Bertelsmann Burdens: Jurisprudential and free expression implications
of a global Internet ratings system

Justin Brown
Penn State University
justinb@psu.edu

Abstract

The inherent features of cyberspace provide legal dilemmas whose
subject matter often outdate previous regulation. The rapid growth of
the Internet, along with the trends of technological and marketplace
convergence, has witnessed information being accessed and
disseminated instantaneously in a global network of networks
environment. Many believe new media like the Internet have the
potential, if guided and regulated properly, to bring new fruits and
freedoms to the arena of social, economic and political discourse.
But within the ever-expanding terrain of cyberspace, there have been
troubling discourses involving child abductions, hate speech,
pornography, bomb-making literature and militant paraphernalia
available in cyberspace, thereby providing new challenges to apply,
enforce and create laws and policies.

In the U.S., Congress has attempted to address such concerns with
legislation aimed at safeguarding children from inappropriate and
harmful speech. While the Communications Decency Act (CDA) was
defeated on vagueness and overbreadth grounds, the fate of the
constitutionality of the Child Online Protection Act (as referred to
as CDA-II) remains to be seen. Meanwhile, the Child Online Privacy
Protection Act is being implemented to protect the privacy interests
of children. Provisions contained in the Juvenile Justice Reform Act
(H.R. 1501) and the Children's Internet Protection Act (S.97) require
schools who receive e-rate discounts for Internet access to install
filtering software.

Admittedly, efforts like the CDA are only a national attempt to a
global problem. Scholars have recognized that content control on the
Internet presents a unique international regulatory dilemma. Much of
their discussion has centered on the belief that cyberspace knows no
borders and, as a result, often confuses and confounds jurisdictions.
The inherent characteristics of user choice and interactivity,
decentralized network structure and control, diversity of content and
the erosion of physical, geographical borders call upon policy makers
to examine cyberspace differently than other traditional mass media.

Recently, the Internet Content Summit strived to address many of the
concerns surrounding illegal and harmful content in cyberspace and
resulted in the drafting of the Bertelsmann Memorandum,
"Self-regulation of Internet Content." The Memorandum contains
twelve key recommendations, two of which concern free expression.
The proposal urges the Internet industry to develop its own "codes of
conduct" to regulate illegal and harmful content, and recommends the
creation of an architecture for a ratings and filtering system.

On its surface, the Bartelsmann Memorandum embraces much of the
libertarian mantra of allowing users and industry to self-regulate
themselves. But the creation of a global Internet ratings system
contains potentially troubling free speech and jurisprudential
implications. Specifically, the Memorandum requests industry to make
filters available in browsers, search engines and web authoring
tools, urges all content providers to label material and calls for
the establishment of a non-profit rating organization to create a
single vocabulary for rating content.

This paper will review the recommendations of the Bartelsmann
Memorandum from a freedom of speech, jurisprudential perspective.
In particular, what are the specific implications of having industry
devise a global Internet ratings system? How does such an effort
embrace the ability of users to employ their own set of varied
cultural values and perspectives. As well, how may a worldwide
ratings standard and vocabulary balance imperialistic and sovereignty
grounds of nation states? How much government involvement will be
necessary in encouraging the development and supporting the
enforcement of a code of conduct and supporting ratings and filtering
systems? Also, does the emergence of industry control over code
and ratings represent governing implications for other avenues other
than speech?

In addressing such questions, the paper will contain an inclusion of
theoretical work and cases concerning jurisprudence in cyberspace and
the First Amendment, and as well, will consider alternative national
approaches to combating illegal and harmful material.