The Regulation of Internet Pornography

Issues and Challenges

Abhilash Nair

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781317538288
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The regulation of pornography has always been a contentious issue, which has sparked wide-ranging debates surrounding the acceptability and place of pornography in society. The use of the internet to distribute and access pornography has magnified this debate and has presented a number of challenges for the law in terms of effective and proportionate regulation. Following unsuccessful attempts by states to transpose traditional laws to cyberspace, a new and radical regulatory framework eventually evolved for regulating internet pornography. In this process, the focus of the law has changed from merely controlling the publication and distribution of obscene material to a model that aims to deter private consumption of illegal content. In addition, various self- and co-regulatory initiatives have been introduced with the involvement of non-state actors, imposing a certain degree of de facto liability on intermediaries, all of which raise interesting issues.

This book examines the relevant regulatory responses to internet pornography, with particular reference to the UK, but also drawing comparisons with other countries where relevant. It argues that the internet has fundamentally, and in many ways irreversibly, changed the regulation of pornography. Classifying internet pornography into three broad categories – child pornography, extreme pornography, and adult pornography – the book provides an in-depth analysis of the legal issues involved in regulating internet pornography, and argues that the notions of obscenity and indecency on their own will not provide an adequate basis for regulating online pornography. The book identifies the legitimising factors that will lend credibility and normative force to the law in order to successfully regulate pornography in cyberspace. It is the only comprehensive text that rigorously addresses the regulation of internet pornography as a whole, and offers valuable insights that will appeal to academics, students, policy makers, and those working in the areas of broader internet governance and online child protection.

1 Introduction

Internet pornography – issues and challenges

Pornography is not the creation of the internet – it predates all forms of existing modern media and can be traced back to ancient times. The controversy surrounding its acceptability and place in society, and the debates on how to regulate pornography, also pre-date the internet by a long way. The ways in which pornography is created, stored and distributed have evolved with technological advances over time – starting with the traditional print media, mostly in the form of books and top-shelf magazines, followed by VHS cassettes, and a few years later CD-ROMs, DVDs and BlueRays. All of these had a common characteristic: content was stored and distributed on a physical medium. For states, this meant that controlling the publication and distribution of pornography within their geographical boundaries was realistic and, in theory, possible. The arrival of the internet and the World Wide Web in the 1990s fundamentally changed the distribution and access models of pornography. Pornography transcends geographical boundaries, nation states and cultures, raising newer challenges for regulation. The traditional regulatory models for pornography that were designed on the basis of physical boundaries suddenly started looking dated and ineffective.

The volume of pornography available through the internet is also unprecedented. ¹ Pornography rapidly became so popular and widespread on the internet that at one point ‘the internet’ became synonymous with pornography: concerns about the internet becoming an increasingly growing repository of pornography even led to moral panic in the 1990s. Whilst many of these early apprehensions turned out to be exaggerated, it remains the case that a vast amount of pornographic content is available on the internet and it remains a thriving industry. The nature of internet pornography, in turn, is so varied that, arguably, it caters to all possible tastes and preferences, ranging from soft erotica to abhorrent content such as images of child sexual abuse, bestiality, sexual violence and exploitation.

The way pornography is accessed on the internet has also evolved with time. Early pornographic material included images and video that could be downloaded onto one’s computer. Cam-girl sites such as Jennicam.com also started emerging in the 1990s.² Streaming videos that do not require active downloading were not common then, largely because the internet was mainly accessed through dial-up modems at relatively low speeds compared to the modern-day superfast broadband. The anonymity and relative ease of accessing content from the comfort of one’s home, as opposed to physically obtaining it from a ‘real person’ in a traditional brick and mortar outlet, has practically rendered pornography a lot more accessible to more people than before. Whilst this gives the impression that the consumption of pornography has become a lot more ‘private’ because of the internet, it will be clear after reading this book that it is not necessarily the case in light of the various legislative and regulatory initiatives that impose liability on end users for certain categories of pornography.

It is not the purpose of this book to revisit the rights and wrongs of pornography per se. There is a wealth of existing literature and debates surrounding pornography and its regulation from various perspectives well before the internet even became a popular medium of information and communication.³ It is not my intention to re-state or re-examine those arguments. Instead, the book specifically focuses on the issues and challenges raised by pornography published and accessed through the internet, and examines how the internet has necessitated a fundamental change in the traditional modalities of regulation. The focus therefore is very much on the law and regulation of pornography from the perspective of the internet and related digital technologies. The book explores a number of questions in this context – how effective has transposing traditional regulatory principles to cyberspace been in the context of pornography? What are the key regulatory and legal changes brought about by the internet? How different are these to traditional models of regulation of pornography? Are such changes simply a part of the process of the law adapting to technology – as happened with the emergence of other forms of technology prior to the internet – or do the changes constitute a fundamental, irreversible step change in the way we now approach the regulation of pornography? The following sub-questions also arose in the process of examining these issues: do all types of internet pornography merit the same regulatory response? Have legal responses resulted in over-regulation – with implications for individual freedoms? These are complex questions, and, as will be seen from the book, the answer will vary depending on the category of pornography which is the subject of regulation. In order to answer these research questions, I classify internet pornography into three broad categories: child pornography, extreme pornography and adult pornography, and each of these categories is examined in three separate parts in the book.

First to be examined is child pornography, perhaps more appropriately called child sexual exploitation material, which is almost universally regarded as abhorrent and illegal.⁴ I further classify child pornography into three sub-sets: real, pseudo and virtual child pornography for the purpose of our analysis, as explained in Chapter 2. It is obvious that the discussion on child pornography regulation will take up significant space in this book owing to its general nature of illegality across jurisdictions and the seriousness of the underlying offence. The general recognition that child abuse images represent actual harm to children and also that states have a compelling interest in protecting children have resulted in robust legislative measures in many, if not all, countries. There are, however, wide variations in the way different countries regulate child sexual exploitation material, especially in relation to pseudo and virtual child pornography that do not involve physical abuse of children in their creation. It is also the case, at the time of writing, that some countries do not have adequate laws to specifically address child pornography. The lack of international harmony obviously poses challenges to effectively combating child pornography on the borderless internet. Countries with stronger resolve and political will to address the problem had to think of new and rather innovative ways of combating online child pornography, resulting in significant changes to the regulatory landscape in terms of both substantive law and enforcement strategies.

Using UK law as the platform but also referring to other jurisdictions where appropriate, the book examines how child pornography laws have evolved over the last four decades due to the internet and related digital technologies.⁵ As will be seen from Chapter 3, the law has come a long way from its earlier position of treating child pornography as mere ‘obscene material’ to a more robust and fit-for-purpose tool that recognises the harm inherent in producing child pornography. New offences were introduced specifically criminalising the production, distribution and possession of child pornography, the various justifications and challenges of which are analysed in Chapters 3 and 4. In this process, the focus of the law has shifted steadily away from just targeting the publication and distribution of content to imposing criminal liability on end-users. This has occurred in two ways: first, through judicial interpretation of the ‘making’ offence whereby downloading from the internet is treated essentially as producing child pornography,⁶ and second, by introducing specific simple possession offences for child pornography.

Criminalising the simple possession of child pornography is one of the significant changes in regulatory strategy necessitated by the internet. Simple possession offences do not require further intention to distribute or share the material – the mere fact of intentional possession for private consumption would suffice. In doing so, the law has essentially criminalised conduct that is carried out in private. In light of the inherent intrusive nature of simple possession offences, it is pertinent to carefully examine its relevance and proportionality in the context of online child pornography. There are a number of issues worth considering in this context. In true common law tradition, legislation in the UK does not define ‘possession’ and it was left to the courts to interpret its meaning. As will be seen from the discussion in Chapter 3, this turned out to be a less than straightforward concept to define. For example, should someone who accessed an image on the internet without actively downloading it to a hard disk be considered as in possession of child pornography, merely because the computer will have automatically downloaded a copy into its cache? Is criminalising simple possession justified for pseudo images where no physical harm was caused to a child during its creation? What about fictitious and computer-generated child pornography that do not depict real persons? The rationale, proportionality as well as efficacy of simple possession offences for each category of child pornography – real, pseudo and virtual – are examined in detail in the book. I argue that each of these categories of child pornography raises a fairly distinct set of issues, which lawmakers need to recognise in order to formulate appropriate legal responses and a broader regulatory strategy.

Criminalising fictitious child pornography, referred to in this book as ‘virtual pornography’, raises a slightly different set of issues and is therefore examined separately in Chapter 4. There are strong arguments for and against criminalising simple possession of virtual pornography. Admittedly, it took me a while to be convinced, but having weighed all the pros and cons I am of the view that criminalising the possession of virtual child pornography can be justified on the basis of a reasoned risk of harm to children. I will set out the reasoning behind my argument in some detail in Chapter 4, but at this stage it would suffice to say that the legitimacy for criminalising virtual pornography stems from a credible risk of harm to children as opposed to actual evidence of harm, which has traditionally provided the legal basis for regulation in other areas, for example adult pornography (albeit not in the context of proscribing private consumption).

Any discussion of child pornography would be incomplete without considering the issue of self-generated pornography created by children. Law has been slow to catch up with what has apparently become normative behaviour among teenagers, and in the pursuit of child protection it has had the effect of victimising the very people the law is seeking to protect. This is an unintended consequence of the law: current child pornography laws were drafted before internet enabled mobile devices and smartphones became so prevalent. I argue that the law needs to be responsive to changing norms in cyberspace and realities of life, and the laws that were created to protect children should not be used as a tool to incarcerate them for actions that stem from the immaturity and naivety attributed to children that formed the foundation for strict child protection laws in the first place.

Legislation is only part of the solution for combating child pornography on the internet. Correctly identifying and removing the content from the internet is the bigger and more important task, which is probably the victims’ most immediate concern. This is not to say that tracking down the perpetrators is not a priority, but this is not something that can be achieved by legislation alone, and usually follows the step of locating the content. Enforcement of child pornography laws requires the cooperation of actors outside traditional law enforcement agencies, something which states recognised soon enough. The regulatory landscape accordingly underwent a significant change, paving the way for non-state actors entering the regulatory framework. For example, in the UK the Internet Watch Foundation was established in 1996 with the support of internet service providers and funding from the European Commission to act as an independent hotline to receive reports of child pornography from the public, assess, and take down illegal content with the cooperation of internet service providers and law enforcement authorities both nationally and internationally. From a UK perspective this model has worked remarkably well: at the time of its inception in 1996, 18 per cent of all child abuse images in the world were hosted in the UK, a figure which now stands at less than 0.1 per cent.⁷ In spite of such success stories, the involvement of non-state actors with powers to judge and effectively block content has attracted criticism. Such models rely on Code, i.e. the architecture of the internet, to regulate. In Chapter 5, I analyse the legal, policy and practical considerations stemming from self and co-regulatory models for child pornography. As should be clear by the end of that chapter, the broader regulatory framework for child pornography has undergone a fundamental and irreversible change in order to respond to the challenges raised by the internet and digital technologies. In this process, greater liability and accountability have been imposed on intermediaries, in addition to the end users of content, as noted above. The traditional immunity that certain intermediaries enjoyed for illegal content is no longer sacred: whilst the hard law has not changed substantially in relation to intermediary liability as yet, the de facto position reveals that intermediaries have significant responsibility in combating online child pornography, and increasingly have had to take on the role of enforcers of the law. Whilst this is outwardly seen as ‘voluntary participation’, in reality this can be attributed to threats of legislation for non-compliance which may adversely affect the protection that intermediaries currently enjoy. I argue that, in the future, intermediaries will assume greater liability for illegal content as well as lawful adult pornography, as demonstrated in Chapters 5 and 7.

The second category of pornography examined in the book comes under a relatively new classification from a legal perspective referred to as ‘extreme pornography’. This does not involve children, but represents the more extreme forms of adult pornography, for example ‘snuff’ videos and other depiction of violence in a sexual context, bestiality, necrophilia and an array of other acts that many would find abhorrent and offensive. In 2008 the UK introduced a fairly robust law that criminalises the simple possession of extreme pornography.⁸ This was a significant change for the regulation of pornography: traditional regulation of adult pornography, extreme or not, focused on controlling the production and distribution of obscene material. Apart from instances where possession was with the intention of further distribution, the law did not criminalise private consumption of any form of adult pornography. The criminalisation of the possession of extreme pornography raises a number of issues and now forms part of the wider debates on internet pornography. I examine these issues in light of the purported harm the law seeks to prevent, as well as the desirability of morality-based legislation and its implications for individual freedoms. Whilst it is not disputed that the violent and degrading treatment of women, or of any human being regardless of gender, should have no place in a civilised society, it is questionable whether the law actually addresses any of these fundamental issues it seeks to remedy. My central argument is that the law focuses on the wrong targets, i.e., end-user individuals, and does not really address the actual harm or the crime it seeks to root out. Extreme pornography law as it currently stands offers a classic example of bad law-making in cyberspace: a law that does not achieve its intended objective, is unenforceable, moralistic and has the potential for abuse and oppression. Such laws also fall foul of some of the traditional and well-recognised principles of criminal law, which I demonstrate by referring to the Millian harm principle and Feinberg’s offence theory, as well as drawing from the debates of Hart and Dworkin. I argue in this chapter that the law should return its focus to the point of supply rather than its current focus on criminalising consumption.

The third category of pornography, examined in Chapter 7, comprises all other forms of adult pornography, and is perhaps the most complex from a regulatory perspective. Adult pornography is perceived by societies in different ways around the globe and its regulation consequently varies substantially internationally. Some countries have traditionally been intolerant of pornography per se, and have responded with a complete prohib...

Table of contents

• Cover
• Endorsements
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• 1. Introduction: internet pornography – issues and challenges
• Part I
• Part II
• Part III
• Index