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Protecting the right to remain silent

HOW WOULD IT make you feel if the government required that you rate your own words when you want to share a steamy sexual experience with the readers of your personal blog, or if in a moment of anger you wanted to criticize the government or another person? Wouldn't it make you angry if a representative of the state deleted your own statement from your blog and then issued a fine?

The amendment to the Children and Youth Welfare Act (兒童及少年福利法) that was passed by the Ministry of the Interior (MOI) on Dec. 20 requires businesses to set up Internet content management filters to protect minors from inappropriate content. If an Internet service provider is informed by the National Communications Commission (NCC) that it is hosting content deemed harmful to minors, but still does not take appropriate preventative measures, the authorities may ask it to remove Web pages within a specified time limit. Noncompliance can lead to a fine between NT$60,000 and NT$300,000.

Subsection 12 of Article 30 in the same act prohibits Internet service and content providers from violating media categorization regulations by providing or broadcasting materials that may be harmful to the physical or mental development of minors. Article 58 states that anyone in violation will fined between NT$100,000 and NT$500,000, and they may also be ordered to suspend operations for a period between one month and one year.

This act makes it quite clear that the MOI invests a lot of effort in guaranteeing the physical and mental development of minors. Whether these efforts are moving in the right direction deserves further consideration.

The act can be criticized from a freedom of expression aspect. The Council of Grand Justices stated in Interpretation 577 that the constitutional right to freedom of expression includes both the right to active expression and the right to passive omission, meaning we have a right not to express our opinion and the state cannot arbitrarily request that we express it.

In theory, it is thus up to Internet companies and users to decide whether they want to attach ratings like "restricted," "guidance," "general" to online content.

The state cannot force anyone to attach these ratings without violating their constitutional right not to express an opinion.

The current law and the draft amendment both run in opposition to this concept. Operators and users violating the rating regulations by not rating their Internet content while spreading information that could be deemed to fall under the "restricted" category will be given an administrative penalty. This violates their right to not express an opinion.

The regulation on asking Internet companies to remove content upon notification by the NCC is an invasion of their right to maintain a free flow of information.

From a jurisprudential perspective, restrictions to the freedom of expression require proof that the expression in question could lead to clear and immediate danger and social disruption. We cannot, however, argue that giving minors access to such information would lead to clear and immediate danger and social disruption.

Some may object that such restrictions are meant to protect the physical and mental well being of children. We do not deny the need for such protection, but we must note that the possibility that information available on the Internet might pose a risk to children is merely a possibility and can be controlled and resolved.

We could reduce risk by using school and home education to give children a correct understanding of sex. We could also teach them to respect the diversity of online information and culture so they can take a more active approach to the Internet.

The fact we do not approve of rating or prohibiting pornographic or violent material on the Internet or punishing those who host this material does not mean we approve of this content. But when planning policies that limit expression on the Internet, we must not narrowly and exclusively consider pornography to be something bad that needs to be prohibited. We should take a broader approach and weigh the pros and cons by considering such things as the right of adults to access sexual information, the freedom of expression of those who express their opinions online and cultural diversity. If we do, we won't end up with a single answer to the issue of Internet ratings.

Hsu Yue-dian is a professor in the law department at National Cheng Kung University. Chang Li-chun is a graduate at National Cheng Kung University.

TRANSLATED BY PERRY SVENSSON
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