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This Thesis Has Been Submitted in Fulfilment of the Requirements for a Postgraduate Degree (E.G This thesis has been submitted in fulfilment of the requirements for a postgraduate degree (e.g. PhD, MPhil, DClinPsychol) at the University of Edinburgh. Please note the following terms and conditions of use: This work is protected by copyright and other intellectual property rights, which are retained by the thesis author, unless otherwise stated. A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author. When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given. Internet Blocking Law and Governance in the United Kingdom: An Examination of the Cleanfeed System TJ McIntyre Image © CC BY-NC-SA Tagxedo.com Doctor of Philosophy University of Edinburgh 2013 Abstract This thesis examines the legal and governance issues presented by internet blocking (“filtering”) systems through the use of the United Kingdom’s Cleanfeed system as a national case study. The Cleanfeed system – which aims to block access to child abuse images – has been influential both domestically and internationally but has been the subject of relatively little sustained scrutiny in the literature. Using a mixed doctrinal and empirical methodology this work discusses the evolution of Cleanfeed and considers the way in which government pressure has led to a private body without any express legislative basis (the Internet Watch Foundation) being given the power to control what UK internet users can view. The thesis argues that the Cleanfeed system sits at the intersection of three distinct trends – the use of architectural regulation, regulation through intermediaries and self- regulation – which individually and collectively present significant risks for freedom of expression and good governance online. It goes on to identify and examine the fundamental rights norms and governance standards which should apply to internet blocking and tests the system against them, arguing in particular that Cleanfeed fails to meet the requirements developed by the European Court of Human Rights under Articles 6 and 10 ECHR. It considers the extent to which Cleanfeed might be made amenable to these principles through the use of judicial review or actions under the Human Rights Act 1998 and concludes that the diffuse structure of the system and the limited availability of horizontal effect against private bodies will leave significant aspects beyond the effective reach of the courts. This work also assesses claims that the Cleanfeed system is a proof of concept which should be extended so as to block other material considered objectionable (such as websites which “glorify terrorism”). It argues that the peculiar features of the system mean that it represents a best case scenario and does not support blocking of other types of content which are significantly more problematic. The thesis concludes by considering proposals for reform of the Cleanfeed system and the extent to which greater public law oversight might undermine the desirable features associated with self- regulation. Declaration This thesis is my own work and has not been submitted for any other degree or professional qualification. Some portions – particularly chapter 2, section 6 – are drawn from material published as ‘Blocking Child Pornography on the Internet: European Union Developments’ International Review of Law, Computers & Technology 24, no. 3 (2010): 209 and ‘Child Abuse Images and Cleanfeeds: Assessing Internet Blocking Systems’, in Research Handbook on Governance of the Internet, ed. Ian Brown (Cheltenham: Edward Elgar, 2013). Chapters 4 and 5 develop arguments previously outlined in TJ McIntyre and Colin Scott, ‘Internet Filtering: Rhetoric, Legitimacy, Accountability and Responsibility’, in Regulating Technologies, ed. Roger Brownsword and Karen Yeung (Oxford: Hart Publishing, 2008). The law is stated as of 10 December 2013. Acknowledgements I owe a particular debt of gratitude to my colleague Prof. Colin Scott for sparking my interest in the topic and for his assistance with the funding and research leave which made it possible. My supervisors, Prof. Charlotte Waelde, Dr. Abbe Brown and Navraj Singh Ghaleigh, were unstinting in their advice and encouragement and I have benefitted greatly from their guidance. Special thanks are owed to my parents and in particular to my father who gave me an interest in computers and technology. Most of all, I must thank my wife Clodagh and my son Marcus for their forbearance throughout. Table of contents TABLE OF CONTENTS ............................................................................................................................... I TABLE OF FIGURES ................................................................................................................................ VI CHAPTER 1 – INTRODUCTION ................................................................................................................. 1 1. BACKGROUND ..................................................................................................................................... 1 2. AIMS AND ORIGINAL CONTRIBUTION ........................................................................................................ 3 3. WHY CHOOSE CLEANFEED AS A CASE STUDY?............................................................................................. 6 (i) Why the national level? .............................................................................................................. 6 (ii) Why child abuse images? ........................................................................................................... 7 4. STRUCTURE ......................................................................................................................................... 8 CHAPTER 2 – LEGAL FRAMEWORK ....................................................................................................... 11 1. INTRODUCTION .................................................................................................................................. 11 2. JURISDICTION .................................................................................................................................... 12 3. CRIMINALISATION OF CHILD ABUSE IMAGES ............................................................................................. 13 (i) Communications offences ........................................................................................................ 13 (ii) Obscenity .................................................................................................................................. 15 (a) Continued relevance ........................................................................................................................... 15 (b) Offences .............................................................................................................................................. 16 (c) Application to electronic files and the internet ................................................................................... 16 (d) Defining “obscenity” ........................................................................................................................... 19 (e) Defences .............................................................................................................................................. 20 (iii) Indecent photographs, pseudo-photographs and tracings of children .................................... 21 (a) Background ......................................................................................................................................... 21 (b) Indecency ............................................................................................................................................ 22 (c) Photographs, pseudo-photographs and tracings ................................................................................ 23 (d) Possession ........................................................................................................................................... 25 (e) Making indecent photographs, etc. of children .................................................................................. 26 (f) Other offences..................................................................................................................................... 29 (iv) Non photographic images of children ...................................................................................... 31 (a) Background ......................................................................................................................................... 31 (b) Elements of the offence ...................................................................................................................... 32 4. ISP EXEMPTIONS FROM LIABILITY .......................................................................................................... 33 (i) 1996-2002: Threats of prosecution followed by de facto immunity ........................................ 33 (ii) 2002 onwards: The effect of the E-Commerce Directive .......................................................... 34 (a) Hosting immunity ...............................................................................................................................
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