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Internet Regulation: How Far Should States Go in Regulating Online Content?

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About The Author

Naz Khan (Regular Writer)

Naz Khan is an LLM. candidate at Durham University. His main interests lie in civil issues and corporate law, and it is his intention upon completion to pursue a career as a barrister. Outside the law, he enjoys travelling and charitable work.

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“If you make ten thousand regulations you destroy all respect for the law.”

Winston Churchill

A Brief History of the Internet: The Final Frontier for Regulators

In its early days, the internet was conceived as being a place entirely free from regulation, where information could be shared globally across borders. In more modern times, however, the serious potential for harm in materials available on and uploaded to the internet has become more clearly understood, and it is now generally accepted that a degree of regulation is necessary in respect of the internet, just as it is for any other medium affecting society.

It would be impossible to create an exhaustive list of all of the potential perils which could be created by the internet, as the technology changes constantly, creating new, unanticipated problems. This article will think primarily about communications over the internet which, if unregulated, have the potential to cause harm on either an individual or a societal level. However, a number of other major topics have hit news cycles over the years to which the subject of internet regulation is also relevant, including black market commerce, child exploitation, and state-backed disinformation campaigns.

There is, therefore, a duty upon the state to regulate the content of the internet to at least some degree. The real difficulty arises when seeking to establish exactly how much regulation is required, in which areas, and how this can be enforced. This is because while some kinds of materials which are to be regulated by law can be identified with relative ease, the impact of regulation, or the way in which such regulation is pursued, could have deleterious consequences on individual liberties, and on the right to freedom of expression pursuant to Article 10 of the European Convention on Human Rights (ECH

How Far Should Regulation Go?

Regulation does not have to be oppressive; done well, it can be a positive articulation of who we are and what we value. Perhaps the simplest way of approaching the question is to simply acknowledge that the internet does not exist in a vacuum, and that the state has sovereignty and jurisdiction over the information contained on the internet within its own territory. Given this, it can be argued that any information on the internet should be removed if its continued presence, publication, or distribution online is deemed contrary to the law.

When determining who is responsible for publication of such material, the law could easily adopt the same approach taken regarding the publication of materials in other formats, such as the law of contempt at common law, which is capable of being committed by the publication of material which is sub-judice. This type of liability is applied to publishers on a strict liability basis, even where such material is published and the publisher claims they were not personally aware of such material being included.

Such an approach could be adopted in relation to internet service providers, website hosts, and social media providers such as Facebook, with any party hosting unlawful content being liable to be punished on a strict liability basis as “publishers” of such information. This approach could also enable internet service providers the same defence of “innocent publication” afforded to publishers in relation to contempt proceedings if they could show, after having taken reasonable care, that they did not and could not reasonably have identified the material in question.

As such, a good proposed approach could be to allow a defence for web-hosts if it can be shown that they have made “best efforts” to prevent publication of such material or to identify it and remove it from publication. Alternatively the law could operate on a “failure to prevent” basis (such as is utilised by the law in relation to several modern corporate offences such as the corporate offence of bribery, for example), with hosts being required to show that they made best efforts to identify and remove the offending material in question as soon as possible.

This approach is not without drawbacks, however. Requiring such efforts to be made could incentivise internet service providers and other web-hosts, including social media giants like Facebook, to pre-emptively identify users who might be likely to post such materials, through analysis of their previous posting history for example, or by application of predictive machine learning artificial intelligence to them, potentially resulting in users being profiled. 

This is merely one potential drawback of such an approach; another could be that identifying and removing material of this nature would constitute an unjustified interference with users’ rights to freedom of expression, as guaranteed by Art. 10 ECHR in countries where the Convention applies (like the UK). This might be made worse by the fact that web-hosts are very unlikely to have the manpower or resources to individually identify all of this material, meaning that artificial intelligence (aided by machine learning algorithms) would be used in this process (even if this was just to “flag up” material for human review at a later date). Such machines, in the short-term, would be likely to mistake legitimate material for illegitimate material, especially if the context of such material was in relation to something intimately related to the human experien

The “Do Nothing” Approach?

Given these difficulties, a third option presents itself.  It might be better simply to do no more in this area, at least until technology has improved to the point at which automatic identification and removal of unlawful material is much more accurate and not likely to unfairly remove legitimate material. At present the regulatory framework in place, through legislation such as the Communications Act 2003, adequately imposes liability for communications deemed offensive. This piece of legislation and supporting law around malicious communications for example, or the publication of terrorist material, is arguably fit for purpose, at least when compared with the alternative courses of action examined in this essay, which have major technical limitations and potential implications for individual liberties.

Conclusion

Like any free zone, the internet should be policed to some degree. The current legal framework in this area adequately manages problems commonly encountered, and the options for reform arguably create more difficulties than they are capable of solving at this point in time. The internet, far from being an unregulated “wild west”, is in fact a well-regulated sector which requires those posting, and publishing material, to ultimately be aware of the fact that legal consequences may stem from their doing so.

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Tagged: Anti-Terror, Human Rights, Technology

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