Legal status of Internet pornography
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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 porn. Only the laws of one's home nation apply with regard to distributing or possessing Internet porn. This means that, for example, even if a pornographer is legally distributing porn, the person receiving it may not be legally doing so due to local laws.
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[edit] 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 animal sex, 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 and prevent access to porn sites has been used in some states 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 strict record-keeping laws.
[edit] Child pornography and the Internet
A significant concern has been the distribution of child pornography over the Internet, one of the few areas that have been subject to significant law enforcement activity in many countries. Unlike adult pornography, the production and possession of child pornography is a crime in almost all jurisdictions. Internet child pornography has been one issue in which there has been greater international cooperation in dealing with it. Since such material is generally illegal in most countries, it has been easier to forge agreements to help eliminate it, though differences in how nations define child pornography do present some problems. A number of nations have worked together to catch producers and distributors of child porn. For example, a number of European nations in cooperation with the United States have participated in massive sting operations to catch distributors of child porn. One issue is the fact that some material is legal in one country but considered child pornography in another. This can create problems when trying to eradicate some forms of child pornography if it comes from a nation that does not share the same definition of child porn.
[edit] Internet porn laws in various countries
[edit] 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)(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.
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. 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. [1]
[edit] United Kingdom
The sale or distribution of hardcore pornography through any channel was prohibited until the rules were relaxed in 2000 but the rules are still quite strict [2]. 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.
The Government announced that it plans to criminalise the possession of "extreme pornography" [3][4], 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., 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 authorities.
[edit] 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 2000, 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 specialised 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 beastiality). • 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.
[edit] Israel
Internet pornography is allowed in Israel as long as it does not involve child pornography.
