Online child protection should not come hand-in-hand with censorship

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Gabrielle Guillemin

17 May 2012


Earlier this month, the Prime Minister David Cameron announced that his government would be considering default filtering of ‘adult content’ on the internet. The announcement came shortly after the release of a report by a cross-party parliamentary inquiry chaired by Claire Perry on online child protection. The report’s chief recommendation is the adoption of an opt-in filter for adult material on the internet as the best way to protect children online.  Regulation of online content is also suggested as a way forward.

Let us be clear. There is no doubt that the protection of children from ‘harmful’ content is a perfectly legitimate goal. In fact, the European Court of Human Rights has said that states have an obligation to protect children online (K.U. v Finland, 2 December 2008). The problem with the inquiry’s proposals however is that they are both hopelessly vague and would severely damage freedom of expression online.

To begin with, freedom of expression is as much about ideas and information we agree with or care about as it is about speech we consider offensive or are not interested in. Like it or not, pornography is protected speech both under Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and Article 10 of the European Convention on Human Rights (ECHR). The same is true of the vast majority of ‘adult content’ online or offline with the exception of child pornography, which is one of the very limited types of expression that can be prohibited under international law. For this reason, any limit on freedom of expression can only be justified if it is narrowly defined and proportionate to achieve its purpose.

A major issue with the current proposals is that it is unclear what would be filtered or blocked. In the absence of an agreed definition of pornography, works of art like Nabokov’s Lolita would not necessarily pass muster. It gets worse with ‘adult material', which potentially encompasses a much wider range of content. The point is that these terms typically entail subjective value-judgments, which makes it almost impossible to anticipate what would or should be filtered. Of course, there are already various kinds of regulation of adult material, e.g. broadcasting standards that restrict the screening of adult material on terrestrial television. But the internet is not like television. What is an appropriate model of content regulation for broadcasting has been emphatically rejected as inappropriate for the internet, which is more like print media.

Another concern is that filters would not only target ‘pornographic’ and ‘adult' material but also any content deemed ‘harmful’, ‘inappropriate’ or ‘unacceptable’, terms which are even less amenable to clear and objective definition. For example, would a music video of Lady Gaga on YouTube be filtered? Under current proposals, this may well be the case. In Indonesia, the singer was recently denied entry in the country to perform a concert on the ground that her outfits and dance moves would ‘corrupt’ the country’s youth.

Filtering pornography or adult content by default at network level would also have a disproportionate impact on freedom of expression. First of all, it would basically entrench a system whereby the vast majority of the population would only be given access to what is fit for children by default - and this in the absence of conclusive evidence that access to pornography and other ‘inappropriate’ material is even harmful to children. It might be worth remembering at this point that teenagers have always found ways to find pornography in the offline world, even before the internet.

Secondly, as ARTICLE 19 has already pointed out several times, the decision as to what is acceptable or not – and therefore what may be filtered or not - should not be left to ISPs who are ill-suited to make such judgments. In our view, content restrictions on the internet are plainly unnecessary. If, however, they were to be adopted, they should at the very least have a clear legal basis and the question whether or not they are justified should be decided by the courts on a case-by case basis. 

Thirdly, as is well well-known, web filtering and blocking are far from perfect with obvious risks of overblocking, i.e. blocking perfectly legitimate content. The Open Rights Group has already documented how this already happens with mobile broadband filtering.

Fourthly and equally well-known is the fact that blocking and filtering are largely ineffective because they can be easily circumvented using proxies and other techniques. Indeed, several websites on the internet offer circumvention technologies. A recent example is the blocking of the Pirate Bay, a file-sharing website. After the UK and Dutch courts ordered ISPs to block the Pirate Bay, a flurry of other sites mushroomed offering access to it

Finally, if default-blocking becomes acceptable for the protection of children online, there is a real danger that it would be extended to other types of content, leading to a slippery slope towards massive online censorship.

Opt-in filtering systems imposed by government or commercial service providers are clearly a disproportionate restriction on freedom of expression. Primary responsibility for protecting children online lies with their parents. If parents want to control what their children do online, they should install the filtering software of their choice and control their settings, rather than impose a Victorian, 19th century view of what is appropriate content on everyone else. 


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