Regulating Pornography In The Internet Age

Regulating Pornography in the Internet Age • The Internet is not a censor-free zone. • There are two main forms of censorship: Blocking access to websites. Surveillance of Internet users. • Both are used in the UK. Socialisation of Globally Sexually Explicit Imagery: Challenges to Regulation and Research, Leeds University, 15-16 June 2009.

The Will to Censor in the UK Department of Culture, Media and Sport/Department for Business, Enterprise and Regulatory Reform evidence to the DCMS Select Committee 2008 Enquiry into harmful content on the Internet and in video games: ‘as a general rule, and with exceptions for material that is illegal, simply unacceptable or can be demonstrated to cause harm, we support the principle that adults should be free to choose what websites they access or what computer games they play’.

The Will to Censor in the UK • In October 2003, Ofcom chairman David Currie noted that the Communications Act 2003 doesn’t mention the Internet, because Parliament thought that ‘the Internet was still so new and its implications so uncertain that a period of legislative forbearance was called for’. He added: ‘ask most legislators today and, where they think about it, they will say that period is coming to an end’.

The Will to Censor in the UK • Andy Burnham, Culture Secretary, Telegraph 27 December 2008: ‘If you look back at the people who created the Internet they talked very deliberately about it being a space that governments couldn’t reach. I think we are having to revisit that stuff seriously now … There is content that should just not be available to be viewed. That is my view. Absolutely categorical’.

The Intermediaries • Governments who wish to censor the Internet put pressure on the intermediaries: the Internet Service Providers (ISPs). • Under the EU E-Commerce Directive 2000, ISPs are recognised as mere carriers of information. However, if an ISP is informed it’s carrying illegal content, and fails to remove it, it’s liable to prosecution.

Pressure UK-style • The Clubs and Vice Unit of Charing Cross police station. • The UK press. • The UK government.

The Internet Watch Foundation • Set up by the ISPs in 1996 and initially known as the Safety Net Foundation. • A self-regulatory industry body, though one in whose creation the government played a ‘facilitating role’.

The Internet Watch Foundation • Operates a hotline for the public and IT professionals to report potentially illegal content within its remit. This covers: • Child sex abuse content hosted globally; • Criminally obscene material hosted in the UK; • Incitement to racial hatred content hosted in the UK.

The Internet Watch Foundation • Operates a ‘notice and take-down’ service for ISPs. • Compiles an Index of mainly child abuse URLs which is updated twice daily and circulated to ISPs, who then use Cleanfeed to block access to the offending material. • The Index contains between 800 and 1200 URLs, with 60 to 80 added weekly.

Problems • What is the status of the IWF? • What is the nature of its legitimacy and the source of its authority? • In what sense, if any, is it publicly accountable? • Is there not a danger of ‘mission creep’?

Problems • The Internet Service Providers Association: ‘ISPs are not qualified, sufficiently authorised or resourced to decide on the legality of all the material on the Internet. Whilst ISPs take swift action when they are aware of child pornography on their servers – because it is illegal “full stop” both in the UK and throughout the world – not all sorts of material are as easily identifiable as illegal, such as instances of libel and defamation’.

The Problem of Child Abuse Images • It is a crime to take, make, permit to take, distribute, show, possess with intent to distribute, or to advertise indecent photographs or pseudo-photographs of any person below, or apparently below, the age of 18. • Geoffrey Robertson and Andrew Nicol suggest in Media Law that ‘indecent’ means ‘offending against recognised standards of propriety’ or ‘shocking, disgusting and revolting ordinary people’.

The Problem of Child Abuse Images • The IWF and the police define sexual abuse content by reference to the UK Sentencing Guidelines Council which has established five levels of seriousness for sentencing purposes in child abuse cases.

The Problem of Child Abuse Images • Level 1. Images depicting erotic posing with no sexual activity. • Level 2. Non-penetrative sexual activity between children, or solo masturbation by a child. • Level 3. Non-penetrative sexual activity between adults and children. • Level 4. Penetrative sexual activity involving a child or children, or both children and adults. • Level 5. Sadism or penetration by an animal.

Level One Images • This is clearly the problem area, witness police action against parents who have taken pictures of their children naked (such as Lawrence Chard and Julia Somerville/Jeremy Dixon). • The campaign of harassment against the photographers Ron Oliver and Graham Ovenden. • The actions against galleries showing photographs by, inter alia: • Robert Mapplethorpe. • Sally Mann. • Tierney Gieron. • Nan Goldin.

The Scorpions Affair • In December 2008 the IWF blacklisted a Wikipedia page containing an image of the cover of the Scorpions album Virgin Killer. • The decision was taken in consultation with the Child Exploitation and Online Protection Centre (CEOP). • Many British users then found themselves unable to edit other parts of the site. • The IWF received a complaint about the same image on Amazon.

The Scorpions Affair • Wikipedia and its many users complain vociferously to the IWF. • The IWF reverses its original decision ‘in the light of the length of time the image has existed and its wide availability’. • Sensible and responsive or • Confused and inconsistent?

Girls (Scream) Aloud • October 2008. The Daily Star brings to the attention of the IWF a sado-masochistic prose fantasy about Girls Aloud. • The IWF reports it to the police. • The author is charged under the Obscene Publications Act. • The article belongs to a common, largely Internet-based genre of erotic fiction about celebrities.

Girls Scream Aloud • The work is no stronger than much prose to be found in bookshops up and down the land. • If the defendant loses, the principle will be established that what is legal offline is not necessarily legal online. • The protections offered to the written word by the trials of Lady Chatterley, Last Exit to Brooklyn and Inside Linda Lovelace will be destroyed at a stroke.