with regard to Community law and to cooperation in the field of justice and home affairs. The freedom to provide services is one of the four basic freedoms guaranteed by the Treaty. Restrictions are possible for overriding reasons of public interest, such as the protection of minors and of human dignity, but are subject notably to the proportionality test.
In the fight against illegal content, cooperation between the Member States in the field of justice and home affairs is identified as having a fundamental role to play given the international character of the new services. Through such cooperation the Member States will be able to more effectively counter illegal use and content. Moreover, internal coherence will put them in a better position to work towards world-wide solutions.
Various options for improving cooperation between national administrations and with the Commission in both the Community and justice and home affairs frameworks are explored (systematic exchange of information, joint analysis of national legislative provisions, establishment of a common framework for self-regulation, recommendations for cooperation in the field of justice and home affairs, common orientations for international cooperation). The potential for encouraging cooperation between the relevant industry sectors is also evaluated (codes of conduct, common standards for rating systems, promotion of PICS). Possible user awareness and media education measures are also put forward for debate.
Building on the Commission's first policy options presented in the Communication on Illegal and Harmful Content on the Internet, Chapters II and III both identify a series of questions for further debate on issues the Commission considers as key for defining future policy actions. They are, in order:
Taking account of what is technically feasible and economically reasonable, what should be the liability of different operators in the content communication chain, from the content creator to the final user ? What types of liability - penal, civil, editorial - should come into play and under what conditions should liability be limited ?
How should the test of proportionality of any restrictive measures be applied ? Inter alia, should any arbitration or conciliation mechanisms at European Union level be envisaged? If so, what sort of mechanisms?
How do we determine the right balance between protection of privacy (including allowing users to maintain anonymity on the networks) and the need to enforce liability for illegal behaviour?
Should one give priority to a regulatory or a self-regulatory approach (possibly backed up by legislation in the latter case) as regards parental control systems? What measures would be required, inter alia at European Union level?
In what cases should systematic supply of parental control systems be envisaged (according to service type or other criteria)? Should any obligatory regime be envisaged? If so, in what form and to which operators should it apply? What are the essential functions that such systems should provide?
How can decentralisation of content rating be implemented, catering for the need to respect individual, local and national sensitivities, where audiovisual and information services are transnational?
What elements of standardisation would allow content ratings to be developed in a coherent way in Europe, in particular in the case of digital services (standardisation of types of information to be supplied, of encoding and decoding of such information, etc.)?
In what ways should administrative cooperation be implemented in the European Union? How and in what institutional framework should it be formalised?
What should the priorities be at European level and at international level? In particular, should one give priority to developing solutions at European Union level and then promoting them at international level or should this be done in parallel? What are the most appropriate international fora for international cooperation (G7, OECD, ITU, WTO, UN or bilateral relations)? How should this international cooperation be formalised?
[Green Paper] [EUROPA] [Commission] [Protection of Minors and Human Dignity ...]