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LEGAL ISSUES RELATING TO THE DEVELOPMENT AND USE OF WORLD WIDE WEB TECHNOLOGY AT EDUCATIONAL SITES

International Issues

The growth of the Internet, and in particular the expansion of the WWW has led many countries to examine whether their existing law is able to cope with the potential problems that may arise. In the main, however, countries have refrained from rushing to create Internet specific laws. This is due in part to the volatility of the current situation, whereby it is impossible to predict either the speed of development or the direction of this medium. Many countries are unwilling to pass legislation which might have the effect of damaging their ability to take advantage of the commercial opportunities which may arise from the changes.

The US has been a significant exception to this, most notably with the passage of the Communications Decency Act 1996. (hereafter the CDA)(124). This Act sought to criminalise the activities of anyone who:

"(B) by means of a telecommunications device knowingly - "(i) makes, creates, or solicits, and "(ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent knowing that the recipient of the communication is under 18 years of age regard less of whether the maker of such communication placed the call or initiated the communication;"
or
"(A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or "(2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity,

The one of the main problems with the CDA was the use of the terms "indecent" and "patently offensive" which appeared to fall foul of the First Amendment to the US Constitution(125), in that they were too broad in scope and unduly restricted freedom of speech.

"The constitutional challenge to the Communications Decency Act has been grounded in four basic arguments -- that the law is unconstitutionally overbroad (criminalizing protected speech), that it is unconstitutionally vague (making it difficult for individuals and organizations to comply), that it fails what the judiciary calls the "least restrictive means" test for speech regulation, and that there is no basic constitutional authority under the First Amendment to engage in this type of content regulation in any nonbroadcast medium.(126)"
The Act attracted a great deal of controversy during its passage through the US legislature, and an action to have it declared unconstitutional was filed by the American Civil Liberties Union shortly after it was signed into law by the US President. On June 12 1996, Philadelphia's federal court (US District Court for the Eastern District of Pennsylvania) sitting as a three judge panel found the CDA to be unconstitutional on the grounds that it breached the U.S. constitutional guarantees of freedom of speech and of the press(127). However, at the time of writing, it appears that the US government may be planning an appeal of the judgment to the United States Supreme Court, as a provision of the Telecommunications Reform Act of 1996 of which the CDA is a part allows such a direct appeal when a provision of that act is found unconstitutional in a lower court.

The saga of the CDA demonstrates that there is considerable concern about the impact of the Internet and the WWW, and the most effective methods of regulating on-line communications. If the Philadelphia court's judgment is overturned by the US Supreme Court (although most commentators seem to feel this is unlikely), America's pre-eminence on the Internet means that there may be repercussions at the international level. While it seems unlikely that the US courts would be willing, or able, to extend their jurisdiction under the Act to nationals of other countries, WWW content providers would still have to consider very carefully the material that they were intending to make available globally on the WWW, if they wished to maintain an effective presence there.

Despite the attention paid in this document to the provisions of UK law, it is important never to forget the international nature of the WWW. A webpage is usually accessible world-wide, and when putting either institutional or personal webpages on the WWW, it is worth considering who may view them. While there are jurisdictions more liberal than our own with regard to freedom of speech, such as the US, where pornography may, under certain circumstances, attract First Amendment protection, there are many that are not. At present, due to a lack of international agreement over Internet jurisdictional issues, it seems unlikely that a webpage on a machine at an educational institution in the UK, considered offensive or obscene by nationals of another country, would result in a successful (in terms of a penal sanction actually being applied) criminal prosecution being brought there, or in the UK. However, such a webpage might prove costly with regard to other activities of the educational institution, such as overseas student recruitment and research ventures, because of the negative publicity.

Looking to the future, as national law enforcement agencies world-wide develop new co-operative agreements in combating criminal activity such as child pornography, it seems likely that organised multi-jurisdictional investigations and jurisdiction hopping, to find the most favourable national venue for a successful prosecution, may yet become more prevalent. In such a co-operative climate, webpage owners may have to be prepared to deal sympathetically with the laws and values of countries other than their own, as the traditional print publishers have had to do, or consider restricting the accessibility of their material to specific Internet domains.


124 See <http://www.cpsr.org/cpsr/nii/cyber-rights/web/cda/cda.final.html> for the text of the CDA 1996.

125 Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

126 EFFector Online Volume 09 No. 08, June 12 1996. A Publication of the Electronic Frontier Foundation ISSN 1062-9424

127 AMERICAN CIVIL LIBERTIES UNION et al. v. JANET RENO, Attorney General of the United States. NO. 96-963. AMERICAN LIBRARY ASSOC. INC., et al. v. UNITED STATES DEP'T OF JUSTICE, et al. NO. 96-1458


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