In the early to mid-1990s the fledgling British internet industry consisted largely of a handful of Internet Service Providers (ISPs) trying to popularise and spread a magical American invention throughout our green and pleasant land.

No one could have known

It’s in the nature of new and disruptive technologies that no one can know exactly how they will pan out. Certainly nobody involved in the early development of the internet imagined even for a  moment that, among many other things, its emergence into the mass consumer space would lead to a huge increase in the availability of child pornography, as it was then routinely called.

In those days the web was still in its infancy. Usenet Newsgroups were the principal source of the illegal images. I leave on one side for now the fact that as long as these pictures remained available online they were sort of advertising that this new internet thing was a lawless place. That sent out a powerful signal to criminals in other walks of low life.

However, from a child protection perspective there were more pressing issues. How could we find and help the children being depicted? How would we locate the abusers and distributors of the pictures so they could be dealt with? Might the continued availability of such images online encourage or help sustain paedophile activity? Then there was the immediate problem. How could we mitigate the damage already done to a child by getting the images of their humiliation removed from public view, and as fast as possible?

New everywhere

The internet was not just new in Britain, it was new everywhere. No country had or could have had laws or processes in place to cope with the unfurling challenges. There was no text book or blueprint to follow. Everyone was making it up as they went along.

British cops spoke to leading people in the UK’s internet industry saying pretty much

Sort out all this child pornography or we’ll arrest you. We’re not sure for what yet.

John Major’s Government, in the form of Ian Taylor MP, chipped in with

And if they can’t find anything to arrest you for we’ll legislate. 

From these inauspicious, prosaic beginnings what was to become the Internet Watch Foundation (IWF) was born in September, 1996. I was appointed to its first Policy Board. The IWF’s mission was to become the UK’s Hotline: the place where anyone finding child pornography online could file a report. The IWF would then validate the report, or not, and in appropriate cases issue a notice to the companies hosting the illegal image advising them of that fact.

One prominent industry member described the IWF at the time as his

“Get Out of Jail” card

Rarely can such a metaphor have been meant so literally. However, precisely because of its then newness there is no question that, to a degree, in its early days the IWF was another classic example of muddling through. But it worked. The amount of child pornography being published on the internet out of the UK started to fall rapidly.

The EU gets involved

In October, 1996, the EU adopted its Communication on illegal and harmful content. Thanks to the vision and energy of a particular individual at the Commission, the EU understood the importance of tackling online child pornography. Richard Swetenham would soon start to drive the creation of a network of Hotlines that were going to spring up in several European countries and then be adapted or copied the world over. The IWF would eventually benefit financially from this programme but, at the start, all the money to get it going came from private sources. Soon enough the internet industry would assume the lion’s share of the responsibility for the IWF’s upkeep and operations although to this day the EU continues to provide some support.

And so was created in the UK a very unusual and exotic creature. A self-regulatory private organization, essentially an industry body, which through issuing notices to hosting companies, in practice if not in theory made decisions about content that should be removed from the internet. Some saw that as censorship, others rejected that view saying you cannot censor material which ought not to have been published in the first place because it is illegal. Thus the issue turned on the legitimacy of the IWF’s right to make those sorts of determinations.

Law enforcement closely engaged

The police were closely involved with the IWF from Day 1. If at any point the Association of Chief Police Officers  or for that matter the Crown Prosecution Service had pulled the rug the IWF would have closed down within 24 hours, probably less. That never happened. On the contrary the authorities were pleased they had managed to enlist the help of the very businesses that had, in their eyes, helped to create the problem. They hadn’t created it intentionally, obviously, but that was not the point at issue at that time.

Critics protested from the off

As already mentioned from the off the IWF was criticised by anti-censorship campaigners who thought only judges and courts should have the kind of powers the IWF appeared to have taken unto itself. The most serious allegation was that for the IWF to act in such a manner was a breach of the European Convention on Human Rights (ECHR).

Of course many of the people who criticised the IWF in this way were as passionately concerned as everyone else about getting child pornography off the internet but they seemed incapable of imagining it could be done in anything but the traditional way. They applied old analogue thinking to a new digital problem.

The Wikipedia incident

In the late 1970s a rock band by the name of The Scorpions produced an album called Virgin Killer. The centrepiece of the cover was a posed and obviously young nude model. An image of the cover was on many web sites and a Wikipedia page.

In 2008 someone reported the image to the IWF.  The image was similar to one which had been reported and dealt with a few months earlier. In that case the police confirmed that they thought the picture was illegal. The IWF double-checked the Scorpion image with them and the police again indicated that under UK law it would be likely to be illegal.

Web pages containing the cover were blacklisted. Unbeknownst to the IWF, in the case of the Wikipedia page this would trigger some of the larger site’s online defences. This in turn had immediate, unforeseen, unintended, if short-lived consequences. In the UK a class of editing rights were restricted although the site always remained visible.

The story attracted a gigantic amount of media coverage, much of it mangled. Somehow what was coming across was that free speech in general and Wikipedia in particular were under attack. Britain was descending into a dark totalitarian pit. The effect of the publicity was that thousands of people outside of the UK started to download the image to show their solidarity with Wikipedia and their contempt for the decision of the IWF.

Thus the IWF’s action had the perverse effect of causing an illegal picture to be propagated far more widely than it would otherwise have been. On pragmatic grounds the IWF therefore reversed their decision after four days. Meanwhile, and for some time afterwards, the IWF’s critics had a field day. They piled in claiming all of their warnings and dire prognostications had been vindicated. This was far from being the case but it then became inevitable that, sooner or later, several important questions about the precise legal status and parameters of the IWF’s role would have to be authoritatively addressed.

Enter a former Director of Public Prosecutions

Last year the IWF asked Lord Ken Macdonald QC, a distinguished former Director of Public Prosecutions, to conduct a review of the IWF’s compliance with human rights laws and principles. He has just reported.

Macdonald defines the IWF’s core work as

• making decisions about whether or not a particular image is likely to be found to be child pornography and is therefore illegal
• issuing notices to get such images removed from the internet or placing them on a block list to reduce the chance of them being accessed

There are bits of Macdonald’s report which contain implied or fairly direct criticisms of parts of what the IWF has been doing but they are very much in a minor key. In relation to its primary tasks the IWF gets a clean bill of health and a great deal of praise.

Will this settle all the arguments and silence the IWF’s longstanding critics? It definitely ought to but we’ll see.

No human rights conflict – on the contrary

In relation to the central question Macdonald makes clear that although the IWF is a private body it exercises what are, in effect, public functions so is caught by the Human Rights Act, 1998. Macdonald also acknowledges that the IWF had recognised this fact itself as far back as 2001. Thus the IWF is governed by the principles of natural justice. Crucially, any decision it makes potentially could be made the subject of a judicial review.

Macdonald has no doubts that, in relation to child abuse images, what the IWF does and the way it does it is entirely consistent with Articles 8 and 10 of ECHR.  He goes further and argues that those States which have signed the UN Convention on the Rights of the Child are obliged to make arrangements to obtain the removal of child pornography from the internet. This view is now specifically underpinned by EU law, although of course how Member States choose to do it is a matter for them. There is no suggestion that the IWF way is the only way.

Not all plain sailing

What about the criticisms? Although the IWF has an appeals mechanism which can be prevailed upon to challenge any particular decision, and even though the IWF has arranged for independent evaluations of its own work, Macdonald thinks both functions need to be substantially beefed up. Similarly he is clear the IWF’s Board ought to be strengthened by including a human rights lawyer among its membership. I doubt there will be any resistance to these important propositions. There shouldn’t be.

More surprisingly Macdonald suggests the IWF should drop any involvement in making determinations about criminally obscene material hosted in the UK. This has been part of the IWF’s terms of reference since the beginning. Macdonald points out that because of a general reluctance to prosecute such cases anyway, and because in any event the IWF receives few such reports, the truth is this has never been a big part of what the IWF does. Its continued presence within the IWF’s terms of reference therefore muddies or dilutes the message in relation to its key role in combating child abuse images.

In fact Macdonald goes rather further. He reckons that, whereas it is usually quite easy to decide whether or not something is child pornography, determining whether or not a particular image would be likely to deprave or corrupt someone, the test for obscenity, is altogether different and more complex. In short he suggests the IWF does not have the necessary competence.

I do not imagine many people will argue with Macdonald’s conclusion. From a narrow child protection perspective the real answer to dealing with pornography, obscene or otherwise, is to seek better enforcement of the decision in R v Perrin. This obviates the need to prove that something might or might not deprave or corrupt anyone. It is enough to show the publisher took no steps to prevent kids accessing it.

Peer2Peer is problematic

Macdonald expresses similar reservations about the idea of the IWF getting more involved in rooting out child abuse images on Peer2Peer networks, the presumed source of the majority of child abuse images now circulating on the internet. This possibility has been much discussed of late but Macdonald points out that to go down that route would require forensic skills which he doubts the IWF’s staff currently possess.  In addition it would also require the IWF to be much more closely engaged with the police and prosecutorial authorities. Macdonald thinks this would fundamentally change the nature of the IWF.

All in all, in view of the massive expansion of the IWF’s workload currently underway following the donations it recently received from Google, Microsoft and other high tech firms, Macdonald seems to be saying let’s leave the question of Peer2Peer for the moment and come back to it when things have settled down. I completely agree. That said it is still apparent he sees the idea of civilians engaging with Peer2Peer as tricky. He doubts an industry body such as the IWF could ever be properly integrated into what he believes are the unavoidable police and other legal processes.

What counts is what works

As someone who has in the past seen a possible role for the IWF in dealing with Peer2Peer I have to say the child protection community has yet to hear a convincing explanation of exactly what it is law enforcement are going to do to reduce or eliminate the huge volume of traffic in child abuse images currently moving across Peer2Peer networks. The longer that remains the case the greater will be the pressure to look for a radical alternative.

So while I do not dispute Macdonald’s conclusion I am not sure I share his reasoning. It’s all very well to say that this or that function is properly the role of the state and its agencies but what if the state is demonstrably incapable of dealing with it, or by all accounts within any reasonable timeframe?  Should we all resign ourselves to going to hell in a handcart while the situation gets worse, perhaps irretrievably worse?

We live in an age of austerity. Leaving Snowden on one side, all the pressure is for the state to shrink not grow. But even if austerity eventually passes the fact remains that technology has thrown up several challenges which defy conventional methods of resolution. The IWF itself was a product of a parallel moment back in 1996.

Boundaries are blurring everywhere because of the scale, speeds, complexity and jurisdictional issues which the internet has created. There may well have to be a shift in the responsibilities and roles of different actors. Traditional lines of demarcation will whither away and new ones will emerge. As long as these come with appropriate safeguards and supervision there should be no insurmountable hurdles.

Another way for the private sector to help?

Because many of the same Peer2Peer networks which are ripping off the music and film industries are also being used to distribute child pornography, if money to fund an expansion of Peer2Peer work by the police, or whoever, is an issue, there has to be some way these two high profile industries can help out. To quote Hot Chocolate that way

Everyone’s a Winner

Going from strength to strength

For those in the know the IWF has long been a world leader in its field. The Macdonald Report will be seen as a ringing endorsement of its work and enable it to go on from strength to strength.