Information and the State – Part
3 - Issues of “Freedom of Speech” – November
25, 2002
Overview of Lecture:
1. Censorship in an historical context
- See Feather article for examples of state control of the
media for both moral and political ends – history of
censored books, newspapers, tv, etc.
- “[Now, according to Feather, the medium] of Internet
has opened up a whole new field of debate about moral censorship.”
2. Censorship in a democratic society
- a balance has to be struck between protecting citizens from
harmful communication which may harm or threatens to harm
them, and the right of freedom of expression.
Case Study – Canada
3. solutions? (see Berners-Lee)
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2. Censorship in a democratic society
2.1. The Canadian Scene – legal considerations:
When controversies about freedom of speech arise
there are 2 avenues in law to determine outcome: Canadian
Charter of Rights and Freedoms and the Criminal Code.
- Canadian Charter of Rights and Freedoms
Section One guarantees “the rights and freedoms set out
in it subject only to such reasonable limits prescribed
by law as can be demonstrably justified in a free and
democratic society.”
Section 2(b) guarantees “freedom of thought,
belief, opinion and expression, including freedom of the press
and other media of communication.”
Criminal Code details under what circumstances
communicative practices or their products can be subject to
criminal prosecution including:
- obscenity,
-child pornography,
-hate propaganda,
-and defamatory libel.
child pornography: “a person who
is or is depicted to be under 18 years of age and is engaged
in or is depicted as engaged in explicit sexual activity.”
(distribution and possession indictable offenses.)
obscenity: “...undue exploitation
of sex, or of sex and any one or more of the following subjects,
namely crime, horror, cruelty and violence will be deemed
to be obscene. (distribution an offense, but possession not).
“undue” defined in Supreme
Court decision in 1992 by “community standards”
--> very little of the sexually explicit
material on Internet is “obscene” as defined above;
it may be pornography but it’s not illegal...(much is
digitally scanned from traditional media).2.2. The Canadian
Scene – B.C. child pornography case
B.C. man was convicted of possessing child pornography; the
B.C. Supreme Court overturned the conviction claiming that
“making simple possession of expressive materials a crime
can never be a reasonable limit in a free and democratic society.”
Supreme Court of Canada overturned the B.C.
Supreme Court’s earlier decision – see newspapers
dated January 27, 2001.
Decision:
- possession of child pornography is an offence,
except for:
material created by a person for his/her own
self-expression (whose creation did not involve others—so
journals, stories, drawings, etc. would be o.k. but not videos),
OR sexually-oriented material involving 14-18
year-olds created by them for their own purposes.
So, downloading images from the Internet and
storing on CDs is illegal, but what about just accessing a
site and viewing the pictures without downloading? Is this
possession?
What about a bookmark—does this signify
possession?
2.3. The American Scene - 1990’s attempt
to censor Internet
Communications Decency Act, 1996 would have
regulated content on the Internet
- was intended to prosecute anyone providing
pornography plus the Internet Service Provider carrying obscene
material to children under 18 - would be fined $100,000 +
2 years in jail
- this law was declared unconstitutional by courts
- was responsible in part for Barlow publishing his “Declaration
of the Independence of Cyberspace” (see earlier lecture
overheads)
2.3. The German scene – prosecution
of ISP carrier (as summarized by Berners-Lee in Weaving
the Web: The Original Design and Ultimate Destiny of the World
Wide Web, 2000)
- 1998 court decision gave German director of
Compuserve a 2 year suspended sentence because his ISP carried
“illegal material.” Revisions to their laws say
that ISP can be held responsible for material on their servers
if
--they knew about it,
--it is technically feasible to block it, and
--they do not take reasonable measures to block access to
it.
(Defense: how can anyone know what is on Internet?
and blocking any one part is an exercise in futility)
(generally the way to think of ISPs are as analogous to bookstores
not newspapers in terms of being liable for information they
carry.)
3. Controlling Access to Online Pornography
(and other offensive material) through Technology:
- today we can use filters on email—to
categorize incoming information and screen it out so that
we don’t have to view it..
- use software like Cyber Patrol: has 12 categories
of material it considers inappropriate for 12 year-olds.
- uses filters to prevent objectionable material
from being accessible by children
(but you’re relying on their judgment of what are “bad”
and “good” sites;)
- some software screens for “objectionable”
words. But if the word “breast” were on the list,
you’ll not get access to sites about women’s breast
cancer....
- Berners-Lee’s solution:
govt. censorship is not the answer (i.e., Communications
Decency Act)
nor is software where filtering is done by some
other body
solution: PICS (Platform for Internet Content
Selection)
lets parents control what their children are watching.
- different groups (i.e., civic or govt) would
come up with ratings scheme – like R rating
- sites would display a rating
- each browser would have a program installed
that would let parents block the display of certain sites
that had an inappropriate rating.
- you customize your own family’s objectives
without imposing your values on others; everything is still
out there, but you don’t have to see it.
(better solution than blanket software filters,
but what is downside to this solution?)
And if it’s so good, why hasn’t it
been implemented?)
- Berners-Lee’s analysis – “because
there is no tremendous economic incentive for people to rate
sites” Why? Because the money is in porn sites.
(according to The Globe and Mail, December
2, 2000 in an article entitled, “Is Porn out of Control?):
- The North American industry a few years ago
was estimated at $2.5 billion a year; now it’s $10 billion.
- Easy, anonymous, cheap accessibility means
that any Internet user is no longer bound by concerns about
propriety; estimates of 1/3 of Internet users visit porn sites.
- an estimated 5.5 million North Americans spend more than
11 hours a week on porn sites which is defined as addiction.
- the concerns of children accessing this information
or being used to create the pornography clearly palls in comparison
to the economic reality of this business…