Regulation of Pornography in the UK - Essay Example

? REGULATION OF PORNOGRAPHY IN THE UK The paper analyses whether the internet has necessitated a significant change in the way pornography is regulated in the United Kingdom. Additionally, the paper details the legal repercussions of possessing materials related to child pornography and extreme pornography in the United Kingdom. Introduction In the recent times, especially when the use of internet has become so extensive, the regulation of the pornographic law has become a necessity. Many countries have reformed their law. When we look at the United Kingdom, we can see a shift of focus in the regulation of end users, which is really commendable1. If we look at the traditional model, those are more focused on the producer and distributor of the content. However, in the regulation the law has been amended in such a way that it holds the end user also accountable for any illegal content. The main aim of this article is to bring out the clear picture and the reason for which the regulation of the pornography has been made. This article is written in order to analyze the basis of the regulation of pornography. Though with the regulation the end users are also liable to possess illegal content or pornography, the legal regulation of the extreme pornography still lies with the producer and distributor of the content. In today's world of information technology and internet pornography has reached every nook and corner of the world. Every person is in the easy access of the pornography - whether it is online or offline. If we look at pornography from a different perspective, one question that comes to our mind is if it harmful or not. In some countries pornography is illegal. However, in some countries, possession of the same is not illegal but the distribution or publication is.2 In some countries possession is also illegal for certain types of pornography - like child pornography. In today's world there are various channels through which the pornographic contents are being circulated. The traditional delivery channels are print materials, DVDs, videos, CDs, TV. In the modern times internet, mobile phones, PDAs are also being included as the channel for the transmission. Censorship in the United Kingdom If we look at the censorship in the United Kingdom, there are many stringent laws that are applicable to varied arena. Since our core topic is related to the laws and regulations in the cyber or internet laws, let us straight away head towards the topic. The cyber law in the United Kingdom is very stringent. In the United Kingdom, the internet traffic is being passed through a service called Cleanfeed. The sole purpose of this procedure is to filter out the content that contains the indecent photographs of children of varied ages.3 Since there is a filter or check point being introduced, if there are any such pages that come up in the internet, the page is not delivered to the end user. Instead of that it shows an error stating "URL not found". There are many internet service providers who use WebMinder as well.4 There are few questions that we need to have clarify. Under the English Law, what is called as obscenity? This one question is very important to know. Along with that, to what extent can the obscene be distinguished from the pornographic? Look at the Coroners and Justice Act 2009, s62. How does this UK statutory provision compare with the relevant provision elsewhere internationally? Does extreme pornography regulation merit a different treatment in comparison to child pornography? What alternatives might there be for the regulation of undesirable online content? Could such alternatives provide a better solution to legal intervention? A Multi-Layered Approach Before we talk about the multi-layer approach of governance of pornography and child pornography, we need to know the processes by which pornography and child pornography can be regulated. The regulation of pornography is a controversial topic and the same is arisen in the recent years in relation with the Internet. In the recent days, the widespread pornographic content in the internet has become a moral panic. 5 The government and various law enforcement bodies have put their hard effort to make the availability of the pornographic content limited. In the United Kingdom, the police have used the censorship on the internet content that contains pornography or child pornography. However, this got severe criticism in the higher court of law. If we try to find a concrete definition of pornography, we will not be able to do that - whether it is in the United Kingdom or in the multinational internet environment. There are essentially three variants - acceptable to all. If we look further we can see what is sexually explicit in many countries are and vice versa as well. For example, there are sexually explicit content that are considered to be lawful in Sweden, however according to the current legislation, that content can be considered as pornographic and unlawful in the United Kingdom.6 In this article we will cover two vital topics - one is the regulation of and the other one is regulation of highly illegal explicit content, which is called child pornography. If you look at the two points it might look similar, but there is a striking difference between the two points. Hence, the government should be proactive and take the best possible corrective action to govern the availability of porn. The Availability Of Porn In Different Formats They are available in the form of pictures or short animated movies generally. In the modern days, these pornographic contents are available through torrents, file hosts or even other communication processes like the Usenet newsgroups. In the modern days of internet and networking, people can openly discuss sex or watch live sexual acts and even arrange sexual activities through adult dating sites. The Governance Of The Internet When we talk about the governance of the Internet, it is the regulation of the Internet that comes to our mind. But the question is how the regulation or governance should be done. Though we have the popular perception, Internet is not an illegal place. 7 Rather we can conclude that there are significant challenges that are being faced when effective leadership or governance is required. According to Reidenberg, the development of Internet is highly affected by individuals and anonymous web-groups such as Wikis, which are not regulated by internet regulatory bodies such as ICANN. 8 He also says that there are self-regulatory solutions for pornographic content on the internet. He states that everywhere there are pornography in the world wide web, but the conformation of classic patterns of the rules should not be dependent upon that are being used for making the rules (Reidenberg, 1996). It is very tough to implement any regulation over the Internet as it. Hence the concept of wider governance is more suitable than that of the regulation. According to the statement of Walker, there has been a formation of modern society within the physical boundary. However, when it comes to the formation of cyberspace it has been formed away from all the , which leads to the new possibilities of relationships and interaction.9 The best idea internet could be "governance without government". However, if there is anything like that being implemented forthe nation states will become pivotal.10 Overview Of UK Pornography Laws In this section of the writing we will discuss the aspects of the UK law that are concentrating mainly on the obscenity, which are pertaining to the internet. There is an amendment in the UK obscenity legislation in order to tackle problems that are specific of Internet pornography (HMSO, 1994). Though there has been law existing for the Internet pornography, it was difficult to apply those laws, especially if it a global medium such as that can restrict the same. In the UK, there are two statuses of the pornographic law in order to make the fight more strong. 11 If we see the Publication Act or OPA, it is offensive act to publish the obscene material in the public medium for gaining some profit. It states that the digital medium like the computer disks are regarded as the contemplated article. However, in the modern days, the tangible medium like the discs are not being used to transfer the pornographic materials. These acts are performed mostly other by telephones or via modems. The CJPOA (1994) has amended the law by making and defining the exact meaning of publication, which is through any electronic medium. Now the electronic transmission is being covered completely and it has become stronger than that of the older version. For example, if A sends a pornographic content, may it be a picture or a movie, as attachment with the email, it will be regarded as the electronic transmission.12 According to the Section 1(2), 13 an obscene material for personal gain by publishing the same is an offence. The CJPOA 1994 has made the amendment to this as well. According to the amendment, if A has made the pornographic content available for electronic transfer or download to B by providing password, which enables B to download the same.14 Case Study of Extreme Pornography Allen, D'Alessio, and Brezgel (1995) have studied the effect of the exposure to extreme pornography in the laboratory condition. The study included 2011 individuals. In the study, there were three categories of pornography that were considered and studied the effects of each of the categories. In this study it was experimented that how the behavior of the person changes when exposed to different types of pornographic environment. There were varieties of moderating conditions that were being considered for this study. Those conditions include level of sexual arousal, level of prior anger, type of pornography, gender of subject, gender of the target of aggression and medium used to convey the material. Donnerstein (1980) also has conducted a case study that was focused on the effect of the aggressive erotic materials on males towards the females. The study involved 120 male students and an extreme pornography material, which was a graphical representation of a woman being raped on gun point. From this study, Donnerstein found that there is a significant increase in the aggression in males towards females when they are exposed to such a sexual aggression15. It was also found that even the non-angered subjects also feel aggressive towards the woman, when it was depicted that the woman in also enjoying being raped. Child Pornography In the recent days, we can see that the legislators and parents are more concerned about the child pornography, as far as the Internet content is concerned, rather than any other pornographic content. This concern is being on the floor since the pedophiles started to use the Internet as the medium to circulate pornographic materials that are related to children. 16 The pedophilia can be considered as a minority sexual group who fantasize and imagine about sex with children. However, there are debates and arguments happen in relation to the drawing a line what is called child pornography when there is a general consensus that is being applied. In most of the cases, child pornography is regarded as the permanent record that involves an actual child being sexually abused. This record excludes the cases of pseudo photographs. If we understand in a special way that child pornography is another mode of extreme child abuse, we can understand the whole problem. In the year 1978, an Act was made in response to the growing problem of child pornography. The sole purpose of passing this Act was to fill the gap that was being existed in the measures that are available to the Police and the prosecutors (Gibbons Thomas, 1996). The definition of "photograph" that we can see in Section 7(4) of the 1978 Act has been amended in the Section 84(4) of the Criminal Justice and Public Order Act 1994 (CJPOA 1994), which includes photographs in electronic data format. The CJPOA 1994 introduced the concept of pseudo photographs of children, which are the photographs that are made by manipulating the pre-existing photos in the computer. These photographs can be made by various ways. For example, superimposing a child's face on the image of an adult body on in another child's body and altering the same to create pornographic material without the involvement of a real child. It is now considered to be an offence if a person takes or permitted to take or make any indecent photograph or pseudo photographs of a child along with to distribute or show the same, according to Section 1, 1978 Act. As far as the thinking of the UK police is concerned, they think that the new Act will be helpful to criminalize the offender of the child abuse more rigorously than the old Act. This will also help to shut down the loopholes that existed in the old Act as it is difficult to differentiate between real photograph and a pseudo photographs. Even though there are possibilities that real children may not be involved in the pseudo photographs, but there are always threats that children are being abused through the dirty child pornography. The William Committee states that it is necessary to protect the children from being sexually abused as they are still quite young to know the meaning of sexuality and provide consent for the same. This is also agreed universally that the same should be applied to child pornography as well.17 Section 160 of the Criminal Justice Act 1988 According to Section 160 of the 1988 Act, which was amended by the section 84(4) of the CJPOA 1994, a person is considered as an offender who has the indecent or pseudo photographs of children in possession. In the recent times this offence is punishable . This new law is successfully being used as well. Operation Starburst In the month of July of 1995, an investigation named Operation Starburst was carried out, which was a part of international investigation of a pedophile ring that were involved in distributing the child pornography in the Internet. Through this operations, nine people from the UK had been arrested18 and also helped in the arrest of several offenders from Europe, America, South Africa and the Far East. There were 37 people identified worldwide through this operation.19 As far as the Operation Starburst is concerned, there are people who have been identified and prosecuted under the law and the people were produced in the court that has the possession of the child pornographic materials. Christopher Sharp was the first person in the UK who had been charged for pornography over the Internet in the UK. He was fined for ?9000. He admitted the possession of indecent photographs of children under the age of 16 and was prosecuted under Section 160 of Criminal Justice Act 1988. Another prosecution incident involves Martin Crumpton, a former computer consultant, in early 1996. He was sentenced to three months imprisonment in Birmingham magistrates' court. He was the first person in the UK who was being jailed for the act of pornography. 20 There were prosecution happened for the distribution offence as well. Fellows and Arnold were charged with a total of 18 charges involving the publication of the child pornographic materials. These two people were involved in the active distribution of the child pornography. The UK police discovered thousands of obscene pictures from a thorough search in the Department of Metallurgy at Birmingham University. The perpetrators had created an extensive online library called "The Archive", which contained explicit pornography and could be accessed through Internet from anywhere in the world. Child Pornography Laws in The US In the year 1973, the case of Miller v California 21showed the first amendment in the law that allowed the government to restrict the obscenity. The Supreme Court of the United States allowed the first amendment that prevents the distribution of child pornography. The case was between Ferber and New York. This particular principal was extended to the possession of child pornography as well. In the both the cases, the main focus was on direct harm on the children. In the year 1966, the Child Pornography Prevention Act was tabled in the Supreme Court and it agreed to the law and it was made. The indistinguishable virtual images are now illegal and punishable under the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act 2003. Apart from the United States, the European countries too have taken action to prevent the exploitation of children. The governments of these countries have taken various regulatory methods, which include convention on cybercrime, content-related offences relate specifically to child pornography (Art 9) 22and also contain provisions relating to the harmonization the aspects like substantive criminal law, the necessary domestic procedural powers for investigation and prosecution and facilities or access for international co-operation and assistance. Conclusion After the discussion in the above paragraphs, it is our duty to remain focused and alert from being exploited and protecting the children from being abused. As Internet is a truly interactive mass medium, it provides all sorts of information to the end users - be it cheap or informative. All over the world, the governments in all the countries are trying to regulate and control the new media that are coming up. 23 Internet being an interactive medium, is on the list of regulation from the government of the countries. 24 If we see the reality, the internet is not producing any genuinely new problems but it is producing the extreme versions of the existing problems. The real problem lies with the availability of the restricted materials, like extreme pornography or the sexually explicit materials, to the unsuitable audiences like the children. Hence there should be a regulation in the controlling the availability of the improper content to the improper audience. However, it does not mean that children are to be prohibited from accessing the Internet. The content in the Internet should be regulated in such a way that it reaches the proper audience - like the adult contents are to be restricted to the adult and not to the children. This can be one of the measures that help us curbing the increasing number of child abuse through the Internet and the child pornography. The main aim of making these laws and rules stricter is to make the children safe and protecting them from any exploitation. These laws ensure the safety of the children and set a global community standard. The internet content regulation also helps us define the international human rights law. It is necessary to make the common people understand that if the obscenity of pornography and child pornography is illegal offline, it should be illegal online too. References Akdeniz, Y (1996). "Computer Pornography: A Comparative Study of the US and UK Obscenity Laws and Child Pornography Laws in Relation to the Internet", 10 International Review of Law, Computers & Technology 235. Allen, M., D’Alessio, D., & Brezgel, K. (1995). A meta-analysis summarizing the effects of pornography-II. Aggression after exposure. Human Communication Research, 22, 258-283. Cohen, S. (1987). Folk Devils and Moral Panics: Creation of Mods and Rockers, London: Blackwell. Donnerstein, E. (1980). Aggressive erotica and violence against women. Journal of Personality and Social Psychology, 39(2), 269-277. Encyclopedia.com (2001). The Meese Commission on Pornography." American Decades. 2001. Available at . Gibbons Thomas (1996) ‘Computer Generated Pornography’, International Yearbook of Law Computers and Technology, 1995, vol. 9, pp 83-95, page 87. Human Rights Watch Report (1996). "Silencing The Net: The Threat to Freedom of Expression On-line" Monitors: A Journal of Human Rights and Technology 8, at http://www.cwrl.utexas.edu/~monitors Hirst, P. and Thompson, G. (1995). ‘Globalization and the Future of the Nation State,’ 24 Economy and Society 408 at 430 HMSO (1994). House of Commons, Home Affairs Committee: First report on Computer Pornography, London: HMSO Report 126 IWF/BT Project CleanFeed (2012). ''Extreme Pornography Websites,'' Available at http://www.iwf. org.uk/ government/page.101.220.htm Reidenberg, J R. (1996). "Governing Networks and Cyberspace Rule-Making" Emory Law Journal 45. The Sexual Offences (Conspiracy and Incitement) Act (1996) (Commencement), Great Britain: Home Office. Walker, Clive (1997). "Cyber-Contempt: Fair Trials and the Internet", Yearbook of Media and Entertainment Law Williams Committee Report (1979) Obscenity and Film Censorship, Cmnd 7772, (London: HMSO), page 90, para 6.68. Yaman, Akdeniz. (1997). ‘The Regulation of Pornography and Child Pornography on the Internet,’ The Journal of Information, Law and Technology. Read More