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.

• 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.