UK: Cinema and Digitalisation - Regulation and Censorship Online

Last Updated: 17 May 1996
Introduction

If you want to know what will happen in future, first look to the past. This message may seem particularly inappropriate for the topics we are discussing. If you look for them, however, there are clues to what will happen in future to the regulation of online entertainment in the treatment of the early cinema.

The parallels between our own situation and early cinema are striking. A hundred years ago, writers raged at the end of culture as we know it, caused by the new medium and its emphasis on sex, aggression, horror and sleaze. Well, they were right about the emphasis of the early cinema. After Marey and Muybridge had developed the cine camera to aid their scientific investigations into animal locomotion, Georges Melies, a Frenchman with a keen eye for the public taste, turned this new medium into a vehicle for the fantastic and the bizarre. He developed new special effects to tell stories through film, giving the audience vivid and imaginative versions of fairy tales, burlesque and science fiction. Clear echoes of the videogame here.

But even after Eisenstein, Griffiths and others had demonstrated the artistic potential of cinema, articles were still being written on themes like: "What the Films are doing to Young America". The initial alarm and suspicion persisted well after cinema started to come of age as an artistic medium. The reason for this has, I believe, an important lesson for us all as we stand on the threshold of another artistic revolution. In his book "The Work of Art in the Era of Mechanical Reproduction", Walter Benjamin noted that new art forms always appear brash and monstrous. By definition, they will shake tradition, offend older sensibilities. The disturbance of the old order will inevitably cause a strong reaction, likely to be an overreaction, in the minds of those who are not captivated by the magic of the new medium.

Add to this natural and predictable reaction the fear of this strange new technology, of the power of digitalisation to change our work and our lives and there is a potent cocktail of fear and mistrust, fermented by the mass media. It is hard for legislators to resist these pressures to do something quick and decisive to deal with the perceived threat, but I am convinced, for reasons which I will set out later, that there is a serious danger of some very wrong choices being made.

Let me say that as a parent and a citizen, I am as keen as anybody else to stop offensive material being widely distributed, to stop harassment, racism and all the other evils of modern life becoming prevalent online. But I am also concerned that many of the cures currently being proposed are simply shooting at shadows, a knee jerk reaction to some of the wilder fears about what is going to come pouring out of the networks when this new medium comes of age.

Regulation online does, however, present its own special problems and the existing structures are clearly inadequate, for a number of reasons. First, they assume restrictions on access to material which do not yet exist online. It is pointless, for instance, to introduce any kind of online classification system if there is no way to restrict access to such material. Now, it is true that proprietary service providers have far more control over what users can access on their sytems, but as they are all giving access to the Internet as well the question becomes a wider one. At present, the only way of comprehensively stopping access to a particular Internet site in another country is to stop all international telephone calls, but even a dictatorship would be unable to do this in the modern world. Various techniques are, however, being developed to deal with this problem and I am confident that a solution will be found in the near future, so that it will be possible to limit access at the user end to undesirable material. It follows that a classification system will become widespread, so that parents, schools and others can control access to particular sites.

The second problem with applying existing structures of regulation and censorship online is the vast amount of material available. There are thousands of newsgroups, discussion forums where material (including pictures, sounds and, soon, video clips) can be exchanged and millions of linked pages on the world wide web, which can also carry audio-visual material. One of the leading UK Internet service providers receives the equivalent of one million A4 sized pages of text every day, so it would clearly be impossible even for each service provider to look at everything that passes across its network. Some kind of self-certification system may be possible for each newsgroup or web site, but of course this is a very long way from existing forms of regulation.

The third problem with applying the existing system to online audiovisual material is the most fundamental one: whose standards are used to decide what is permissible and what is not? Existing classification schemes are almost all nationally based and rightly so, as they reflect each country's moral and social standards. Effectively, there is a patchwork quilt of national regulations, so that films are treated differently from one country to the next, scenes are allowed or cut on a national basis, certification schemes use different criteria and so on. This simply cannot work online, because material passes freely across international boundaries. The recent example of CompuServe's experience in Germany illustrates the point well.

As many of you will know, CompuServe is a well-established proprietary online service provider based in the US, with about four million subscribers worldwide. Last Autumn, it started to build Internet access into its proprietary network so that CompServe subscribers can visit newsgroups established by others, over which CompuServe has no control. State prosecutors in Bavaria took an interest in these newsgroups and took the view that CompuServe was committing an offence in Germany by enabling its German subscribers to access sexually explicit material on the Internet. In the face of the threat of prosecution, CompuServe had to withdraw access to about two hundred newsgroups for all its subscribers worldwide. CompuServe has about 200,000 subscribers in Germany and about 25,000 in Bavaria, but it had deny access to these newsgroups to everyone on their network because of the laws of one country. It is now developing the technology to cut off access to the Internet on a country by country basis, but in Germany the incident has triggered government proposals for a new Multimedia Law, which I will refer to again shortly.

Let us now examine what would happen if every country adopted its own regulatory regime for online services. First, individual online services would fragment as they were modified for each country. Secondly, the cost of providing an online service would soar as local compliance monitoring and the provision of parallel services become necessary. New entrants into the market would dry up and innovation would be stifled. Thirdly and most importantly, there would be a drift towards "highest common denominator" regulation, as service providers comply with the most rigorous rules in the world for each type of legal liability. In other words, the toughest standards in the world would become the norm for us all. A pale reflection of today's flourishing Net culture would result. Unfortunately, there are signs that this is just what is happening. Let me describe some of the initiatives which are now being taken by governments around the world to regulate what happens online.

These range from the merely impractical to the dictatorial. Starting in Germany, the government is expected to introduce a new Multimedia Law this summer to regulate obscene and inappropriate material online. The current proposals are that service providers will not be prosecuted for making available in Germany material which is illegal under German law, unless they know of the source of the material and take no steps to remove or block access to it. This will help service providers like CompuServe to avoid liability for what gets posted on sites which are outside their control, but accessible through their services. However, it does not alter the basic principle evidenced in the CompuServe case that international services must be judged by local German standards and access denied, at least directly, if there is a problem.

The Communications Decency Act in the United States is my next example. This law, passed in February this year, allows the courts to impose heavy fines and prison sentences on those who distribute "indecent " or "patently offensive" material online. There is no definition of "indecent" in the legislation. It has been challenged as unconstitutional by various civil liberties groups, who have successfully blocked the implementation of parts of the new law pending a review of its constitutional status. Again, the test of illegality is based on US standards.

Let me turn now to two countries where the political situation is rather different. First, China, where also in February the Chinese government announced new rules requiring all Chinese service providers to register with the government within thirty days and to have "perfect" security control systems. In addition, they were prohibited from disseminating material that "may hinder public order, and obscene and pornographic material". To help implement this, the Chinese Ministry of Posts and Telecommunications is installing software to filter out data from overseas sites. In Singapore, in contrast, the country's three service providers are being made responsible for removing "objectionable material" from newsgroups and other public forums.

Back in Europe, there are at least two countries, France and Britain, which have not yet rushed to make new law. In France, an injunction against the publication of a book about the last years of President Mitterand, "Le Grand Secret" was avoided in January, by putting the text of the book on the Internet. As a result, the French government has created a working party to look at the issues of online regulation, in particular the problems of regulation outside national boundaries and the consequent enforcement difficulties.

In Britain, the government is also looking at how online services can be regulated. In the meantime, there has been a semi-public wrangle between two existing UK regulatory bodies for the right to regulate the online world. On one side there is the Office of Telecommunications Regulation, OFTEL, whose primary function is to promote competition in the UK telephony network, although it also has a limited role in regulating what travels across that network. On the other side is the Independent Television Commission, the ITC, which regulates the content of UK television broadcasting. The director of cable and satellite at the ITC surprised many in March by claiming that online services which include audiovisual material fall within its remit. This claim has been greeted with dismay by many in the online service industry, as the ITC is seen as a very active and interventionist regulator which tightly controls television programme output. This style of regulation, it is argued, is far too heavy handed for the online world.

So, I hope that this quick trip around the legislatures of the world illustrates my point, that what we could easily end up with is the death of the online world by a thousand regulatory cuts.

What, then, is the solution? There are a number of elements. The first is that any regulatory regime should be international, embracing at a minimum the industrialised countries where online services are already taking hold. The European Commission could play a very useful role here in facilitating the development of common standards across the EEA, but if it continues to attempt to bring online services within the revised text of the Television Without Frontiers Directive, this could be a disaster for the online service industry and therefore for audiovisual content providers, including the film industry. Not only is the online world an entirely different medium, but it also has an entirely different social and cultural background. To impose on this new environment a complicated set of regulations designed for a completely different situation is fundamentally wrong.

What is required instead is an international convention to establish common regulatory rules for the online world, something which French officials have already been calling for. My personal view is that this international convention should establish:

  • standards for local cultural and legal norms, so that services which meet these norms and originate in one convention country can be received in their original form in other convention countries.
  • standards for national regulators of online services, clarifying the grounds for regulation and the way in which regulation may be carried out and enforced. Convention countries should be obliged to assist other countries' regulators to enforce their decisions
  • a country of origin rule for online services, so that a service originating in a convention country would be regulated only by that country
  • arbitration for disputes between its members and sanctions for failure to adhere to the convention

I would be the first to accept that this is an ambitious agenda, but there is a great deal at stake. Can we afford to cripple the distribution channels for new audiovisual products before they take hold? I think not

Note: This paper was given at the conference on "Cinema and Digitalisation" in Cannes in May 1996.

This article is correct to the best of our knowledge and belief at the time of publication. It is however, written as a general guide, so it is recommended that specific professional advice is sought before any action is taken.

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