Akdeniz, Yaman"Governance of Pornography andChild Pornography on the Global Internet: A Multi-LayeredApproach," in Edwards, L and Waelde, Ceds,Law and the Internet: RegulatingCyberspace, Hart Publishing, 1997, pp223-241.
Ph.D. Student at the Centre for CriminalJustice Studies, Law Faculty, University of Leeds, Leeds LS2 9JT.E-mail:[email protected].For further information seehttp://www.cyber-rights.org/yamancv.htm
Copyright © 1997-2000, Yaman Akdeniz.
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How pornography should be regulated is one of the mostcontroversial topics to have arisen in relation to the Internetin recent years. The widespread availability of pornography onthe Internet has stirred up a ‘moral panic’(1)shared by the government, law enforcement bodies such as thepolice, prosecutors and judges along with the media in general.(2)
There have been many attempts to limit the availability ofpornographic content on the Internet by governments and lawenforcement bodies all around the world. While the US Governmentintroduced the Communications Decency Act 1996 (‘CDA’),the UK police attempted to censor Usenet discussion groupsallegedly carrying child pornography in the summer of 1996. Bothattempts were criticised and the US Supreme Court struck down theCDA in June 1997.
There is no settled definition of pornography, either in theUnited Kingdom itself, or in the multi-national environment ofthe Internet, where cultural, moral and legal variations allaround the world make it difficult to define ‘pornographiccontent’ in a way acceptable to all. What is consideredsimply sexually explicit but not obscene in England may well beobscene in many other countries; conversely what is consideredlawful but not pornographic in Sweden may well be obscene underthe current UK legislation.
This chapter will discuss two different issues: the regulationof potentially harmful content such as pornography on theInternet; and regulation of invariably illegal content such aschild pornography. These issues are different in nature andshould not be confused. It is the submission of this paper thatany regulatory action intended to protect a certain group ofpeople, such as children, should not take the form of anunconditional prohibition of using the Internet to distributecertain content where that is freely available to adults in othermedia.
Before explaining the possibilities of how to govern theavailability of ‘pornographic content’ on the globalInternet, I will briefly discuss how and in what form thesematerials are available on the Internet.
The availability of pornographiccontent on the Internet
Pornography on the Internet is available in different formats.These range from pictures and short animated movies, to soundfiles and stories. Most of this kind of pornographic content isavailable through World Wide Web (‘WWW’) pages; butsometimes they are also distributed through an oldercommunication process, Usenet newsgroups. The Internet also makesit possible to discuss sex, see live sex acts, and arrange sexualactivities(3) from computer screens. There arealso sex related discussions on the Internet Relay Chat(‘IRC’) channels where users in small groups or inprivate channels exchange messages and files. But as with the Weband theUsenet, only a small fraction of the IRC channels arededicated to sex. There are more than 14,000 Usenet discussiongroups all around the world but only around 200 groups are sexrelated, some of these relating to socially valuable andlegitimate discussions, concerning, eg, homosexuality or sexualabuse.
If illegal and harmful content on the Internet needs to beregulated then the question is: how should this be achieved?Despite the popular perception, the Internet is not a‘lawless place.’(4) Rather theInternet ‘poses a fundamental challenge for effectiveleadership and governance.’(5) Walkerstates that:
‘In the current stage of modern, or post-modern society, one can expect a trend towards ‘governance’ rather than the ‘government’, in which the role of the nation state is not exclusive but may need further sustenance by the activation of more varied levels of power at second hand.’(6)
According to Reidenberg, laws, regulations, and standards willaffect the development of the Internet and this is also true forself-regulatory solutions introduced for the availability ofpornographic content on the Internet. Reidenberg states that:
‘Rules and rule-making do exist. However, the identities of the rule makers and the instruments used to establish rules will not conform to classic patterns of regulation.’(7)
The Internet is a complex, anarchic, and multi-nationalenvironment where old concepts of regulation, reliant as they areupon tangibility in time and space, may not be easily applicableor enforceable. This is why the wider concept of governance maybe more suitable. According to Walker, ‘social regulationwithin modern society has developed within physical bounds oftime and space, but the development of cyberspace distanciatesits inhabitants from local controls and the physical confines ofnationality, sovereignty and governmentality leading to newpossibilities in relationships and interaction.’(8)The idea of ‘governance without government’ may be thebest approach for the development of the Internet. But ‘ifsuch mechanisms of international governance and re-regulation areto be initiated then the role of nation states is pivotal.’(9)
There appears to be no single solution to the regulation ofillegal and harmful content on the Internet because, for example,the exact definition of offences such as child pornography variesfrom one country to another and also what is considered harmfulwill depend upon cultural differences. A recent EuropeanCommission Communication Paper stated that ‘each country mayreach its own conclusion in defining the borderline between whatis permissible and not permissible.’(10)Themulti-layered governance system should be a mixture of nationaland international legislation, and self-imposed regulation by theISPs and on-line users. This should include codes of conduct bythe ISPs, software filters to be used by parents, advice toparents and school teachers, hotlines and special organisationsto report illegal content on the Internet.
Governance theorists are beginning to recognise that‘objects of governance are only known through attempts togovern them’(11) and ‘governance isnot a choice between centralisation and decentralisation. It isabout regulating relationships in complex systems,’(12)and the global Internet does provide a great challengefor governance. The following headings will try to address theissues arising from the multi-layered approach to the governanceof ‘pornographic-content’ on the Internet.
This section concentrates mainly on those aspects of UK lawrelating to obscenity which have particular reference to theInternet. UK obscenity legislation has recently been amended bythe Criminal Justice and Public Order Act 1994 (‘CJPOA1994’) to deal with the specific problem of Internetpornography.(13) The following will show,however, that there are difficulties with the application ofexisting national laws to a medium such as the global Internetwhich does not have any borders.
Obscene Publications Act 1959 and1964
These two statutes constitute the major legislation to combatpornographic material of any kind in the UK. Section 1(1) of the1959 Act provides that ‘an article shall be deemed to beobscene if its effect or the effect of any one of its items is,if taken as a whole, such as to tend to deprave and corruptpersons who are likely, having regard to all relevantcircumstances, to read, see or hear the matter contained orembodied in it.’(14)
Under Section 2(1) of the Obscene Publications Act(‘OPA’), it is an offence to publish an obscene articleor to have an obscene article for publication for gain. Section1(3) of the 1959 Act makes it clear that the‘articles’contemplated were such items as computer disks; however most ofthe pornography on the Internet is now transferred electronicallyfrom one computer to another using telephone lines and modemsrather than via any tangible medium such as discs. This left apossible lacuna in section 1(3), OPA 1959, but this has now beenplugged by CJPOA 1994 ,which amended the meaning of"publication" in that section, so that electronictransmission of pornographic material is now clearly covered bythe 1994 Act. When A sends B pornographic pictures attached to ane-mail, this electronic transmission will be a publicationcovered by the Act.(15)
Section 1(2) of OPA 1964 makes it an offence to have anobscene article in ownership, possession or control with a viewto publishing it for gain. Following the amendments made by CJPOA1994, this would even apply when A simply makes the dataavailable to be transferred or downloaded electronically, byproviding a password to B, so that B can access the materials andcopy them.(16)
The main concern of legislators and parents in relation toInternet content is child pornography, rather than other forms ofpornographic content. This has been the case ever sincepaedophiles started to use the Internet for circulatingpornographic materials related to children.(17)Paedophilia can be seen as a minority sexual group, with its ownform of expression explicitly involving fantasies and imaginingsabout sex with children. But while it is often argued thatpornography should not be proscribed on the basis of freedom ofspeech arguments, there is a general consensus that the lineshould be drawn with child pornography. In most cases, childpornography is a permanent record of the sexual abuse of anactual child (except in the case of pseudo-photographs, which arediscussed below). An understanding of the special way in whichchild pornography is child abuse, is crucial to an understandingof the whole problem of child pornography.
Protection of Children Act 1978
The 1978 Act was passed in response to the growing problem ofchild pornography. Its main purpose was to close some potentialgaps in the measures available to police and prosecutors.(18)The definition of "photograph" given in section 7(4) ofthe 1978 Act was extended to include photographs in electronicdata format following the amendments made by section 84 (4) ofthe Criminal Justice and Public Order Act 1994 (CJPOA 1994).
The CJPOA 1994 introduced the concept of‘pseudo-photographs’ of children. Pseudo-photographsare technically photographs, but they are created by computersoftware manipulating one or more pre-existing pictures. Forexample, a child’s face can be superimposed on an adultbody, or to another child’s body, with the characteristicsof the body altered to create pornographic computer generatedimages without the involvement of a real child. It is now anoffence "for a person to take, or permit to be taken or tomake, any indecent photographs or pseudo-photographs of a child;(or) to distribute or show such indecent photographs orpseudo-photographs" under section 1 of the 1978 Act.
The UK police believe that the creators or possessors ofpseudo-photographs will end up abusing children, so the purposeof the new legislation may be seen as to criminalise actspreparatory to abuse,(19)and also to close possible future loopholes in the prosecution ofsuch cases, as it may be very difficult to separate apseudo-photograph from a real photograph.(20)
Although pseudo-photographs can be created without theinvolvement of real children, there is a justifiable fear thatharm to children is associated with all child pornography. The Williams Committee stated:
On the other hand, there are arguments that pseudo-photographsare not harmful. The children involved in child pornography maysuffer physical or mental injury, but with pseudo-photographs,the situation is quite different. These photographs are createdonly by the use of computers. There is no involvement of childrenin production and there is no direct harm to children in theiruse. However there is substantial evidence that photographs ofchildren engaged in sexual activity are used as tools for thefurther molestation of other children,(22) andphotographs or pseudo-photographs will be used interchangeablyfor this purpose.(23)
Section 160 of the CriminalJustice Act 1988
Under section 160 of the 1988 Act as amended by section 84(4)of the CJPOA 1994, it is an offence for a person to have anindecent photograph or pseudo-photograph of a child in hispossession. This offence is now a serious arrestable offence witha maximum imprisonment term not exceeding six months. It has beensuccessfully used in its new form in recent cases involvingpossession of child pornography.
In July 1995, the British police were involved in OperationStarburst, an international investigation of a paedophile ringwho used the Internet to distribute graphic pictures of childpornography. Nine British men were arrested as a result of theoperation which involved other arrests in Europe, America, SouthAfrica and the Far East. The operation identified 37 men worldwide.(24)
As a result of Operation Starburst, many cases of simplepossession offences were brought to court. Christopher Sharpwas fined £9000 and was the first person to be prosecuted in acase involving pornography and the Internet in the UK. Sharpadmitted two charges of possessing indecent photographs ofchildren under the age of 16 contrary to section 160 of theCriminal Justice Act 1988. In early 1996,Martin Crumpton,a former computer consultant, was sentenced to three months’imprisonment in a Birmingham magistrates’ court. He alsoadmitted possession of indecent pictures of children and was thefirst person to be jailed in the UK in an offence concerningpornography and the Internet.(25)
Fellows and Arnold: TheBirmingham University Case
Fellows and Arnold were charged with a total of 18 charges,under the Protection of Children Act 1978, Obscene PublicationsAct 1959, and the CJPOA 1994, which widened the definition of"publication" to include computer transmission. WestMidlands Police Commercial Vice Squad was contacted by US Customssaying they had identified a site in the UK. Vice Squad officersthen swooped on the Department of Metallurgy at BirminghamUniversity and discovered thousands of pictures stored in thecomputer system of youngsters engaged in obscene acts. Thematerial could be accessed through the Internet across the world.Fellows had built up an extensive library of explicit pornographycalled ‘The Archive,’ featuring children as young asthree, on a computer at Birmingham University where he worked.
The judge ruled that the computerised images could be legallyregarded as photographs, setting a legal precedent that apornographic computer image was, in law, the same as aphotograph. After the ruling of the trial judge, Fellows admittedfour charges of possessing indecent photographs of children witha view to distributing them, and one of possessing obscenephotographs of adults for publication. Arnold also admitteddistributing indecent photographs of children. Fellows was jailedfor three years, and Arnold for six months for providing Fellowswith up to 30 pornographic pictures of children.
Owen J. stated:
‘The pictures could fuel the fantasies of those with perverted attitudes towards the young and they might incite sexual abuse on innocent children.’
This decision, and Crumpton’s imprisonment in 1996, bothshow the current judicial attitude towards traffickers of childpornography and paedophiles in general.
On appeal ,Evans L.J., upheld the ruling of the trial judgethat images stored on computer disc constitute photographs.(26)His Lordship reviewed the terms of the Protection of Children Actand decided that although the computer disk was not a photograph,it was ‘a copy of an indecent photograph.’(27)
The US Telecommunications Act 1996, including the provisionsof the CDA 1996, attempted to restrict access by minors to‘patently offensive depictions of sexual or excretoryactivities’, a provision clearly intended to cover thepornographic images and materials which are widely availableon-line over the Internet. In particular the CDA specified thatit covered content available via an ‘interactive computerservice,’. This obviously included materials available onthe Internet. In the US, speech which is not considered‘obscene’ but is indecent enjoys First Amendmentprotection, though it can still be regulated where there is asufficient governmental interest. The fact that the CDA wasintended to prohibit ‘indecent speech’ would have hadan unprecedented effect on the Internet. Information regardingprotection from AIDS, birth control or prison rape, is sexuallyexplicit and may be considered ‘indecent’ or‘patently offensive’ in some communities, and this kindof speech would have been affected by the provisions of the CDA,particularly as it had no definition of the word‘indecent’.
The American Civil Liberties Union (ACLU) and other civilliberties groups filed a lawsuit challenging the CDA as anunconstitutional restraint on free speech on the Internet. InACLUv. Janet Reno, ACLU claimed that the CDA was ill defined anddid not sufficiently delineate what speech or other actions wouldbe subject to prosecution. ACLU and the other plaintiffs arguedthat:
‘Not only does this ban unconstitutionally restrict the First Amendment rights of minors and those who communicate with them about important issues, but, because of the nature of the online medium, it essentially bans "indecent" or"patently offensive" speech entirely, thus impermissibly reducing the adult population to"only what is fit for children".’
ACLU did not challenge the statute to the extent that itcovered already proscribed obscenity or child pornography, merelyopposing the extension of liability for speech introduced by theCDA.(28)
Following an initial temporary restraint order obtained by theACLU, in June 1996 the Federal District Court of Philadelphiaheld that ACLU had established a reasonable probability ofeventual success in the litigation by demonstrating that sections223(a)(1)(B) and 223(a)(2) of the CDA were unconstitutional ontheir face to the extent that they covered ‘indecency.’Accordingly, a preliminary injunction was granted. Dalzell Jstated:
‘As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from government intrusion. Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects.’(29)
The final appeal in theACLU case, to the SupremeCourt, resulted in a historic ruling on June 26, 1997 in which bya 7-2 vote, the online censorship provisions of the CDA werestruck down. The Supreme Court affirmed the PhiladelphiaCourt’s ruling that the CDA was unconstitutional, declaringthat ‘[t]he CDA’s "indecent transmission" and"patently offensive display" provisions abridge thefreedom of speech protected by the First Amendment’.(30)They went on to add:
‘As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.’
One of the principal issues addressed in the judgement waswhether Internet content was more akin to content in print mediaor in braodcast media such as television. Because of its massappeal and easy access by children, a higher level of scrutiny inbroadcasting than in print media is justified. If part of abroadcasting program on radio or on television is patentlyoffensive, vulgar or shocking than it may be considered indecentand banned at certain times of the day. The Supreme Courtexplained that the factors that are present in broadcasting arenot present in cyberspace. ‘Neither before nor after theenactment of the CDA have the vast democratic fora of theInternet been subject to the type of government supervision andregulation that has attended the broadcast industry.’ TheInternet was not as invasive a medium as radio or television,since communications over the Internet did not invade anindividual’s home, or appear on one’s computer screenunbidden. Users seldom encountered offensive content by accident.Proscribing offensive content on the Internet for all users justto protect children would be ‘burn[ing] the house to roastthe pig.’(31)
In his opinion for the Court, Justice Stevens wrote that‘[t]he CDA, casting a far darker shadow over free speech,threatens to torch a large segment of the Internetcommunity.’ The CDA went too far in reducing all materialaccessible on the global Internet to a level suitable only forchildren.
The European Commission launched a Communication Paper on‘Illegal and Harmful Content’ together with a GreenPaper on the Protection of Minors and Human Dignity inAudio-visual and Information Services in October 1996.(32)The Communication Paper was the result of calls for theregulation of the Internet within the European Union dating fromearly 1996.
The European Commission documents followed a resolutionadopted by the Telecommunications Council of Ministers inSeptember 1996, concerning the dissemination of illegal contenton the Internet, especially child pornography. While theCommunication gives policy options for immediate action to fightagainst harmful and illegal content on the Internet, the GreenPaper sets out to examine the challenges that society faces inensuring that these issues of over-riding public interest areadequately taken into account in the rapidly evolving world ofaudio-visual and information services.(33) Allthese initiatives at the European level were adopted in aResolution at the Telecommunications Council in November 1996.(34)
The European Parliament adopted a resolution following areport about the European Commission Communication in April 1997.(35)Following the resolution, the European Commissioner MartinBangemann, stated in his view that ‘it is difficult to passlegislation at international level on harmful content on theInternet, but there is no cultural difference in what is illegal,and the response must be global.’(36)Thereforesolutions may not be limited to the EU level and a futureinvolvement of other fora such as the OECD or G7 is likely infuture.
It is not possible to access the Internet without the servicesof an ISP, and thus the role of ISPs in content regulation of theInternet is crucial. As a result they are obvious targets forenforcement authorities. ISPs have recently been charged withcriminal offences of providing child pornography in both Germanyand France. Access to "hate speech" on the Internet isof particular concern to the German government, and again theISPs have been the ‘usual suspects’ in investigationsof provision of such material on the Internet.(37)
The UK Government’s preferred option in relation to ISPs,like that of the EC, is one of self-regulation rather thancontrol by legislation.(38) ISPs have beenencouraged to produce codes of practice to control access toillegal and unsuitable material.(39) The HomeOffice stated that:
‘it is important to distinguish between illegal material and material which is legal but which some would find offensive. Self-regulation is an appropriate tool to address the latter. Dealing with illegal material is a matter for the courts and the law enforcement agencies.’(40)
Walker comments that:
‘Self-regulation in this field has a number of advantages. Rules devised by the media are more likely to be internalised and accepted. In addition, it may avoid heavy-handed legal intervention which carries with it the spectre of government censorship.’(41)
It should not however be forgotten that the primeresponsibility for content lies with authors and primary contentproviders. Blocking access at the level of access providers wascriticised in the EU communication paper discussed above on theground that access is restricted to far more material than thelimited category of illegal communications. Such a restrictiveregime severely interferes with the freedom of the individual andthe political traditions of Europe. There is a real need for thelegal position of the ISPs to be clarified, so that they neednot, as at present, steer a path between accusations ofcensorship by users, and exposure to liability for the contentthey carry.
The Internet Watch Foundation (IWF), was announced inSeptember 1996 with the backing of the UK government. It followsa similar initiative in Holland although there are differencesbetween the two hotline systems.(43) The IWF hasan e-mail, telephone and fax hot-line so that users can reportmaterials related to child pornography and other obscenematerials.(44)The IWF undertake to inform allBritish ISPs once they locate undesirable content. The ISPconcerned then has no excuse in law that it is unaware of theoffending material, and the UK police will be entitled to takeaction against any ISP which does not remove the relevant contentrequested from IWF.(45)
Although the IWF proposals state that UK ISPs should bearresponsibility for their services, and take reasonable measuresto hinder the use of the Internet for illegal purposes, it iswrong to assume that ISPs should be held solely responsible forcontent provided by third parties on the Internet. The realproblem will remain elsewhere; in the real rather than virtualworld, where pornographic materials are originally created. Aslong as such material is produced, there can never be a totalsolution to its availability via the Internet. The Internet isjust another convenient tool for paedophiles who wish to trafficin these kind of materials.(46)The formation ofthe IWF sets a dangerous precedent for privatised censorship onthe Internet. A better approach would have been a freeconfidential telephone hot-line not run by the industry itself,akin to that run by the Metropolitan Police in London to combatterrorism. Furthermore, removing materials containing childpornography from the Internet at a UK level only is near futileas material can always be accessed by UK residents from computerslocated abroad.
There are further problems. Users of the IWF hotline willprobably report material unacceptable according to their tasteand moral views, but it should be remembered that what is obsceneor illegal is a matter for the courts. The IWF also promotes andrecommends the use of rating systems such as PICS (see below) butindustry based organisations backed up by governments should notimpose rating systems nor get involved in their development. Theutility of the IWF will need to be monitored and perhapsre-assessed.
Although the UK Government supports self-regulation withrespect to the Internet, the UK police appears to wish to take amore pro-active regulatory role. In mid August 1996, the Clubs& Vice Unit of the Metropolitan Police sent a letter to theUK ISPs supplying them with a list of Usenet discussion groupsthat they believe to contain pornographic material. The listmainly covered newsgroups which carried child pornography such as‘alt.binaries.pictures.lolita.fucking,alt.binaries.pictures.boys,’ but it also included suchnewsgroups as ‘alt.sex.fetish.tickling,alt.sex.fetish.wrestling, alt.homosexual,’ which might ormight not include pornographic content. AS many people post thesame material to multiple newsgroups, it is possible to findchild pornography in newsgroups not intentionally devoted to thetopic but attracting a similar readership such asalt.sex.fetish.tickling.
The action taken by the UK police appears to have beenill-considered and will not do much to reduce the availability ofpornographic content on the Internet. Furthermore, the list ofnewsgroups provided by the UK police includes much material thatis not illegal, such as legitimate discussion groups forhomosexuals, and discussion groups which do not contain anypictures, but contain text, sexual fantasies and stories. Thesewould almost certainly not infringe UK obscenity laws. The actionof the UK police also amounted to censorship of material withoutpublic debate in Parliament or elsewhere. Political action by theUK government would be preferable to random censorship by lawenforcement authorities.
Platform for Internet Content Selections (PICS)(47)is a rating system for the Internet similar to the"V-chip" technology used to filter out violence orpornography on the television systems. PICS is widely supportedby various governments and industry based organisations such asthe Internet Watch Foundation in the UK. PICS works by embeddingelectronic labels in the text or image documents to vet theircontent before the computer displays them or passes them on toanother computer.(48) The vetting system can beapplied to political, religious, advertising or commercialtopics. PICS tags can be added by the publisher of the material,by the company providing access to the Internet, or by anindependent vetting body. The most common scheme for screeningmaterial is that developed in the United States by theRecreational Software Advisory Council on the Internet(‘RSACi’). This was originally a scheme for ratingcomputer games.(49) It rates material accordingto the degree of sex, violence, nudity, and bad languagedepicted. It is usually this PICS/RSACi screening combinationthat people have in mind when they refer to PICS.(50)PICS/RSACi initiatives are strongly criticised in the UK by‘The Campaign for Internet Freedom’ organised by LivingMarxism Online:
‘We do not have the freedom to make up our own minds. PICS is just the modern face of censorship... State bans are overt, public and contestable. By contrast, the censorship of PICS is covert; the ratings authorities are not democratically accountable; the ratings schemes are not publicly determined; and there is no room for dissent.’(51)
According to Electronic Frontiers Australia, ‘thedefinitions used in determining the four categories were clearlychosen with computer games in mind and lack the flexibilityrequired for a wider range of materials. It is ludicrous thatsuch a system should be applied to novels, online libraries, artgalleries, and other such resources.’(52)
There will be many rating authorities, and differentcommunities may consider the same web pages to be in differentPICS/RSACi categories. Some rating authorities may eg judge acertain site as an offensive, even though it has a publicpurpose, such as Web sites dealing with sexual abuse and AIDS.There will be no opportunity for free speech arguments to be madeif ratings have been applied by private bodies as the governmentitself will not be involved directly in censorship.
Filtering software products(53) are availablewhich are intended to allow parents to implement theirpreferences as to content when making decisions for their ownchildren. The vast majority of the material available on theInternet is related to everyday topics, such as politics, news,sports, and shopping, but just as in the real world, there areareas of cyberspace which may contain materials that are notappropriate for children. Blocking and filtering technologies arefar more effective and far more flexible than any law. The toolsare designed to be easy to use for parents who may not be ascomputer savvy as their children.(54)TheNational Center for Missing and Exploited Children produces abrochure called ‘Child Safety on the InformationHighway.’(55) After explaining the benefitsof the Internet, it also explains the risks of the Internet forchildren:
(a) Exposure to inappropriate material,
(b) Physical molestation,
(c) Harassment.
The brochure strongly emphasises the importance of parents andtheir responsibility for their children’s use of on-lineservices. Similar brochures are also produced in the UK(56)and blocking and filtering software is available to limit orcontrol children’s access to adult oriented Internet sites.(57)By using such technology parents themselves have thechance to decide what is good for their children, and what isnot, but do not inflict this choice on the rest of theworld’s Internet users. There are many programs availablewith parental control features including ‘Surf Watch,’(58)‘Net Nanny’(59) and‘CYBERsitter’.(60) Sometimes this kindof software is over-inclusive and limits access to or censorsinconvenient web sites, or filters potentially educationalmaterials regarding AIDS and drug abuse prevention.(61)Again, the companies creating this kind of software provide noappeal system to content providers who are "banned" byparents, thereby ‘subverting the self-regulating exchange ofinformation that has been a hallmark of the Internetcommunity.’(62) As one opponent of suchsystems put it:
‘A close look at CYBERsitter reveals an agenda that infringes on the rights of children, parents and teachers wherever the program is used. Despite the hype over ‘parental control’ as an alternative to government censorship, it is Solid Oak Software that takes control when CYBERsitter is running on your computer.’(63)
CYBERsitter, it should be remembered, still relies upon aninitial form of labelling outside the home, which can amount tounchallengeable censorship. It is betterfor such control to be placed wholly in the hands of parents whocan set standards for the welfare of individual children.
By providing quick and cheap access to any kind ofinformation, the Internet is the first truly interactive‘mass’ medium. It should not be surprising thatgovernments around the globe are anxious to control this newmedium,(64) and the Internet seems to befollowing a pattern common to the regulation of new media.(65)In reality, while the Internet tends to produce extreme versionsof problems, it rarely produces genuinely new ones.
There is a real problem of availability of child pornographyon the Internet (and elsewhere), as well as that of theavailability of sexually explicit material to unsuitableaudiences, such as children. But any regulatory action intendedto protect children from being abused in the production ofpornography, or from accessing unsuitable content, should nottake the form of an unconditional prohibition on using theInternet to distribute content where that content is freelyavailable to adults in other media.
At the moment bans or pre-censorship acts in relation toInternet pornogrpahy or sexual content would in any case beunworkable because of the diversity of pornographic sources.Following the introduction of the CDA 1996 in the USA, many WWWpages containing sexually explicit material introduced passwordprotection schemes which required credit card numbers. Forexample, Adultcheck(66) is one of the main USbased companies regulating WWW pages carrying sexually explicitcontent on the Internet. Its system requires that both thewilling adults and the providers are registered by paying fees toobtain username and passwords. By means such as this, thepornography industry will regulate itself anyway. To do so is intheir best interest, since they will wish to safeguard thesubstantial amount of profits made from the pornography industryeach year.(67)
The prime responsibility for assuring an appropriate moralenvironment for children does not rest with Internet contentsuppliers or access providers. Instead parents and teachersshould be responsible for protecting children from accessingsexual or other material which may be harmful to theirdevelopment. Standards that are overly broad or too looselydefined will result if the job of rating is handed over to ratingbodies with different cultural backgrounds, the softwareindustry, or even the producers of pornography. It is notunreasonable to demand that parents take personal responsibility,when the computer industry is already supplying software whichparents can use to regulate access to the Internet.
Child pornography is another matter. Its availability anddistribution should be regulated, whether on the Internet orelsewhere. But the main concern of enforcement authorities shouldremain the prevention of child abuse - the involvement ofchildren in the making of pornography, or its use to groom themto become involved in abusive acts - rather than victimlessdiscussion and fantasy by adults. Child pornography not onlyconsists of‘crime scene photographs’ of child sexualabuse and exploitation, but is also a possible tool for futurecriminal abuse and exploitation of other children. It isconsidered ‘illegal’ in many countries, so there is noneed to single it out in a special way because it is found on theInternet. The police should make no distinction whether theoffence is committed in Oxford Street or on the Internet.Hotlines and monitoring of Internet content should however beencouraged, and police forces should take action if a contentprovider refuses to remove the illegal materials. Existing UKlegislation is capable of fighting child pornography on theInternet and elsewhere, but many of the paedophiles act ininternational rings, and the targeted group should be thedistributors rather than the possessors of child pornography (insome countries possession of child pornography is not an offence(68))and tougher sentences for the production of child pornography maybe needed. Although the UK police succeeded with ‘OperationStarburst’ in identifying an international paedophile ring,substantial collaboration at an international level is neededbetween various national police forces. All nations have animportant part to play in the fight against child pornography.This can be achieved, as suggested by the European Commission,initially at the EU level.
There are no borders on the Internet, and actions byindividual governments and international organisations can have aprofound effect on the rights of the citizens around the world.The full potential for the development of the Internet depends onglobal society striking the right balance between freedom ofspeech and public interest considerations; between policiesdesigned to foster the emergence of new services, and the need toensure that the opportunities they create are not abused.