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28 February 1997
Comments of the European Union Data Protection Commissioners
on the
Green Paper on the protection of minors and human dignity in audiovisual and information services (COM (96) 483 final),
the Communication to the European Parliament, the Council,
the Economic and Social Committee and the Committee of the Regions on illegal and harmful content on the Internet (COM (96) 487)
and on the Council Resolution of 28 November 1996 on
illegal and harmful content on the Internet
The EU Data Protection Commissioners acknowledge the need to consider
measures to ensure the protection of minors and human dignity
with regard to new audiovisual and information services. They
draw attention to the fact that Article 1 para.1 of the EU Data
Protection Directive (95/46/EC) obliges Member States to protect
the fundamental rights and freedoms of natural persons, and in
particular their right to privacy with respect to the processing
of personal data.
The right to privacy is part of human dignity. It is in this general
context that the Data Protection Commissioners express a particular
interest in the Green Paper on the protection of minors and human
dignity in audiovisual and information services. In commenting
on the Green Paper the Data Protection Commissioners take into
account the EU Commission's Communication on illegal and harmful
content on the Internet (COM(96) 487) which has been published
simultaneously and the Telecommunications Council Resolution of
28 November 1996 on illegal and harmful content on the Internet.
The Commissioners attach particular importance to determining
the right balance between protection of privacy (including allowing
users to maintain anonymity on the networks) and the need to enforce
liability for illegal behaviour (Question 3 in the Green Paper).
In the traditional editorial model of television the responsibility
for illegal content rests firmly with the provider of information.
Watching television has always been possible without leaving traces.
The Green Paper rightly points out that online services lead to
a new model of interactive communication: each user becomes a
potential supplier of material. But the liability for illegal
content should stay with its creator in the context of new on-line
services. It should not be shifted or extended to the final user.
The fact that to a certain extent the Internet (or other networks)
are being used for offering illegal content should not lead to
the Internet being turned into a seamless web of surveillance
with the entire network traffic being monitored in order to trace
illegal activities.
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In Chapter I, section 3 of the Green Paper ("The extent of
the problem by type of services") the claim is made that
it is virtually impossible to come across unwanted material by
accident. Since this assumption will have an effect on the way
the law treats people who have accessed such material, this sentence
cannot remained unchallenged. It must be stressed that merely
accessing controversial material must not be construed automatically
as intention to break the law, because
- as awareness about controversial content grows, preachers
of violence and racism will certainly become more subtle and create
websites that mix harmless and controversial material, or are
specifically designed to convey masked hate propaganda while deliberately
offering useful and innocuous material to attract visitors;
- Internet search engines will frequently deliver links to controversial
material mixed with links to harmless content. The user can follow
the link and access the data to see if it is relevant, unless
the name of the website (which the search engine displays to the
user) is clear enough. A user desiring information on subjects
that are also of interest to extremist groups (e.g. some parts
of history) may have to access scores of extremist websites that
cannot be excluded by carefully wording the search;
- offline browser software which copies entire websites to the
local harddisk and lets the user study the material at his leisure,
thereby saving online time, is increasing in popularity. With
this software, the user may tell the program what site to copy,
without having seen its content before, which means that huge
amounts of controversial material may be downloaded under the
user's name, but without his knowledge and consent.
The Commission's Communication on illegal content speaks of "a
legal principle of traceability". The Data Protection Commissioners
would wish some clarification as to what this principle means.
While content creators should be traceable, the extent to which
other users should be traceable involves complex issues and requires
further consideration. However, the Commissioners would not rule
out the possibility of adopting the position that individuals'
privacy rights could only be properly protected if their right
to anonymity could be assured in those other cases. The present
practice of registering users who browse, read or download information
from the World Wide Web automatically and without notice should
be stopped. The problems of Usenet newsgroups have to be studied
separately. At any rate greater transparency with regard to the
collection of personal data on the networks is not only essential
for protecting the users' privacy but can also be an important
element of media education for adults and minors in the sense
mentioned in the Green Paper (Chapter II, section 2.3).
The Data Protection Commissioners welcome the Telecommunications
Council Resolution of 28 November 1996 which requests the European
Commission "to foster research into technical issues, in
particular filtering, rating, tracing and privacy-enhancing...".However,
they would like to see an emphasis being put on privacy-enhancing
technology. Rating procedures should be developed in this area
in order to promote privacy-friendly online services. The design
and use of privacy-friendly technologies should be included as
important criteria in the 5th Framework Programme for Research
and Technological Development.
The Commssioners suggest that consideration be given to including
a representative of the Commissioners in the membership of any
working party considering those issues with data protection and
privacy implications.
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