Child porn hotline raises unresolved questions

The establishment of a child pornography hotline and an Internet Advisory Board to oversee it has resurrected unresolved questions about Internet censorship and the legal liabilities of Internet service providers (ISPs) in Ireland.

Following the Department of Justice's announcement that it would introduce new censorship legislation by the end of the year, a spokesman last week revealed plans for the hotline, to be operated by the Internet Service Providers Association of Ireland (ISPAI), an industry group.

According to the Department spokesman, the Government believes "the focus should be on a self-regulatory environment" for the Internet. He says the Government is unlikely to bring in additional legislation restricting content. The Department has not yet clarified whether it would consider requiring public Internet access sites, such as libraries or schools, to use filtering software to block access to certain types of sites.

The establishment of the hotline was one of the three key recommendations of the July 1998 Report of the Working Group on Illegal and Harmful Uses of the Internet, which emanated from the Justice Department. ISPAI chairman Mr Cormac Callanan has confirmed the plan for the hotline, which they hope to launch the first week in October.

Along with the creation of the hotline will be the formation of an Internet Advisory Board, the second recommendation of the report, says Mr Callanan. The board will be composed of "the partners needed to ensure successful self-regulation" of the Internet, according to the report. These would include representatives from the ISPs, the Censor's Board, the Garda, general Internet users, the legal profession and the Information Society Commission.

Mr Callanan, who was also a member of the working group that produced the 1998 report, says the hotline has been in planning for months and that the ISPAI envisioned it as an Internet version of the Advertising Standards Authority. "The hotline will accept submissions and complaints from the public," he says. These will be examined and a decision made to act or not to act. If any party to the complaint rejects the hotline's decision, an appeal can be made to the advisory board.

However, some observers believe such a route is ineffective for dealing with instances of child pornography. "If you come across examples of child pornography you don't call a hotline. You call the gardai," says Mr Denis Kelleher, a barrister specialising in technology law. "I don't see why they thought this was necessary. It's very redundant."

Criminal law regarding child pornography is very clear, he says, and a hotline would be an unlikely arbitrator. On the other hand, says AL Goodbody technology law barrister Ms Rosaleen Byrne, some people may prefer the anonymity of reporting to a hotline rather than the Garda.

According to ISP, Ireland On-Line, founder and working group member Mr Colm Grealy, evidence so far has suggested that there are very few child pornography sites operating out of Ireland. Several industry sources said they felt a hotline focusing on child pornography was less an effective tool and more of a good public relations exercise for ISPs under pressure from the public about the perceived dangers of the Internet.

A respected 1998 study of parental attitudes towards the Internet in the United States revealed that while 70 per cent of parents believe the Internet is a place for kids to discover "fascinating, useful things" and nearly 60 per cent think children without Net access are disadvantaged. But 75 per cent worry about what kids might see or fear their children might give personal information out over Net. One in four newspaper articles about the Internet examined in the study mentioned child pornography and the Internet.

Observers agree that the larger - and potentially controversial - role for the hotline will be to arbitrate on wider content issues. Given Irish censorship laws, some form of Internet content censorship here was inevitable, says Irish Internet Association director, Mr Frank Cronin. "What form it might take though is the area of concern. What some people find offensive, others don't, so where will they draw the line?"

Trying to determine that line may well result in court challenges, say lawyers. Ireland has freedom of speech protections but these are restricted by questions of morality and public security, says Mr Kelleher. "You're really down to what people's idea of public morality is."

Mr Callanan says: "We don't want to be censors, to be in the position of making decisions. That's the realm of the courts." The courts and law enforcement only have jurisdiction over sites based in Ireland, but if material is deemed to be questionable, the hotline will liaise with similar hotlines internationally and pass along relevant information.

But if the courts determine that content on an Irish Internet site is unacceptable, they have few guidelines for deciding who is legally liable for that content. In both Europe and the US, ISPs have been sued for content they have hosted but not necessarily been aware existed within their domain.

Ms Liza Kessler, a lawyer with the Washington DC-based Center for Democracy and Technology, says the European approach so far has been to hold ISPs responsible for content, while in the US, such cases have been thrown out of the courts.

In Ireland, there are no laws defining the role and responsibilities of ISPs and the ISPs themselves have yet to draw up a code of conduct, the third recommendation of the 1998 report. The code was to define the responsibilities and liabilities of ISPs and suggest how violators of the code might be handled. But the report points out the difficulty of making such determinations. The Government's new consultation paper on e-commerce also fails to deal with the issue and define the role of ISPs.

While AL Goodbody lawyers say no court cases have arisen yet over the responsibility for content on an Irish site, barrister Mr David Sanfey, says questions of legal liability "haven't been sorted out adequately". But such issues do not seem to have placed a damper on the growth of e-commerce, he says.

On the other hand, Ms Kessler notes the recent testimony to a US government committee by Vanderbilt University business school Prof Donna Hoffman, who opposes filtering or restricting content. "She said that `disrupting the flow' damages the development of e-commerce," says Ms Kessler.

The Internet's worldwide presence makes it nearly impossible to resolve such issues on a country-by-country basis, though, says Mr Grealy. "The Irish angle on this is just one part of a large jigsaw. The issues need to be taken on globally," he says. He thinks the hotline and an advisory board are "the best that can be done in the absence of any global initiative."

Karlin Lillington is at klillington@irish-times.ie