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. 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.

Child pornography and the Internet

Main article: 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.[1] Even so, the UK based NSPCC said that worldwide an estimated 2% of websites still had not been removed a year after being identified.[2] 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.[1][3]

The legal status of simulated or "virtual" child pornography varies around the world. Simulated child pornography that do not pass the Miller test was banned in the United States in 2003 when the PROTECT Act was signed,[4] it is illegal in the European Union,[5] and in Australia its legal status is unclear and, as of 2007, untested in the courts.[6] Child pornography may be simulated by the use of computers[7] or adults made to look like children.[8]

In 2008, it was discovered that the United States authorities will post fake hyperlinks claiming to be child pornography and then raiding, arresting, and prosecuting anyone who was found using the IP address that visited them, even someone whose computer was an open wifi.[9] In 2008, a man in Middlesbrough, UK, was found guilty of downloading "child pornography" when he downloaded computer generated cartoons.[10]

Internet pornography laws in various countries

United States

With the exception of child pornography, the legal status of accessing Internet pornography is still somewhat unsettled, though many individual states have indicated that the creation and distribution of adult films and photography are legally listed as prostitution within them.

The legality of pornography at the federal level has been traditionally determined by implementing the Miller test. This test dictates that the opinion of the local community on a specific pornographic piece is most important in determining its legality. Thus, if a local community determines a pornographic work to meet its standard for obscenity then it is more likely to be banned. This means that a pornographic magazine that might be legal in California could be illegal in Alabama. This standard on pornographic legality is extremely difficult to uphold for the internet given that the internet contains ubiquitous amounts of pornography. 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).[11] 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 affect 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.[12]

Another act intended to protect children from access to Internet pornography is the Children's Internet Protection Act (CIPA) of 2000. It requires 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 encompassing pornography that has been held by the Supreme Court to be protected by the First Amendment for adults. The act allows 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.[13]

The production of sexually explicit materials is regulated under 18 U.S.C. 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 U.S.C. 2257 disclaimer is common on Internet sites distributing pornography, but the Department of Justice has rarely if ever enforced the provision. Although the law had been on the books for over 10 years, the Justice Department never actually inspected anyone. It was not until pressure from Congress, and conservative religious groups spurred the administration of George W. Bush and Attorney General Gonzales to begin inspections of larger commercial porn companies primarily in the Los Angeles area. Despite fearing mass inspections, harassment, and prosecution, the Justice Department inspected less than two dozen companies (out of several thousand operating), and no prosecutions resulted from any of the inspections. Retired FBI agents conducted the inspections, and generally arrived with a list of videos whose records they wanted to examine (most likely, to avoid potential Fourth Amendment conflicts on issues of probable cause). According to porn executives, the agents were always courteous and professional, suggesting changes or modifications to the companies' record-keeping processes. Once Attorney General Alberto Gonzales left the Justice Department, the inspections ended.

In 2005, the Department of Justice issued regulations that expand the definition of a "secondary producer" of sexually explicit material. As of June 23, 2005, federal regulations apply the 2257 record-keeping requirement to secondary producers, and defines them as including anyone who "inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction of, an actual human being engaged in actual or simulated sexually explicit conduct." 73 Fed. Reg. at 77,468.[14]

On October 24, 2007, the Sixth Circuit Court of Appeals in Ohio issued a judgment against the 2257 law, ruling it as unconstitutional according to the First Amendment. However, the Sixth Circuit subsequently reheard the case en banc and issued an opinion on February 20, 2009, upholding the constitutionality of the record-keeping requirements, albeit with some dissents.[15] The Sixth Circuit en banc decision was appealed to the US Supreme Court where on Monday October 5, 2009, the US Supreme Court denied certiorari without comment not addressing the Sixth Circuit decision that 18 USC 2257 is not constitutionally "vague and overbroad" and able to be enforced. See the one line denial on page nine of the Supreme Court order list for October 5, 2009.[16]

In February 2001, Buffnet, a New York Internet Service Provider, pleaded guilty in state court to a misdemeanor count of knowingly providing access to child pornography, after being notified by police of the content and not taking action. The ISP faced a $5000 fine.[17]

United Kingdom

The sale or distribution of hardcore pornography through any channel was prohibited until the rules were relaxed in 2002, however the rules are still quite strict. The possession of pornographic images for private use has never been an offence 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.

Adult pornography that falls under the Government's classification of "extreme pornography" is illegal to possess as of January 26, 2009, carrying a three-year prison sentence. This was proposed by the Government after the murder of Jane Longhurst, claiming that such material was viewed by murderer Graham Coutts.[18][19] Critics of the law point out that the law will criminalise images of legal acts between consenting adults.[20][21] and have criticised the lack of evidence of a link between viewing such material, and violent crime[22]

In 1996, internet service providers started the Internet Watch Foundation 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 Internet Watch Foundation's list, which include sites that are "criminally obscene" as well as child pornography.[23] The government ordered all ISPs to have a Cleanfeed-like system by the end of 2007.

In 2013, Then Prime Minister David Cameron announced plans which would cause internet pornography to be filtered by default in the UK. These plans mean that by the end of 2014, the access of internet porn will be blocked unless subscribers specifically 'opt out' by contacting their ISP. These plans were put forward in efforts to reduce the number of children having access to pornography on the Internet. They were criticised as likely to sweep up non-pornographic content, disclose intimate information to the government, and as unwarranted censorship.[24] In December 2014, the jurisdiction of the BBFC was extended to include pornography available over video on demand and streaming platforms, effectively aligning internet pornography laws with the Video Recordings Act 1984. This brought a renewed controversy over the banning of depiction of certain sex acts including depictions "physical or verbal abuse", "roleplay as non-adults", urolagnia, and female ejaculation, among others.[25]

In late 2016, the Digital Economy Bill 2016–17 includes powers to require age-verification for pornographic Internet sites and the government is accepting an amendment to allow the regulator to require ISPs to block access to non-compliant sites.[26] As the BBFC are likely to become the regulator, this has caused discussion about ISPs being required to block content that is prohibited even under an R18 certificate,[26][27] the prohibition of some of which is itself controversial.[27]

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 (including online child abuse pornography and online pornography featuring adults portrayed as children).

It is illegal for internet content providers within Australia to 'broadcast' internet pornography classified as MA15+ to R18+ unless such internet pornography is subject to an age verification system or internet pornography which may be classified as X18+ to RC content that is not subject to an Australian Communications and Media Authority (ACMA) infringement notice through exceptions.

Under an internet filter, proposed by Senator Stephen Conroy, internet pornography hosted outside Australia classified by the ACMA under the Classification Board legislation will be blocked if such internet pornography is deemed by the AMCA to be refused classification (RC), or 'potentially' refused classification. Refused classification (RC) does include real child abuse internet pornography and bestiality internet pornography, however it may also include content discussing or illustrating examples of internet pornography (including both, illegal internet pornography and internet pornography featuring adults portrayed as children) which may limit discussion and debate to authorised statutory persons only, rather than open and free public debate.

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 ACMA as Australia’s media regulator.

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.

Victorian Legislation

In Victoria, the law states that child pornography ‘means a film, photograph, publication or computer game that describes or depicts a person who is, or who looks like, a minor under 18 engaging in sexual activity or depicted in an indecent manner or context.[28] Under this law, ‘publications’ also include stories, poems, essays, drawings and cartoons.

Finland

Finnish law specifically prohibits either real or realistic imagery which sexually depicts children. The illegality thus discludes non-realistic imagery.[29]

Indonesia

The legal situation in Indonesia tightened sharply in 2008 with the passing of the Bill against Pornography and Pornoaction. Law books of Indonesia KUHP (Kitab Undang-Undang Hukum Pidana) article number 282 says that "it is forbidden to spread pornographic content". But there have been 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 (see Edison Chen photo scandal):

Moreover, the Prevention of Child Pornography Ordinance, Cap.579, was enacted to deal with the problems associated with child pornography in Hong Kong. Under Section 3, dealing in any of the following manners with child pornography, such as “prints, makes, produces, reproduces, copies, imports or exports”; “publishes” or “ has in his possession” is an offence. A child is a person under the age of 16. “Child pornography” means a photograph, film, computer-generated image or other visual depiction that is a pornographic depiction of a child. “Pornographic depiction” means a visual depiction that depicts a person as being engaged in explicit sexual conduct, whether or not the person is in fact engaged in such conduct; or a visual depiction that depicts, in a sexual manner or context, the genitals or anal region of a person or the breast of a female person. In Hong Kong, recent data shows that $14k is funded towards Hentai/Porn companies. Producers are beginning to believe this is "A special skill and talent" or in other words, a paying job.

Gaza Strip

Hamas authorities of the Gaza Strip began blocking Internet porn sites in late May 2008.[31][32]

Russia

In early 2015, the Roskomnadzor has blocked over 100 porn sites, making it illegal to view in Russia. Two more websites PornHub and YouPorn were blocked in Russia in September 2016.

Singapore

The Media Development Authority, a government-run agency in Singapore, blocks a "symbolic"[33] number of websites containing "mass impact objectionable"[33] material, including Playboy, and Sex.com. In addition, the Ministry of Education, Singapore blocks access to pornographic websites.

References

  1. 1 2 Wells, M.; Finkelhor, D.; Wolak, J.; Mitchell, K. (2007). "Defining Child Pornography: Law Enforcement Dilemmas in Investigations of Internet Child Pornography Possession" (PDF). Police Practice and Research. 8 (3): 269–282. doi:10.1080/15614260701450765. Retrieved 2008-07-01.
  2. ↑ Bobbie Johnson. "Time taken to shut child abuse sites criticised". the Guardian. Retrieved 14 March 2015.
  3. ↑ "CHILD PORN AMONG FASTEST GROWING INTERNET BUSINESSES". National Center for Missing and Exploited Children, USA. 2005-08-05. Retrieved 2008-03-13.
  4. ↑ "#266: 04-30-03 FACT SHEET PROTECT ACT". justice.gov. Retrieved 14 March 2015.
  5. ↑ Eko, L. S. (2006, Jun) 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
  6. ↑ Chris Johnston (2007-05-10). "Brave new world or virtual pedophile paradise? Second Life falls foul of law". The Age. Melbourne.
  7. ↑ Virtueel filmpje geldt ook als porno, AD, March 11, 2008
  8. ↑ Paul, B. and Linz, D. (2008). "The effects of exposure to virtual child pornography on viewer cognitions and attitudes toward deviant sexual behavior," Communication Research, 35(1), 3-38
  9. ↑ "FBI posts fake hyperlinks to snare child porn suspects". CNET. CBS Interactive. Retrieved 14 March 2015.
  10. ↑ Child porn in cartoon style - man convicted, Sep 26, 2008 by Gareth Lightfoot, Evening Gazette
  11. ↑ 521 U.S. 844
  12. ↑ "Judge Strikes '98 Law Aimed At Online Porn". Associated Press. Retrieved March 22, 2007.
  13. ↑ U.S. v. American Library Association, No. 02-361, 2003
  14. ↑ "2257 Reporting Requirements". eff.org Internet Law Treatise. Retrieved February 28, 2011.
  15. ↑ Connection Distributing Co. v. Holder, (6th Cir. 2009) (en banc).
  16. ↑ Connection Distributing Co. v. Holder, (Supreme Court list of orders)
  17. ↑ "ISP Guilty in Child Porn Case". Wired.com. February 16, 2001. Retrieved December 11, 2010.
  18. ↑ "Ban on violent net porn planned". BBC News Online. August 30, 2005. Retrieved March 14, 2015.
  19. ↑ "Mother wins ban on violent porn". BBC News Online. August 30, 2006. Retrieved March 14, 2015.
  20. ↑ Summers, Chris (July 4, 2007). "'Extreme' porn proposals spark row". BBC News Online. Retrieved May 7, 2010.
  21. ↑ Summers, Chris (April 29, 2008). "When does kinky porn become illegal?". BBC News Magazine. Retrieved May 7, 2010.
  22. ↑ "Statement to the Criminal Justice and Immigration Bill Committee". backlash. 2007. Archived from the original on December 20, 2008. Retrieved November 24, 2016.
  23. ↑ "About Us". Internet Watch Foundation. Retrieved 14 March 2015.
  24. ↑ "UK seeks automatic blocks on online porn". The Boston Globe. Associated Press. July 23, 2013. Retrieved August 17, 2013.
  25. ↑ Hooton, Christopher (December 2, 2014). "A long list of sex acts just got banned in UK porn". The Independent. Retrieved March 14, 2015.
  26. 1 2 Fiveash, Kelly (November 24, 2016). "UK ISPs may be forced to block porn sites that snub age checks, sex acts face ban". Ars Technica. Retrieved November 24, 2016.
  27. 1 2 Gayle, Damien (November 23, 2016). "UK to censor online videos of 'non-conventional' sex acts". The Guardian. Retrieved November 24, 2016.
  28. ↑ "CRIMES ACT 1958 - SECT 67A - Definitions". austlii.edu.au. Retrieved 28 November 2016.
  29. ↑ "Laki rikoslain muuttamisesta". finlex.fi (in Finnish). Retrieved 28 November 2016.
  30. ↑ "Tech jailed for stealing sex-with-starlet photos". Sydney Morning Herald. 13 May 2009. Retrieved 28 November 2016.
  31. ↑ Hamas bans pornographic websites in Gaza Strip. Reuters, May 19, 2008.
  32. ↑ Hamas takes aim at Internet porn in Gaza. AFP, June 9, 2008
  33. 1 2 Lee, Melanie (May 23, 2008). "Singapore bans two porn websites in symbolic move". Reuters.
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