HM Government: Department of Trade & Industry and Home Office

Review of the Internet Watch Foundation

KPMG and Denton Hall This report contains 75 pages Ref gdp/279

HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

Contents Executive Summary 1
1.1 1.2 1.3
1 8 8 8 16 20 20 22

Introduction
Terms of Reference Background to the Internet Illegal Material on the Internet

2
2.1 2.2

The Internet Watch Foundation (IWF)
Establishment and Development of the IWF Assessment of the IWF Work Streams

3
3.1 3.2 3.3 3.4 3.5 3.6 3.7

Relationship and Interaction Between IWF and ISPs
Introduction ISPs Within the IWF Framework UKERNA LINX ISPs Outside the IWF’s Framework ISPs’ Use of Protection Tools Future Support by the ISP Industry

39 39 39 41 41 42 43 43

4
4.1 4.2

Relationship and Interaction Between the IWF and the Police
The Current IWF Processes Improvements to the IWF Processes

45 45 49 52 52 53 57 57 60 64 67

5
5.1 5.2

Scope of the IWF
Planned Work Within Existing Scope of the IWF Extending the Scope of the IWF

6
6.1 6.2 6.3 6.4

The Structure of the IWF
Existing Structure Comparison with Other Regulators Developing the Structure of the IWF Developing the funding of the IWF

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

7 8
8.1 8.2

Methodology Glossary and Acronyms
Glossary Acronyms

70 73 73 74

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

Executive Summary
Introduction
Use of the Internet in the UK continues to grow rapidly. Around 60% of the population are likely to be regular users in ten years time1. Control of illegal and offensive material is likely to be increasingly important both to ensure that fears about such material do not deter people from taking advantage of the facilities the Internet provides and to protect potentially vulnerable sections of society who may come into contact with such material. The Internet Watch Foundation (IWF) is making an important contribution to tackling this problem. It has played a critical role in providing a service to the Internet user:
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through its work in receiving complaints about potentially illegal material, and, where appropriate, by advising Internet Service Providers (ISPs) to remove the clearly illegal material from their servers; and, through its work in the development of rating systems. A survey commissioned by KPMG/Denton Hall determined that people are reassured by the presence of such protection tools in using the Internet (see Section 1.2.3.2).

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This Review examines the IWF’s work in these areas, commending its success to date, and making recommendations for improvement.

The Internet Watch Foundation’s Work
Although the majority of complaints made to the IWF hotline concern material found on Web sites. Most of such material is not illegal but merely found objectionable by the complainant. Most potentially illegal material is found in the less permanent Usenet newsgroups. The IWF has therefore given the highest priority to turning around complaints about material on this medium. The IWF has been very successful in meeting its demanding turnaround times for reports relating to Usenet articles and groups. It also coped well with a sudden increase in the number of complaints it received during 1998 concerning content on Usenet (see Section 2.2.16). We conclude that the IWF is performing well in its core work on receiving complaints and passing on reports of potentially illegal material to police and ISPs. However, if the number of reports received by the IWF hotline goes through another sudden and significant increase, then the IWF could become less effective unless resources are increased sufficiently to deal with the extra volume of reports. If the IWF is to play its full part in protecting Internet users, users need to be aware of its work. Such awareness is currently low. A survey commissioned by KPMG/Denton Hall determined that only 6% of all UK respondents had heard of the IWF. Profile building publicity of the IWF and public relations will be required particularly if the IWF is to consolidate its role as a self-regulatory body. This Review will go some way in generating higher levels of awareness of the IWF and its work. However, ISPs could do more to promote the activities of the IWF by:
1 Source: British Broadcasting Corporation (BBC). See section 1.2.3 below.

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

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launching an information and awareness programme. This would include both specific printed and electronic material for distribution to current and new Internet users; - the creation of Web pages on their own Web sites with hot links to the IWF Web site; - the production of information material and distribution of such material, as part of regular mailings to their customers, to inform them about the IWF; and, - the inclusion of promotional material with software on CD-ROMs

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using traditional media (press, radio, and television) to stimulate awareness through publicity campaigns and information packs for journalists.

It has been the aim of the IWF to find a rating and filtering solution that does not block access to any legal content at ISP level, but rather gives individuals the facility to decide for themselves what material on the Internet they or their children should be allowed to see. Considerable progress has been made in the field of rating and filtering by the IWF, driven in the main by the IWF Chief Executive David Kerr who has, as a result, gained a reputation as a leading voice in this area. As part of its work in driving forward the development of a rating system, the IWF has undertaken various important initiatives both in the UK and internationally and has concentrated on finding effective rather than easy solutions. We therefore recommend that the IWF continues its work in this area. The far reaching implications of some of this work mean that IWF profile should be raised in this area and the Government should continue to be kept fully informed of all policy developments and provided with a formalised channel of communication for any guidance it may wish to give.

Role of Police and ISPs
UK ISPs are in general complying with requests from the IWF to remove potentially illegal material. Although the major US online service providers operating in the UK have not fully taken part in the IWF processes, we are confident that they have arrangements in place which in practice provide a good degree of protection from illegal material for their UK customers. Some small and specialised ISPs do not receive direct notification from the IWF. We recommend that the ISP trade associations work harder to draw in smaller sized UK ISPs (and down-the-line customers of ISPs) in order to ensure that illegal material is removed from all UK-based servers. The IWF passes reports of potentially illegal material to the Metropolitan Police, where material originates in the UK, and to the National Criminal Intelligence Service (NCIS), for material originating overseas. A limited amount of illegal material originates from the UK, and most illegal material is of non-UK origin (see section 2.2.1.3). However, NCIS is currently not receiving all the reports it should, since the IWF is only sending NCIS actionable reports relating to child pornography hosted on overseas servers. We therefore recommend that all reports relating to child pornography held on UK and non-UK servers be sent to NCIS.

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

Feedback from the Metropolitan Police and NCIS to the IWF on the status of reports is not particularly effective. Feedback from the Metropolitan Police is informal. Feedback from the child pornography unit at NCIS is difficult because NCIS itself, in most cases, does not receive any feedback from international law enforcement agencies. We recommend that a regular report to the IWF, from NCIS and the Metropolitan Police, should confirm the reports received and list the updates on reports previously sent by the IWF. This would reduce the risk of any leakages in the communication system.

Future Developments
The IWF has rightly concentrated to date on the high priority area of child pornography and is, we believe, making an important contribution in tackling this problem. We have considered the scope for it to extend its work into other areas. An immediate area for action is on-line Chat. Were its role to be extended to deal with on-line Chat, one way in which IWF might tackle this sub-medium would be to monitor certain children’s Chat fora and liaise with the police. The IWF is however not part of the law-enforcement process, and it seems more appropriate for the IWF to report Chat complaints to the police and to facilitate the tracing of the source of the messages. We recommend that, just as occurred in 1996 in relation to Web sites and Usenet newsgroups under the R3 Safety Net Agreement, the same bodies should come together to agree on whether the IWF should deal with illegal material on Chat, and how this can be achieved. The same approach should be applied to any other sub-medium of the Internet that may be considered a problem. From the evidence available to us, and on the basis of the progress made by bodies such as the Financial Services Authority (FSA), the Advertising Standards Authority (ASA), Federation Against Copyright Theft (FACT) and Federation Against Software Theft (FAST), we consider it would be inappropriate at this time for the IWF to extend its remit into areas for which these bodies are responsible. Given the importance for society in tackling racist material on the Internet, the IWF and the Commission for Racial Equality (CRE) should develop a dialogue (in part already established through the CRE’s membership of the IWF Policy Board) on how best the knowledge and experience of each organisation can be combined in this area. Given the more difficult nature of law in this area it is hoped that the police, the Crown Prosecution Service (CPS) and, where relevant, Government will assist the IWF and the CRE in the development of such an initiative. In the case of adult pornography, we conclude that the IWF should continue to take action where material seems clearly illegal, where the IWF can continue to command support for its actions from ISPs, provided it has the appropriate training and resources. In the case of other potentially illegal or unlawful material commonly reported to be available on the Internet, the more complex legal judgements involved make it far more difficult for a body such as the IWF to take action – certainly at this present time. Further and continued review by the IWF Policy Board is however merited. Rating and filtering technologies may help to combat such material. The IWF should however continue to refer reports regarding other illegal material which it does receive to the police or to other appropriate bodies.

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

As the market for e-commerce develops, we are aware that regulatory control will in particular be needed in the area of sale of goods and consumer protection. At the present time we do not recommend expanding the activities of the IWF into this area and instead note the initiative of the Alliance for Electronic Business to develop a self-regulatory framework in this area. We do recommend, however, that an extended dialogue between the IWF and other bodies having responsibilities for illegal material other than pornography is maintained. The discussions would seek to clarify the role (if any) of the IWF and that of each of the other bodies in relation to relevant material on the Internet.

Structure and Funding of the IWF
The IWF was a creation of the Internet industry and its structure reflects that history. We commend the responsible and public-spirited work which the ISPs have done in this area. Their continued active involvement in tackling problems of illegal and offensive material on the Internet is essential. But we believe that, as the Internet matures, changes to the IWF’s structure are likely to be necessary, not least to enable its funding to expand to meet likely increasing demands placed on it. We therefore suggest various possible changes for the industry and IWF to consider. To emphasise its public role, and its not-for-profit status, we suggest that the IWF be reincorporated as a company limited by guarantee without a share capital which is debarred from making distributions to its members. The new guaranteeing members of the IWF might include the industry trade bodies ISPA and LINX and at least one children’s charity. To emphasise the IWF’s central role in governance, we recommend that the Internet industry give serious consideration to revising the current terms of reference so as to clarify the role and powers of the Policy Board. That role should clearly encompass all rating and filtering and notice and take down activities. We suggest that a new Policy Board should, within the clearer parameters of its revised remit, mandate the carrying out of policy by a strengthened secretariat, headed by the Chief Executive of the IWF, who should be a full time employee of the IWF but report to the Policy Board. To achieve efficiency, a proper balance and adequate representation, the Internet industry could consider reducing the number of members of the Policy Board under a (strong) independent chairman, with a majority of nominees from other public bodies or charities (including bodies concerned with the interests of children), and a minority elected by members of ISPA and LINX, respectively. The Chief Executive might not be a member of the Policy Board, but should normally attend all meetings. Appointments to the Policy Board should be for a minimum period eg. two years, and should be renewable for one or two further periods. The DTI might expect to be consulted on the identity of the Chairman.

We suggest that the Management Board in its present form could be reformed as an Industry Committee created by ISPA and LINX and initially comprising senior executives of ISPs with a remit which includes supporting the IWF in its work liaising with the IWF and making recommendations to ISPA and LINX on funding the work of

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

the IWF. The Industry Committee should reach out to content providers and encourage their full participation. A possible relationship between the IWF and the Industry Committee could be in the nature of a contract under which:
n n n n

the IWF proposes a two year plan to the Industry Committee setting out a work plan for that period, which must of course be consistent with its newly-defined remit; the IWF proposes a budget; the two bodies negotiate the work plan and budget, facilitated by the DTI if needs be; the Industry Committee reports to the widest range of ISPs (and also content providers if practicable) through ISPA and LINX, and to any content providers involved and secures agreement for the funding of the work for the next period.

We suggest that the IWF Boards actively seek the widest funding base for the IWF and, as with funding for the ASA and the British Board of Film Classification (BBFC), contributions should be more closely related to industry revenues, and so ensure buoyant funding as industry revenues continue to grow. We suggest that funding of the IWF should continue to come from the Internet industry but be extended, if feasible, to the content provision industry. IWF hotline activities and awareness generation may require additional funding. We suggest that the IWF formulate a business plan going forward itemising the funding requirements for each of its two work streams, including such additional hotline and awareness generation activities as the Policy Board deems to be appropriate and practicable.

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

1
1.1

Introduction
Terms of Reference
In March 1998, the Department of Trade & Industry (DTI) and the Home Office announced their intention to carry out a Review of the Internet Watch Foundation (IWF), and to that effect invited tenders from consulting services organisations to conduct the Review. A joint bid from KPMG and Denton Hall was successful in this respect, and the contract was awarded in September 1998. The key objective of the DTI and the Home Office in initiating this project was to receive a detailed review of the IWF and its work, in order to ensure that forward planning is based on a sound understanding of the current situation and likely future evolution of the Internet and its use in the UK – together with the impact this will have on the occurrence of illegal or offensive material. In light of this, deliverables as part of this project were determined to be the following:
n n n n n n n n

an assessment of the progress made by the IWF to date on the identification and removal of illegal material from the Internet; an analysis of the effectiveness of the current arrangements for passing reports to the Police; recommendations for improvement of the processes used by the IWF; an assessment of the number of ISPs seeking or accepting customers within the UK who are not part of the IWF framework; an analysis of the structure of the IWF; an assessment of the future scope of the IWF with regard to the types of material / legal issues and Internet media the IWF could cover; measurement of the awareness of the IWF and recommendations for raising awareness; and overall recommendations for dealing with illegal and offensive material on the Internet.

1.2
1.2.1

Background to the Internet
Developments and Trends It is clear that we are in the midst of a revolution as regards the delivery of information in both business and consumer markets: new technology channels, in particular the Internet, are facilitating the distribution of digital content on a global scale, and the adoption of those technologies by all walks of society is increasing at a phenomenal rate. Although the USA is at the vanguard of such developments, and while business use is driving adoption in the need to find ever more efficient and cost effective ways of trading, consumer use of the Internet in Europe, and the UK in particular, is set for extensive growth in the next few years.

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

1.2.1.1

Use and adoption As part of this Review, KPMG/Denton Hall commissioned a survey of technology usage by adults over the age of 18 within the UK.2 Around 24% of the UK adult population have used the Internet and around one third of UK homes have Personal Computers (PCs). Penetration of PC, Internet and Web usage are shown in the graph below (see Figure 1). Note that ‘Internet users’ include those who may have used it for the purposes of email at work only. Many of the data arising from this survey with regard to the penetration of technologies in the new media sphere are on the whole corroborated by statistics from the InternetTrak survey3 of March 1998. Figure 1. Technology usage4 (base: all respondents)

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2 Survey conducted by market research company on behalf of KPMG / Denton Hall in October 1998. A total of 1068 respondents over the age of 18 years were interviewed. For details of the questionnaire used for the survey, please see Appendix A on Web site http://www.kpmgiwf.org 3 InternetTrak survey, co-sponsored by KPMG, Ziff Davis and Yahoo!, and conducted by NOP, March 1998. See KPMG’s report, Europe Gets Wired, http://www.kpmg.co.uk/ 4 Web statistics for IWF survey here also include users of newsgroups and Chat

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

Findings from the November 1998 InternetTrak survey5 indicate that the number of Web users over the age of 14 has reached 8 million (7 million over the age of 17), and Which? Online’s annual Internet survey published in June also gives a figure of around 8 million individuals using the Internet in the UK6.

Figure 2. Growth in Web usage in the UK.

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Source: InternetTrak/KPMG 1.2.1.2 Domestic use of the Internet The research and analysis organisation Dataquest7 forecasts that penetration in the use of Internet technologies in the workplace will exceed home penetration in all world regions by 2002 - except in Europe. Findings from our user surveys show that currently around 40% of UK Internet users access the Internet from work, whereas around 32% access the Internet from home (with some overlap between the two)8. The remaining respondents claiming to have used the Internet have done so from various other locations, including schools and colleges, libraries, Internet cafés, and at friends’ or family homes. Access in the home and at schools is giving rise to most concern for consumers and governments alike as regards the availability of unsuitable, offensive or illegal content. Which? Online's Internet survey, for example, determined that 58% of its respondents thought the Internet undermines the morality of the nation by making pornography and other illegal materials freely accessible.
5 InternetTrak, November 1998, sponsored by Ziff-Davis, Yahoo! and Dell. See Web site: http://www.zdnet.co.uk/zdm/netsurvey/ 6 See Web site: http://www.which.net/nonsub/special/ispsurvey 7 Internet Software and Internet Access Markets: The Global Dynamos, Dataquest, November 16, 1998 8 KPMG/Denton Hall consumer survey October 1998

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

Home users therefore might appreciate an organisation such as the IWF, which provides a hotline service and promotes the benefits that filtering and rating software offer. For users accessing the Internet from work, particularly those in larger companies, these concerns are addressed by IT departments, and centrally controlled firewalls and filtering software. 1.2.1.3 Sub-elements of the Internet The Internet is characterised by a set of user-oriented services:
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World Wide Web (the Web or WWW): This is basically the multimedia publishing area of the Internet, based on the use of a document formatting language, Hypertext Markup Language (HTML), that allows documents from different computers to be linked together. The World Wide Web has developed rapidly in the 1990s as images, sound and video have been added to the text capability of the Internet user’s software. File Transfer Protocol (FTP): This is the simplest way to transfer electronic documents (files) from one computer to another using the Internet. For example, it is often used to download files from a Web server to a user’s computer. Chat: This involves communication and interaction between two or more parties, and takes place in real time. Communication generally takes place by typing messages. A private chat can be arranged between two parties who meet initially in a group Chat. Most Chat uses the Internet Relay Chat (IRC) protocol, which does not facilitate tracking by third parties. Usenet newsgroup: A newsgroup is a discussion about a particular subject consisting of notes written to a central Internet site and redistributed through Usenet, a worldwide network of news discussion groups. Newsgroups are organised into subject hierarchies, with the first few letters of the newsgroup name indicating the major subject category and sub-categories represented by a subtopic name. The newsgroups are hosted on various computers on the Internet (news servers), and can be passed from one server to the next allowing messages to be read or accessed by anyone on the Internet. Electronic mail (email): This is the exchange of computer-stored messages by telecommunications channels.

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1.2.2 1.2.2.1

Internet Service Provision ISP Organisations An Internet service provider (ISP) is a company that provides individuals and organisations access to the Internet and other related services such as Web site building and hosting. An ISP has the equipment and the telecommunication line access required to provide points-of-presence on the Internet for the geographic area served. The larger ISPs have their own high-speed leased lines and are less dependent on the telecommunication providers. They can provide better service to their customers, in particular corporate clients.

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

Major UK ISPs include Demon Internet, BT Internet and Virgin.Net. In addition, Internet users can also obtain access through On-line service providers (OSPs) such as America Online (AOL), LineOne and CompuServe, which offer extensive content services as well as Internet access. 1.2.2.2 Trade Bodies ISPA and LINX ISPs and OSPs9 may join the following bodies: ISPA The Internet Service Providers’ Association (ISPA) was established in 1995 to represent ISPs in the UK. Its aim is to promote the interests of ISPs and campaign for safe use of the Internet in a competitive market 10. ISPA has a membership of around 90 organisations which include ISPs, Network Solution Managers, Web designers, the IWF and also multimedia law practices. ISPA members currently represent around 90% of the UK dial-up market11. LINX The London Internet Exchange (LINX) is a grouping of the larger ISPs with transatlantic bandwidth. It was originally established to organise a clearing house for UK Internet traffic and manage a number of technical issues. However in 1996, it took on some of the features of a trade association and now has around 50 members, some of which are nonUK ISPs12. 1.2.2.3 UK market shares The industry for Internet access and service provision is still evolving at a rapid rate. The number of ISPs that have emerged in the UK (around 260 at present) demonstrates a surge in entrepreneurial activity attempting to take advantage of potential opportunities presented by the new medium. Nevertheless, competition for subscribers remains fierce. Many ISPs are still searching for business models that will enable sustained levels of market share and profitability yet offer their customer value for money. Most ISPs charge users on a subscription basis. However, some UK ISPs have introduced alternative models: BT, with its Click service, has introduced a pay-as-you-go service, while Dixons has recently launched a free access model - Dixons FreeServe13. It is anticipated that these alternative pricing models will continue to drive Internet usage upward - indeed, Dixons is claiming to have attracted 475,000 users within 2 months of operation, although it is unclear how many of these were or still are subscribers to other ISPs. These market developments will put increasing commercial pressure on the smaller ISPs, who will be looking to introduce innovative services and/or continue to provide specialised services.

9 From this point forward, ISPs and OSPs are referred to collectively as ISPs. 10 See www.ispa.org.uk 11 For a list of ISPA and LINX members, see their Web sites: www.ispa.org.uk and www.linx.net 12 See www.linx.net 13 See www.freeserve.net

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

As seen above, growth in the Internet industry is occurring at a rapid rate. Consequently subscriber numbers per ISP and market shares are continuously changing. However, our research shows that during the second quarter of 1998 there were around 2 million subscribers to dial-up Internet accounts. The figures shown below provide market shares of ISPs during Quarter 2 1998. They do not include UK users attached to the Internet through shared company or education leased lines.

Table 1: Internet Service Provider Market Shares (Quarter 2 1998)

ISP

Number of subscribers Quarter 2 1998

Market Share % 20.75 20.50 9.25 7.00 6.00 5.00 3.75 3.75 2.50 2.12 1.88 1.38 1.25 1.10 1.10 0.60 12.05 100.00

1. CompuServe 2. AOL 3. Demon 4. Microsoft Network (UK) 5. BT Internet 6. Virgin Net 7. LineOne 8. Global Internet 9. UUNET Pipex Dial 10. EasyNet Group 11. Cable & Wireless 12. Direct Connection 13. Which?Online 14. U-Net 15. Cable Internet 16. Enterprise Others TOTAL number of Internet users

415,000 410,000 185,000 140,000 120,000 100,000 75,000 75,000 50,000 42,500 37,500 27,500 25,000 22,000 22,000 12,500 241,000 2,000,000

Source: KPMG consensus / Various (from 2nd Quarter 1998) - KPMG / Ziff-Davis / Yahoo InternetTrak survey (March 1998); Nua Ltd (Q2 1998); NOP (March 1998); EMAP Service Provider Estimated Number of ’Live’ UK Subscribers (May 1998). Dixons’ FreeServe was not available in Q2 1998.

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

1.2.3
1.2.3.1

Future Growth of Internet
Future installed base Dataquest14 claims that Internet penetration will be high among European PC users. Reasons given include the fact that although fewer consumer than in the US have PCs, those that do are much heavier technology users, and are more likely to pay for Internet access. Further, because European telcos already collect local connection charges for Internet dial-up, they can reputedly afford to offer very low-cost, low-level Internet access, and we are seeing a move towards models of free Internet access service provision. In the UK, the British Broadcasting Corporation (BBC) forecasts that the penetration of on-line users will increase from 16% of the population in 1998 to 60% within ten years (see Figure 3). Figure 3. On-line Penetration Forecasts (% of UK Population (ages 4+) reached)

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Source: BBC A number of inhibitors (in addition to those regarding offensive or illegal content) to Internet use remain, including concerns about security, bandwidth availability and cost of access. However, these issues are being addressed and, given other emerging platforms, such as digital set-top boxes that will bring the Internet onto the TV set, all indications are that the Internet will continue to grow at a rapid rate. 1.2.3.2 A safer place to roam When considering the use of the Internet by the general public, it is useful to consider not just those who are currently wired, but also those who are likely to obtain access in the
14 Internet Software and Internet Access Markets: The Global Dynamos, Dataquest, November 16, 1998.

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

next 6 months or so. Our end user survey15 found that 7% of the UK adult population are likely to become new Internet users in the next 6 months (11% of households with children under the age of 18 in the household, suggesting that the Internet is perceived as a useful educational tool for children). On the whole the respondents of the KPMG/Denton Hall consumer survey found the existence of protection tools reassuring: 54% of all those questioned found the presence of protection tools very or quite reassuring; and 68% of Internet users did so. However, the unavailability of these tools is not seen as a major barrier to accessing the Internet: respondents generally felt that they were safe from depravity or corruption from content on the Internet (see Figure 4). On the other hand, potential users said that they are more likely to connect because of the presence of protection tools (24% said that they would do so). Figure 4. Do protection tools make one likely to connect? (base: all who have heard of the Internet)

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1.3
1.3.1

Illegal Material on the Internet
Introduction The elimination of illegal material from the Internet is clearly a legitimate and desirable aim for society - just as from any other communication medium or area of life. What is illegal off-line should be illegal on-line. The control of certain legal, but potentially
15 KPMG/Denton Hall consumer survey October 1998

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

offensive, material on the Internet may also be supported on the grounds that control is necessary to protect vulnerable sections of the community and encourage wide scale use and development of the medium. In both cases, however, any actions or constraints proposed in pursuit of such goals must be considered in the context of other important principles of law and behaviour, including freedom of speech, privacy and principles of proportionality.16 Further, given the global nature of the Internet, national and even regional action can appear unrealistic or inadequate. The activities of the IWF and the position of the UK Internet industry should be considered in the light of European and international legal and political initiatives17. Those who seek to regulate on-line activity must also be alert to the technical and pragmatic difficulties involved, not least the strongly-held view of certain Internet users that intervention should be resisted. 1.3.2 Illegal and Offensive The material on the Internet with which a regulator may be concerned can be broadly classified into three categories: “illegal”, “unlawful” and “offensive”. Material is illegal if to publish or otherwise deal with it is an offence under criminal law. Material can also be unlawful, while not illegal in the criminal sense, if publication or dealing infringes a private right, for example if it is defamatory, infringes copyright or is in breach of contract. Material can be offensive18, even if not necessarily illegal, if it can be considered harmful or otherwise unsuitable or inappropriate to certain audiences or if it offends their values and feelings; but clearly this is a more subjective issue for, on the Internet as elsewhere, what offends one group may not offend another. What constitutes illegal, unlawful or offensive material and where the dividing line between them lies is not always clear and may vary from country to country. For instance, while publication of, or dealing in, child pornography will generally be held to be an offence in Member States of the EU and in many other countries, the precise nature of the offences, and the availability of defences, does vary. Extreme adult pornography involving violence or criminal behaviour - will be held illegal in most EU countries but the detail of the relevant law will again differ. In some countries, material depicting consensual adult intercourse or nudity will not be illegal, but merely offensive to some. Criminal laws generally make no distinction as to the medium on which illegal material is carried. The offence will be committed if a person, with the requisite level of knowledge, carries out an act which falls within the strict language of the relevant provision. Whether or not use of the Internet falls within the statutory definition may often be arbitrary, given that the draftsman is unlikely to have known of the Internet at the time the law was enacted. In a small number of areas UK law has already been amended to clarify or confirm its applicability to on-line activities.19

16 We describe these constraints in more detail in Appendix B on Web site http://www.kpmgiwf.org 17 See Appendix B on Web site http://www.kpmgiwf.org 18 European Union institutions have used the term “harmful” rather than offensive -ibid 19 See Section 1.3.3 and Appendix B on Web site http://www.kpmgiwf.org

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

1.3.3 1.3.3.1

UK Legal & Regulatory Framework Regulatory Controls In the UK, as in many other countries, a number of different bodies exercise regulatory control over the content carried in different forms of media. Whilst traditional print publishers have essentially to look only to the general law, those working in other media such as film, broadcasting or premium rate telephone services must comply with additional rules on content laid down by a number of regulatory bodies. These bodies are largely media specific and regulate particular sectors or forms of communication. This has a number of important consequences for the Internet:
n n n

no dedicated regulatory regime applies to the Internet; it may not be certain which of, and how far, the existing bodies have jurisdiction; and different levels of classification and control may be exercised in other media, making the establishment of a single Internet standard difficult.

It is not within the scope of this report20 to deal in detail with the role of other regulators in relation to the Internet or with the general law on content in the UK. It should also be stressed that the Internet is a unique medium, the technology and industry structure of which differs in many important respects from other media. The role and structure of a number of the other regulators is however instructive when reviewing the IWF. Selfregulation of content has long since been part of the regulatory framework in the UK in certain media. For this report, bodies established by the industry itself largely as a voluntary process are more relevant than other bodies formed under legislative Government intervention. We therefore do not discuss bodies such as the Independent Television Commission (ITC), a publicly funded body established under UK broadcasting legislation, even though it could yet have a role to play in the regulation of video material on the Internet.21 1.3.3.2 General Law As even the briefest exposure to the medium will demonstrate, many areas of criminal and civil law are relevant to material available on the Internet. Some areas have received particular attention as a result of the prevalence or the level of public (or press) concern. A further key factor has been the extent to which ISPs and other industry players may be held responsible for hosting or delivering material. Over the years, the parameters of liability in media distribution have been established through statute and case law. The present framework started with the traditional printbased world of publisher, printer, distributor and retailer and extended to producers, distributors and exhibitors of film and to broadcasters. The extension of the structure to film and broadcasting has not, however, provided a particularly useful template for the Internet. The law has been left trying to squeeze the technology and the position of its industry players - such as ISPs - into the existing framework. This has particular importance for Regulators for, by the very nature of the Internet, the author or originator
20 See UK Government response 22.7.98 CM4020 to CMS Select Committee Report “the Multimedia Revolution” and Green Paper of 21.7.98 CM4022 21 Ibid. The ITC is a member of the IWF Policy Board. See also ITC statements on Internet regulation Spring 1996, Autumn 1997

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

of much of the material, especially illegal or unsuitable material, may be unidentifiable, untraceable, impoverished or beyond the jurisdiction of UK courts, leaving industry players as obvious potential targets for responsibility. For their part, industry players have been keen to draw similarities between their role and that of the Post Office or telephone operators, “common carriers” (as US law defines them) who traditionally have not been held responsible for illegal or offensive material sent through their systems. The liability of ISPs and others has been the subject of extensive and vociferous debate as use of the Internet has developed in recent years and has been an important factor in the development of the IWF. Although, following the Ministerial declaration adopted during the Bonn G7 Conference in July 199722 and the Proposal for an EC E-commerce Directive23, there are indications that legislative measures will clarify the liability of industry players, the development of the Internet industry has so far taken place against the background of considerable legal uncertainty. This uncertainty, combined with alarm over the availability of illegal and offensive material on a new, unfamiliar technology and genuine concern to protect freedom of speech and to foster the immature marketplace, led to a potentially tense and difficult climate in which to reach agreement on regulatory control.24 The constructive and positive dialogue sustained in the UK between the industry, the police, Government and other interested parties, in contrast to the regulatory atmosphere which exists in other countries, for example Germany25, is therefore to be applauded. Pornography, particularly child pornography, remains a particular concern. Distribution in the UK of pornographic or sexually explicit material is controlled by a range of legislation. The principal controls are set out in the Obscene Publications Acts 1959 and 1964, the Protection of Children Act 1978, the Criminal Justice Act 1988 and the Criminal Justice & Public Order Act 199426. As the analysis shows, UK law on pornography has clearly been extended to cover on-line and other electronic forms of communication27. The fact that mere possession of child pornography is an offence and that public revulsion at the nature of this material, as well as police determination to act against it, is very strong, placed ISPs in a particularly difficult position.

Where an ISP held indecent photographs of children on a Web or news server in the UK, it would clearly be in possession of the material, but it was unclear whether the ISP could rely on a defence of not having seen the photographs and having no cause to suspect them to be indecent. How far ISPs should be expected to vet or police their systems for such material was open to debate and became a key issue of contention between the industry and the police and a key factor leading to the establishment and chosen scope of the IWF. As stated in the IWF’s March 1998 Paper - Rating and Filtering Internet Content, “The Internet Watch Foundation was created in response to growing concern amongst the public, the
22 See Appendix B on Web site http://www.kpmgiwf.org 23 See Appendix B on Web site http://www.kpmgiwf.org 24 See Section 2.1 25 Police raids on ISPs in Germany have led to an uneasy relationship between industry and law enforcement bodies. The prosecution and conviction of Felix Somm, former managing director of OSP CompuServe in Germany has represented a particular low point. 26 A brief analysis of these laws is set out in Appendix B on Web site http://www.kpmgiwf.org 27 Case law has upheld this – even the unamended form of legislation R v Fellows [1997]

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

press and the police about the availability of illegal material on the Internet, particularly child pornography. The strength and breadth of this concern clearly goes beyond simple application of the law and touches on a fundamental human value for the protection of children”.28 The discussion above shows the complexity of applying existing criminal provisions to the Internet. As few other areas of law have been amended specifically to address the Internet, it is even less certain how far ISPs could be liable for other types of criminal material such as racist or other hate speech, illegal gaming or financial dealings. On the civil law side, similar legal uncertainty exists. The Defamation Act 1996 is one of the few items of civil legislation introduced with the objective of clarifying the liability position of ISPs 29. Copyright owners in a range of industries are also concerned at the amount of unauthorised material being transmitted on the Internet. Detailed discussion of this highly complex area of law is beyond the scope of this report but the importance of copyright and other intellectual property to the UK is vital to the successful development of the Internet and E-commerce. Recent US legislation and EC developments30 have begun to address the issues but we are still some way from a legal or commercial solution.

28 See Appendix C on Web site http://www.kpmgiwf.org 29 In essence, the Act provides a defence for an ISP who is not an author, editor or publisher (as defined) of defamatory material, who is not aware of the material and who has taken reasonable care 30 Proposal for an EC Copyright Directive (10/12/97) and Proposal for an EC Electronic Commerce Directive

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

2
2.1
2.1.1

The Internet Watch Foundation (IWF)
Establishment and Development of the IWF
Background During 1996, there was growing public concern about illegal and offensive material on the Internet. The Metropolitan Police made it clear to certain ISPs, particularly in relation to child pornography where mere possession was an offence, that prosecutions might be brought against ISPs unless steps were taken to remove material. Facilitated by the DTI, discussions were then held between certain ISPs, the Metropolitan Police, the Home Office and the Safety Net Foundation, a body formed by the Dawe Charitable Trust. From these discussions emerged the R3 Safety-Net Agreement, an industry initiative for addressing illegal material on the Internet. The proposals were adopted and recommended by ISPA, LINX and the Safety Net Foundation. All responsible ISPs, inside or outside ISPA and LINX, were called on to support the measures.

2.1.2

The R3 Safety-Net Agreement The R3 Safety-Net Agreement (“the Agreement”) was made between ISPA, LINX and the Safety-Net Foundation (later changing its name to the IWF, and from this point in the report referred to as such) on 23 September 1996. It is directed to provision of access in the UK, to avoid purporting to claim extra-territorial jurisdiction. The Agreement is expressed to be based on a number of principles:
n

the Internet is not a legal vacuum: material illegal “off-line” is also illegal “on-line”, and a clear legal liability to prosecution exists under UK law in relation, for example, to child pornography; legal but offensive material raises a quite separate issue: consumers should have the technological means to tailor their, or their family’s, experience of the Internet according to their individual standards; and ISPs must take a responsible approach: they need to implement reasonable, practicable and proportionate measures to hinder the use of the Internet for illegal purposes. However, the police, not ISPs, should take responsibility for enforcement of the law and content providers should retain responsibility for their content.

n

n

The Agreement records the establishment of the IWF which offered to fulfil an independent role to support the development of rating systems for offensive material and in receiving and processing complaints about illegal material. While the IWF’s immediate focus was on child pornography on Web pages and newsgroups, the Agreement stated that “it may be appropriate to extend the approach in future to cover other types of illegal material”. The Agreement also recognised that the problem of child pornography and illegal material on the Internet would evolve over time and that it might become necessary in future to adapt existing policies and introduce additional policies. The Agreement incorporated three key elements: rating, reporting and responsibility.

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

2.1.2.1

Rating The IWF aimed to undertake the following responsibilities:
n n

to assist in the classification of legal material to enable users to make use of PICS (Platform for Internet Content Selection) enabled tools; and to provide a legality indicator (i.e. rating) for the “normal content” of each newsgroup, indicating whether the group normally contained illegal material and the type of illegality involved.

2.1.2.2

Reporting The Agreement recognised the need for a response mechanism in cases where illegal material had been identified. This was to be provided by way of a “hotline” service (based on the Dutch model endorsed by the first World Congress against the Commercial Sexual Exploitation of Children, Stockholm August 1996) to accept complaints from members of the public about illegal material via telephone, mail, email or fax. The IWF would then:
n

in respect of UK originated material, attempt to trace the source of material and to inform the author of the position under UK law, coupled with a request to remove the material; where co-operation is not forthcoming, request action from the relevant ISP and pass the details to the National Criminal Intelligence Service (NCIS); confirm the action to the complainant; and in respect of non-UK originated material, details would be passed to the foreign ISP, if it could be identified, and to NCIS, who would be able to liaise with the police force in the appropriate jurisdiction.

n n n

2.1.2.3

Responsibility The Agreement emphasised that for IWF actions in respect of rating and reporting to have any effect, content providers must take responsibility and ISPs should:
n n n n

promote PICS-enabled software for Web pages and, when available, PICS-enabled software for newsgroups; require all content providers to rate their own Web pages using the Recreational Software Advisory Council’s (RSAC) self-rating system - RSACi31; “support the availability” of rating for all newsgroups and modify newsgroup servers to deliver group ratings to end-user software when the standard becomes available; support the development of a new Internet standard for transmitting newsgroup ratings according to their “normal content” (although in the long term users should be encouraged to rate their newsgroup articles as they are posted);

31 RSACi is a self-rating system for Web sites and other Internet content developed by the Recreational Software Advisory Council - see Section 2.2.2

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

n

remove Web pages hosted on their servers which are identified and verified to them as containing child pornography or other illegal material, in the event of users’ failure to co-operate; remove Web pages hosted on their servers which are persistently and deliberately mis-rated; remove from their servers, within a reasonable time period, news articles identified and verified to them as containing illegal material; and in respect of tracing providers of illegal material, work with the IWF to identify and investigate a range of appropriate measures for closing down loopholes and facilitating better traceability, including provision of audit trails and measures for ensuring users of free trials can be identified.

n n n

For the reasons explained in Section 1.3, one of the key concerns for the ISPs in supporting the initiative was to address the issue of their potential liability under UK law. The “understanding” reached between Government, police and the Internet industry - and a driver for ISPs to endorse the policies - appeared on the face of the Agreement under the heading “Self Protection”. It stated that appropriate measures taken by ISPs can offer protection to the ISPs themselves as well as end users: “Establishing a common understanding of what steps constitute a reasonable, practicable and proportionate approach can also provide a defence for ISPs against prosecution on charges of knowingly permitting services to be used for the distribution of illegal material”. It is notable that there have been no prosecutions of ISPs since the Agreement. However, as the Home Office, the police and the Crown Prosecution Service (CPS) have made clear to us in the course of this Review, no immunity or special protection was granted to ISPs under the Agreement or subsequently, and ISPs remain subject to the general law32.

2.2

Assessment of the IWF Work Streams
As set out above, the work of the IWF consists of two distinct areas, hotline reporting and development of rating systems. Set out below are our assessments of these two work streams.

2.2.1

The IWF Hotline The IWF launched its hotline to receive reports about child pornography (and other illegal material on the Internet) in December 1996.

2.2.1.1

The hotline in operation The IWF has an email, telephone and fax hotline for Internet users to report child pornography and other illegal material on the Internet. There are currently two people employed by the IWF to deal with reports from users. The Hotline Manager (a full time member of staff) and an assistant (who works 30 hours per week) assess whether items reported are likely to be illegal (based on criteria agreed with
32 Note however that liability of ISPs for content generally is addressed in the Proposal for an EC Electronic Commerce Directive

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

the police). According to the IWF records, during a 21 month period from the start of the hotline in December 1996 until the end of August 1998, there were 2,146 reports to the IWF and in 453 of them (21%) at least some of the items were assessed as being illegal. Once the IWF locates the illegal material the IWF informs UK ISPs and the police. Actioned reports predominantly concern child pornography that seems clearly illegal. (Of the 453 actionable reports, 397 (88%) involved child pornography, 34 (8%) adult pornography). 2.2.1.2 Notifications to ISPs 274 actionable reports have been passed to UK ISPs during December 1996 to August 1998. The IWF believes that the ‘notice and take down’ procedures have worked well, with ISPs generally taking down material on the advice of the IWF. The issue of ISP compliance with IWF advice is analysed further in Section 3.2. 2.2.1.3 Notifications to the Police Although the Agreement originally envisaged the IWF tracing the source of illegal UK originated material and warning the author that the material should be removed, this approach was not pursued once the nature of some of the material reported became clear. It was decided that priority should be given to obtaining prosecutions and reports were made directly to the police. A limited amount of illegal material originates from the UK; this means that only 67 reports out of 453 actioned reports (15%) were passed to the UK police. Most illegal material is of non-UK origin, hosted on ISP servers in the US and Asia (see Table 2). NCIS, the body which identifies the responsible police force within or outside the UK for criminal investigations, was sent 344 (76%) actionable reports. NCIS then passes on the reports to the appropriate law enforcement agency. Further analysis of the relationship between the IWF and NCIS and the UK police is provided in Section 4. Table 2: Apparent origin of actioned reports
Australia Brazil Canada Czech Republic Denmark Finland France Germany Hong Kong Ireland Italy TOTAL: 4 2 10 3 4 2 3 7 7 2 2 Other / Unknown 19 453 Japan Netherlands Portugal Russia South Africa Sweden Switzerland United Kingdom United States 81 20 2 6 3 3 2 75 196

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

2.2.1.4

Reporting back to the Complainant The Agreement had set out that confirmation of action would be given by the IWF to the complainant. We have, however, been informed by the IWF that, in view of the resources which this procedure would require, feedback has not as yet been provided in this way.

2.2.1.5

Types of material and Internet media covered The Agreement envisaged that the IWF would, at least initially, focus on illegal material appearing on Web pages and Usenet newsgroups. Although, as set out below, the majority of reports have been concerned with these elements, some reports have concerned other elements of the Internet. The IWF has set itself an overall target to process every report it receives. However, turnaround targets and methods for processing reports differ according to the particular sub-media of the Internet. Most of the reports received by the IWF hotline have been about material on Web sites or Usenet newsgroups. The table below shows the number of reports by sub-media of the Internet: Table 3. Number of reports by sub-media
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Usenet Most postings on Usenet newsgroups expire relatively quickly. ISPs stop providing images after a short period of time because images take up a lot of memory space on ISP servers. The expiry time varies by individual ISP, but Demon, which has a policy of hosting images for a longer than average period, usually removes images after seven to ten days. Since images expire quickly, the IWF deals with reports regarding undesirable content on Usenet news rapidly and investigates such reports as a matter of urgency.

It is the policy of the IWF to process reports relating to Usenet articles within one working day of receipt; to process reports relating to multiple Usenet articles (that is a

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

large series of articles from the same sender) within three working days of receipt; and to review Usenet group within five working days of receipt. The IWF has been very successful in achieving these target turnaround times for reports relating to Usenet articles and groups. It has consistently processed Usenet reports within one working day of receipt 99% of the time during the period from December 1996 to August 1998 (see Figure 5 below). Figure 5. Usenet news reports

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The table below shows the target turnaround times for processing complaints:

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

Table 4. Target turnaround times Internet sub-media Web site Web site Web site Web site Source: IWF Material child porn child porn adult porn adult porn host server UK hosted non-UK hosted UK hosted non-UK hosted turnaround target within three working days of receipt within five working days of receipt within five working days of receipt within ten working days of receipt

Email The IWF received, during a 21 month period, 88 reports concerning undesirable material communicated to Internet users via email. Email communications are generally considered as private communications and outside the remit of the IWF33. However, the IWF has on occasion taken action when a complaint has been made about ‘spam’ emails (distribution of an unsolicited standard email to many users). For example, the IWF has referred to NCIS reports of ‘spam’ emails advertising child pornography. Chat The results of our ISP survey34 show that of a sample of 100 ISPs providing an Internet service in the UK, 25% provide a Chat room service to customers, some of which are Chat fora for children. We were advised by a number of people interviewed for this Review35 that the use of Chat could pose some serious dangers to children using the Internet. We also understand that its status as a real-time communication medium makes it difficult to deal with. Chat is potentially of even greater danger to children in their use of the Internet than child pornography in newsgroups. This is because in Chat adults can pose as children and engage in inappropriate sexual conversations on-line. These adults could seek to arrange meetings with children they have contacted on-line. We were made aware of cases outside the UK where this had happened and had led to sexual abuse of children. (An indication of the potential danger of Chat is given by statistics from the US: The New York State Police in a special operation in the autumn of 1997 arrested 100 adult men for offences of seeking to exploit children in Chat rooms).

Dealing with Chat is not easy. The IWF has received a total of 32 complaints about material in Chat rooms. However, the IWF cannot go into a Chat forum and assess the reported message since the material is passing traffic, in real time, and not held on any
33 On occasions ISPs receive direct requests from the police to trace emails and many now have established policies for responding to requests where lawfully made 34 KPMG/Denton Hall ISP Survey. For copy of questionnaire see Appendix D on Web site http://www.kpmgiwf.org 35 See Appendix E on Web site http://www.kpmgiwf.org

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

server. Although it is not currently within its remit, the IWF recognises the use of Chat as potentially dangerous to children, and has already given some consideration to extending its work into this area. As yet, the only action taken by the IWF in respect of actionable reports on this sub-medium has been to pass on leads to NCIS. The IWF has set itself a target turnaround time for doing this of 10 working days. 2.2.1.6 A step change in reports received During the first 12 months of the IWF hotline (December 1996 to November 1997), the IWF had received a total of 778 reports, of which it processed 764 (98%). This meant that the IWF was receiving on average 195 reports per quarter. However, from December 1997, the number of reports the IWF was receiving per quarter increased dramatically, from 195 to 456 (December 1997 to August 1998). This step change occurred as a result of greater awareness of the IWF and its hotline operations. Awareness of the IWF hotline was raised during this period because:
n

In January 1998 the IWF Web site was revitalised and consumers were able to use online reporting from this. (An on-line form was designed and posted on the Web site). Reports via the IWF Web site now account for nearly 50% of all reports received; In January 1998, following revitalisation of its Web site, the IWF was included in Online Directories (i.e. search engines); In March 1998, the DTI and the Home Office announced that there would be a Review of the IWF. Following this statement there was a government press statement and press coverage; and, In March 1998, the IWF issued its first Annual Report. The media, especially local press and radio, gave the launch of the IWF’s Annual Report a great deal of coverage.

n n

n

The increase in the number of reports made by the public came mainly from complaints about material on Web sites, where the quarterly average number of complaints increased from 103 reports (December 1996 to November 1997) to 324 (December 1997 to August 1998). However, the number of reports which were actioned did not increase, suggesting that the material identified by a substantial number of hotline users was not assessed as being illegal by the IWF and/or was the subject of repeat reports.

This step change affected the number of reports the IWF was able to process in a timely manner. It is important to re-iterate that all reports received by the IWF have been processed. However, the non-Usenet newsgroup reports received during this period were not processed as quickly as before. For instance, during the quarter March 1998 to May 1998, the IWF processed around 61% of all the reports it received (see Figure 6 below).

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

Figure 6. Reports received and processed by the IWF
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The IWF has been very successful in achieving turnaround times for reports relating to Usenet articles and groups and indeed, even at the time of the step change, the IWF continued to give priority to and maintain high standards in respect of this medium in which proportionately most illegal material, especially child pornography, is to be found. However, if the number of reports received by the IWF hotline goes through another significant step change, then the IWF could become less effective unless resources are increased sufficiently to deal with the extra volume of reports. See also Section 5 for consideration of extending the scope of IWF hotline reporting. 2.2.1.7 Public awareness and use of the IWF The IWF publicises its hotline role via its Web site. However, the primary research conducted as part of this Review determined that only 6% of all UK respondents had heard of the IWF. Awareness of the Advertising Standards Authority, by comparison, is around 72%. Of those 6%, it was surprising to note that a third of them had never actually accessed the Internet themselves. The number of respondents who had used the Internet and had heard of the IWF was higher at 18%36 (see Figure 7 below).

36 This corresponds roughly with a recent survey by the ITC, futura.com, which found that 15% of Internet users had heard of the IWF.

28

HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

Figure 7. Percentage of respondents who were aware or had heard of the IWF (base: all respondents).

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The number of survey respondents who said that they have actually used the services of the IWF was negligible. Despite the relatively low level of awareness of the IWF and the low usage of its services by the public, it was encouraging that, after receiving a description of the organisation, a large number of technology users claimed that they would use the IWF service should it be appropriate to their situation.

68% of Internet users claimed they would use the service - increasing to 71% for users of Web, Chat and/or Newsgroups. Of those Web, Chat and/or Newsgroups users who had children under the age of 18 in the household, 77% said that they would use the IWF if appropriate (see Figure 8).

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

Figure 8. Percentage of respondents who would use the services of the IWF if appropriate to them (base: all who had never used the IWF)

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Source: KPMG/Denton Hall Consumer Survey This research indicates that awareness levels of the IWF are low and need to be increased. Profile building publicity of the IWF and public relations will be required particularly if the IWF is to consolidate its role as a self-regulatory body. We believe that this Review and the publication of this report will go some way in generating higher levels of awareness of the IWF and its work. Further, we believe that ISPs could do more to promote the activities of the IWF by:
n

launching an information and awareness programme. This would include both specific printed and electronic material for distribution to current and new Internet users; - the creation of Web pages on their own Web sites with hot links to the IWF Web site; - the production of information material and distribution of such material, as part of regular mailings to their customers, to inform them about the IWF; - the inclusion of promotional material with software on CD-ROMs

n

using traditional media (press, radio, and television) to stimulate awareness through publicity campaigns and information packs for journalists.

2.2.2 2.2.2.1

Work in Rating Systems Background It has been the aim of the IWF to find a rating and filtering solution that does not block access to any legal content at service provider level, but rather gives individuals the

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

facility to decide for themselves what material on the Internet they or their children should be allowed to see. While some will always remain concerned that rating and filtering technologies and systems could be misused by organisations or governments for undue control and censorship, it is generally recognised that, if children are to take advantage of the Internet without the need for constant third-party supervision, some protection against ‘adult’ oriented material should be put in place. Considerable progress has been made in the field of rating and filtering by the IWF, driven in the main by David Kerr who has, as a result, gained a reputation as a leading voice in this area. 2.2.2.2 UK Initiatives In March 1998, the IWF produced a document, Rating and Filtering Internet Content: A United Kingdom Perspective37 outlining its aims and achievements to date. The document describes the process entered into by the IWF, and its selection of the RSACi system operated by the US-based Recreational Software Advisory Council38 (RSAC) as a basis for its own labelling system. RSAC is an independent, non-profit organisation established in the Autumn of 1994 by a group of six trade organisations, led by the Software Publishers Association (SPA). RSAC’s goal was to create a new, objective content-labelling rating system for recreational software and other media such as the Internet. RSACi is a specially developed self-rating system for Web sites and other Internet content. RSACi requires that participating content providers rate their own sites on a scale of 0 to 4 for the following different criteria: violence, nudity, sex and language. There are to date over 90,000 RSACi rated sites - globally - on the Web, giving it substantial critical mass. RSACi is not in itself a blocking or filtering service, but licenses its labelling system to browser suppliers and other software developers39. Provided a content provider has labelled his material and the RSACi module has been activated in an end-user’s browser, the end user may set his or her own limitations on what may or may not be downloaded to the desktop; including whether unlabelled material should or should not be received.

37 See http://www.internetwatch.org.uk/rating.html or Appendix C on Web site http://www.kpmgiwf.org 38 See Appendix F on Web site http://www.kpmgiwf.org 39 Both Netscape and Internet Explorer browsers are compatible with the RSACi system. Proprietary filtering software developers include Cyber Patrol, CYBERSitter and Net Nanny.

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

Table 5. Summary of RSACi Categories/Levels
Violence Rating Nudity Rating Sex Rating Descriptor Descriptor Descriptor None of the below or None of the below None of the below or sports related innocent kissing-related romance Injury to human being Revealing attire Passionate kissing Destruction of realistic objects Aggressive violence or death to humans Rape or wanton, gratuitous violence Partial nudity Frontal nudity Frontal nudity (qualifying as provocative display) Language Rating Descriptor None of the below

Level 0

Level 1 Level 2 Level 3 Level 4

Mild expletives

Clothed sexual Moderate expletives touching or profanity Non-explicit sexual acts Strong language or ’hate speech’ Explicit sexual acts or Crude, vulgar sex crimes language or extreme ’hate speech’

Source: http://www.internetwatch.org.uk/rating.html.40 Based on a survey of user’s concerns, the IWF has built on the basic RSAC model and has developed levels for each of the following extended list of categories:
n n n n n n n n n n

Nudity Sex Language Violence Personal Details Financial Commitments Tolerance Potentially Harmful Subjects Adult Themes Context Variables (a further group of categories to allow overrides to normal ratings dependent on the particular context of the material)

40 See Appendix C on Web site http://www.kpmgiwf.org

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

2.2.2.3

International Initiatives The IWF has always been of the view that an international approach is required if a successful rating system is to be developed. On a European level (and in response to the EC Communication on Illegal and Harmful Content on the Internet and the Green Paper on the Protection of Minors and Human Dignity in AudioVisual and Information Services)41, the IWF drew together a range of European organisations in March 1997 to form INCORE (Internet Content Rating for Europe). Whilst the German organisation ECO (Electronic Commerce Organisation) had responsibility for illegal material on Usenet newsgroups and ChildNet International for the development of international hotline services, the IWF took the lead on developing a European position on rating and filtering systems. Believing that action on rating and filtering should extend beyond European initiatives, the IWF soon developed working relationships with RSAC in the US and the ABA (Australian Broadcasting Authority). In July 1997, the IWF gave a presentation on international rating requirements to the Global Information Networks Conference in Bonn, which, building on the support of ministers, industry and users at this Conference, led to the establishment of a wider international consortium, the International Working Group on Content Rating (IWGCR), whose members included RSAC, ABA and INCORE partners. Since its inception, the IWGCR has met several times with a view to developing an international, multi-cultural approach to rating. In October 1998, a new body was launched when ECO, IWF and RSAC signed a Memorandum of Understanding to develop the Internet Content Rating Alliance (ICRA). ICRA is to carry out a comprehensive programme involving world-wide consultations in order to bring together views from industry, Internet users, regulators and the general public on content concerns. ICRA plans to carry out the consultation over the next 15 months and to pilot a new system by the end of 1999.

41 See Appendix B on Web site http://www.kpmgiwf.org

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

2.2.2.4

Consumer and commercial perceptions of protection tools In order that the IWF’s work in the rating and filtering arena could be assessed more closely, a survey of a representative number of UK adults over the age of 18 was conducted, in which they were questioned on their awareness and use of Internet protection tools and their opinions on the utility or applicability of such tools. A relatively high number of Internet users have heard of some kind of protection tools which may be used to rate or filter material accessed from the Internet (see Figure 9) 42. The user findings suggest a slightly higher awareness of such tools among those using the Internet in the home environment. This is probably because Internet users are more likely to be in need of such protection in the home than in the workplace where such issues are taken care of by IT departments. Figure 9. Awareness of Protection Tools (base: all who have heard of the Internet).

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42 The ITC’s futura.com survey determined that 77% of its respondent Internet users had heard of controls offered by on-line Internet suppliers which allow access to certain sites to be restricted. 66% had heard of software packages which prevent access to sites which contain specific words or pictures.

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

Figure 10 illustrates the number of respondents who have used Internet protection tools in the past, those who would use them if they thought it appropriate (for example, those with children), and those who said that they would not use such tools. Of those that had heard of protection tools, a significant proportion (43%) of Internet users said that they would not use them. This could, of course, be because the respondents had never come across any material they would consider needed filtering43, or perhaps because they believed such activity condones ‘censorship’ - a particular concern of those advocating freedom of information via the Internet. Figure 10. Usage of protection tools (base: all who have heard of protection tools)

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Source: KPMG/Denton Hall Consumer Survey If commercial organisations (or even non-commercial ones such as RSACi) are to consider targeting their software or services at willing recipients, the survey indicates that they should be focusing their efforts on:
n n n

those with Internet access actually in the home: 62% of those who have heard of protection tools do or would use such tools; Internet users with children under 18 in their household: 59% of those who have heard of protection tools do or would use such tools; and women: 55% of those who have heard of protection tools do or would use such tools.

These findings suggest that the IWF’s work in the area of rating and filtering technologies reflects a market need, as the existence of protection tools is found by the public to be reassuring and a majority would use them if deemed appropriate (especially Internet users with children under 18 and women).
43 The ITC futura.com survey found only 27% of Internet/Web users claimed to have seen material they considered offensive or inappropriate material on the Net. 44% claimed not to have seen any.

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

2.2.2.5

Key concerns Concerns about rating and filtering schemes of which we have been made aware generally fall into one of the four categories set out below: 1. Civil liberties concerns A number of civil liberties groups, concerned to oppose “censorship” in all its forms, have serious reservations about any rating and filtering system which might be developed for the Internet. Freedom of speech has also been cited by a number of ISPs that wish to avoid interference with the material held on their servers. It is, however, generally accepted that access to certain material, while not illegal, may be harmful for some users, particularly children, and rating can provide protection for those users while allowing others to continue to view such material. Further, the IWF proposes a rating scheme the use of which is voluntary for both users and content providers. In response to the charge that any voluntary (and therefore not universal) rating system is bound to exclude valuable unrated material alongside the material which was intended to be filtered out the IWF stresses its aim for a “virtuous circle”44 More users filtering encourages more providers to rate, which in turn makes it more attractive to use filtering. To increase usage, the IWF’s Rating Report recommends concerted campaigns by governments, ISPs, browser producers, search engines etc. 2. Scope concerns The original RSACi categories were limited to violence, nudity, sex and language. They did not address the wide-ranging concerns often raised by the public in respect of other categories of material such as bomb making instructions, promotion of drug misuse, fascism, making financial commitments and suicide sites nor the occasional examples of unreasonable and harmful ‘persecution’ of individuals or companies by defamatory allegations held on off-shore servers. The IWF’s new approach does, however, include a wider set of criteria including tolerance and potentially harmful subjects which could extend to these areas; and further categories could be added as required. 3. Impracticalities of creating an effective rating system Given the global reach of the Internet, and cultural diversity, the possibility of achieving a workable rating system had been questioned. The IWF has never disputed the necessity of international action on rating and filtering (see above). Although its March 1998 Rating Report gave a UK perspective, the IWF always recognised that any system specific to one country is unlikely to be adopted globally. In this respect, the Rating Report states that any label given to material should be entirely objective, free of cultural values or legal references specific to any one country. The IWF is also aware that any rating system which is created must still be as user and provider friendly as possible. The IWF has also recognised that, under a voluntary rating system, mislabelling could become a problem unless some monitoring is put in place.

44 see the IWF’s report: Rating and Filtering Internet Content in Appendix C on Web site http://www.kpmgiwf.org

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

IWF’s Rating Report gives examples of measures which may in future combat this, including the use of a logo to franchise registered sites which could be withdrawn in the event of a breach; the use of special “webcrawler” software to vet sites; and a complaints “hotline” for mis-rated material. 4. IWF’s approach and procedure We were made aware of criticism that the RSACi system has been selected without public consultation and that the process itself has not been subjected to sufficient public or governmental scrutiny. In its search for a global approach it seems appropriate for the IWF to have considered other existing rating systems. The RSACi system is a frontrunner as currently it is the only system even approaching wide usage. Notably, additional categories have been adopted and changes made to definitions. In addition, the IWF has made clear that it will only base the new system on RSACi for as long as it considers it suitable. Discussions continue on the use of the extended system within the international marketplace, the funding of RSACi and intellectual property rights. Rather than attempting to impose a rating system unilaterally, the IWF has consulted widely on rating issues. Following publication of its Rating Report, it embarked on a wide consultation process and has now produced a consultative report. Nevertheless, awareness of its important work is low. As the selection categories and their levels is a matter of significant public interest, and very different from UK norms for other media, which it may even come to supplant, we stress that where possible IWF rating work should be supported through public consultation and scrutiny. As seen from the above, the achievements of the IWF in driving forward rating and filtering deserve considerable praise. It has undertaken various important initiatives both in the UK and internationally and has concentrated on finding effective rather than easy solutions. We therefore recommend that the IWF continues its work in this area. The far reaching implications of some of this work mean that IWF profile should be raised in this area and the Government should continue to be kept fully informed of all policy developments and provided with a formalised channel of communication for any guidance it may wish to give. 2.2.3 Funding of Work Streams To date, both hotline activity and rating systems work have been funded by IWF industry membership on roughly a 50:50 basis (of annual funding budget of £192,000). The IWF has recently bid for EU funds which will be dedicated to developing further its work in rating and filtering. Should the IWF be successful in its bid, this would provide a further ECU 261,520 (approximately £180,000) for rating and filtering work. The question then raised would be whether industry should continue to fund the IWF’s rating activities on an equal basis as the hotline, or whether industry funds should be diverted to the hotline operation. If the £192,000 industry funded budget continues in the future to be spent on a 50:50 basis, an unequal bias would result. Some ISPs are happy for the moment to continue supporting the IWF’s work in the ratings arena, but perhaps only if the amount of funding required on their part remains constant, or is subject to no substantial increase. However, as has been highlighted elsewhere in this report, an increase in funding to support additional resourcing of the IWF might be needed in the future. If industry is to

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

be asked for more money, to fund the IWF’s activities, it might reconsider its commitment to the ratings area for the following reasons:
n

Industry players benefit directly from the presence of the hotline: in effect, it offers some tacit protection from prosecution by the Police so long as they comply with IWF reports. However, they do not benefit as much from the IWF’s work in rating systems. It is likely that commercial software developers creating applications utilising the rating or labelling system will benefit more directly from the IWF’s work in this area45; ISPs might want to avoid taking responsibility for the content side of the Internet, thereby leaving themselves less open to claims of knowledge of what content resides on their servers and complicity in its distribution; ISPs might argue it is not for ISPs to make assessments of what is or is not harmful.

n

n

It has been suggested that the need for substantial funding will be reduced within the next year to 18 months, once a robust, internationally based rating system is in place. However, it is also likely that rating and filtering will prove to require continuous improvement and development in a growth industry such as the Internet. The issue of funding is discussed further in Section 6.4.

45 See Appendix F on Web site http://www.kpmgiwf.org

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

3
3.1

Relationship and Interaction Between IWF and ISPs
Introduction
As mentioned in earlier sections, the IWF makes an assessment of the item reported to the hotline to see if it is likely to be illegal (based on criteria agreed with the police). If so, an email message (actionable report) is sent to LINX, the United Kingdom Education & Research Networking Association (UKERNA – which manages the JANET network – see Section 3.3) and to 38 UK ISPs who are members of ISPA or LINX or both advising them to remove the item.

-;* 

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38 ISPs LINX UKERNA

3.2
3.2.1

ISPs Within the IWF Framework
Relationship with the IWF 38 ISPs receive direct notifications from the IWF and as described in Section 2 take down articles on their servers on the advice of the IWF. We estimate that these 38 ISPs account for approximately 830,000 dial-up consumer accounts, or around 41% of the total UK dial-up market. Some of these ISPs provide feeds of all or a sub-set of Usenet newsgroups they host on their servers to their ‘down the line’ ISP customers. We have been told that some of these will also relay IWF notifications to their ‘down-the-line’ customers but due to confidentiality restrictions we were unable to determine the exact number. There are three large US-based ISPs - AOL, CompuServe, and MSN - with subscribers in the UK served from servers in the US. The position of these ISPs, who account for around 48% of UK dial-up customer accounts, is slightly different to the other ISPs. Whilst AOL servers are based in the US and subject to US rather than UK law, AOL has arrangements in place which in practice provide a good degree of protection from illegal

39

HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

material for its UK customers. AOL has its own ‘customer service hotline’ based in the UK and ‘notice and take-down’ procedures to handle complaints from its UK customers. It has a dedicated team which assesses the nature of complaints and regarding complaints about potentially illegal material makes reference to UK laws. With its own arrangements in place to deal with potentially illegal material, AOL was originally not part of the ISPA or IWF framework. It is however now an ISPA member funding a seat on the IWF Management Board and has begun to take IWF hotline notices. Given the similarity between US and UK law in relation to child pornography, it expects to comply with most of these as any UK based ISP would do. Although CompuServe trades as a separate organisation, it is owned by AOL and IWF hotline notices passed to AOL will also be considered in relation to CompuServe. MSN is not a member of ISPA or the IWF framework. MSN, or its owner Microsoft, is however active in other industry initiatives and MSN, like AOL, operates its own hotline and ‘notice and take down’ procedures for its own service. Since MSN no longer offers Internet access services to new users in the UK (its existing customers receive such services through another ISP UUNet which is a member of ISPA operating under the IWF framework) and has never hosted Web sites for its users, the position of MSN should not present a problem in practice. The IWF is however monitoring the situation and is in dialogue with MSN. Some small and specialised ISPs who account for the remaining 10% of the total UK dial-up market do not receive direct notification. See 3.5 below 3.2.2 Compliance with IWF Notifications Although it had originally been envisaged that ISPs would as a matter of course provide the IWF with feedback, only three ISPs consistently notify the IWF that they have complied with the ‘notice and take down procedures’. The IWF has not, however pursued this matter, particularly since it does not have the resources to deal with ISP feedback. Up to this point, the IWF has relied on the fact that only rarely has it received complaints from reporters that material has not been removed following a report as evidence of compliance by ISPs. In addition, the channels of communication between the IWF and the ISPs have led the IWF to believe that ISPs are complying with the procedure, and for the most part by means of an automated process. Our ISP survey failed to clarify the above situation. We interviewed a random sample of 100 ISPs asking what actions they took as a result of receiving reports from the IWF, but a statistically insignificant number responded to this question, leaving us unable to draw any reasonable conclusions. This was a sensitive question as respondents did not want to admit that illegal material has been hosted on their servers. We believe, however, that the low percentage shown in the reply understates the actual extent of compliance with IWF notifications.46

46 KPMG/Denton Hall ISP survey of October 1998. For a copy of the KPMG/Denton Hall ISP Survey questionnaire, see Appendix D on Web site http://www.kpmgiwf.org

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

3.3
3.3.1

UKERNA
Relationship with the IWF UKERNA manages the operation and development of the JANET networks, which is the UK’s academic and research network. JANET connects to the Internet several hundred institutions, including all universities, most colleges of higher education, most research council establishments and other organisations that work in collaboration with the academic and research community. UKERNA itself is owned by its members; some 300 at present, drawn from the higher education and research communities. UKERNA’s objectives as stated in its Memorandum and Articles of Association are: “to take responsibility for the networking programme of the education and research community in the United Kingdom; and to research, develop and provide advanced electronic communication facilities for use in that community and in industry; thereby facilitating the extension of many classes of trade through its own and the community's links with industry.” UKERNA bans from the JANET service 41 newsgroups identified as consistently holding undesirable items47 (UKERNA’s list of banned newsgroups is similar but not identical to 40 undesirable newsgroups identified by the IWF: there is an overlap of around 90%). If UKERNA receives a direct notification from the IWF regarding illegal material held on one of the newsgroups it bans, the report is filed for administration purposes but no further action is taken - or is necessary. UKERNA has informed us that around 80% of notifications it receives from the IWF refer to items posted on one of the newsgroups it bans. If the IWF notification is regarding an illegal item on a newsgroup which is not banned by UKERNA, then steps are taken to ‘take down’ the illegal posting from the six Usenet servers which support JANET.

3.3.2

Compliance with IWF Notifications Although no confirmation is provided to the IWF, UKERNA told us that, on every occasion UKERNA has received an IWF report regarding illegal material on an unbanned newsgroup, the illegal material was taken down.

3.4

LINX
LINX, the organisation which acts as a clearing house for UK Internet traffic, receives a direct notification from the IWF for administration purposes. LINX does not re-distribute IWF reports to any of its members but, as mentioned above, some ISPs who are LINX members receive direct notification from IWF and some of these pass on the information to ‘down-the-line’ ISP customers.

47 www.ja.net/usenet/ provides a list of the Usenet newsgroups which are banned from the JANET service.

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

3.5

ISPs Outside the IWF’s Framework
As set out in Section 3.2 above, there are some UK ISPs who neither directly nor indirectly receive IWF notifications. Indeed, findings from the KPMG/Denton Hall survey of ISPs indicate that 27% of ISP policy makers had not even heard of the IWF. The ISPs concerned serve only a small proportion of the dial-up consumer ISP market and may not have heard of the IWF because they are:
n n

relatively small and may not offer Usenet newsgroups to their customers, or have no reason to be aware of, or deal with, the IWF; or ISPs who are not members of ISPA or LINX but ‘down-the-line’ customers of members of LINX.

3.5.1

ISPs receiving newsgroups Since not all of the smaller ISPs offer Usenet newsgroups to their customers, a key task was to identify the number of such ISPs. To answer this, we drew on the results of the ISP survey. It seems that there are ISPs which offer Usenet newsgroups but have not heard of the IWF: 81% of the ISPs surveyed said that they provided a newsgroup service and yet only 73% had heard of the IWF. ISPs who provide a Usenet service and have not heard of the IWF may have no reason to deal with the IWF because they do not carry any of the 40 Usenet newsgroups identified by the IWF as consistently holding illegal material. Due to the sensitive nature of the question, we were unable to establish how many of ISPs fell into that category. However, due to their limited resources, smaller ISPs tend to carry only the most popular newsgroups which may exclude the 40 undesirable Usenet newsgroups. The fact that a significant number of ISPs do not receive any newsgroups or receive only these generally free of illegal material would not seem to constitute adequate reason for not receiving IWF reports. Although the highest percentage of reports about illegal material concerns newsgroups, the number of reports about material found on Web sites is not unsubstantial. There is also evidence that illegal items may be posted in otherwise safe Usenet newsgroups such as children’s newsgroups. In fact, IWF statistics show that 21% of actionable reports were found in “safe” newsgroups.

3.5.2

‘Down the line’ ISPs not receiving notifications Some major ISPs supply newsfeeds of Usenet newsgroups to second-tier and third-tier operators. These newsfeeds might be passed on to second and third-tier operators before the major ISP has been notified by the IWF of illegal material on one of the newsgroups. Assuming that it supports the IWF, the major ISP would ‘take down’ the illegal material after receiving a notification from the IWF, but the second or third-tier operator will have already hosted the illegal material on its UK news server. In theory, without any direct notification from the IWF or an indirect report, the second or third-tier operator might continue to host illegal material. The risks discussed above suggest, and we recommend, that the trade associations should work harder to draw in smaller sized ISPs and down-the-line customers of ISPs in order to ensure that illegal material is removed from all UK-based servers.

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

3.6

ISPs’ Use of Protection Tools
A number of ISPs prefer to take a more proactive approach, and provide a service which offers additional protection from potentially offensive material. These providers use server-based filtering software which prevents certain content from reaching the end user. From the ISP survey conducted as part of this Review, it was found that 31% of ISPs use server-based software to filter certain material. Many of those that do not use filtering tools are of the view that decisions about what to filter are down to the user or customer (27%), or claim that it is not their responsibility and that they are not censors (14%). However, of those not currently using server-based filtering, 38% plan to use server-based filtering technology in the future. The ISPs which take proactive steps tend to be those for whom protection is an integral part of their service, for example because they provide services to children: BT’s CampusWorld and AOL are keen to promote the ‘family’ aspects of the Internet. A number of ISPs argue, quite validly, that the Internet is not a medium solely for the benefit and education of children, and that overall content should not be limited by the vulnerability of children. These ISPs do not use server-based software which would restrict their customers’ choice. The filtering and rating work of the IWF can be seen to be of particular relevance to ISPs in this category as the creation of effective rating means assists ISPs who wish to pass the onus of filtering unsuitable material exclusively to the end user.

3.7

Future Support by the ISP Industry
As described in Section 2.1.2, LINX and ISPA signed the Agreement that led to the establishment of the IWF. The Agreement stressed the importance of ISPs taking responsibility for actions to support the IWF framework. ISPA has a Code of Conduct which is currently being amended to include a provision requiring members to remove material on notification from the IWF. The revised Code has not yet been approved by the membership. LINX does not have a Code of Conduct but has a series of “Best Practice Statements” which encourage compliance with IWF notifications. Although it is in part outside our Terms of Reference, we would comment that, at present, there is an apparent disconnection between the role of the IWF on the one hand and the drafting, approval and enforcement of the Codes/Statements of ISPA and LINX on the other. We would suggest that their respective activities need to be “joined-up”. Breaches of the Codes could give rise to more significant sanctions. In the case of the bodies such as the Independent Committee for the Supervision of Standards for Telephone Information Services (ICSTIS) and the Advertising Standards Authority (ASA), their position in relation to their industry Codes is clearer and more transparent. ISPs claiming to support the IWF could agree to be included on the list of ISPs receiving direct notifications from the IWF, to provide appropriate feedback on the process and to be bound by any enforcement measures or sanctions included in the ISPA or LINX Codes. This approach would have the additional benefit of making the framework transparent.

We recommend that discussions are held between IWF, ISPA and LINX, supported where necessary by the DTI, in order to clarify and then publish the role of the IWF

43

HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

in relation to the Codes of ISPA and LINX and to emphasis that adherence to the Codes is expected of ISPs. We also recommend that LINX and ISPA generate greater awareness in the ISP industry of the role of the IWF and the arrangements to deal with child pornography and other types of illegal material on the Internet (See Section 2.2.1.7).

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

4
4.1

Relationship and Interaction Between the IWF and the Police
The Current IWF Processes
KPMG/Denton Hall have reviewed the key communication and administrative processes at the IWF, and the interfaces between the IWF and the Metropolitan Police and the National Criminal Intelligence Service (NCIS). Figure 11 below, provides a schematic of the key tasks performed by the IWF at each stage of the communication and administrative processes when dealing with complaints about material on the Internet.

45

HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

Figure 11. Current processes at the IWF receiving and passing on information

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Qp‡qs‚s Qp‡qs‚s iˆs†wi€Âƒ‚ iˆs†wi€Âƒ‚ ƒs†‡si‡Â‡s†s† ƒs†‡si‡Â‡s†s† i‚r‚ƒ‚Âw€€sui€ i‚r‚ƒ‚Âw€€sui€ qƒ„€iw‚ˆ qƒ„€iw‚ˆ

EYBÂi‡‡s‡‡Âˆvs iˆs†wi€

PƒÂiqˆwƒ‚ˆiys‚ PƒÂiqˆwƒ‚ˆiys‚ rsˆiw€‡ rsˆiw€‡ iw‚ˆiw‚srƒ‚ iw‚ˆiw‚srƒ‚ riˆipi‡s riˆipi‡s

7qˆwƒ‚ip€s 7qˆwƒ‚ip€s qƒ„€iw‚ˆ‡ qƒ„€iw‚ˆ‡ 9vw€r 9vw€r „ƒ†‚ƒu†i„v“ „ƒ†‚ƒu†i„v“ ƒ‚ƒs†‡si‡ ƒ‚ƒs†‡si‡ ‡s†s† ‡s†s†

E‚tƒ†i€ E‚tƒ†i€ tssrpiqyƒ‚ tssrpiqyƒ‚ iqˆwƒ‚‡Âˆiys‚ iqˆwƒ‚‡Âˆiys‚

Piˆwƒ‚i€Â9†ww‚i€Â Piˆwƒ‚i€Â9†ww‚i€Â E‚ˆs€€wus‚qsÂUs†wqs E‚ˆs€€wus‚qsÂUs†wqs P9EU P9EU

Us†wi€Â‚‰ps† Us†wi€Â‚‰ps† pi‡srƒ‚Âriˆs pi‡srƒ‚Âriˆs w‚tƒÂ„i‡‡srƒ‚ w‚tƒÂ„i‡‡srƒ‚ i‚rƒ†wuw‚i€Â$ i‚rƒ†wuw‚i€Â$ rwuwˆÂ‡s†wi€ rwuwˆÂ‡s†wi€ ‚‰ps† ‚‰ps†

Qp‡qs‚siˆs†wi€ Qp‡qs‚siˆs†wi€ ‘wˆvÂWG€w‚y‡Âi‚r ‘wˆvÂWG€w‚y‡Âi‚r iuiw‚‡ˆÂQRÂ7qˆ iuiw‚‡ˆÂQRÂ7qˆ

9vw€r 9vw€r „ƒ†‚ƒu†i„v“ „ƒ†‚ƒu†i„v“ ƒ‚ÂWG‡s†s† ƒ‚ÂWG‡s†s†

Isˆ†ƒ„ƒ€wˆi‚ Isˆ†ƒ„ƒ€wˆi‚ Rƒ€wqs Rƒ€wqs

9vw€r 9vw€r „ƒ†‚ƒu†i„v“ƒ‚ „ƒ†‚ƒu†i„v“ƒ‚ WG‡s†s† WG‡s†s†

Uˆi‚ri†rÂtƒ†iˆÂsiw€ ˆƒÂEUR‘wˆv‡q†w„ˆ tiqw€wˆiˆw‚uÂi‰ˆƒiˆwq †sƒi€Âwt†s…‰w†sr

E‚tƒ†ÂEURƒt E‚tƒ†ÂEURƒt w€€sui€Âiˆs†wi€Âƒ‚ w€€sui€Âiˆs†wi€Âƒ‚ ˆvsw†ÂWG‡s†s† ˆvsw†ÂWG‡s†s† i‚rÂirw‡s i‚rÂirw‡s †sƒi€ †sƒi€

4.1.1

Overview of the Communication and Administrative Processes The majority of reports from the public are emailed (either directly or via the IWF Web site) to the IWF and some complaints are sent to the hotline voice mail or are faxed. The following lists the tasks performed by the IWF when dealing with a report:
n n

all complaints are logged immediately and are given a four digit code, regardless of action taken; records are kept of all complaints, even as hard copies;

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n

details of the complaint are entered onto a database as follows: serial number; subelement of the Internet (Web site address, newsgroup title and so on); and a very brief description of the source of complaint; complaints that may be of alleged/potential financial fraud or discriminatory material (these occur rarely) are passed onto the relevant agencies i.e. Financial Services Authority (FSA), the DTI, or Commission for Racial Equality (CRE); reports which are not about illegal material or are from overseas, hosted on overseas servers (excluding child pornography content), are not passed on and no further action is taken by the IWF; the reports of illegal material, or items likely to be in breach of the Obscene Publications Act are traced back to their source address. The IWF has received training from the Metropolitan Police and regularly contacts them for advice on what is in breach of the Obscene Publications Act; the ISPs will be told immediately of the Internet location (e.g. Web site address) and advised to remove the illegal material, by way of a standard worded email; ‘actionable complaints’ (reports complaining about material assessed to be illegal) will be passed onto the relevant police body as follows:

n

n

n

n n

Material Child pornography on foreign server Child pornography on UK server Adult pornography on UK server Adult pornography on foreign server
n n n n n n

Body informed NCIS (Child Pornography unit) Metropolitan Police Metropolitan Police No further action is taken by the IWF

information to the Metropolitan Police is sent via fax or telephone as there is currently no direct Internet link; the Metropolitan Police review the actionable reports and investigate those meeting their criteria, passing on the rest to other police authorities around the country; the IWF regularly receives informal feedback from the Metropolitan Police on the progress of the reports and confirmation of faxes received; the IWF database is updated with the progress of any reports sent; actionable reports sent to NCIS are prefixed with the date and sent in a standard format email; the following information relating to the report is sent on the email to NCIS; - the serial number; - the serial number of the last report sent to NCIS; - reason code (for type of material i.e. CP for child pornography); - source address and audit trail; - description of material;

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- information on ISP or host, details of contact; - Sample pictures of some of the material (this is not always sent);
n n

the Child Pornography (CP) unit at NCIS checks the serial number on its emails for sequence but this is difficult when the emails are not sent in order; there is very little formal or informal feedback to the IWF from NCIS on cases referred (The IWF has only ever received one report from NCIS: this was in December 1997 referring to all reports received since December 1996); NCIS will review the information and pass on the reports, if they are overseas related, to their Interpol unit or refer it directly to the relevant overseas authority.

n

4.1.2

Analysis of the Communication and Administrative Processes Since the IWF was established it has received 2,146 complaints, of which 344 have been passed onto the CP unit at NCIS and 67 sent to the Metropolitan Police (These were assessed as ‘actionable’ reports). The majority of reports are not complaints of illegal material and are therefore not referred.

4.1.2.1

Metropolitan Police At the Metropolitan Police, no developed systematic coding, tracking, and reporting of actionable reports from the IWF takes place: the Metropolitan Police does not have any serial numbers to identify its reports. This could lead to leakages, as reports are not formally identified. To establish whether reports had gone missing, we compared the number of actionable reports sent by the IWF with those received by the Metropolitan Police during the period March 1998 to August 1998. We found that in total there were 23 reports sent to the Metropolitan Police during the six month period per the IWF statistics. Although there were only 19 on the files at the Metropolitan Police, it was suggested by the Metropolitan Police that reports were out of the hard file because they were being investigated. We also found that of the actionable reports passed onto the Metropolitan Police, the IWF was aware in all cases of the actions being taken by the Police, as information was communicated informally via telephone or email.

4.1.2.2

NCIS We understand from interviews at the IWF that only actionable reports relating to child pornography on overseas servers are sent to the CP unit at NCIS. The IWF does not receive regular feedback from NCIS and could not confirm its permanent contact there. NCIS spends time reviewing the information and pass on the hard copies to their Interpol unit or other overseas offices, without any further work.

We also understand from interviewing staff at NCIS, that they are responsible for gathering intelligence on UK paedophiles but do not receive from the IWF actionable reports relating to child pornography on UK servers. This information is being passed by the IWF directly to the Metropolitan Police, who may eventually pass on the information

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to NCIS through their Intelligence unit. This adds to time delays and possible leakages of information. NCIS has serial numbers on its reports, enabling it to identify gaps in reports from the IWF. However, the reports are not always sent in order and the sequence of numbers is not always easy to follow. We selected a sample of cases sent from the IWF to NCIS. All had been, or were about to be, referred by NCIS to overseas police authorities, either through its Interpol unit or directly. However, there was a backlog of reports, received during February and June 1998, which had still to be disseminated. The key communication and administrative processes at the IWF, and the interfaces between the IWF and the Metropolitan Police and NCIS work well. However, NCIS is currently not receiving all the reports it should do, since the IWF is only sending NCIS actionable reports relating to child pornography hosted on overseas servers. We also found that feedback from NCIS and the Metropolitan Police to the IWF on the status of reports is not particularly effective. Feedback from the Metropolitan Police is informal. Whereas, feedback from the CP unit at NCIS is difficult because NCIS itself, in most cases, does not receive any feedback from international law enforcement agencies.

4.2

Improvements to the IWF Processes
In Figure 12 we have mapped improvements in some of the key tasks performed by the IWF at each stage of the communication and administrative processes when dealing with complaints about material on the Internet.

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Figure 12. Recommended processes at the IWF receiving and passing on information

-;*

9ƒ„€iw‚ˆ 9ƒ„€iw‚ˆ siw€srÂti’srƒ† siw€srÂti’srƒ† ƒwqss‡‡iusˆƒ ƒwqss‡‡iusˆƒ EYB EYB

PƒÂiqˆwƒ‚ˆiys‚ PƒÂiqˆwƒ‚ˆiys‚ rsˆiw€‡Âiw‚ˆiw‚sr rsˆiw€‡Âiw‚ˆiw‚sr ƒ‚Âriˆipi‡sÂUs‚r ƒ‚Âriˆipi‡sÂUs‚r i‰ˆƒÂ†s„€“ˆƒ i‰ˆƒÂ†s„€“ˆƒ ‡s‚rs†Âhiˆs†wi€ ‡s‚rs†Âhiˆs†wi€ ‚ƒˆÂiqˆwƒ‚ip€s ‚ƒˆÂiqˆwƒ‚ip€s

Pƒ‚ Pƒ‚ iqˆwƒ‚ip€s iqˆwƒ‚ip€s qƒ„€iw‚ˆ qƒ„€iw‚ˆ EYB€ƒu†s„ƒ†ˆ EYB€ƒu†s„ƒ†ˆ ƒ‚ˆƒÂriˆipi‡s‘wˆv ƒ‚ˆƒÂriˆipi‡s‘wˆv $ÂrwuwˆÂ‡s†wi€ $ÂrwuwˆÂ‡s†wi€ ‚‰ps† ‚‰ps†

Pƒ‚ƒp‡qs‚s Pƒ‚ƒp‡qs‚s iˆs†wi€Âws iˆs†wi€Âws t†i‰r†iqw‡ˆ t†i‰r†iqw‡ˆ

Ri‡‡srƒ‚ˆƒ Ri‡‡srƒ‚ˆƒ †s€si‚ˆÂi‰ˆvƒ†wˆ“ †s€si‚ˆÂi‰ˆvƒ†wˆ“ wsÂ@VEÂBU7 wsÂ@VEÂBU7

9vw€r 9vw€r „ƒ†‚ƒu†i„v“ „ƒ†‚ƒu†i„v“ ƒ‚ƒs†‡si‡ ƒ‚ƒs†‡si‡ ‡s†s† ‡s†s† EYBÂi‡‡s‡‡Âˆvs EYBÂi‡‡s‡‡Âˆvs iˆs†wi€Âi‚r iˆs†wi€Âi‚r w‚s‡ˆwuiˆs‡wˆs w‚s‡ˆwuiˆs‡wˆs ‚s‘‡u†ƒ‰„ ‚s‘‡u†ƒ‰„

V†iw‚w‚uÂi‚r V†iw‚w‚uÂi‚r irwqsÂt†ƒ irwqsÂt†ƒ „ƒ€wqsƒ‚ „ƒ€wqsƒ‚ i‡‡s‡‡s‚ˆ i‡‡s‡‡s‚ˆ

U‰i†“ƒt U‰i†“ƒt ‘sp‡wˆsÂirr†s‡‡s‡ ‘sp‡wˆsÂirr†s‡‡s‡ ‡s‚ˆÂp“ÂEYBˆƒ ‡s‚ˆÂp“ÂEYBˆƒ P9EUÂ9R‰‚wˆ P9EUÂ9R‰‚wˆ

7qˆwƒ‚ip€s 7qˆwƒ‚ip€s qƒ„€iw‚ˆ‡ qƒ„€iw‚ˆ‡

E‚tƒ†ÂEURƒt E‚tƒ†ÂEURƒt w€€sui€Âiˆs†wi€Âƒ‚ w€€sui€Âiˆs†wi€Âƒ‚ ˆvsw†Â‡wˆsÂi‚r ˆvsw†Â‡wˆsÂi‚r irw‡s†sƒi€ irw‡s†sƒi€

Uˆi‚ri†rÂtƒ†iˆ Uˆi‚ri†rÂtƒ†iˆ siw€ÂˆƒÂEUR‘wˆv siw€ÂˆƒÂEUR‘wˆv ‡q†w„ˆÂtiqw€wˆiˆw‚u ‡q†w„ˆÂtiqw€wˆiˆw‚u i‰ˆƒiˆwq i‰ˆƒiˆwq †sƒi€Âwt †sƒi€Âwt †s…‰w†sr †s…‰w†sr

Iƒ‚ˆv€“ Iƒ‚ˆv€“ tssrpiqyƒ‚ tssrpiqyƒ‚ iqˆwƒ‚‡Âˆiys‚Âi‚r iqˆwƒ‚‡Âˆiys‚Âi‚r ‡s†wi€Â‚‰ps†‡ ‡s†wi€Â‚‰ps†‡ †sqswsrˆƒÂEYB †sqswsrˆƒÂEYB

E‚tƒ†iˆwƒ‚ E‚tƒ†iˆwƒ‚ rw‡‡sw‚iˆsrÂp“ rw‡‡sw‚iˆsrÂp“ siw€Âi‚r siw€Âi‚r riˆipi‡s‰„riˆsr riˆipi‡s‰„riˆsr t†ƒÂƒ‚ˆv€“ t†ƒÂƒ‚ˆv€“ tssrpiqyÂi‚r tssrpiqyÂi‚r qƒ‚twiˆwƒ‚ƒt qƒ‚twiˆwƒ‚ƒt †sqsw„ˆ †sqsw„ˆ

Qp‡qs‚s Qp‡qs‚s iˆs†wi€Â‘wˆv iˆs†wi€Â‘wˆv WG€w‚y‡ WG€w‚y‡ w‚q€‰rw‚uÂ9RÂÉ w‚q€‰rw‚uÂ9RÂÉ iuiw‚‡ˆÂQRÂ7qˆ iuiw‚‡ˆÂQRÂ7qˆ

Iƒ‚ˆv€“ Iƒ‚ˆv€“ tssrpiqyƒ‚ tssrpiqyƒ‚ ‡s†wi€Â‚‰ps†‡ ‡s†wi€Â‚‰ps†‡ †sqswsrˆƒ †sqswsrˆƒ EYB EYB

9vw€r 9vw€r „ƒ†‚ƒu†i„v“ „ƒ†‚ƒu†i„v“ ƒ‚ÂWG‡s†s† ƒ‚ÂWG‡s†s†

9vw€r 9vw€r „ƒ†‚ƒu†i„v“ „ƒ†‚ƒu†i„v“ ƒ‚ÂWG‡s†s† ƒ‚ÂWG‡s†s†

2'-7

Uˆi‚ri†rÂtƒ†iˆ Uˆi‚ri†rÂtƒ†iˆ siw€Â‘wˆvÂ$Ârwuwˆ siw€Â‘wˆvÂ$Ârwuwˆ ‚‰ps†Â„†stw’sr ‚‰ps†Â„†stw’sr p“‚‰ps†‡ p“‚‰ps†‡ ‡„sqwtwqˆƒÂP9EU ‡„sqwtwqˆƒÂP9EU

2'-7 2'-7

8LI 1IX

Uˆi‚ri†rÂtƒ†iˆ Uˆi‚ri†rÂtƒ†iˆ siw€Â‘wˆvÂ$Ârwuwˆ siw€Â‘wˆvÂ$Ârwuwˆ ‚‰ps†Â„†stw’sr ‚‰ps†Â„†stw’sr p“‚‰ps†‡ p“‚‰ps†‡ ‡„sqwtwqˆƒÂQRW ‡„sqwtwqˆƒÂQRW

1IX 1IX

We recommend the following:
n

An automatic email or worded fax could be sent to those reporting nonactionable complaints to the IWF hotline with a standard worded statement that no further action will be taken since the material complained about had not been assessed as illegal by the IWF. This may eventually reduce the number of complaints received by the IWF, as the public realises what undesirable material they should be reporting. This in turn would improve the effectiveness at the IWF. (Note however, that around 30% of reports are anonymous).

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n

Since NCIS is responsible for gathering UK intelligence on paedophile activity, all reports relating to child pornography items held on UK servers should be sent to the CP unit at NCIS. NCIS should be made aware of those actionable reports relating to child pornography which have also been sent to the Metropolitan Police. To make the processes more efficient, it is essential to ensure that the defined criteria for referring reports is agreed by the Metropolitan Police, NCIS and the IWF. This can be through a procedures manual which would confirm the relevant authorities to which to refer complaints. We recommend that a procedures manual be drawn up for the interaction between the Police, NCIS and the IWF. The manual should set the criteria on how to deal with reports and to whom they should be sent. The manual could also be used by the IWF for training purposes and would clarify any areas of uncertainty. We recommend that a regular report to the IWF, from NCIS and the Metropolitan Police, should confirm the reports received and list the updates on reports previously sent by the IWF. This would reduce the risk of any leakages in the communication system. Information to the Metropolitan Police could be sent using serial numbers enabling the Metropolitan Police to identify any gaps in the information sent from the IWF. The four digit number should be prefixed with a sequential list of numbers, unique to NCIS and the Metropolitan Police, which would allow easier identification of any gaps in reports being received at their end and reports being actioned. In order to assist the wider analysis of cases arising from IWF notifications we recommend that the Police, Crown Prosecution Service (CPS) and Home Office consider developing a unified classification system for Internet-based crime. This would allow the compilation of accurate statistical information on the types and volume of offences involved to aid the continued development of effective enforcement action on the Internet. This may however involve the collection of additional information and would need careful consideration.

n

n

n

n

n

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5
5.1
5.1.1

Scope of the IWF
Planned Work Within Existing Scope of the IWF
Banning Newsgroups The banning of certain Usenet newsgroups in this country would involve requiring UK ISPs to block access to certain groups on the news servers they host. This has been a topic of much debate since first proposed by the Police in Autumn 1996. Some UK ISPs48 voluntarily ban certain Usenet newsgroups; most do not. In the context of child pornography, statistical evidence, from both the IWF49 and others50, suggests that much of the child pornography posted on the Internet, and Usenet in particular, appears in a small number of newsgroups and that a significant percentage of the material carried in those groups is illegal. Since the time taken to operate the most efficient ‘notice and take down’ procedure even on a proactive basis - will still allow such material to be viewed, down-loaded and redistributed before it is removed, prevention of access to the worst-offending groups in the first place is seen by some as a more effective alternative. A number of arguments against such a practice were made by some people to whom we spoke during our Review. It was argued that it is individual articles carried in such groups, and not the newsgroups as a whole that are illegal, and that banning whole newsgroups risks prohibiting access to legal material carried in the group. Further, it was argued, the banning of certain groups will simply result in the illegal material being posted to other groups or new groups being set up (‘displacement’). Moreover, even with a ban in place, UK users would still be able to access the prohibited groups held on nonUK servers. These arguments may well be valid. A proper evaluation of them, however, requires accurate statistics on newsgroup use rather than general anecdotal evidence. We recommend that further consideration of this issue within the UK ISP industry is assisted by evidence produced by the IWF as part of the new proactive approach set out below.

5.1.2

Proactive Approach at the IWF The IWF could play a significant role in helping ISPs decide which newsgroups they might voluntarily choose to ban and in monitoring newsfeeds to see if ‘displacement’ has taken place. David Kerr is aware of the role which IWF could play in this area and has proposed to the IWF Boards a proactive approach continuously to monitor the same small number of undesirable newsgroups.

48 BT, UUNET, Virgin, and NTL for instance all ban certain newsgroups which they have identified as consistently holding illegal material. 49 An overwhelming proportion of IWF notifications sent to ISPs / Police (around 79% of actionable reports) are regarding items posted on 40 Usenet newsgroups. 50 UKERNA ban 41 newsgroups. Although its list is not identical to the 40 undesirable newsgroups identified by the IWF there is an overlap of around 90%. Of all the actionable reports UKERNA receives from the IWF, 81% are regarding items on one of the UKERNA banned newsgroups.

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Indeed, since December 1996 the IWF has generated 53 reports itself by keeping a check on previously reported Web sites and Usenet newsgroups. The IWF is now planning to develop its proactive approach further by making greater use of technological tools. David Kerr has proposed to the IWF Boards the introduction of searching techniques by the Spring of 1999. His proposal includes the use of text-based search software, which is available in the marketplace, to assess on a regular basis the entire contents of newsgroups51. The IWF would review material on 40 known newsgroups which the IWF has identified as consistently holding child pornography illegal material. If a high percentage of illegal material is identified in those groups, the IWF would advise ISPs to ‘take down’ the illegal material and/or voluntarily ban those groups. Targeting these areas of the Internet through such a proactive approach will also enable the IWF to assess the overall volume of illegal material available. It was also suggested that the IWF, in time, could develop an approach to rate a greater number of whole newsgroups and provide this information to UK ISPs enabling them to decide whether or not certain newsgroups should be made available to their customers52. We recommend that the IWF play a more proactive role in removing illegal material in Usenet newsgroups by adopting its current proposals. A proactive approach should be more effective than waiting for Internet users to report to the hotline and it could reduce the time during which that illegal material is held on UK servers and is available to UK users. However, the introduction and use of technologies for proactively searching newsgroups could put a strain on the resources of the IWF and additional resources might be needed to implement these plans – see Section 6.

5.2

Extending the Scope of the IWF
While the IWF has carried out good work in dealing primarily with child pornography posted on Usenet newsgroups, this Review provides an opportunity to assess what other work the IWF could take on. Figure 14 below lists on the vertical axis a number of the commonly discussed legal issues and, on the horizontal axis, traditional media and the various sub-media of the Internet.

51 David Kerr believes that text based search technology is far more effective than the use of digital signature type searching, since digital signature software can be easily fooled by criminals. This approach is supported by evidence we received from Net Searchers a UK private-sector Internet search company. 52 In Germany, Newswatch is developing an approach on a voluntary basis that involves giving whole newsgroups an average rating based on the proportion of articles falling into different categories. The following ratings are given to material: 0= not illegal material, 1= harmful, 2= illegal. ISPs are informed of the ratings and are given the choice to decide whether they will block that newsgroup or not.

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Figure 13. Types of material and Internet media covered

VT7@EVEQP7H VT7@EVEQP7H IA@E7 IA@E7

VDAÂEPVATPAV VDAÂEPVATPAV

YYY YYY

BVR BVR

WUAPAV WUAPAV

9D7V 9D7V

AI7EH AI7EH

9DEH@ 9DEH@ RQTP RQTP

EYB EYB

7@WHV 7@WHV RQTP RQTP

T79E7H T79E7H 78WUA 78WUA

9TA 9TA

U A W U U E Â H 7 C A H

EHHAC7H EHHAC7H BEP7P9E7H BEP7P9E7H QBBATU QBBATU

BU7 BU7

9QRaTECDV 9QRaTECDV

B79VÂÂB7UV B79VÂÂB7UV

7@XATVEUEPC 7@XATVEUEPC

7U7 7U7

U7HAUÂQB U7HAUÂQB CQQ@U CQQ@U

Qˆvs†Âqƒ‚‡‰s† Qˆvs†Âqƒ‚‡‰s† „†ƒˆsqˆwƒ‚ „†ƒˆsqˆwƒ‚

QVDATÂEUUWAU QVDATÂEUUWAU

Qˆvs† Qˆvs†

5.2.1.1

Other areas of the Internet: Chat Were its role to be extended to deal with Chat, one way in which IWF might tackle this sub-medium would be to monitor certain children’s Chat fora and liaise with the police. On the one hand, this would seem a logical progression for the IWF: the IWF has established strong links with the police, especially the Metropolitan Police, and has received specialised training on specific illegal material. On the other hand, if the IWF extended its role in this area and undertook to monitor certain children’s Chat fora, due to the real time nature of this Internet protocol, the monitoring would be labour intensive, putting pressures on IWF resources: would ISPs be prepared to fund the additional resources required at the IWF? It has been suggested that all UK ISPs should voluntarily agree that any Chat room they provide aimed at children under 18 should be moderated by a trained and approved individual operating to an agreed set of standards. The moderator could then liaise with the IWF hotline. We are unable to determine whether all UK ISPs would voluntarily agree to these arrangements. Our experience of the industry would suggest that some would deem it impractical and impossible to do so, due to the existence of so many fora although some of the larger ISPs, such as AOL, do already have accredited adults moderating children’s Chat rooms. This option would also raise questions regarding how the IWF should relate to, and work with, the police. The IWF is not part of the law-enforcement process, and it seems more appropriate for the IWF to report Chat complaints to the Police and to facilitate the tracing of the source of the messages.

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There may also be a case for revisiting the laws of entrapment to make it easier for the UK police to track down paedophiles who abuse Chat or other Internet services. The arrangements required to deal with the potential dangers of Chat, need further debate and agreement between Government, the ISP industry associations, the police and other interested bodies. We recommend that, just as occurred in 1996 in relation to Web sites and Usenet newsgroups under the Agreement, the same bodies should come together to agree on whether the IWF should deal with illegal material on Chat, and how this can be achieved. The same approach should be applied to any other sub-medium of the Internet that may be considered a problem. The IWF’s current sensible approach to email (see Section 2.2.1.5) could be formalised in this way. 5.2.1.2 Other legal issues As set out in Section 1 the IWF’s hotline activities, based predominantly on child pornography, were established in the original R3 Safety Net Agreement and represented the particular public and press concern which this material had attracted. Importantly however, the focus on child pornography also reflected the uncertain application of the law in many other areas in contrast to the clearer position on child pornography. In addition, the identification of illegal material in this area is by the nature of the material relatively straightforward, certainly when compared to adult pornography or other criminal or civil offences. In choosing to focus on child pornography and by ensuring that it was careful only to select material that seemed to be clearly illegal, the IWF has sought to encourage ISPs to support its decisions and help ensure the success of the IWF. While there are clearly many other types of illegal and unlawful material on the Internet to which the IWF could extend its hotline activities, we recommend that any extension of the scope of the IWF should be considered with extreme care:
n n n

Any increase in the scope of the IWF’s remit will involve an increase in its work with clear resource implications; New areas of law require relevant training for the IWF and in many cases will require more complex assessments to be made; In order to ensure the continued support from the ISPs and the overall effectiveness of the hotline, decisions made by the IWF would need to command support from ISPs and maintain a high level of consistency and accuracy; In the civil sphere important third party economic interests are at stake. Inviting the IWF to address these could soon divert it from more public functions; and, In a number of areas, other regulatory bodies and organisations are already, or may potentially, provide an alternative hotline/notice and take down service. In many cases these bodies will have the funding, experience and connections to succeed in such a task.

n n

Developing this last point, and as the chart above shows, a number of bodies already exist with responsibility or an interest in certain types of material on traditional media: For some types of illegal material, bodies such as the FSA, in relation to financial offerings, the ASA in connection with advertising, and the Federation Against Copyright

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Theft (FACT) and the Federation Against Software Theft (FAST) in relation to copyright and software already address Internet issues or are developing policies for the Internet. From the evidence available to us, and on the basis of the progress made by bodies such as FSA, ASA, FACT and FAST, we consider it would be inappropriate at this time for the IWF to extend its remit into areas for which these bodies are responsible. For other illegal material, in particular racism, the relevant body, e.g. the Commission for Racial Equality (CRE), may currently be less ready to address Internet issues, and it might therefore be more appropriate for it to collaborate with the IWF. Given the importance for society in tackling racist material on the Internet the IWF and the CRE should develop a dialogue (in part already established through the CRE’s membership of the IWF Policy Board) on how best the knowledge and experience of each organisation can be combined in this area. Given the more difficult nature of law in this area it is hoped that the police, the CPS and, where relevant Government, will assist the IWF and the CRE in the development of such an initiative. For yet other areas, such as adult pornography or the wide range of other potentially illegal or unlawful material commonly reported to be available on the Internet such as suicide or bomb making information, promotion of drug misuse or unfair persecution of individuals or companies by untrue allegations of fact, there is no dedicated regulatory body in traditional media which can easily extend its remit to the Internet. In the case of adult pornography, we conclude that the IWF should continue to take action where material is potentially illegal, where the IWF can continue to command support for its actions from ISPs, provided it has the appropriate training and resources. In the other areas mentioned in this paragraph, the more complex legal judgements involved make it far more difficult for a body such as the IWF to take action – certainly at this present time. Further and continued review by the IWF Policy Board is however merited. As discussed in Section 2.2.2 rating and filtering technologies may help to combat such material. The IWF should however continue to refer reports regarding other illegal material which it does receive to the police or to other appropriate bodies. As the market for e-commerce develops, we are aware that regulatory control will in particular be needed in the area of sale of goods and consumer protection. At the present time we do not recommend expanding the activities of the IWF into this area and instead note the initiative of the Alliance for Electronic Business to develop a self-regulatory framework in this area. We do recommend, however, that an extended dialogue between the IWF and other bodies having responsibilities for illegal material other than pornography is maintained. The discussions would seek to clarify the role (if any) of the IWF and that of each of the other bodies in relation to relevant material on the Internet. Some dialogue has already taken place on an informal basis by David Kerr and representatives of other regulatory bodies. Further dialogue, and more formal lines of communication, would be of value. Any arrangements that are developed are likely to vary from body to body, and will also vary over time.

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6
6.1
6.1.1

The Structure of the IWF
Existing Structure
Initial Structure The IWF was originally formed as a wholly owned subsidiary of, and funded by, the Dawe Charitable Trust. It was overseen by a steering group comprising representatives from ISPA, LINX, the DTI and Home Office, and also the IWF Chief Executive. Between September 1996 and April 1997 the IWF was controlled by the steering group but this was always seen as a short term measure. David Kerr was appointed Chief Executive, on secondment from the Dawe Trust and Peter Dawe and David Kerr were appointed directors of the company and David Kerr as Company Secretary. The Agreement set out certain elements of the IWF structure:

Œ Œ

the IWF was to approach independent parties to form a management board, which might include persons from a range of backgrounds including child protection groups, the police, ISPA and LINX. the IWF should seek funding from ISP trade associations, in particular ISPA and LINX, and other bodies supporting the removal of child pornography and other illegal material from the Internet: all responsible ISPs were encouraged to support and fund the IWF.

No consideration was given to the creation of a policy-making board. However, in January 1997, in order to address the rating proposals set out in the Agreement, an Advisory Board was formed. Appointment to this Board was by way of personal invitation. People from a cross-section of organisations with an interest in the Internet including the Internet industry, children’s and educational bodies, regulators in related media, consumer and libertarian interests, were approached with a view to ensuring wide representation. 6.1.2 The 1997 Reorganisation and Beyond As always envisaged, the arrangements for the funding and management of the IWF were soon reorganised. The new arrangements were agreed with Government and industry representatives in April 1997 and came into effect on 24 July 1997 with the first meeting of the new Management Board. 6.1.2.1 Management Board Instead of comprising both industry members and independent parties, the Management Board was appointed solely from nominees of the industry subscribers and companies and given the role of controlling the operations and budget of the IWF.

The steering group decided that, in order to keep the Management Board to a manageable size, there would be 15 seats on the Board with each payment of £12,000 giving a

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contributor one vote. On the first Board, 14 of the 15 seats were filled. In the second year, the number of new entrants who wished to participate would have increased the number of seats to 18. Given that numbers had not become an issue (with several subscribers giving multiple votes to one representative) this situation led to an agreement to reduce the number of seats of some ISPs and to accept the new members in order to broaden the base of the Board - whilst also increasing funding by raising the number of subscriptions to 16. The (rather uncertain and ad hoc) constitution apparently allows for variations agreed by both Boards. The current position is that industry associations (LINX, ISPA and the Computing Services and Software Association) may make contributions up to the value of 5 votes each. Generally, other Internet industry organisations (that is those considered by the Board to be such, those which are members of an Internet industry association and those which are Reseaux Internet Protocol Europeens (RIPE) Local Internet Registries) have a single vote. Any Internet industry organisation with more than 2.5 % of the dial-up market in the UK may make contributions up to the value of 2 votes, and any organisation with more than 5% of dial-up market may do so up to the value of 3 votes. The members of the Management Board for 1998/9 have been nominated by LINX, Demon, UUNET, BT, ISPA UK, LineOne, Cable & Wireless and NTL Internet. LINX has 5 votes and ISPA 2; Demon, UUNET and BT have 2 votes each and the others 1. Appointments to the Management Board are for a period of one year. Contributors making more than one contribution may either appoint more than one Board member or give all their votes to a single member. The Chair is elected by majority vote. The Policy Board has the right to reject an appointment to the Management Board within 30 days. A 75% vote is required, unless the rejection is for reasons of bankruptcy, poor character or current disqualification from directorship, when a 50% vote will suffice. 6.1.2.2 Policy Board Since subscribers insisted on controlling the budget (and in this sense “managing” the company), a decision was taken (not without difficulty) to set up a parallel Policy Board to represent other interested parties and oversee IWF policy. The Policy Board did not meet until September 1997 and the Advisory Board (see above) acted as an interim board for the purpose of selecting the Policy Board. The Policy Board was created from members of the previous Advisory Board with additional members from other bodies such as the Independent Television Commission (ITC) and CRE. Current practice is that, apart from members of the Management Board and employee members, members of the Policy Board are appointed by invited organisations. Organisations are allowed one appointment only and appointees continue in office for one year. Each year the Policy Board will select organisations to appoint members to the Policy Board for the next year; nominated candidates must be approved by a majority of the current Policy Board. The Management Board has the power to reject appointments if it considers that the appointment would not “improve the overall balance of the Policy Board”. Each member of the Policy Board has one vote and the Chair is elected by majority vote. The Policy Board currently may have up to 15 members. Members have been nominated by the British Educational Communications Technology Agency (BECTa), NCH Action for Children, LINX, the Video Standards Council, the Independent Committee for the Supervision of Standards for Telephone Information Services (ICSTIS), ISPA UK, ITC,

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CRE, National Consumer Council and ChildNet International. Two members of the Management Board of the IWF and David Kerr also sit on the Policy Board. IWF documentation states that, under its new constitution, the Policy Board is required to prepare an itemised Policy Document setting out the IWF objectives in detail which should then be submitted to the Management Board for review. For pragmatic reasons, no official Policy Document has yet been created. 6.1.2.3 Reference Group The IWF has a “Reference Group” which has been used as a means to widen the circle of its supporters and advisors on certain issues whilst still controlling the size of the Policy Board. In addition the Group allows representation of parties not allowed a voting seat on the Board (e.g. Police, Home Office, DTI). Members of the Group have been added on a piecemeal basis and are not formally listed outside the IWF address database. They are invited to attend the Policy Board whenever a matter requiring their comment is to be discussed. Reference Group members can also request to attend meetings (in which case the decision lies with the Chairman of the Policy Board as to whether their attendance is necessary or appropriate). 6.1.2.4 Chief Executive IWF documentation states that the Chief Executive is to be nominated by the Chair of the Management Board, and that his appointment is subject to the approval of both the Management Board and the Policy Board. It is also stated that the Chief Executive is to be a salaried employee of the IWF, except that initially he may be an employee of the Dawe Trust seconded to the IWF under a contract whose terms are agreed between the Management Board and the Dawe Trust. At the time of the reorganisation, David Kerr was confirmed as Chief Executive; his employment contract was later reviewed by the Management Board and he has remained in his position. Although he has the right to attend Management Board meetings, he has no vote. He is, however, a full voting member of the Policy Board. As manager of the day-to-day operations of the IWF, one of the Chief Executive’s duties is to prepare an Operations Plan under the direction of Management Board which should then be submitted to Policy Board for review. Up to now, such a document has not been produced and the Chief Executive has worked on the basis of the plans implied by the approved annual budget and subsequent decisions of the Management Board. 6.1.2.5 Funding During the reorganisation, it was decided that the IWF should be funded through industry subscriptions. The idea of obtaining funding from other interested parties was not pursued since industry bodies under some threat of prosecution for carrying illegal material seemed more likely to agree to make financial contributions to the IWF. This seems regrettable. The voluntary subscription model emerged as a compromise when funding by a levy charged in proportion to trade volume or profits was rejected as too difficult to administer. Restrictions on the number of subscribers in the form of a Contributions Goal of 15 contributions of a fixed amount of £12000 each (changed to 16 for the operating year 1998-9) were set up in order to avoid domination by any one sector of the industry

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and to keep the Board to a manageable size. The current arrangements do however, depart from the original plans to welcome funding from as many subscribers as possible, and it caps the income available to the IWF. For an analysis of future funding possibilities for the IWF see Section 6.4. 6.1.3 Problems with Existing Structure Most of the people we spoke to who play an active role in the IWF framework were generally positive in their comments on the organisation’s structure and its operation. They recognised the circumstances that had shaped the development of that structure to date and many praised in particular the role of David Kerr in leading that process. Those not from the ISP industry did however express concerns that the present structure was weighted too heavily in favour of the ISPs and that as the work of the IWF developed this could harm the current consensus of support for the organisation. Certainly, the existing structure of the IWF when compared not just with that of other self-regulatory bodies but also current thinking on optimal regulatory structures for utilities and content providers, is unusual. By reason of the relative empowerment of the Management Board, the Policy Board has relatively less independence and this relative weakness is compounded by financial control enjoyed by the Management Board and the potential pressure of conflicting responsibilities on the Chief Executive. While the current structure may have worked adequately to date, we recommend that reform should be considered as the IWF and the industry mature.

6.2

Comparison with Other Regulators
As discussed in Section 1.3, content in certain other media in the UK is regulated by selfregulatory regimes. We now look in more detail at the structures and operation of three other self-regulatory bodies.

6.2.1

ICSTIS The Independent Committee for the Supervision of Standards for Telephone Information Services (ICSTIS) was set up to supervise the content of, and promotional material for, Premium Rate Telephone Information Services (PRS) in 1986. Its establishment, as an industry-funded, but independent, regulatory body was in response to growing public concern over abuses in a newly emergent media and has clear parallels with the debate on Internet regulation a decade later. The differences between PRS regulation and the control of material on the Internet should not, however, be underestimated: for example most PRS providers control the contents of their services.

6.2.1.1

Policy and Management The ICSTIS Committee is responsible for policy and management. All the members of the ICSTIS Committee are independent of the premium rate telephone information service industry. A separate ICSTIS Industry Committee (IIC) makes recommendations and generally acts as a channel of communication between industry and the ICSTIS Committee. It is made up of three members from the service provider community, the network operator community and ICSTIS itself. Another separate ICSTIS Network

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Operators Committee (INOC) also advises the ICSTIS Committee on policy matters. ICSTIS has an “open door” policy allowing other persons to bring influences to bear on policy making. Its initiatives include publishing editorials in the Committee’s monthly report, holding consultations on specific areas of regulation and the Code of Practice as a whole, and service provider visits and meetings. 6.2.1.2 Sanctions and Public Body Status The ICSTIS Code of Practice includes content controls on children’s services, competitions, virtual chat and sex-lines. The ICSTIS Committee devises and enforces the Code of Practice in consultation with industry members, consumer groups and other interested parties. The Code is also approved and revised from time to time by the Director General of OFTEL, who exercises statutory functions under the Telecommunications Act 1984. The Code applies to all PRS providers who are responsible (via their contracts with ICSTIS) for ensuring that the content and promotional material of all services comply with the Code. Network operators include provisions in their contracts with service providers requiring service providers to comply with the Code. ICSTIS deals with apparent breaches of the Code by means of informal, standard or emergency procedures, depending on the seriousness of apparent breaches. A normal procedure is to ask the service provider to amend its service or promotional material to bring it into line with the Code. More serious infringements may result in other sanctions, including fines, banning of numbers or even banning individual PRS. The Court of Appeal held in 1996 that telephone sex lines fell within the remit of ICSTIS and that ICSTIS, rather than the courts, was the appropriate body to deal with issues concerning the regulation of legal, but potentially offensive, material on these lines. 6.2.2 British Board of Film Classification (BBFC) The British Board of Film Classification (BBFC) is an independent, non-statutory body. Originally, the British Board of Film Censors, was established in 1912 by the film industry in response to inconsistent censorship imposed by local authorities. In 1984, the Video Recordings Act created a statutory classification system for videos (and some computer games) and gave the Home Secretary the power to designate an authority to undertake this task. Traditionally, the President and Vice Presidents of the BBFC have been designated. The Board applies the general law, the statutory criteria in the 1984 Act (as amended) and its own set of guidelines and precedents in classifying films, videos and computer games into age-based rating categories. 6.2.2.1 Policy and Management The Council of Management is responsible for ensuring the good running of the BBFC; it does not intervene in classification decisions nor policy formulation. It is responsible for the appointment of the principal officers of the BBFC who are selected after open competition. The Home Secretary is consulted on appointments and designates the President and Vice Presidents (see above). Members of the Council are drawn from the manufacturing or servicing branches of the video and film industries; it is a requirement that they no longer have any current financial interest which might present a conflict of

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interest. Examiners are chosen from a wide range of ages and backgrounds, including teaching, social work, psychology and academia. 6.2.2.2 Sanctions and Public Body Status In respect of film, local authorities have the statutory power - under the cinema licensing regime provided by the Cinemas Act 1985 - to determine whether particular films may be shown in cinemas in their areas, to impose restrictions on who may see them and require cuts in films. Local authorities generally require cinemas to abide by the classification certificates issued by the BBFC, but they are not bound by the Board’s decisions and may, on occasions, overrule them. In respect of video (and some computer games), the designated authority exercises a statutory classification function under the 1984 Act. It is accountable to Parliament as it is required by the Act to make an annual report to the Home Secretary, who is then required to lay the report before both Houses of Parliament. The annual report is available to the public and provides details of the work of the BBFC and its classification decisions. The Act also provides for an appeals process. Distributors may appeal against classification decisions through the Video Appeals Committee. 6.2.3 Advertising Standards Authority The Advertising Standards Authority (ASA) was set up in 1962 as an independent body to supervise the framework of self-regulation established by the advertising industry. ASA enforces the British Codes of Advertising and Sales Promotion, which is prepared by the advertising industry’s Committee of Advertising Practice (CAP). 6.2.3.1 Policy and Management Originally there was no provision for independent supervision of the advertising industry’s self- regulatory arrangements, which involve advertisers, agencies, the media and trade and professional organisations working together through the Committee of Authorising Practice (CAP) under agreed Codes of Practice. However, within a year of the establishment of CAP and the Codes of Practice, supervision by an independent body was introduced in an attempt to gain public and Government confidence.

A 12 member Council now governs the ASA. The majority of members are required to be independent of the industry, and the Chairman of ASA, in appointing members, now advertises for lay members who will reflect a diversity of experience and background. ASA and CAP share a joint Secretariat, which carries out the day-to-day work for the arrangements and acts as a channel of communication, ensuring that industry expertise, specialist advice and decisions of ASA Council are properly co-ordinated and disseminated.

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6.2.3.2

Sanctions and Public Body Status Codes of Practice are drawn up by CAP on behalf of the industry. The ASA assists CAP in the supervision and enforcement of the Codes. Usually companies will follow ASA’s advice and change or remove advertisements on request. In the absence of co-operation, the available sanctions include adverse publicity in the ASA’s monthly reports of adjudications advising the media not to publish advertisements (the majority of publishers include in their terms of business that they will abide by the Codes and ASA’s adjudications) or withdrawing trading privileges. Ultimately the ASA can refer a misleading advertisement to the Office of Fair Trading (OFT) under the Control of Misleading Advertisements Regulations. In June 1989, a Queens Bench Divisional Court declared that, although it had no powers granted by statute or at common law the ASA was clearly exercising a public law function.

6.2.4

Key Factors The above analysis of ICSTIS, the BBFC and the ASA highlights a number of common elements in the structure and operation of self-regulatory regimes which suggest a possible form of ‘best practice’ in self-regulation. As we have made clear earlier in this report, the Internet is a unique medium and its technology and industry structure differ in many important respects from that of other media. We do however believe that the following elements of ‘best practice’ remain relevant to the IWF and the Internet.

6.2.4.1

Independence To be effective, it is desirable that the chosen industry body enjoys a degree of separation and independence from the industry it monitors. This not only safeguards the integrity and authority of the regulator but also protects the industry itself from the charge that the regulator is captive to the industry. The independence of the body can be strengthened by a variety of means, including structure, outside appointments, clarification of roles, resourcing, consultation, public accountability and the ability to impose sanctions.

6.2.4.2

Transparency To maintain public confidence, it is important that a body is not only independent but is seen to be independent. A regulator’s activities should be subject to the widest consultation and should be published and open to review. Distinct, monitorable roles and reporting lines should also be established within the watchdog’s structure to support accountability and its legitimacy in fulfilling a public law function.

6.2.4.3

Quality of Decision Making To ensure quality of decision making, appropriate mechanisms must be in place to ensure that the body retains a high level of understanding of the industry it works in. This is clearly particularly important in the complex and fast-changing medium of the Internet.

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6.3

Developing the Structure of the IWF
The structure of the IWF has already changed from that originally envisaged under the R3 Safety-Net Agreement. This has in many cases been unavoidable through force of circumstance for a fledgling body in a rapidly evolving industry. As set out above however, concerns have been expressed as to the current structure and, as demonstrated, it also differs in some important respects from the structures of other, broadly comparable, self-regulatory bodies. In our opinion the structure of the IWF should begin to evolve further in order to:
n n n n n n

clarify the role and functions of the IWF; ensure public confidence in the independence and authority of the IWF; create a sufficient separation between the operators (the ISPs) and the regulator (the IWF); reduce conflicts of interest; increase transparency; engage a greater number of ISPs in funding the work of the IWF, and avoid the risk of it being dismissed as a “cosy” club.

We note that the IWF is largely a product of industry initiative and we recognise that reform will be most effective as a result of industry discussion and agreement. We therefore set out below various suggestions for changes to the structure of the IWF which the industry might wish to consider.

6.3.1

Company Structure The IWF is presently constituted as a company limited by shares with an authorised share capital of two Ordinary Shares of £1 each, of which two have been issued to the Dawe Charitable Foundation. It has conventional articles of association. To emphasise its public role, and its not-for-profit status, we suggest that the IWF be re-incorporated as a company limited by guarantee without a share capital which is debarred from making distributions to its members. The new guaranteeing members of the IWF might include ISPA and LINX and at least one children’s charity. The members should appoint the Policy Board according to transparent and certain rules included in new articles of association of the new company. Advice should be sought on whether the new company can be registered as a charity.

6.3.2

The Policy Board In our view the respective roles of the Policy Board and the Management Board are potentially ambiguous and deserve clarification. Indeed we suggest that the role of the IWF itself needs formal clarification: as one influential member of the Management Board commented that it neither has nor should have formal powers. In addition, the fact that the Chief Executive appears to report primarily to the Management Board may detract from the ability of the Policy Board through the secretariat of the IWF, to ensure policy is duly implemented.

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To emphasise its central role in governance, we recommend that the Internet industry give serious consideration to revising the current terms of reference so as to clarify the role and powers of the Policy Board. That role should clearly encompass all rating and filtering, and notice and take down activities. We suggest that a new Policy Board should, within the clearer parameters of its revised remit, mandate the carrying out of policy by a strengthened secretariat, headed by the chief executive of the IWF, who should be a full time employee of the IWF but report to the Policy Board. We have considered the make up of the Policy Board. It includes a number of distinguished persons, some of whom have rightly been praised for their contributions. However, the current composition has been criticised on a number of grounds, including that it is too large, too dominated by ISPs or too transient: the Internet is so inherently complex that short-term appointments are unsatisfactory. We have considered whether any industry representatives should sit on the Policy Board and concluded, because of the complexity of the industry, the rapidity of change and the contribution they can make, that ISPs industry should indeed be represented, but should perhaps represent a minority. To achieve efficiency, a proper balance and adequate representation, the Internet industry could consider reducing the number of members of the Policy Board under a (strong) independent chairman, with a majority of nominees from other public bodies or charities (including bodies concerned with the interests of children), and a minority elected by members of ISPA and LINX respectively. The Chief Executive might not be a member of the Policy Board, but should normally attend all meetings. Appointments to the Policy Board should be for a minimum period eg. two years, and should be renewable for one or two further periods. The DTI might expect to be consulted on the identity of the Chairman. 6.3.3 The Management Board We have carefully considered the view, strongly held by some, that because ISPs provide the funds, they should continue to manage the IWF. On balance, we suggest this view be reconsidered on the grounds that it is inconsistent with best practice in regulation. Telecoms providers do not manage OFTEL, nor broadcasters the ITC. The ASA, ICTIS and BBFC are not managed by industry: this is inconsistent with the fundamental concept of the separation of operation from regulation. ISPs, ISPA and LINX should instead be prepared to consider stepping back and letting a reformed, well constituted and better resourced IWF carry out agreed tasks.

We suggest that the Management Board in its present form could be reformed as an Industry Committee created by ISPA and LINX and initially comprising senior executives of ISPs with a remit which includes supporting the IWF in its work liaising with the IWF and making recommendations to ISPA and LINX on funding the work of the IWF. The Industry Committee should reach out to content providers and encourage their full participation. A possible relationship between the IWF and the Industry Committee could be in the nature of a contract under which:

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n

the IWF proposes a two year plan to the Industry Committee setting out a work plan for that period, which must of course be consistent with its newly-defined remit; the IWF proposes a budget; the two bodies negotiate the work plan and budget, facilitated by the DTI if needs be; the Industry Committee reports to the widest range of ISPs (and also content providers if practicable) through ISPA and LINX, and to any content providers involved and secures agreement for the funding of the work for the next period.

n n n

6.3.4

The Secretariat Presently the Secretariat of the IWF comprises only two persons. Elsewhere in this Report we recognise that the manpower resources might need to increase. As the secretariat increases, we suggest that a simple internal reporting structure be created under which all staff members report directly or indirectly to the Chief Executive who reports to the Policy Board. A small executive board comprising the Chief Executive, any financial director and a nominee of the Policy Board might also be formed and be responsible for budgeting and overseeing day-to-day work.

6.3.5

Reference Group We applaud the efforts made by the IWF to draw other organisations into its work and to consult widely, but the position of the formal Reference Group sitting alongside the Policy Board could be reviewed. Indeed the existence of a Reference Group may overlap or conflict with the reformed Policy Board. Instead, we suggest that the IWF pursues its work in the most open manner feasible, issues regular annual reports and press releases and consults widely by establishing a mailing list and putting discussion documents onto its Web site. Consultation between the IWF and the DTI and Home Office should, however, continue.

6.4
6.4.1

Developing the funding of the IWF
Current IWF funding As highlighted in Section 6.1.2, during the reorganisation in 1997 it was decided that the IWF should be funded through industry subscribers who would then sit on the Management Board. These funding arrangements - a fixed number of contributions each of a fixed amount of £12,000, of 15 industry subscribers (changed to 16 for the operating year 1998-9) - meant that the IWF’s budget for the current operating year is £192,000. We were informed that the number of industry subscriptions increased to 16 because there were more ‘bids’ for a contribution to the IWF and a seat on the Management

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Board (18) than were on offer. Not all ‘bids’ were accepted as this would have meant increasing the size of the Management Board to an ‘inefficient’ size. However, this meant that the IWF Boards turned away £24,000 which was available from industry to fund the IWF. As highlighted in other sections of this report, driving the IWF forward would need additional funding:
n

Our research indicates that awareness of the IWF among the public is very low. Marketing communications and promotions need to be funded to increase the awareness levels of the IWF and to consolidate its role as a public watchdog; Greater awareness among the public of the IWF is likely to lead to an increase in the number of reports received by the IWF hotline. To deal with the additional volume of reports effectively, and to process the reports to target turnaround times, human resources at the IWF need to be increased; In playing a more significant role in both helping ISPs decide which newsgroups they might voluntarily choose to ban, and in monitoring its extensive newsfeeds to see whether ‘displacement’ has taken place, the IWF needs additional human resources; and, Any broadening of the IWF scope (see Section 5), particularly if undertaken in conjunction with publicity for this new area, would necessarily involve a significant increase in workload for the IWF.

n

n

n

The current IWF structure and funding framework does not allow for contributions from a sufficiently wide base of ISPs, and the funding of the IWF is not directly related to the dynamic growth of the Internet market. As a result of this, funding of the IWF has not been buoyant and has not grown in parallel with industry revenues. To explore other possible funding arrangements, we first looked at the funding arrangements of comparable self-regulatory organisations. 6.4.2 6.4.2.1 Funding of other self-regulatory bodies ICSTIS ICSTIS Network Operators Committee (INOC), which was established to improve transparency and accountability, reviews and agrees the ICSTIS budget. Funding comes from the industry network operators contributions, administrative charges and fines.

6.4.2.2

ASA ASA was originally funded by the Advertising Association, which agreed to finance it for at least three years. In response to the 1974 Labour Government declaration that, in the absence of tougher Codes, legal controls would be brought in to regulate advertising, the Advertising Standards Board of Finance (ASBOF) was set up to collect a levy from industry on advertising expenditure (and later on direct marketing expenditure). ASBOF operates independently of ASA. The fact that the ASA does not have to collect the levy assists it in maintaining its independence from industry while ultimately being funded by it.

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6.4.2.3

BBFC Industry is not represented on the Board although certain sections of the industry make up the Council of Management and appoint the Board’s principal officers53. In order to preserve its independence, the Board does not receive any funding from the industry or government. Instead, it is funded out of fees charged for its services, calculated by measuring the running times of films or videos submitted for certification.

6.4.3 6.4.3.1

Future funding of the IWF Funding by industry We were made aware that some levy schemes on ISPs would be unworkable propositions. For example, a scheme based on dial-up membership would penalise ISPs providing a dial-up service at the expense of larger ISPs which provide leased lines and/or Internet backbone capacity to their ‘down the line’ customers. Also, charges based on Web sites or domain names would penalise ISPs who choose to offer these facilities to their customers at the expense of others; further, a flat rate fee would be a punitive, regressive levy, penalising the smaller ISPs. In contrast, we believe that subscription rates based on type of service categories (ISPs providing dial-up services, ISPs providing leased lines, and ISPs providing backbone capacity), and staged payments based on the annual turnover of the company, as estimated or stated in the company’s accounts for the previous financial year, would address these concerns. As regards the content provision industry, it is envisaged that it could potentially benefit from the IWF’s work in rating technology, whereby users are encouraged to visit sites they know will be suitable for them. In the US, there are a number of content providers, particularly in the children’s arena, which are sponsoring the development of such technologies in the interests of their customers, and we see a potential model here for the IWF to receive funding in a similar way.

We suggest that the IWF Boards actively seek the widest funding base for the IWF and, as with funding for the ASA and BBFC, contributions should be more closely related to industry revenues, and so ensure buoyant funding as industry revenues continue to grow. We suggest that funding of the IWF should continue to come from the Internet industry but be extended, if feasible, to the content provision industry. 6.4.3.2 Funding of the IWF hotline and rating work As set out earlier, the funding received from the industry subscribers is divided between the IWF’s hotline and rating systems activities. The IWF has recently bid for EU funds which will be dedicated to developing further its work in rating systems. It seems likely
53 The Council of Management manages the Board’s financial affairs. Its members come from the manufacturing and servicing sections of the industry only since it was thought producers, distributors etc might try to influence the Board.

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

that the IWF will obtain this funding. This will create an imbalance in the funding of the IWF, in which its work on rating systems would receive around £300,000 leaving approximately £100,000 for the hotline activities. However, the IWF envisages that if it were to win EU funding, a larger proportion of the funds it receives from industry subscribers would be dedicated to its hotline activities. As we have highlighted above, IWF hotline activities and awareness generation require additional funding. We suggest that the IWF formulate a business plan going forward itemising the funding requirements for each of its two work streams, including such additional hotline and awareness generation activities as the Policy Board deems to be appropriate and practicable.

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

7

Methodology
The diagram below provides an overview of the approach that has been taken on this Review:

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Stage One: Information Gathering As part of the first stage, the following tasks were carried out:
n

A meeting took place with the Advisory Group to confirm the project plan, timescales and deliverables; to agree project milestones within a detailed work plan; and to introduce key project team members to key Advisory Group personnel. (The Advisory Group included - John Carr (NCH Action for Children), DCS Keith Akerman (ACPO / Hampshire Police), David Kerr (IWF), Nick Lansman (representing ISPA), Lynda Jackson (Home Office), Nicholas Davidson (DTI)). Interviews were conducted with the relevant personnel within the IWF to determine current status and operational processes, including numbers of complaints received and how these are dealt with. The interviews were also used to provide a primary assessment of whether the structure of the IWF ensures adequate representation of interested parties and effective decision-making. The IWF’s Terms of Reference were revisited and priorities identified.

n

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

n

Interviews were also conducted with representatives from a wide range of organisations and bodies with direct interest in the work of the IWF, including members of the IWF’s Management Board, Policy Board and Reference Group Members54. A qualitative survey was conducted among UK Internet Service Providers which resulted in over 100 successful responses to determine levels of awareness of, and compliance with IWF recommendations, and levels of filtering activity. A quantitative survey was conducted of over 1,000 Internet users, potential users and non-users in the UK, by way of the addition of key questions within a recognised Omnibus survey, to determine levels of awareness of the IWF and filtering technologies. Existing reports and documentation from the IWF and Police were examined. Desk research into the market for illegal or offensive material was effected. Secondary research into the market for filtering tools and other technologies aimed at protecting the end user was carried out. Findings of research on the Internet marketplace, and how and by whom it is used, has been utilised, primarily leveraging KPMG primary data relating to Internet usage in Britain, collected from 3000 respondents during March 1998. Emerging initial findings were reported back to appropriate Advisory Group personnel.

n

n

n n n n

n

Stage Two: Synthesis and Analysis of Data and Systems
n

A process exercise was conducted to examine how the IWF and the Police, and the IWF and NCIS currently interact and what procedures they use to do so (for example, the use of logging systems). Interviews with management and relevant staff were carried out to gain an overall understanding of the flow of information through the system. Different types of processes were traced through the system, and identification and assessment of the controls in operation at each stage of the process were confirmed. The practical application of the relevant legal framework was assessed, including the principal controls as set out in the Obscene Publications Acts 1959 and 1964 (the 1959 and 1964 Acts), the Criminal Justice and Public Order Act 1994 (the 1994 Act) the Protection of Children Act 1978 and the Criminal Justice Act 1988 (the 1978 and 1988 Acts). All data was then synthesised to provide comprehensive analyses of both the IWF and its structure, terms of reference and processes, and of the market for illegal material in general.

n

n

n

Stage Three: Recommendations and Reporting
54 A full list of participants is listed in Appendix E on Web site http://www.kpmgiwf.org

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

n

Our findings have been used to determine the current effectiveness of the IWF. They also serve to determine further recommendations for dealing with and removal of illegal or obscene material (taking account of issues such as freedom of information and privacy laws), and recommendations for raising the awareness of current filtering tools and other technologies aimed at protecting the public from such material. These propositions have fed into the final recommendations for the future role and direction of the IWF, with particular emphasis on the protection (especially of children) offered by the IWF framework.

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

8
8.1

Glossary and Acronyms
Glossary
International Working Groups on Content Rating (IWGCR) - An organisation made up of INCORE, RSAC, and the Australian Broadcasting Authority to develop an international, multi-cultural approach to rating. Internet Content Rating for Europe (INCORE) - INCORE is a grouping of three European organisations which adopted an international approach to the development of rating systems. ECO (Electronic Commerce Organisation) had responsibility for illegal material on Usenet Newsgroups; ChildNet International for the international hotline services; and, the IWF took the lead on developing a European position on rating and filtering systems. Internet Service Provider (ISP) - An ISP is a company that provides individuals and organisations access to the Internet and other related services such as Web site building and hosting. An ISP has the equipment and the telecommunication line access required to provide points-of-presence on the Internet for the geographic area served. JANET - JANET connects to the Internet several hundred institutions, including all universities, most colleges of higher education, most research council establishments and other organisations that work in collaboration with the academic and research community. JANET is funded by the Joint Information Systems Committee (JISC) of the Higher Education Funding Councils for England (HEFCE), Scotland (SHEFC), Wales (HEFCW, and the Department of Education for Northern Ireland (DENI). JANET is managed and developed by UKERNA under a Service Level Agreement from the JISC. On-line Service Provider (OSP) - An OSP offers extensive content services as well as Internet access. Recreational Software Advisory Council (RSAC) - RSAC is an independent, nonprofit organisation. Its goal was to create a new, objective content-labelling rating system for recreational software and other media such as the Internet. RSACi - RSACi is a specially developed self-rating system for Web sites and other Internet content. The Advertising Standards Authority (ASA) - The ASA was set up in 1962 as an independent body to supervise the framework of self-regulation established by the advertising industry. The British Board of Film Classification (BBFC) - The BBFC is an independent industry-funded body, which regulates the content of films distributed in the UK. The Independent Committee for the Supervision of Standards for Telephone Information Services (ICSTIS) - ICSTIS was set up to supervise the content of, and promotional material for, premium rate telephone information services (PRS) in 1986. Its establishment, as an industry-funded, but independent regulatory body, was in response to public concern over abuses in a newly emergent media. The Internet Service Provider’s Association (ISPA) - ISPA is a trade body established in 1995 to represent ISPs in the UK.

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

The London Internet Exchange (LINX) - LINX is a trade body, grouping the larger ISPs with transatlantic bandwidth. It was established to organise a clearing house for UK Internet traffic and manage a number of technical issues. UKERNA - The United Kingdom Education & Research Networking Association manages the operation and development of the JANET networks.

8.2

Acronyms
ABA - Australian Broadcasting Authority ASA - The Advertising Standards Authority ASBOF - Advertising Standards Board of Finance BBFC - British Board of Film Classification BECTa - British Educational Communications Technology Agency CAP - Committee of Advertising Practice CPS - Crown Prosecution Service CRE - Commission for Racial Equality CSSA - Computing Services and Software Association DTI - Department of Trade and Industry ECO - Electronic Commerce Organisation FACT - Federation Against Copyright Theft FAST - Federation Against Software Theft FSA - Financial Services Authority FTP - File Transfer Protocol HTML - Hypertext Mark-up Language ICRA - Internet Content Rating Alliance ICSTIS - The Independent Committee for the Supervision of Standards for Telephone Information Services IIC - ICSTIS Industry Committee INCORE - Internet Content Rating for Europe INOC - ICSTIS Network Operators Committee IRC - Internet Relay Chat ISP - Internet Service Provider ISPA - Internet Service Providers Association ITC - Independent Television Commission IWF - Internet Watch Foundation IWGCR - International Working Group on Content Rating

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HM Government: Department of Trade & Industry and Home Office Review of the Internet Watch Foundation

LINX - London Internet Exchange Ltd NCIS - National Criminal Intelligence Service OFT - Office of Fair Trading OFTEL - Office of Telecommunications OSP - On-line Service Provider PICS - Platform for Internet Content Selection PRS - Premium Rate Telephone Information Services RIPE - Reseaux Internet Protocol Europeens RSAC - Recreational Software Advisory Council SPA - Software Publishers Association

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