- Email: [email protected]
All speech should be free (except this?)!
Internet
Content
Regulation
INTERNET CONTENT REGULATION ALL SPEECH SHOULD BE FREE (EXCEPT THIS?)! David Flint
In a recent article ([1998] 14 CLSR 377) I commented on a number of the options in relation to the control of Internet content. In this follow-up article I would like to look at the legislative initiatives emanating from the United States and also a number of recent legal developments in the US courts.
INTRODUCTION As readers will be aware, the Communications Decency Act 1996 (CDA) was declared u n c o n s t i t u t i o n a l by the US Supreme Court in June 199"7. The basis of the Supreme Court's finding was that the provisions within the CDA w h ic h prohibited 'indecent' and 'patently offensive' material on the Internet was an infringement of the First A m e n d m e n t rights both of adults and also of children in that neither of these terms was clear or precise and that the legislation had the effect of preventing access to that material w h i c h was permitted by law as well as that material w h i c h was prohibited for access by children. In its decision the Supreme Court indicated that it believed the G o v e r n m e n t had assumed the unregulated availability of such material was "driving countless citizens away from the m e d i u m because of the risk of exposing themselves or their children to harmful material". In addition "the interest of encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship". It was therefore difficult to see h o w the legislature could devise a revised test w h i c h w o u ld m e e t the legislative imperatives of Congress and society but would not interfere with these rights. H o w e v e r the Internet Control Lobby within Congress and lobbying groups outwith did not give up their fight and in October 1998, as part of the Omnibus Consolidated Tax Act was enacted the Child On-Line Protection Act 1998 (COPA) or (CDA(II)) w h i c h stated as its intent "to require commercial distributors of material through the World Wide Web that is harmful to minors to restrict access to such material by minors". Gone was the test of indecency and patent offence but in its place was instituted a test w h i c h only applied to commercial Web sites, prohibiting the making available of any communication for commercial purposes w h ic h included material "that is harmful to minors". It was possible for providers of such material (of w h i c h there are apparently many) to avoid liability by instituting access restrictions either by requiring use of credit cards or similar by accepting a digital signature that verifies age or any other reasonable measure feasible under technology. Not surprisingly, the Civil Rights Lobby and the content producers lodged an immediate application before the courts challenging t h e constitutionality of this n e w legislation. In one of its statements theACLU stated,"whether you call it the
182
'Communications D ecen cy Act' or the 'Congress Doesn't Understand the Internet Act,' it is still unconstitutional and it still reduces the Internet to what is fit for a six year old". Again the argument was that, although the law claimed to apply only to commercial Web sites, nonetheless, the law would ban a wide range of p r o t e c t e d expression that is provided for free on the Web by organizations and entities w h o also h a p p e n to be communicating on the Web "for commercial purposes".
THE CONSTITUTIONAL CHALLENGE It is clear that this challenge to the legislation could not be seen as unexpected; firstly because any form of control or regulation legislation within the United States is immediately challenged by the Civil Liberties Lobby and, more interestingly, because in an analysis of the Bill sent to Congress by the US Department of Justice prior to its enactment, the Justice Department had indicated that the Bill had "serious constitutional problems" and "would likely draw resources away from more important law enforcement efforts such as tracking d o w n hardcore child pornographers and child predators". Also it was noted the law would be ineffective as minors w o u l d still be able to access newsgroups or Internet relay chat channels as well as any Web site generated from outside the United States. Nonetheless, the legislation was e n a c t e d and the inevitable challenge followed on the day on w h ic h it was signed, with the basic thrust of the challenge to the legislation, its infringement of First A m e n d m e n t principles. In her judgement of January 1999,Judge Reed stated"the protection of children from access to harmful to minors material on the Web, the compelling interest sought to be furthered by Congress in COPA, particularly resonates with the Court. The Court and many parents and grandparents would like to see the efforts of Congress to protect the children from harmful materials on the Internet to ultimately succeed and the will of the majority of citizens in this country to be realized through the enforcement of an Act of Congress. However, the Court is acutely cognizant of its charge under the law of this country not to protect majoritarian will at the expense of stifling the rights e m b o d i e d in the Constitution... despite the Court's personal regret that [the granting of a preliminary injunction against the implementation of the Act]
Computer Law & Security Report Vol. 15 no. 3 1999 ISSN 0267 3649/99/$20.00 © 1999 Elsevier Science Ltd. All rights reserved
Internet
will delay o n c e again the careful protection of our children, I without hesitation acknowledge the duty imposed on the Court and the good such duty serves. Indeed, perhaps it would do the minors of this country harm if FirstAmendment protections, w h i c h they will with age inherit fully, are c hi pp ed away in the name of their protection." Accordingly the Court granted the preliminary injunction against the Attorney General implementing the Act. As far as can be ascertained, the US G o v e r n m e n t has not sought to appeal against that decision and the likelihood is that as far as COPA is concerned, the matter is n o w closed. H o w e v e r it will c o m e as no surprise to learn that the matter has not b e e n allowed to drop.
NEW LEGISLATIVE PROPOSALS AND CASE LAW At the beginning of the n e w session of Congress there was introduced the "Childrens On-Line Privacy Protection Act of 1998" (COPPA) w h o s e purpose was to prevent the gathering of personal information in relation to children (being persons under the age of 13) and at the same time a Bill requiring the installation and use by schools and libraries of filtering and blocking technology in c o m p u te r s w h i c h are G o v e r n m e n t funded (Children's Internet Protection Act (CIPA)) was introduced. In addition it has b e e n indicated that the same lobby in Congress w h i c h introduced the CDA and CDA(II) intend to pr odu ce additional proposals in this session of Congress or the next. The issues raised by COPPA and CIPA have b e e n spurred on largely by a n u m b e r of recent cases within the US courts. As I m en t i o n ed in the previous article above referred to, Kathleen R (Kathleen R v Livermore) had sued the Council at Livermore on the basis that her child had used a c o m p u t e r unsupervised, had downloaded allegedly pornographic material and had then allegedly disseminated t h e m amongst his friends and printed out copies. In a decision issued in January 1999, the California State Court dismissed the application on a technical point relating to Section 230 of the Telecommunications Act 1996: "TREATMENT OF PUBLISHER OR SPEAKER - - No provider or user of an interactive c o m p u t e r service shall be treated as the publisher or speaker of any information provided by another information co n t en t provider". Whilst the decision of the Court did not deal with the question of the appropriateness or otherwise of filtering in libraries, the press release issued by the Livermore Public Library noted that their policy e x p e c t e d parents to monitor and supervise their children's use of the Internet and stated firmly that "the Livermore Public Library did not provide monitoring or supervision". Again, it is considered that had the court ruled in an alternative fashion almost certainly an application for dismissal on the basis of First A m e n d m e n t rights would have b e e n forthcoming. The second case dealing with filtering is the case of Loudon County Library (see further [1999] 15 CLSR 137). In that case Loudon County Library had introduced filtering programmes that sought to block sexually explicit material on the Internet but in a decision by the Virginia District Council it was determined that the library board's policy, w h i c h
Content
Regulation
required that all c o m p u t e r s c o n n e c t e d to the Internet be e q u i p p e d with filtering programmes, constituted a violation of the free speech guaranteed by the First Amendment. Again from the perspective of previous US decision the decision in Loudon County Library was not unexpected. Since that time other library boards within the US have reconsidered their position but many appear to have reached a conclusion (which undoubtedly will be challenged in the courts in due course) that, as the director of the Orange County Library in Orlando, Florida stated,"we have exercised our role as librarians to choose the material for our selection, what h a p p e n e d in Loudon County is not going to change anything here". The decision in Loudon also raised the possibility that less restricted methods, like using privacy screens or installing filters on terminals set aside purely for children's use, might be acceptable under the FirstAmendment. However, it should be borne in mind that few of these filtering programs are 100% accurate in their selection of material and if the effect of any of these filters w e r e to preclude access to a single site w h i c h was not obscene or harmful to minors, the First A m e n d m e n t rights of the minor w o u l d be infringed and the constitutionality of the filtering o p e n to challenge. CIPA would, if enacted (and the constitutionality of that must against be o p e n to question) provide no universal service assistance, and funding w o u l d not be made to any school or library w h i c h did not have filtering technology to prevent access to material d e e m e d to be harmful to minors.According to Senator MeCain,"this legislation will not censor what goes on to the Internet, nor will it censor what adults see, but rather filters what comes out of it onto the computers our children use outside the home". "This legislation is an important step in the battle to protect children from the dark side of the Internet. Children should be p r o t ect ed from stumbling onto indecent material while using the Web for legitimate research purposes and this Bill will go a long way in obtaining that goal" according to Senator Hollings, the Bill's co-sponsor. As with all these proposals, what eventually appears from Congress (if anything) may be very different to the current proposals and the challenge thereafter will determine h o w close to the line the drafters have managed to get but there is little doubt that a strong body of opinion remains in the US but some form of control should be instituted. In surveys published in the February 1999 issue of Library Journal it was established that in Ohio and Oregon, the States w h i c h were party to the surveys, a very small percentage of libraries used privacy screens or filtering software and that the most effective and most used m e t h o d of control was to have the Internet terminals in high traffic areas or in locations w h e r e the screens could be seen from a service desk or by other users.
OTHER SOLUTIONS As I suggested in previous occasions, in the long run, the possible approbation of others may be the most effective m e t h o d of controlling what people do in public libraries. What t h e n is the p o s i t i o n regarding material in the Internet? Does it m e a n that all material is freely and readily accessible on the basis of First A m e n d m e n t principles? Probably not. In a r e c e n t d e c i s i o n in a case in O r e g o n a
Computer Law & Security Report Vol. 15 no. 3 1999 ISSN 0267 3649/99/$20.00 © 1999 Elsevier Science Ltd. All rights reserved
183
Internet
Content
Regulation
jury awar d ed $107 million in punitive damages against the operators of a Web site k n o w n as the 'Nuremberg Files'. The 'Nuremberg Files' Web site listed the names, addresses and other private details of more than 200 abortion clinic doctors and employees around the country and called lot the "baby butchers" to be "brought to justice". In addition, on the site, the doctors and nurses w e r e shown in a 'wanted style' type of poster and it was argued by the doctors and by a n u m b e r of pro-abortion organizations that the purpose of the site was to incite violence against the doctors. This position appeared to be reinforced by the fact that a n u m b e r of doctors had been shot to death after being targeted individually on wanted posters and doctors w h o had been shot and killed had lines put through their names on the list on the site. Accordingly those doctors, nurses and organizations m en t i o n ed in the site believed that they were in real danger. The case raised a n u m b e r of very interesting issues w h i c h dealt with the interplay b e t w e e n rights of the individual and First A m e n d m e n t rights under the US constitution. H o w e v e r as the ultimate decision was that of the jury no written decision exists as to what deliberations or otherwise occurred in reaching the damages decision w h i c h was made. The defendants have indicated that they intend to appeal the ruling contending that they have a First A m e n d m e n t right to express their strong views about the deeds of doctors w h o perform abortions and they argued that lists w e r e created "to keep public tabs on the physicians in case the day co m es w h e n the doctors can be put on trial for "crimes against humanity" according to the supporters of the defendants.The issue w h i c h the case addresses is w h e t h e r it remains possible for information about individuals or groups of individuals to be made public on the Internet if there is a possibility, however slight or great, that some person will see that as encouragement or opportunity to commit some form of illegal act. It is clear from US authorities that incitement to violence i n t e r a l i a is n o t p r o t e c t e d s p e e c h u n d e r the First A m e n d m e n t but until this case this doctrine has been used primarily in relation to race hatred matters (a n u m b e r of race hatred sites being for that reason hosted in Canada rather than the US) but a similar argument could be made in relation to any grouping of individuals details in an accessible form. Within the United Kingdom context the recent publication of the Stephen Lawrence report online including full details of witnesses could, arguably, be seen as equally likely to lead to violence against those individuals and it will be interesting to see w h e t h e r any action is taken by those individuals as a result of this publication.
184
CONCLUSION For the Freedom of Speech Lobb}, the N u r em b er g Files case has proved something of a dilemma. The American Civil Liberties Union (ACLU) for example has c o m e d o w n on both sides of the argument filing a brief supporting the plaintiffs but also arguing that the court should have adopted a stricter constitutional standard "to distinguish b e t w e e n unlawful threats and p r o t e c t e d speech". As another US Web site vicepresident c o m m e n t e d , "everybody agrees that w e want to p r o t ect free speech but not this speech". After the jury had handed d o w n the judgement the N u r em b er g Files Web site co n t i n u ed in existence for several days until the ISP cancelled the site arguing that it contravened their conditions of use.
Unfortunately (or fortunately if you believe in the First A m e n d m e n t argument) the site has n o w b e e n mirrored to a site in the Netherlands and for those w h o still wish to read such material (the Dutch site o w n e r claims that she does not support the arguments e x p o u n d e d on the sites but merely the principle of freedom of speech) the material still remains in existence. It had been suggested by the Nuremberg Files at one point that they intended also to put up photographs of the patrons of the clinics as well as the staff but I am not aware of this having h a p p e n e d as yet. Again, if this w e r e to happen, I think that it w o u l d raise substantially the stakes in a matter that is both of legal and of moral importance. In a large n u m b e r of c o u n t r i e s a b o r t i o n is not illegal, a l t h o u g h controlled, but in o t h e r s it is p r o h i b i t e d or may have greater social a p p r o b a t i o n than w i t h i n e i t h e r the US or UK and t h e r e f o r e the issue of w h e t h e r o p e n c o n d e m n a tion of those e n g a g e d in the s u p p o r t of a b o r t i o n services is an a c c e p t a b l e stance will d e p e n d largely on social issues. However, at the end of the day, the fact is that the First A m e n d m e n t does have some boundary albeit, as with many issues within this difficult area, the exact location of that boundary may be difficult to ascertain. David Flint, Report Correspondent For further information contact: David Flint. Tel: +44 141 332 9988; Fax: +44 141 332 8886. E-mail: [email protected]
Computer Law & Security Report Vol. 15 no. 3 1999 ISSN 0267 3649/99/$20.00 © 1999 Elsevier Science Ltd. All rights reserved
Content
Regulation
INTERNET CONTENT REGULATION ALL SPEECH SHOULD BE FREE (EXCEPT THIS?)! David Flint
In a recent article ([1998] 14 CLSR 377) I commented on a number of the options in relation to the control of Internet content. In this follow-up article I would like to look at the legislative initiatives emanating from the United States and also a number of recent legal developments in the US courts.
INTRODUCTION As readers will be aware, the Communications Decency Act 1996 (CDA) was declared u n c o n s t i t u t i o n a l by the US Supreme Court in June 199"7. The basis of the Supreme Court's finding was that the provisions within the CDA w h ic h prohibited 'indecent' and 'patently offensive' material on the Internet was an infringement of the First A m e n d m e n t rights both of adults and also of children in that neither of these terms was clear or precise and that the legislation had the effect of preventing access to that material w h i c h was permitted by law as well as that material w h i c h was prohibited for access by children. In its decision the Supreme Court indicated that it believed the G o v e r n m e n t had assumed the unregulated availability of such material was "driving countless citizens away from the m e d i u m because of the risk of exposing themselves or their children to harmful material". In addition "the interest of encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship". It was therefore difficult to see h o w the legislature could devise a revised test w h i c h w o u ld m e e t the legislative imperatives of Congress and society but would not interfere with these rights. H o w e v e r the Internet Control Lobby within Congress and lobbying groups outwith did not give up their fight and in October 1998, as part of the Omnibus Consolidated Tax Act was enacted the Child On-Line Protection Act 1998 (COPA) or (CDA(II)) w h i c h stated as its intent "to require commercial distributors of material through the World Wide Web that is harmful to minors to restrict access to such material by minors". Gone was the test of indecency and patent offence but in its place was instituted a test w h i c h only applied to commercial Web sites, prohibiting the making available of any communication for commercial purposes w h ic h included material "that is harmful to minors". It was possible for providers of such material (of w h i c h there are apparently many) to avoid liability by instituting access restrictions either by requiring use of credit cards or similar by accepting a digital signature that verifies age or any other reasonable measure feasible under technology. Not surprisingly, the Civil Rights Lobby and the content producers lodged an immediate application before the courts challenging t h e constitutionality of this n e w legislation. In one of its statements theACLU stated,"whether you call it the
182
'Communications D ecen cy Act' or the 'Congress Doesn't Understand the Internet Act,' it is still unconstitutional and it still reduces the Internet to what is fit for a six year old". Again the argument was that, although the law claimed to apply only to commercial Web sites, nonetheless, the law would ban a wide range of p r o t e c t e d expression that is provided for free on the Web by organizations and entities w h o also h a p p e n to be communicating on the Web "for commercial purposes".
THE CONSTITUTIONAL CHALLENGE It is clear that this challenge to the legislation could not be seen as unexpected; firstly because any form of control or regulation legislation within the United States is immediately challenged by the Civil Liberties Lobby and, more interestingly, because in an analysis of the Bill sent to Congress by the US Department of Justice prior to its enactment, the Justice Department had indicated that the Bill had "serious constitutional problems" and "would likely draw resources away from more important law enforcement efforts such as tracking d o w n hardcore child pornographers and child predators". Also it was noted the law would be ineffective as minors w o u l d still be able to access newsgroups or Internet relay chat channels as well as any Web site generated from outside the United States. Nonetheless, the legislation was e n a c t e d and the inevitable challenge followed on the day on w h ic h it was signed, with the basic thrust of the challenge to the legislation, its infringement of First A m e n d m e n t principles. In her judgement of January 1999,Judge Reed stated"the protection of children from access to harmful to minors material on the Web, the compelling interest sought to be furthered by Congress in COPA, particularly resonates with the Court. The Court and many parents and grandparents would like to see the efforts of Congress to protect the children from harmful materials on the Internet to ultimately succeed and the will of the majority of citizens in this country to be realized through the enforcement of an Act of Congress. However, the Court is acutely cognizant of its charge under the law of this country not to protect majoritarian will at the expense of stifling the rights e m b o d i e d in the Constitution... despite the Court's personal regret that [the granting of a preliminary injunction against the implementation of the Act]
Computer Law & Security Report Vol. 15 no. 3 1999 ISSN 0267 3649/99/$20.00 © 1999 Elsevier Science Ltd. All rights reserved
Internet
will delay o n c e again the careful protection of our children, I without hesitation acknowledge the duty imposed on the Court and the good such duty serves. Indeed, perhaps it would do the minors of this country harm if FirstAmendment protections, w h i c h they will with age inherit fully, are c hi pp ed away in the name of their protection." Accordingly the Court granted the preliminary injunction against the Attorney General implementing the Act. As far as can be ascertained, the US G o v e r n m e n t has not sought to appeal against that decision and the likelihood is that as far as COPA is concerned, the matter is n o w closed. H o w e v e r it will c o m e as no surprise to learn that the matter has not b e e n allowed to drop.
NEW LEGISLATIVE PROPOSALS AND CASE LAW At the beginning of the n e w session of Congress there was introduced the "Childrens On-Line Privacy Protection Act of 1998" (COPPA) w h o s e purpose was to prevent the gathering of personal information in relation to children (being persons under the age of 13) and at the same time a Bill requiring the installation and use by schools and libraries of filtering and blocking technology in c o m p u te r s w h i c h are G o v e r n m e n t funded (Children's Internet Protection Act (CIPA)) was introduced. In addition it has b e e n indicated that the same lobby in Congress w h i c h introduced the CDA and CDA(II) intend to pr odu ce additional proposals in this session of Congress or the next. The issues raised by COPPA and CIPA have b e e n spurred on largely by a n u m b e r of recent cases within the US courts. As I m en t i o n ed in the previous article above referred to, Kathleen R (Kathleen R v Livermore) had sued the Council at Livermore on the basis that her child had used a c o m p u t e r unsupervised, had downloaded allegedly pornographic material and had then allegedly disseminated t h e m amongst his friends and printed out copies. In a decision issued in January 1999, the California State Court dismissed the application on a technical point relating to Section 230 of the Telecommunications Act 1996: "TREATMENT OF PUBLISHER OR SPEAKER - - No provider or user of an interactive c o m p u t e r service shall be treated as the publisher or speaker of any information provided by another information co n t en t provider". Whilst the decision of the Court did not deal with the question of the appropriateness or otherwise of filtering in libraries, the press release issued by the Livermore Public Library noted that their policy e x p e c t e d parents to monitor and supervise their children's use of the Internet and stated firmly that "the Livermore Public Library did not provide monitoring or supervision". Again, it is considered that had the court ruled in an alternative fashion almost certainly an application for dismissal on the basis of First A m e n d m e n t rights would have b e e n forthcoming. The second case dealing with filtering is the case of Loudon County Library (see further [1999] 15 CLSR 137). In that case Loudon County Library had introduced filtering programmes that sought to block sexually explicit material on the Internet but in a decision by the Virginia District Council it was determined that the library board's policy, w h i c h
Content
Regulation
required that all c o m p u t e r s c o n n e c t e d to the Internet be e q u i p p e d with filtering programmes, constituted a violation of the free speech guaranteed by the First Amendment. Again from the perspective of previous US decision the decision in Loudon County Library was not unexpected. Since that time other library boards within the US have reconsidered their position but many appear to have reached a conclusion (which undoubtedly will be challenged in the courts in due course) that, as the director of the Orange County Library in Orlando, Florida stated,"we have exercised our role as librarians to choose the material for our selection, what h a p p e n e d in Loudon County is not going to change anything here". The decision in Loudon also raised the possibility that less restricted methods, like using privacy screens or installing filters on terminals set aside purely for children's use, might be acceptable under the FirstAmendment. However, it should be borne in mind that few of these filtering programs are 100% accurate in their selection of material and if the effect of any of these filters w e r e to preclude access to a single site w h i c h was not obscene or harmful to minors, the First A m e n d m e n t rights of the minor w o u l d be infringed and the constitutionality of the filtering o p e n to challenge. CIPA would, if enacted (and the constitutionality of that must against be o p e n to question) provide no universal service assistance, and funding w o u l d not be made to any school or library w h i c h did not have filtering technology to prevent access to material d e e m e d to be harmful to minors.According to Senator MeCain,"this legislation will not censor what goes on to the Internet, nor will it censor what adults see, but rather filters what comes out of it onto the computers our children use outside the home". "This legislation is an important step in the battle to protect children from the dark side of the Internet. Children should be p r o t ect ed from stumbling onto indecent material while using the Web for legitimate research purposes and this Bill will go a long way in obtaining that goal" according to Senator Hollings, the Bill's co-sponsor. As with all these proposals, what eventually appears from Congress (if anything) may be very different to the current proposals and the challenge thereafter will determine h o w close to the line the drafters have managed to get but there is little doubt that a strong body of opinion remains in the US but some form of control should be instituted. In surveys published in the February 1999 issue of Library Journal it was established that in Ohio and Oregon, the States w h i c h were party to the surveys, a very small percentage of libraries used privacy screens or filtering software and that the most effective and most used m e t h o d of control was to have the Internet terminals in high traffic areas or in locations w h e r e the screens could be seen from a service desk or by other users.
OTHER SOLUTIONS As I suggested in previous occasions, in the long run, the possible approbation of others may be the most effective m e t h o d of controlling what people do in public libraries. What t h e n is the p o s i t i o n regarding material in the Internet? Does it m e a n that all material is freely and readily accessible on the basis of First A m e n d m e n t principles? Probably not. In a r e c e n t d e c i s i o n in a case in O r e g o n a
Computer Law & Security Report Vol. 15 no. 3 1999 ISSN 0267 3649/99/$20.00 © 1999 Elsevier Science Ltd. All rights reserved
183
Internet
Content
Regulation
jury awar d ed $107 million in punitive damages against the operators of a Web site k n o w n as the 'Nuremberg Files'. The 'Nuremberg Files' Web site listed the names, addresses and other private details of more than 200 abortion clinic doctors and employees around the country and called lot the "baby butchers" to be "brought to justice". In addition, on the site, the doctors and nurses w e r e shown in a 'wanted style' type of poster and it was argued by the doctors and by a n u m b e r of pro-abortion organizations that the purpose of the site was to incite violence against the doctors. This position appeared to be reinforced by the fact that a n u m b e r of doctors had been shot to death after being targeted individually on wanted posters and doctors w h o had been shot and killed had lines put through their names on the list on the site. Accordingly those doctors, nurses and organizations m en t i o n ed in the site believed that they were in real danger. The case raised a n u m b e r of very interesting issues w h i c h dealt with the interplay b e t w e e n rights of the individual and First A m e n d m e n t rights under the US constitution. H o w e v e r as the ultimate decision was that of the jury no written decision exists as to what deliberations or otherwise occurred in reaching the damages decision w h i c h was made. The defendants have indicated that they intend to appeal the ruling contending that they have a First A m e n d m e n t right to express their strong views about the deeds of doctors w h o perform abortions and they argued that lists w e r e created "to keep public tabs on the physicians in case the day co m es w h e n the doctors can be put on trial for "crimes against humanity" according to the supporters of the defendants.The issue w h i c h the case addresses is w h e t h e r it remains possible for information about individuals or groups of individuals to be made public on the Internet if there is a possibility, however slight or great, that some person will see that as encouragement or opportunity to commit some form of illegal act. It is clear from US authorities that incitement to violence i n t e r a l i a is n o t p r o t e c t e d s p e e c h u n d e r the First A m e n d m e n t but until this case this doctrine has been used primarily in relation to race hatred matters (a n u m b e r of race hatred sites being for that reason hosted in Canada rather than the US) but a similar argument could be made in relation to any grouping of individuals details in an accessible form. Within the United Kingdom context the recent publication of the Stephen Lawrence report online including full details of witnesses could, arguably, be seen as equally likely to lead to violence against those individuals and it will be interesting to see w h e t h e r any action is taken by those individuals as a result of this publication.
184
CONCLUSION For the Freedom of Speech Lobb}, the N u r em b er g Files case has proved something of a dilemma. The American Civil Liberties Union (ACLU) for example has c o m e d o w n on both sides of the argument filing a brief supporting the plaintiffs but also arguing that the court should have adopted a stricter constitutional standard "to distinguish b e t w e e n unlawful threats and p r o t e c t e d speech". As another US Web site vicepresident c o m m e n t e d , "everybody agrees that w e want to p r o t ect free speech but not this speech". After the jury had handed d o w n the judgement the N u r em b er g Files Web site co n t i n u ed in existence for several days until the ISP cancelled the site arguing that it contravened their conditions of use.
Unfortunately (or fortunately if you believe in the First A m e n d m e n t argument) the site has n o w b e e n mirrored to a site in the Netherlands and for those w h o still wish to read such material (the Dutch site o w n e r claims that she does not support the arguments e x p o u n d e d on the sites but merely the principle of freedom of speech) the material still remains in existence. It had been suggested by the Nuremberg Files at one point that they intended also to put up photographs of the patrons of the clinics as well as the staff but I am not aware of this having h a p p e n e d as yet. Again, if this w e r e to happen, I think that it w o u l d raise substantially the stakes in a matter that is both of legal and of moral importance. In a large n u m b e r of c o u n t r i e s a b o r t i o n is not illegal, a l t h o u g h controlled, but in o t h e r s it is p r o h i b i t e d or may have greater social a p p r o b a t i o n than w i t h i n e i t h e r the US or UK and t h e r e f o r e the issue of w h e t h e r o p e n c o n d e m n a tion of those e n g a g e d in the s u p p o r t of a b o r t i o n services is an a c c e p t a b l e stance will d e p e n d largely on social issues. However, at the end of the day, the fact is that the First A m e n d m e n t does have some boundary albeit, as with many issues within this difficult area, the exact location of that boundary may be difficult to ascertain. David Flint, Report Correspondent For further information contact: David Flint. Tel: +44 141 332 9988; Fax: +44 141 332 8886. E-mail: [email protected]
Computer Law & Security Report Vol. 15 no. 3 1999 ISSN 0267 3649/99/$20.00 © 1999 Elsevier Science Ltd. All rights reserved