Legal status of Internet pornography


Legal status of Internet pornography

Due to the international nature of the Internet, Internet pornography carries with it special issues with regard to the law. There is no one set of laws that apply to the distribution, purchase, or possession of Internet pornography. Only the laws of one's home nation apply with regard to distributing or possessing Internet pornography. This means that, for example, even if a pornographer is legally distributing pornography, the person receiving it may not be legally doing so due to local laws.

Areas of legal concern within many countries

Some areas of legal concern regarding adult pornography are:
*Prohibiting certain or all types of pornography that are illegal within a government’s jurisdiction. For countries that do not prohibit all pornography, this might include pornography featuring violence or bestiality, for example.
*Preventing those under the legal age (for most this means a minor under 18 or 21) from accessing pornographic content.
*Enforcing laws designed to ensure that performers in pornography are of legal age.

In jurisdictions that heavily restrict access or outright ban pornography, various attempts have been made to prevent access to pornographic content. The mandating of Internet filters to try preventing access to porn sites has been used in some nations such as China and Saudi Arabia. Banning porn sites within a nation's jurisdiction does not necessarily prevent access to that site, as it may simply relocate to a hosting server within another country that does not prohibit the content it offers.

Many nations that allow at least some types of pornography attempt to ensure that those under their legal age for accessing porn (often 18 or 21) cannot easily access it. Various measures have been tried but with varying success. Within the United States, most websites have taken voluntary steps to ensure that visitors to their sites are not underage. Many Web sites provide a warning upon entry, warning minors and those not interested in viewing porn not to view the site, and requiring one to affirm that one is at least 18 and wishing to view pornographic content. Such warning pages have little effect in preventing access by minors to porn, as any minor interested in viewing the site can simply click on the “I am an adult over 18” button without having to prove his or her age. Thus, such warnings are generally not used by themselves but with other techniques. Commercial porn sites generally restrict access to any pornographic content until a membership has been purchased using a credit card. This serves as both a way to collect payment and an age verification method since credit cards are usually not issued to minors. So-called age verification services have also sprung up that offer access to any Web site that participates in their program without additional charge. The users need only verify their age with the verification service, which then issues a username and password that can access all sites that use its services. Most age verification sites charge either a monthly or yearly fee to those wanting access to participating sites.

Within nations that allow at least some types of pornography, models are often required to be at least a specific age (18 is most common). Various nations have various rules as to how a site must ensure that all porn models featured on it are of age such as strict record-keeping laws.

Child pornography and the Internet

According to the United States organization The National Center for Missing and Exploited Children (NCMEC) and other international sources, child pornography is a multi-billion dollar industry and among the fastest growing criminal segments on the Internet. cite web |url=http://www.ncmec.org/missingkids/servlet/NewsEventServlet?LanguageCountry=en_US&PageId=2064 |title=CHILD PORN AMONG FASTEST GROWING INTERNET BUSINESSES |date=2005-08-05 |accessdate=2008-03-13 |publisher=National Center for Missing and Exploited Children, USA] cite news |url=http://www.informationweek.com/news/security/cybercrime/showArticle.jhtml;jsessionid=O1ALG302BNO2IQSNDLOSKH0CJUNN2JVN?articleID=183700580&_requestid=16251 |title=As Child Porn Industry Grows, Coalition Launches Counterattack |author=J. Nicholas Hoover |publisher=Information Week |date=2006-03-17] cite news|url=http://timesofindia.indiatimes.com/articleshow/203486.cms |title=World wide porn: 260 mn, growing |author=C R JAYACHANDRAN |date=2003-09-26] cite book |title=Sexual Abuse of Children: A Human Rights Perspective |first=Roger J. R. |last=Levesque |year=1999 |pages=p65|publisher=Indiana University |isbn= 0253334713] cite book |title=Investigating Child Exploitation and Pornography: The Internet, the Law and Forensic Science |first=Monique Mattei |last=Ferraro |coauthors= Monique Ferraro, Eoghan Casey, Michael McGrath |year=2004 |pages=p3 |publisher=Academic Press |isbn=0121631052] cite book |title=Victimization of the Weak: Contemporary Social Reactions|first=Jacqueline |last=Scherer|coauthors=Gary Shepherd |year=1982 |publisher=Charles C Thomas Pub Ltd |pages=p108|isbn=0398040435] cite book|title=Violent Offenders: Theory, Research, Public Policy, and Practice |first=Matt |last=DeLisi |coauthors=Peter John Conis |year=2007 |publisher=Jones & Bartlett Publishers |pages=p264 |isbn=076375479X] According to the NCMEC, approximately one fifth of all Internet pornography is child pornography. Child pornography is illegal in most countries with coordinated enforcement by Interpol and policing institutions of various governments, including among others the United States Department of Justice. Even so, the UK based NSPCC said that worldwide an estimated 2% of websites still had not been removed a year after being identified. [ [http://www.guardian.co.uk/technology/2008/jun/06/internet.childprotection Time taken to shut child abuse sites criticised] ] Recent investigations include Operation Cathedral that resulted in multi-national arrests and 7 convictions as well as uncovering 750,000 images with 1,200 unique identifiable faces being distributed over the web; Operation Amethyst which occurred in the Republic of Ireland; Operation Auxin; Operation Avalanche; Operation Ore based in the United Kingdom; Operation Pin; Operation Predator; the 2004 Ukrainian child pornography raids and the 2008 US child pornography raid. New technology that aids those who produce this material include inexpensive digital cameras and Internet distribution has made it easier than ever before to produce and distribute child pornography. The producers of child pornography try to avoid prosecution by distributing their material across national borders, though this issue is increasingly being addressed with regular arrests of suspects from a number of countries occurring over the last few years. cite journal | author = Wells, M.; Finkelhor, D.; Wolak, J.; Mitchell, K. | year = 2007 | title = Defining Child Pornography: Law Enforcement Dilemmas in Investigations of Internet Child Pornography Possession | journal = Police Practice and Research | volume = 8 | issue = 3 | pages = 269–282 | url =http://www.unh.edu/ccrc/pdf/CV96.pdf | accessdate = 2008-07-01 |doi=10.1080/15614260701450765]

The legal status of simulated or "virtual" child pornography varies around the world; for example, it is legal in the United States, it is illegal in the European Union, and in Australia its legal status is unclear and so far untested in the courts. [http://archives.cnn.com/2002/LAW/04/16/scotus.virtual.child.porn/ "Supreme Court strikes down ban on 'virtual child porn", CNN, April 2002] ] Eko, L. S. (2006, Jun) [http://www.allacademic.com/meta/p92638_index.html "Regulation of Online Child Pornography Under European Union and American Law."] Paper presented at the annual meeting of the International Communication Association, Dresden International Congress Centre, Dresden, Germany Online Retrieved 2008-04-22] cite news |url=http://www.theage.com.au/news/technology/can-an-avatar-commit-a-crime/2007/05/09/1178390390098.html |title=Brave new world or virtual pedophile paradise? Second Life falls foul of law |date= 2007-05-10 |author=Chris Johnston] Child pornography may be simulated by the use of computers [ [http://www.ad.nl/binnenland/2128370/Virtueel_filmpje_geldt_ook_als_porno.html Virtueel filmpje geldt ook als porno] , "AD", March 11, 2008] or adults made to look like children. [Paul, B. and Linz, D. (2008). " [http://www.comm.ucsb.edu/documents/pubs/virtual_child_porno.pdf The effects of exposure to virtual child pornography on viewer cognitions and attitudes toward deviant sexual behavior] ," "Communication Research", 35(1), 3-38]

Internet porn laws in various countries

United States

With the exception of child pornography, the legal status of Internet pornography is still somewhat unsettled. The legality of pornography has been traditionally determined by the Miller test, which dictates that community standards are to be used in determining whether a piece of material is obscene. Thus, if a local community determines a pornographic work to meet its standard for obscenity then it could be banned. This means that a pornographic magazine that might be legal in California could be illegal in Alabama. This standard poses a problem when it comes to the Internet because restricting the communities some pornographic material is available in is much more difficult over the Internet. It has been argued that if the Miller test were applied to the Internet then, in effect, the community standards for the most conservative community would become the standard for all U.S.-based Web sites. The courts are currently examining this issue.

The first attempt to regulate pornography on the Internet was the federal Communications Decency Act of 1996, which prohibited the "knowing" transmission of "indecent" messages to minors and the publication of materials which depict, in a manner "patently offensive as measured by contemporary community standards, sexual or excretory activities or organs", unless those materials were protected from access by minors, for example by the use of credit card systems. Immediately challenged by a group of organizations spearheaded by the ACLU, both of these provisions were struck down by the U.S. Supreme Court in Reno v. American Civil Liberties Union (1997) [ [http://www2.epic.org/cda/cda_decision.html 521 U.S. 844] ] . The "indecent transmission" and "patently offensive display" provisions were ruled to limit the freedom of speech guarantee of the First Amendment.

A second attempt was made with the narrower Child Online Protection Act (COPA) of 1998, which forced all "commercial" distributors of "material harmful to minors" to protect their sites from access by minors. "Material harmful to minors" was defined as materials that by "contemporary community standards" are judged to appeal to the "prurient interest" and that show sexual acts or nudity (including female breasts). Several states have since passed similar laws. An injunction blocking the federal government from enforcing COPA was obtained in 1998. In 1999, the 3rd Circuit Court of Appeals upheld the injunction and struck down the law, ruling that it was too broad in using "community standards" as part of the definition of harmful materials. In May 2002, the Supreme Court reviewed this ruling, found the lower court’s given reason insufficient and returned the case to the circuit court. In March 2003, the 3rd Circuit Court again struck down the law as unconstitutional, this time arguing that it would hinder protected speech among adults. The administration appealed; in June 2004 the Supreme Court upheld the injunction against the law, ruling that it was most likely unconstitutional but that a lower court should determine whether newer technical developments could have an impact on this question. On March 22, 2007, COPA was found to violate the First and Fifth Amendments of the United States Constitution and was struck down. [cite web | title=Judge Strikes '98 Law Aimed At Online Porn | work=Associated Press | url=http://www.mercurynews.com/breakingnews/ci_5494735 | accessdate=March 22 | accessyear=2007]

Another act intended to protect children from access to Internet pornography was the Children's Internet Protection Act (CIPA) of 2000. It required that public libraries, as a condition of receiving federal subsidies for Internet connectivity, employ filtering software to prevent patrons from using Internet terminals to view images of obscenity and child pornography, and to prevent children from viewing images "harmful to minors", a phrase typically used for otherwise legal pornography. The act allowed librarians to disable the filtering software for adult patrons with "bona-fide research or other lawful purposes". The act was challenged by the American Library Association on First Amendment grounds, and enforcement of the act was blocked by a lower court. In June 2003, the Supreme Court reversed and ruled that the act was constitutional and could go into effect. [ [http://www.onlinepolicy.org/action/20030623.ussupremecourt.cipalibrarydecision.02-361.pdf "U.S. v. American Library Association, No. 02-361, 2003"] ] .

The production of sexually explicit materials is regulated under 18 USC 2257, requiring "original" producers to retain records showing that all performers were over the age of 18 at the time of the production for inspection by the Attorney General. The 18 USC 2257 disclaimer is common on Internet sites distributing pornography, but the Department of Justice has rarely if ever enforced the provision.

On July 1 2005, new regulations took effect requiring among other things, "secondary" producers to retain the same records. This has been seen both as a prelude to increased inspection of records by the Department of Justice, and also as a potential assault on the Internet pornography industry by increasing the burden of compliance for distributors.Fact|date=May 2008

On Oct. 24, 2007 the 6th circuit court of appeals in Ohio, struck down the 2257 law, and ruled it as unconstitutional according to the first amendment.

United Kingdom

The sale or distribution of hardcore pornography through any channel was prohibited until the rules were relaxed in 2000, however the rules are still quite strict [http://www.melonfarmers.co.uk/faqvideo.htm] . The possession of pornographic images for private use has never been an offense in the UK. This means that UK citizens have always been able to access content on sites overseas without breaking any laws, except for child pornography. Fact|date=March 2007

The Government announced that it plans to criminalize the possession of "extreme pornography" [ [http://news.bbc.co.uk/1/hi/uk/4195332.stm "Ban on Violent Porn Planned", BBC News, August 30, 2005] ] [ [http://news.bbc.co.uk/1/hi/england/berkshire/5297600.stm "Mother Wins Ban on Violent Porn, BBC News, August 30, 2006] ] , including realistic depictions of violence, and whether or not the participants consent. This follows a campaign by Liz Longhurst after the murder of her daughter Jane Longhurst. Many individuals and groups oppose such a law (e.g., [http://www.backlash-uk.org.uk/ Backlash] ).

Internet service providers started the Internet Watch Foundation in 1996 to watch for pornographic content that is in violation of British law and report it to the police. The web filter Cleanfeed is used by the largest ISP BT Group to block sites on the IWF's list which includes sites that are "criminally obscene" as well as child pornography. [ [http://www.iwf.org.uk/public/page.103.htm "About the Internet Watch Foundation", Internet Watch Foundation website] ] . The government ordered all ISPs to have a cleanfeed system by the end of 2007.

Australia

Internet pornography in Australia is subject to a multifaceted regulatory framework. Criminal legislation is in force at the Commonwealth, state and territory levels targeting those involved in the production, dissemination and consumption of illegal internet pornography (such as online child pornography).

Criminal legislation is complemented by a further tier of regulation which provides a range of administrative remedies designed to deal with the availability of inappropriate content by removing it from the internet or by blocking access to it.

Online content scheme

Since January 1999, internet pornography considered offensive or illegal has been subject to a statutory scheme administered by Australia’s media regulator, the Australian Communications and Media Authority (ACMA).

Established under Schedule 5 to the "Broadcasting Services Act 1992", the online content scheme evolved from a tradition of Australian content regulation in broadcasting and other entertainment media. This tradition embodies the principle that – while adults should be free to see, hear and read what they want – children should be protected from material that may be unsuitable for (or harmful to) them, and everyone should be protected from material that is highly offensive.

The online content scheme seeks to achieve these objectives by a number of means such as complaint investigation processes, government and industry collaboration, and community awareness and empowerment. While administration of the scheme is the responsibility of ACMA, the principle of ‘co-regulation’ underpinning the scheme reflects parliament’s intention that government, industry and the community each plays a role in managing internet safety issues in Australia.

Investigations into internet pornography

A central feature of the online content scheme is the complaints mechanism that allows members of the Australian public to submit complaints to ACMA about offensive and illegal internet content.

Offensive and illegal internet content will be ‘prohibited’ under the scheme if it meets certain classification thresholds, irrespective of where the content is hosted. If prohibited content is hosted in Australia, ACMA will direct the internet content host to remove the content from its service. If prohibited content is not hosted in Australia, ACMA will notify the content to the suppliers of accredited filters in accordance with the Internet Industry Association's internet content code of practice so that access to that content is blocked for users of those filters.

In addition, sufficiently serious internet content (for example, illegal material such as child pornography) will be referred by ACMA under specialized agreements to the appropriate law enforcement agency, or, where appropriate, to a fellow member of the Internet Hotline Providers’ Association (INHOPE).

Between January 2000 and June 2006, ACMA received over 5,000 complaints from the public about offensive and illegal internet content hosted in Australia and overseas, resulting in the removal or blocking of almost 4,000 individual items of online content. Approximately 60% of such content was also referred to law enforcement agencies on the basis that it related to material classifiable as ‘RC’ (see below).

Classification of internet pornography

Internet pornography will be ‘prohibited’ by ACMA if certain classification thresholds are met. These thresholds form part of the National Classification Scheme (which also applies to other forms of media such as publications, films and video games) and are agreed by the Attorneys-General of the Commonwealth, States and Territories.

The thresholds are articulated in a National Classification Code and in Guidelines. The Classification Board (part of the Attorney-General’s Department) is Australia’s official classification body. In the course of investigating potentially prohibited internet content, ACMA may seek a formal classification decision from the Classification Board, or it may make its own assessment of the content against the National Classification Code and in Guidelines.

In summary, the following categories of internet content are prohibited: • Content classifiable as ‘RC’ (‘refused classification’). Such content includes, for example, illegal material (such as child sexual abuse material) and other highly offensive material (such as bestiality). • Content classifiable as ‘X18+’. Such content includes material containing real depictions of actual sexual activity. • Content hosted in Australia which is classified ‘R18+’ and not subject to a restricted access system which complies with criteria determined by ACMA. Content classified R18+ is not considered suitable for minors. Such content includes, for example, material containing implied (or simulated) sexual activity.

Internet pornography will be prohibited if it falls within the ‘RC’ or ‘X18+’ classifications or, for content hosted in Australia that is not restricted by an adult verification procedure, if it falls within the ‘R18+’ classification.

Israel

Internet pornography is allowed in Israel. Actors must be at least 18 years or older. Before 1996, this age was 16 years or older.

Indonesia

The legal issue in Indonesia are not enforced. Based on the law books of Indonesia KUHP (Kitab Undang-Undang Hukum Perdata) article number 282 said that "It is forbidden to spread a pornographic content". But there are Indonesian pornographic pay sites with Indonesian nude models that exploit legal loopholes.

Hong Kong

Pursuant to the Control of Obscene and Indecent Articles Ordinance (Cap 390), it is an offence to publish an obscene article. Publication covers distribution, circulation, selling, hiring, giving, or lending the obscene article. Distribution by email would fall within the definition of distribution, as would the placing of an obscene article on a web site. It should also be noted that distribution does not require any element of financial gain to be present. The definition of article includes "anything consisting of or containing material to be read or looked at or both read and looked at, any sound recording, and any film, video-tape, disc or other record of a picture or pictures." The article will be considered obscene if, by reason by its obscenity, "it is not suitable to be published by any person." Obscenity includes "violence, depravity and repulsiveness". The penalty for this offence is up to three years imprisonment and a fine of up to HK$1,000,000.

Related Cases:
* On January 27th, 2008, The Hong Kong Police Force arrested suspects who were accused of uploading pornographic images after a multi-billion entertainment company filed a complaint about these photos available on the internet having been fabricated and might charge the offender for defamation.Fact|date=May 2008

Gaza Strip

Hamas authorities of the Gaza Strip began blocking Internet porn sites in late May 2008, and jammed many wholesome sites in the process. [http://www.nytimes.com/aponline/world/AP-Gaza-Year-of-Hamas.html]

Singapore

The Singapore Government blocks a "symbolic" [http://www.reuters.com/article/oddlyEnoughNews/idUSS2322899620080523 Singapore bans two porn websites in symbolic move | Oddly Enough | Reuters ] ] number of websites containing "mass impact objectionable" material, including Playboy and YouPorn. In addition, the Ministry of Education, Singapore blocks access to pornographic websites.

References

External links

* [http://www.cultsock.ndirect.co.uk/MUHome/cshtml/ About attempts to control internet porn in the U.K..]


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