Legislation - The Latest News

One of the hottest topics on the Net in recent months has been the recently-passed Communications Decency Amendment to the Telecommunications Bill 1996 in the US.

The CDA prohibits several things, but one of the clauses which has caused the greatest concern among the online community is that which reads:

"Whoever ... in interstate or foreign communications knowingly ... 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 communications 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 ..."

(Text from the Electronic Frontier Foundation's site at

Not surprisingly, the Americans are reading this clause as a restriction on their constitutionally-guaranteed right to free speech. Such restrictions have previously been ruled constitutional by the US courts, but onle in the restricted context of broadcast media, which was ruled to have a "uniquely pervasive presence in the lives of all Americans". It is harder to place effective warnings about the contents of a broadcast programme where they will always be available to those choosing to watch, because the audience may tune in and out at will. Also, it was ruled that because broadcasting was "uniquely accessible to children" -- that is, the young could not easily be restricted from viewing it in the same way that they can be prohibited from entering adult bookshops or cinemas showing films with an age restriction -- that different treatment of broadcast and other media was justified.

However, neither of these arguments apply to the Internet. A user of the Internet, or indeed of any other online service such as Compuserve, must go and look for the material that she wishes to view; the Internet is not a broadcast medium. Furhtermore, it is easier to place warnings at the start of any material which should not be available to children, since the user cannot tune in "halfway through" a Web page, for instance.

Accessibility is more of a problem, but it is a problem which has already been addressed. There are many software packages available which will filter a user's access to the Net, blocking the user from accessing sites, newsgroups or other services which may be offensive. Some providers also offer a "family service", with, for instance, a restricted Usenet feed which blocks groups discussing sex and other possibly offensive topics. (Of course, the most effective way of determining what a child may see online is to have supervision from a parent or other responsible adult.)

The CDA does not make any attempt to define what is meant by "patently offensive" or whose standards will be used when choosing "contemporary community standards". This has led many users to worry about what is to be defined as "offensive" -- and justifiably so, because a last-minute amendment to the Telecommunications Bill appears to make it illegal to provide abortion information over the Internet. (Regardless of one's own personal feelings about the desirability of abortion, it is not illegal in the US, nor is the provision of information about it through other media.)

Several lawsuits have been filed challenging the constitutionality of various aspects of the CDA.

We will, of course, keep you informed of any parallel legislation in the UK.

[Editor's note: the CDA has been ruled unconstitutional, though the legal arguments are still going on.]