Specific Performance – Exploring the Roots of ‘Settled Practice’
| Published date | 01 May 1998 |
| Date | 01 May 1998 |
| DOI | http://doi.org/10.1111/1468-2230.00153 |
to industry and civil rights groups than direct governmental censorship.
42
This
approach has also attracted support in the United States in the wake of Reno.A
proposal currently before Congress would, if adopted, require Internet service
providers to make the software that permits parents to control Internet access
available at no cost to the consumer.
43
The Clinton Administration has encouraged
the development of a system for ‘rating’ Internet sites (for example, by indicating
whether they contain profanity, sexual content, or violent imagery) and allowing
users to choose whether they want to have access to sites given certain ratings. The
First Amendment bars only government action that suppresses speech; it does not
affect the power of private individuals to act in ways that might inhibit freedom of
expression.
44
A system of self-regulation, provided it does not involve an element
of governmental coercion, might well survive a First Amendment challenge.
45
Ultimately, policymakers must balance the advantages and harms that result
from communication over computer-based systems like the Internet. This will
require a fresh assessment of the meaning of the principle of freedom of
expression, its costs and benefits, and its centrality to the political cultures in which
policymakers find themselves. In this regard, the approach taken by the United
States Supreme Court in Reno, however uncompromising it may seem, will be the
starting point of analysis.
Specific Performance — Exploring the Roots of ‘Settled
Practice’
Andrew Phang*
The recent House of Lords decision in Co-operative Insurance Society Ltd vArgyll
Stores (Holdings) Ltd
1
is destined to become a landmark in the law relating to
specific performance. At first blush, however, it might have been thought that it
was the Court of Appeal decision
2
that merited this description instead, the court
42
See European Commission’s Communication, n 40 above, at 12. The Commission has also contemplated
more direct governmental involvement in the control of illegal and harmful content on the Internet. In a
recent Green Paper, the Commission has proposed a Directive designed to improve cooperation and
enhance the exchange of information between Member States and the Commission regarding regulatory
issues concerning the Internet. See Commission of the European Communities, Green Paper on the
Protection of Minors and Human Dignity in Audiovisual and Information Services: Green Paper from the
Commission to the European Council, COM(96) 483 Final (1996). The Commission has also encouraged
greater police, judicial and industry cooperation in combating the use of the Internet to further criminal
activities, and in devising ‘some common penal standards’ in connection with harmful content appearing
on the Internet. See European Commission’s Communication, n 40 above, at 10–11.
43 Family-Friendly Internet Access Bill, HR 1180 (introduced 20 March 1997).
44 Hudgens vNLRB, 242 US 507, 513 (1976).
45 In dicta, the Supreme Court noted in Reno that ‘requiring that indecent material be ‘‘tagged’’ in a way
that facilitates parental control of material coming into their homes’ might be a less restrictive means
for achieving the government’s end of protecting children from indecent expression. 1997 US LEXIS
4037, at 61. This leaves open the possibility that such a requirement might be upheld if challenged
under the First Amendment.
* Faculty of Law, National University of Singapore.
2 See [1996] Ch 286. Indeed, this particular case has been described, in a leading text, as a ‘radical and
controversial decision’: see Gareth Jones & William Goodhart, Specific Performance (London:
Butterworths, 2nd ed, 1996) 51.
May 1998] Reno vACLU
The Modern Law Review Limited 1998 421
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