Shielding Children: The European Way

TLDR: In this paper, the authors compare the legal response in the United States and in Europe to one important issue: the exposure of children to certain materials, which are deemed harmful to them but not harmful to adults.

Abstract: The Internet crosses physical borders, and carries with it both its promises and its harms to many different countries and societies. These countries thus share the same technology, but they do not necessarily share the same set of values or legal system. This paper compares the legal response in the United States and in Europe to one important issue: the exposure of children to certain materials, which are deemed harmful to them but not harmful to adults. This US-European comparison, in which the experience in the United Kingdom serves as a leading example, illustrates the traits of various kinds of regulation of the new media: public ordering (direct and indirect), private ordering, and ordering by code, i.e., by technological means. We examine the various kinds of regulation and their constitutional meaning. The US opted mostly for a direct legal attack on the material which is harmful to children, an approach which thus far failed the judicial test, due to the limitations it imposes on freedom of speech of adults. While the European framework allows greater balancing between expression rights and competing interests, the European response has not been to follow the direct restrictions attempted in the US. Instead, accepting the practical difficulties of enforcing direct restrictions, the emerging legal response in European countries has been a market-based solution, guided by a legal framework that fosters self-regulation. The article considers the reasons for adopting the approach of self-regulation and the impact that such methods of control have on freedom of expression.