The responsibilities of free speech regulators: An analysis of the internet watch foundation

International Journal of Law and Information Technology

Volumn 20, Issue 4, 2012, Pages 312-345

  Laidlaw, Emily B ^a  

^a UNIVERSITY OF EAST ANGLIA   (United Kingdom)

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[No Author keywords available]

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EID: 84868148818     PISSN: 09670769     EISSN: 14643693     Source Type: Journal    
DOI: 10.1093/ijlit/eas018     Document Type: Article

References (209)

1. See eg the wired article on this: CJ Davies, 'The Hidden Censors of the Internet' WiredMagazine (London, June 2006) accessed 15 June 2012.
2. See eg accessed 8 November 2011.
3. J Petley, 'Web Control' (2009) 38(1) Index Censorship 78, 89.
4. See article of Out-law arguing that the IWF should not have changed itsmind: Out-law.com, 'Why the IWF was Wrong to Lift its Ban on a Wikipedia Page' (11 December 2008) accessed 15 June 2012.
5. For an explanation of the technical aspect of the Wikipedia controversy see R Clayton accessed 15 June 2012.
6. Term from TI Emerson, The System of Freedom of Expression (Random House 1970).
7. This is putting aside for the purposes of this article the issue of illegal file sharing. See for example issues surrounding the Digital Economy Act 2010 c 24 (in particular s 17 granting powers to the Secretary of State to make regulations for blocking injunctions in certain circumstances), Twentieth Century Fox Film Corporation and others v British Telecommunications PLC [2011] EWHC 1981 (Ch) (and mention of the use of Cleanfeed as satisfying the order to block access to Newzbin 2), andmore recently Dramatico Entertainment Limited and others v British Sky Broadcasting Limited and others [2012] EWHC 268 (Ch) (to block Pirate Bay). 1998 Ch 42.
8. Report of the special rapporteur on the promotion and protection of the right to freedom of expression, Frank La Rue to the United Nations General Assembly, 16 May 2011 accessed 15 June 2012).
9. There are numerous resources on Internet gatekeeping.
10. See for example J Zittrain, 'A History of Online Gatekeeping' (2006) 19(2).
11. Harv JL & Tech 253 and RJ Mann and SR Belzley, 'The Promise of Internet Intermediary Liability' (2005) 47 WM & Mary L Rev 239.
12. For more see EB Laidlaw, 'A Framework for Identifying Internet information Gatekeepers' (2010) 24(3) IRLCT 263.
13. See for example the work of the Global Network Initiative in developing a corporate responsibility framework to address privacy and freedom of expression. Note that a project is underway to develop guidance for the information and communication technology (ICT) sector on corporate responsibility and human rights. The ICT sector was one of three sectors selected by the European Commission's Directorate-General for Enterprise and Industry for this work.
14. See and accessed 12 June 2012.
15. See Lord Carter, Digital Britain Final Report (June 2009) accessed 15 June 2012.
16. Nominet has repeatedly awarded the IWF with a 'Best Practice Challenge' award for raising industry standards accessed 15 October 2011.
17. Ofcom, 'Identifying Appropriate Regulatory Solutions: Principles for Analysing Self- and Co-Regulation' (10 December 2008) 9 accessed 15 June 2012.
18. For example, see Canada's 'cleanfeed': Cybpertip!ca accessed 8 August 2011.
19. Internet Watch Foundation, 2011 Annual and Charity Report accessed 20 June 2012.
20. See accessed 15 June 2012.
21. The IWF repeatedly describes the content it targets as potentially illegal, rather than simply illegal explaining that '[w]e refer to content as potentially criminal because a definitive legal judgement is a matter for the Courts' accessed 15 June 2012.
22. See accessed 15 June 2012.
23. See True Vision accessed 8 August 2011.
24. See accessed 15 June 2012.
25. IWF (n 16) 12.
26. See accessed 15 June 2012.
27. See accessed 15 June 2012.
28. See accessed 15 June 2012.
29. See accessed 15 June 2012.
30. G Sutter, '"Nothing new under the Sun": Old Fear and New Media' (2000) 8(3) IJLIT 338, 370.
31. Petley (n 3).
32. See 'Introduction to the IWF' on former IWF Chair Roger Darlington's website accessed 15 June 2012.
33. W Grossman, 'IWF: What are you looking at?' The Independent (25March 2002) accessed 8 August 2011.
34. See ISPA, Code of Practice accessed 12 June 2012.
35. Note of course thatmandating removal of a page is different than mandating implementation of a filtering system.
36. Selection through ISPreview, Top 10 UK ISPs accessed 15 June 2012.
37. See accessed 15 June 2012.
38. BT, 'Internet policy - A BT Perspective' accessed 15 June 2012.
39. For how it works see Clayton (n 4).
40. See discussion TJ McIntyre, 'Intermediaries, Invisibility and the Rule of Law' (2008) BILETA Conference Paper, 10-11.
41. Clayton (n 4) 4.
42. The IWF states that its 'role in this blocking initiative is restricted to the compilation and provision of a list: the blocking solution is entirely a matter for the company deploying the list. Our list is designed and provided for blocking specific URLs only. Any decision to convert or adapt the list to block whole domains may lead to overblocking of legitimate content and is not supported by the IWF': accessed 15 June 2012.
43. Academic research indicates this to be the case: Clayton (n 4) 4.
44. See accessed 15 June 2012.
45. Internet Watch Foundation, 2010 Annual and Charity Report accessed 8 August 2011.
46. Most notably see the 'Safer Internet' action plan: Decision No 276/1999/EC of the European Parliament and of the Council of 25 January 1999 adopting amultiannual Community action plan on promoting safer use of the Internet by combating illegal and harmful content on global networks, and the Action Plan on Promoting Safe Use of the Internet (now called the Safer Internet Plus Programme 2005-08).
47. The Council of Europe has issued soft law guidelines on human rights for internet service providers and online games providers.
48. See 'Human rights guidelines for Internet service providers' .
49. 'Human rights guidelines for online game providers' accessed 8 August 2011.
50. See discussion in TJ McIntyre and C Scott, 'Internet Filtering: Rhetoric, Legitimacy, Accountability and Responsibility' in R Brownsword and K Yeung (eds), Regulating Technologies: Legal Future, Regulatory Frames and Technological Fixes (Hart Publishing 2008).
51. Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market.
52. 2002 No 2013.
53. The then Department for Business Enterprise & Regulatory Reform (BERR) advised that this definition covers a wide range of activities such as ISPs, Internet Access Providers, video on demand, email providers, offering of online information tools, adverts and search tools: accessed 23 August 2011.
54. And see Department of Trade and Industry, A Guide for Business to The Electronic Commerce (EC Directive) Regulations 2002 (31 July 2002) 9 accessed 23 August 2011.
55. Since the Regulations were brought into force, the UK has passed two regulations applying the E-Commerce Regulations to certain types of content: the Electronic Commerce Directive (Terrorism Act 2006) Regulations 2007 No 1550 applying it to content that violates the Terrorist Act 2006 c 11, and the Electronic Commerce Directive (Hatred against Persons on Religious Grounds or the Grounds of Sexual Orientation) Regulations 2010 No 894 (revoking and replacing the Electronic Commerce Directive (The Race and Religious Hatred Act 2006) Regulations 2007 No 2497) applying the Directive to hatred on the grounds of race, religion or sexuality.
56. See C Ahlert and others, 'How "Liberty" Disappeared from Cyberspace: The Mystery Shopper Tests Internet Content Self-Regulation', 11-12 accessed 23 August 2011, where they discuss the problems with the notice-and-takedown regime.
57. S Starr, 'Internet Freedom' (2002) 117(1) New Humanist 2.
58. It has said this many times.
59. For example, in its 2006 Annual Report it discusses the blacklist as something ISPs choose to do: Internet Watch Foundation, Annual and Charity Report 2006, 5.
60. On their website they describe the process with the blacklist as something they pass on to theirmembers who 'have chosen to make use of this list to protect their customers'. accessed 15 June 2012.
61. See accessed 15 June 2012.
62. Davies (n 1).
63. European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.
64. See Section 3.5 for discussion.
65. For a discussion of core and hybrid public authorities see R Clayton and H Tomlinson, The Law of Human Rights, vol 1 (2nd edn, OUP 2009) paras 5.13-5.48.
66. Note courts and tribunals are public authorities leading to the indirect horizontal effect of the HRA: see Campbell v MGN Ltd [2004] UKHL 22 in this regard.
67. HRA, ss 6(3)(b) and 6(5).
68. See discussion in C Gearty, Principles of Human Rights Adjudication (OUP 2004) about earlier case law, 185-91.
69. See Clayton and Tomlinson (n 60) para 5.08. Distinction teased out by Lord Woolf CJ in Poplar Housing and Regeneration Community Association Ltd. v Donoghue [2002] QB 48 (CA) para 63.
70. Aston Cantlow and Wilmcote with Beillesley Parochial Church Council v Wallbank [2003] UKHL 37.
71. Poplar Housing (n 62).
72. R (A) v Partnerships in Care Ltd. [2002] 1 WLR 2610.
73. [2008] 1 AC 95.
74. In particular, see Lord Bingham's opinion, paras 4-5, 19, and Baroness Hale's at paras 65-68: '[w]hile there cannot be a single litmus test of what is a function of a public nature, the underlying rationale must be that it is a task for which the public, in the shape of the state, have assumed responsibility, at public expense if need be, and in the public interest': para 65.
75. Parliament overturned the effect of YL by designating care home providers contracted under a situation such as in this case as public authorities: Health and Social Care Act 2008 c 14,s 145.
76. This does not have wider application, however, but gives some indication of Parliament's view on the matter.
77. The YL factors have been applied with approval in subsequent case law analysing whether a particular body is a public authority. Thus far, none of these cases have helped clarify or extend the principles in YL in a way that would be useful in an assessment of the public authority status of the IWF.
78. See for example, Barr & Ors v Biffa Waste Services Ltd. (No 3) [2011] EWHC 1003.
79. Ofcom regulates broadcasting pursuant to the Communications Act 2003 c 21. The ASA operates within a framework of Community law and the Director-General has the power to obtain an injunction to control misleading advertising under the Consumer Protection from Unfair Trading Regulations 2008 No 1277. The BBFC, while a private body exercising public law functions, is brought within a system of regulation by the Home Secretary designating it an 'authority' under s 4 of the Video Recording Act 1984 c 39 for the issuance of video certificates.
80. The BBFC also recognizes its obligation to have regard to the HRA in its decisions: accessed 15 November 2011.
81. See Wingrove v United Kingdom (1997) 24 EHRR 1 for a discussion of an appeal from the BBFC to the Video Appeal Committee.
82. Anatural comparison would also be to Nominet, but Nominet's status as a public authority is as untested as the IWF's, and thus attention is turned to traditional communication regulators, which have been around longer and thus received more judicial attention.
83. See Joint Committee on Human Rights, Tenth Report (2007) fn 11 accessed 24 August 2011.
84. Note, of course, that in YL the judges discussed the inapplicability of such documents to the question of whether a body is a public authority.
85. R (Ford) v The Press Complaints Commission, [2001] EWHC Admin 683, para 11.
86. YL (n 67) para 140.
87. McIntyre (n 38) 13. This was stated in the Minutes of an IWF board meeting on 25 April 2001, reported on by Y Akdeniz, Internet Child Pornography and the Law (Ashgate 2008) 264, this report is no longer available to this author to review. I was able to review the minutes of the then Chair, Darlington (n 28).
88. Memorandum of Understanding Between the Crown Prosecution Service (CPS) and the Association of Chief Police Officers (ACPO) concerning Section 46 Sexual Offences Act 2003, 6.
89. (link no longer available).
90. Safer Children in a Digital World: The Report of the Byron Review (Crown copyright 2008) 16.
91. See accessed 15 June 2012.
92. See accessed 15 June 2012.
93. See accessed 15 June 2012.
94. See accessed 15 June 2012.
95. See accounts accessed 15 June 2012.
96. In McIntyre and Scott (n 46) 121, the authors discuss the Government's 'inherent steering capacity' with regard to the IWF.
97. D Tambini and others, Codifying Cyberspace (Routledge 2008) 294.
98. Olsson v Sweden (A/250) (1994) 17 EHRR 134, para 67.
99. See also Sunday Times v United Kingdom (No 1) (A/30) (1979-80) 2 EHRR 245, which goes through the criteria for assessing whether an infringement under art 10meets the criteria under art 10(2).
100. See also Sunday Times v United Kingdom (No 2) (13166/87) (1991) 14 EHRR 229.
101. See Lord Lester of Herne Hill and others, Human Rights Law and Practice (Butterworths 1999) para 3.14.
102. Sunday Times (No 1) (n 88) para 49.
103. See accessed 15 June 2012.
104. When incitement to racial hatred content was within its remit it drew its authority from the Public Order Act 1986 c 64 and the Race Relations Act 1976 c 74.
105. (1997) 24 EHRR 523.
106. 1985 c 56.
107. Halford (n 92) para 49.
108. Obscene Publications Act 1964 c 74, s 1.
109. For example, BERR identified five principles of good regulation: that it was transparent, accountable, proportionate, consistent and targeted accessed 6 September 2012.
110. See discussion DJ Harris and others, Law of European Convention on Human Rights (2nd edn, OUP2009) 359. See in particular Handyside v United Kingdom (1979-80) 1 EHRR 737, and Sunday Times (No 2) (n 88) para 50.
111. Lord Lester of Herne Hill (n 89) para 3.10.
112. Note ECHR jurisprudence is ultimately tied up with the notion ofmargin of appreciation, a notion generally inapplicable here.
113. Harris (n 97) 443.
114. SF Kreimer, 'Censorship By Proxy: First Amendment, Internet Intermediaries, and the Problem of the Weakest Link' (2006-07) 155 U Pa L Rev 11-101, 40.
115. Westminster eForum (comments of Peter Robbins) (transcript), Taming the Wild Web? - Online Content Regulation (London, 11 February 2009).
116. Telecommunications Act (S.C. 1993, c 38) s 36.
117. See discussion of the Open Net Initiative concerning the specific instance of an ISP blocking access to an employee union website accessed 24 August 2011.
118. See discussion by J Bayer, 'Liability of Internet Service Providers for Third Party Content' (2008) 1 Victoria University Wellington Working Paper Series 1, 57-58.
119. This paper discusses the application of Richard Warman to the CRTC to exempt ISPs from the prohibition of voluntary blocking so that they could block access to foreign hate sites that were harassing him.
120. See accessed 24 August 2011.
121. I Brown, 'Internet Self-Regulation and Fundamental Rights' (2010) 1 IndexCensorship 98.
122. L Edwards, 'From Child Porn to China, in one Cleanfeed' (2006) 3(3) Script-ed 174, 175.
123. CMetz, 'IWF Confirms WaybackMachine Porn Blacklisting' (14 January 2009) accessed 24 August 2011.
124. Information on file with author.
125. For forumdiscussion, see accessed 20 June 2012.
126. See La Rue (n 8).
127. A 2010 poll found that four out of five people in the world see it is a fundamental right: The BBC, 'Internet Access is a "Fundamental Rights"' (8 March 2010) accessed 20 June 2012.
128. Davies (n 1).
129. McIntyre (n 38) 13.
130. Note that Australia's blacklist for child pornography, held by its communications regulator, was leaked in 2009 revealing that several non-child pornography-related sites were included on the blacklist such as poker sites, Wikipedia entries, bus companies and Google and Yahoo! groups: D Pauli, 'Australia's Web Blacklist Leaked' Computer World (Sydney, 19 March 2009) accessed 13 June 2012.
131. See accessed 15 June 2012.
132. See McIntyre (n 38) 13. This lack of transparency is mimicked across Europe: see Alhert (n 52) 14-16.
133. See accessed 15 June 2012.
134. Petley (n 3) 87.
135. H Mulholland, 'Government Targets Extremist Websites' The Guardian (London, 17 January 2008) accessed 12 June 2012.
136. Brown (n 108).
137. All themajor search engines inGermany formed an organization to filter search results harmful tominors. They filter from a list provided by a government agency in charge of media classification: R Deibert and others (eds), Access Denied: the Practice and Policy of Global Internet Filtering (MIT Press 2008) 188.
138. See discussion McIntyre (n 38) 8-9.
139. Deibert (n 120) 188-89.
140. See n 6 above.
141. See 'Independent Parliamentary Inquiry into Online Child Protection: Findings and Recommendations' (April 2012) .
142. J. Halliday, 'Pornography online: David Cameron to consider "opt in" plan' The Guardian (London, 4 May 2010) accessed 20 June 2012.
143. See Kreimer (n 103).
144. W Grossman, 'IWF Reforms could Pave Way for UK Net Censorship: Who isWatching the Watchers?' The Register (29December 2006)accessed 15 June 2012.
145. IWF Code of Practice accessed 15 June 2012.
146. See in particular ss 8-10.
147. See accessed 15 June 2012.
148. See discussion below for audit report access requests.
149. See accessed 15 June 2012.
150. See accessed 15 June 2012.
151. Link no longer available (hard copy on file with author) accessed May 2010.
152. See accessed 15 June 2012.
153. See discussion A Murray, Information Technology Law: the Law and Society (OUP 2010) 439.
154. See accessed 15 June 2012.
155. The IWF admitted as such in the BBC, 'Child Abuse "Big Business Online"' The BBC (London, 13 May 2010) accessed 15 June 2012.
156. See the study done by cybertip.ca breaking down by website type incidents of child pornography by Canadian Centre for Child Protection, 'Child Sexual Abuse Images: an Analysis of Websites by cybertip.ca' (November 2009) accessed 15 June 2012.
157. About virtual worlds, see Sky News, 'Paedophiles Target Virtual World' (31 October 2007) accessed 15 June 2012.
158. Council of the European Union, 'EU Takes Action to Combat Sexual Abuse of Children and Child Pornography' (15 November 2011) accessed 15 June 2012.
159. Directive 2011/93/EU on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Framework Decision 2004/68/JHA.
160. Charter of Fundamental Rights of the European Union 2000/C 254/01, recognized as law in art 6 of the Treaty of Lisbon amending the Treaty establishing the European Community 2007/C 306/01.
161. Note also art 11 of the Charter setting out the right to freedom of expression and information.
162. Harris (n 97) 446 citing VgT Verein gegen Tierfabriken v Switzerland (2002) 34 EHRR 4
163. see generally A Clapham, Human Rights in the Private Sphere (Clarendon Press 1993).
164. In this regard see Appleby v United Kingdom (2003) 37 EHRR 38 discussed below.
165. Harris (n 97) 446.
166. (2001) EHRR 50.
167. (1995) 19 EHRR 112, para 27.
168. See discussion of Costello-Roberts in Harris (n 97) 21.
169. For an analysis of the links between public spaces and virtual spaces see D Mac Síthigh, 'Virtual Walls? The Law of Pseudo-Public Spaces' (2012) 8 Int JLC 394-412.
170. Appleby (n 146).
171. The various documents can be accessed at accessed 20 June 2012.
172. See in particular, J Ruggie, 'Guiding Principles on Business and Human Rights: Implementing the United Nations "Protect, Respect and Remedy" Framework' (March 2011) accessed 20 June 2012.
173. J Ruggie, 'Protect, Respect and Remedy: A Framework for Business and Human Rights, Report of the Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises' (2008) accessed 20 June 2012.
174. UN News Centre, 'UN Human Rights Council Endorses Principles to Ensure Businesses Respect Human rights' (16 June 2011) accessed 20 June 2012.
175. Note that the Framework tackles the entire subject matter of business and human rights.
176. Ruggie (2011) (n 157) 4.
177. Ruggie (2008) (n 157) 20.
178. Ruggie (2011) (n 157) 22.
179. J Ruggie, 'Business and Human Rights: Towards Operationalizing the "Protect, Respect and Remedy" Framework' (2009) 14 accessed 20 June 2012.
180. See R McCorquodale, 'Corporate Social Responsibility and International Human Rights Law' (2009) 87 J Bus Ethics 385, 392.
181. Ruggie (2008) (n 157) 16.
182. Ruggie (2011) (n 157) 15-16.
183. Ruggie (2008) (n 157) 19.
184. See accessed 15 June 2012.
185. Annual Report (2006) (n 54) 12-13.
186. Annual Report (2010) (n 44).
187. The Internet Watch Foundation, 2008 Annual and Charity Report (accessed 15 June 2012) mentions the 2008-11 strategic plan.
188. Otherwise see the 2011-14 IWF Strategic plan accessed 15 June 2012.
189. See accessed 15 June 2012.
190. See accessed 15 June 2012.
191. Westminster eForum (n 104).
192. Akdeniz (n 77) 264, this report is no longer available to this author to review.
193. See accessed 15 June 2012.
194. See report accessed 15 June 2012.
195. See accessed 15 June 2012.
196. Davies (n 1).
197. Email between E Laidlaw and L Nielsen, Communications Executive and Webmaster Internet Watch Foundation (25 March 2010), on file with the author.
198. 2000 c 36.
199. The Freedom of Information (Designation as Public Authorities) Order 2011 No 2598.
200. For example, the ISPA Code of Practice states that it does not 'adjudicate on the legality or otherwise of material accessible on the Internet': ISPA (n 31), Preamble (e).
201. IWF, Content Appeal Process accessed 15 June 2012.
202. This was revamped in July 2010, but the basic structure of the mechanism changed very little.
203. See Annual Report (2010) (n 44).
204. See accessed 15 June 2012.
205. See Appendix A for this process in picture: accessed 15 June 2012.
206. Annual Report (2008) (n 171) 9.
207. Quoting from Davies (n 1).
208. European Commission, 'European Governance: A White Paper' COM(2001) 428 (25 July 2001) 21 accessed 20 June 2012.
209. See here B Morgan (ed), The Intersection of Rights and Regulation: New Directions in Sociolegal Scholarship (Ashgate 2007).