If the government were to mandate a privately-funded body to handle adult content blocking it would be ‘a species of censoring... without any obligation of prior judicial approval’
A report on the Internet Watch Foundation (IWF) - a UK-based Hotline to report the most serious cases of child abuse on the Internet – by the former Director of Public Prosecutions, Ken (now Lord) MacDonald, has a lot to say about the difficulties of a take-down regime for adult content, suggesting that the IWF drop such content from its remit. In the broader discussions around Internet content blocking, his rationale is interesting. He concludes that there would be serious risks to free speech rights "if" a privately-funded bodywere to be given Internet take-down powers over 'sensitive' content. As Iptegrity readers will know, guarantees of fundamental rights under EU law mean that a court ruling is required before governments can
order content to be taken down. Lord Macdonald’s report would seem to be a reminder of this.
Lord Macdonald’s report is a valuable contribution to the wider debate on Internet blocking and the right to freedom of expression. He said that there are ‘substantial risks’ of a having a private body make the ‘fine legal judgements’ that are needed when it comes to ordering content removal. He went so far as to say that if the organisation were to be involved in broader adult content takedown measures, that would be a ‘form of regulation of the Internet by a private body’ and tantamount to involving it in ‘a species of internet censoring without the obligation of obtaining any prior judicial or even police approval’.
In such circumstances, failing to obtain a judicial ruling could put takedown orders in breach of the government’s obligations under the right to freedom of expression which is enshrined in British law under Article 10 of the European Convention on Human Rights.
Lord Macdonald is very clear on this point and it is repeated several times throughout the report:
“In these circumstances, special difficulties appear to exist in the case of a
private, industry–funded body, with no in-house legal expertise, exercising
judgments in areas that are very likely to engage ECHR privacy and free
expression rights, and which require complex legal reasoning to resolve
satisfactorily. It seems to me that interventions by a body like IWF into these
sensitive areas may present a real risk that the finely drawn balance between
our criminal legislation on the one hand, and the UK’s international
responsibilities under the ECHR and the Universal Declaration on the other,
may be upset.”
A central issue in his report concerns whether the Internet Watch Foundation should have a broader remit. The IWF is funded privately by the British Internet industry with the blessing of the government, and is essentially a Hotline for the public to call in with reports of child abuse images online. It also receives European Union funding. The IWF also has a remit to compile a blacklist of urls for ISPs to block, however it is important to note that the remit is narrow and specific and the list is (relatively) short.
The IWF has been asked by the government to upscale its work in order to proactively undertake surveillance of the Internet. Lord Macdonald’s report states that such upscaling, even when limited to the narrow brief of child abuse imagery, would be problematic. He says 'there would be a real danger in government outsourcing an important law enforcement function where the industry was not prerpared properly to finance such a function. ' Even with appropriate industry funding, he highlights that 'internet trawling by investigators' will 'engage Article 8 and 10 rights more fiercely than through a a process of simple reaction to complaints'. Elsewhere in the report, it states that the IWF has no process in place for obtaining court orders in respect of the take-downs, and its appeals process is deemed to be ‘insufficiently robust’.
Another issue addressed by Lord Macdonald's report concerned peer-to-peer networks and whether the IWF should begin surveillance of these networks for child abuse imagery. Lord Macdonald has advised against this.
However, the point that is of interest here, is the justification for dropping adult content (that is pornography in general) from it remit. It is currently permitted to deal with complaints about adult content, but in reality it very rarely does so. Lord Macdonald's report provides the justification for dropping that element of the remit altogether.
Lord Madconald's report addresses the difficulties of having a blocking system for adult content, reminding us of the 'sensitive' nature of the content involved. Whilst much of it will be distasteful to many people (including myself) that is not the same thing as being illegal – much of it is legal, even though it may be stomach curling, revolting or simply something we do not want to see ( and note that we differentiate here from any content that is clearly criminal) . This point is precisely why it is important for a court to make these kinds of judgements and not a few ‘analysts’ funded by a private body with an internal and non-transparent remit, as Lord Macdonald makes clear:
“it is equally plain that IWF’s power to have content removed from the
internet represents, on its face, a serious potential interference with the
rights of the community as a whole, since such action, unless it can be
justified in law, abrogates important privacy and free expression rights,
potentially to the broader public detriment.”
Moreover he states that orders to remove Internet content should only be made by a judge.
Lord Macdonald’s report has echoes of the French Constitutional court decision of June 2009 (for a discussion of this decision see chapter 2 of my book A Copyright Masquerade). There are further echoes of the EU Telecoms Package final agreement, namely Article 1.3a of the Framework directive (2009/140/EC). Article 1.3a reminds EU governments (including ours) that no restrictions may be ordered on Internet content, unless there is the possibility for a 'prior, fair and impartial hearing' . ( See The Copyright Enforcement Enigma). It important that these points are underscored by the law in order that we retain our democratic principles.
Lord Macdonald concluded that IWF should stick to its narrow and specific remit:
“It seems to me that the substantial risks, in human rights compatibility terms,
of having a private body make these fine legal judgments in the absence of
any professional legal input into individual cases, combined with the dearth
of actioned reports in any event, leads to a clear conclusion that IWF should
seriously consider restricting its remit in future to child sexual abuse content
**I have been contacted by a representative of the IWF and informed that they are not seeking funding for surveillance purposes, and are not seeking to expand their remit, as I originally wrote, rather to justify dropping adult content from their remit, although they have been asked by the government to be more proactive in seeking out the content that does fit their brief. I have corrected this posting accordingly. The point that I wanted to make was about Lord Macdonald's comments on the requirement for a judicial ruling, which I think is the most interesting aspect of this story, and that point stands. ***
This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, 2014, Adult content takedowns need judicial ruling, says former public prosector, in Iptegrity.com 13 February 2014. Commercial users - please contact me.
If you're interested in the politics of free speech and blocking of Internet content, you might like my new book A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms
Lord Macdonald's report on the IWF and human rights compliance can be found here.
Tags: Internet, content, blocking, IWF, Internet watch foundation, Lord Macdonald, takedown, Ken Macdonald.