Legal status of Internet pornography
Encyclopedia
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. Only the laws of one's home nation apply with regard to distributing or possessing 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.
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 preventing access to porn sites has been used in some nations 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 do not restrict access to any pornographic content until a membership has been purchased using a credit card, as most have explicit 'free trial' content as a major part of their sales strategy. 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 as strict record-keeping laws.
organization The National Center for Missing and Exploited Children
(NCMEC) and other international sources, child pornography is a multi-billion dollar industry and among the fastest growing criminal segments on the Internet
.
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
. Even so, the UK based NSPCC
said that worldwide an estimated 2% of websites still had not been removed a year after being identified. 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.
The legal status of simulated or "virtual" child pornography varies around the world; for example, it is legal in the United States
, it is illegal in the European Union
, and in Australia
its legal status is unclear and so far untested in the courts. Child pornography may be simulated by the use of computers or adults made to look like children.
In 2008, it was discovered that the United States 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. In 2008, a man in Middlesbrough, UK, was found guilty of downloading "child pornography" when he downloaded computer generated cartoons.
The legality of pornography at the federal level 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). 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. On March 22, 2007, COPA was found to violate the First and Fifth
Amendments of the United States Constitution and was struck down.
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..
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 right-wing 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.
On Oct. 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. 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.
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.
through any channel was prohibited until the rules were relaxed in 2002, however the rules are still quite strict http://www.melonfarmers.co.uk/faqvideo.htm. 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. Critics of the law point out that the law will criminalise images of legal acts between consenting adults and have criticised the lack of evidence of a link between viewing such material, and violent crime. The perils behind the law are debated in the 2010 documentary Hanging Perverts.
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 the police. The web filter Cleanfeed
is used by the largest ISP BT Group
to block sites on the IWF's list which includes sites that are "criminally obscene
" as well as child pornography.. The government ordered all ISPs to have a cleanfeed system by the end of 2007.
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 ACMA infringement notice through exceptions.
Under an internet filter, proposed by Sen. 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 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 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.
tightened sharply in 2008 with the passing of the Bill against Pornography and Pornoaction
. Law books of Indonesia KUHP (Kitab Undang-Undang Hukum Perdata) 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.
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.
authorities of the Gaza Strip
began blocking Internet porn sites in late May 2008.
, a government-run agency in Singapore
, blocks
a "symbolic" number of websites containing "mass impact objectionable" material, including Playboy
, YouPorn
, and Sex.com
. In addition, the Ministry of Education, Singapore blocks access to pornographic websites.
Internet pornography
Internet pornography is pornography that is distributed by means of various sectors of the Internet, primarily via websites, peer-to-peer file sharing, or Usenet newsgroups...
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. Only the laws of one's home nation apply with regard to distributing or possessing Internet pornography. This means that, for example, even if a pornographer is legally distributing pornography
Pornography
Pornography or porn is the explicit portrayal of sexual subject matter for the purposes of sexual arousal and erotic satisfaction.Pornography may use any of a variety of media, ranging from books, magazines, postcards, photos, sculpture, drawing, painting, animation, sound recording, film, video,...
, the person receiving it may not be legally doing so due to local laws.
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 bestiality, 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 preventing access to porn sites has been used in some nations such as China
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
and Saudi Arabia
Saudi Arabia
The Kingdom of Saudi Arabia , commonly known in British English as Saudi Arabia and in Arabic as as-Sa‘ūdiyyah , is the largest state in Western Asia by land area, constituting the bulk of the Arabian Peninsula, and the second-largest in the Arab World...
. 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 do not restrict access to any pornographic content until a membership has been purchased using a credit card, as most have explicit 'free trial' content as a major part of their sales strategy. 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 as strict record-keeping laws.
Child pornography and the Internet
According to the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
organization The National Center for Missing and Exploited Children
National Center for Missing and Exploited Children
The National Center for Missing and Exploited Children is a private, non-profit organization established in 1984 by the United States Congress.-Establishment and overview:...
(NCMEC) and other international sources, child pornography is a multi-billion dollar industry and among the fastest growing criminal segments on the Internet
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
.
Child pornography is illegal in most countries with coordinated enforcement by Interpol
Interpol
Interpol, whose full name is the International Criminal Police Organization – INTERPOL, is an organization facilitating international police cooperation...
and policing institutions of various governments, including among others the United States Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
. Even so, the UK based NSPCC
NSPCC
The National Society for the Prevention of Cruelty to Children is a United Kingdom charity campaigning and working in child protection.-History:...
said that worldwide an estimated 2% of websites still had not been removed a year after being identified. 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
Operation Amethyst
Operation Amethyst was a Garda Síochána operation targeting child pornography in the Republic of Ireland. Involving simultaneous searches on May 25, 2002 of over a hundred individuals suspected of downloading child pornography, it was one of the largest police operations in Ireland's...
which occurred in the Republic of Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
; Operation Auxin
Operation Auxin
Operation Auxin was an Australian police operation in September 2004, leading to the arrest of almost 200 people on charges of child pornography...
; Operation Avalanche
Operation Avalanche (child pornography crackdown)
Operation Avalanche was a major US investigation of child pornography on the Internet launched in 1999 after the arrest and conviction of Thomas and Janice Reedy, who operated an Internet pornography business called Landslide Productions in Fort Worth, Texas It was made public in early August 2001...
; Operation Ore
Operation Ore
Operation Ore was a British police operation that commenced in 1999 following information received from US law enforcement, which was intended to prosecute thousands of users of a website reportedly featuring child pornography...
based in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
; Operation Pin
Operation Pin
Operation Pin is an initiative of the Virtual Global Taskforce, which consists of UK's National Crime Squad, the FBI, Interpol, the Royal Canadian Mounted Police and the Australian Hi-Tech Crime Centre / Australian Federal Police . Its stated aim is to identify pedophiles and other people who are...
; Operation Predator
Operation Predator
Operation Predator is an initiative started on July 9, 2003 by U.S. Immigration and Customs Enforcement , a division of the Department of Homeland Security, to protect children from sexual predators....
; the 2004 Ukrainian child pornography raids
2004 Ukrainian child pornography raids
The 2004 Ukrainian child pornography raids occurred in July 2004, when police in Ukraine raided a softcore child pornography ring operating in the cities of Kiev, Kharkiv and Simferopol. The ring had operated since 2001, and used a modeling agency as a front. Approximately 1,500 girls aged from...
and the 2008 US child pornography raid
2008 US child pornography raid
The 2008 child pornography raid occurred in February 2008, when authorities around the globe raided the homes of suspects in possession of child pornography in the U.S. states of Virginia, Florida, Oregon, Indiana, Texas, Connecticut, Washington, California, Idaho and North Carolina, as well as in...
. 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.
The legal status of simulated or "virtual" child pornography varies around the world; for example, it is legal in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, it is illegal in the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
, and in Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
its legal status is unclear and so far untested in the courts. Child pornography may be simulated by the use of computers or adults made to look like children.
In 2008, it was discovered that the United States 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. In 2008, a man in Middlesbrough, UK, was found guilty of downloading "child pornography" when he downloaded computer generated cartoons.
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 the Miller test
Miller test
The Miller test , is the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited.-History and details:The Miller test was developed in the...
, 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
Communications Decency Act
The Communications Decency Act of 1996 was the first notable attempt by the United States Congress to regulate pornographic material on the Internet. In 1997, in the landmark cyberlaw case of Reno v. ACLU, the United States Supreme Court struck the anti-indecency provisions of the Act.The Act was...
of 1996, which prohibited the "knowing" transmission of "indecent" messages to minors and the publication of materials which depict, in a manner "patently offensive
Patently offensive
Patently offensive is a term used in United States law regarding obscenity and the First Amendment.The phrase "patently offensive" first appeared in Roth v. United States, referring to any obscene acts or materials that are considered to be openly, plainly, or clearly visible as offensive to the...
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
Credit card
A credit card is a small plastic card issued to users as a system of payment. It allows its holder to buy goods and services based on the holder's promise to pay for these goods and services...
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
Reno v. American Civil Liberties Union
Reno v. American Civil Liberties Union, , is a United States Supreme Court case, in which all nine Justices of the Court voted to strike down anti-indecency provisions of the Communications Decency Act , finding they violated the freedom of speech provisions of the First Amendment. Two Justices...
(1997). The "indecent transmission" and "patently offensive display" provisions were ruled to limit the freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
guarantee of the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
.
A second attempt was made with the narrower Child Online Protection Act
Child Online Protection Act
The Child Online Protection Act was a law in the United States of America, passed in 1998 with the declared purpose of restricting access by minors to any material defined as harmful to such minors on the Internet...
(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
Nudity
Nudity is the state of wearing no clothing. The wearing of clothing is exclusively a human characteristic. The amount of clothing worn depends on functional considerations and social considerations...
(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
United States court of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...
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. On March 22, 2007, COPA was found to violate the First and Fifth
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
Amendments of the United States Constitution and was struck down.
Another act intended to protect children from access to Internet pornography is the Children's Internet Protection Act
Children's Internet Protection Act
The Children's Internet Protection Act requires that K-12 schools and libraries in the United States use Internet filters and implement other measures to protect children from harmful online content as a condition for the receipt of certain federal funding...
(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
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
and child pornography
Child pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
, 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
American Library Association
The American Library Association is a non-profit organization based in the United States that promotes libraries and library education internationally. It is the oldest and largest library association in the world, with more than 62,000 members....
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..
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
United States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
. The 18 U.S.C. 2257 disclaimer is common on Internet sites distributing pornography, but the Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
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 right-wing 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.
On Oct. 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
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
and issued an opinion on February 20, 2009, upholding the constitutionality of the record-keeping requirements, albeit with some dissents. 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.
In February 2001, Buffnet, a New York Internet Service Provider
Internet service provider
An Internet service provider is a company that provides access to the Internet. Access ISPs directly connect customers to the Internet using copper wires, wireless or fiber-optic connections. Hosting ISPs lease server space for smaller businesses and host other people servers...
, 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.
United Kingdom
The sale or distribution of hardcore pornographyHardcore pornography
Hardcore pornography is a form of pornography that features explicit sexual acts. The term was coined in the second half of the 20th century to distinguish it from softcore pornography. It usually takes the form of photographs, often displayed in magazines or on the Internet, or films. It can also...
through any channel was prohibited until the rules were relaxed in 2002, however the rules are still quite strict http://www.melonfarmers.co.uk/faqvideo.htm. 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
Child pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
.
Adult pornography that falls under the Government's classification of "extreme pornography
Extreme pornography
Section 63 of the Criminal Justice and Immigration Act 2008 is a piece of legislation in the United Kingdom that criminalises possession of what it refers to as "extreme pornographic images". The law was enacted from 26 January 2009...
" 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. Critics of the law point out that the law will criminalise images of legal acts between consenting adults and have criticised the lack of evidence of a link between viewing such material, and violent crime. The perils behind the law are debated in the 2010 documentary Hanging Perverts.
Internet service providers started the Internet Watch Foundation
Internet Watch Foundation
The Internet Watch Foundation is a non-governmental charitable body based in the United Kingdom. It states that its remit is "to minimise the availability of 'potentially criminal' Internet content, specifically images of child sexual abuse hosted anywhere, and criminally obscene adult content in...
in 1996 to watch for pornographic content that is in violation of British law and report it to the police. The web filter Cleanfeed
Cleanfeed (content blocking system)
Cleanfeed is the name given to privately administered ISP level content filtering systems operating in the United Kingdom and Canada. It is also the name of a proposed mandatory Australian ISP level content filtering system which is undergoing testing...
is used by the largest ISP BT Group
BT Group
BT Group plc is a global telecommunications services company headquartered in London, United Kingdom. It is one of the largest telecommunications services companies in the world and has operations in more than 170 countries. Through its BT Global Services division it is a major supplier of...
to block sites on the IWF's list which includes sites that are "criminally obscene
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
" as well as child pornography.. The government ordered all ISPs to have a cleanfeed system by the end of 2007.
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 ACMA infringement notice through exceptions.
Under an internet filter, proposed by Sen. 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 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 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.
Indonesia
The legal situation in IndonesiaIndonesia
Indonesia , officially the Republic of Indonesia , is a country in Southeast Asia and Oceania. Indonesia is an archipelago comprising approximately 13,000 islands. It has 33 provinces with over 238 million people, and is the world's fourth most populous country. Indonesia is a republic, with an...
tightened sharply in 2008 with the passing of the Bill against Pornography and Pornoaction
Bill against Pornography and Pornoaction
The Bill against Pornography and Porno-Action was a bill proposed by the Indonesian legislative assembly, Dewan Perwakilan Rakyat on February 14, 2006....
. Law books of Indonesia KUHP (Kitab Undang-Undang Hukum Perdata) 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
Edison Chen photo scandal
The Edison Chen photo scandal involved the illegal distribution over the Internet of intimate and private photographs of Hong Kong actor Edison Chen with various women, including actresses Gillian Chung, Bobo Chan, Rachel Ngan and Cecilia Cheung. The scandal shook the Hong Kong entertainment...
):
- On January 27, 2008, The Hong KongHong KongHong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...
Police Force arrested suspects who were accused of uploading pornographic images after a multi-billion entertainment company filed a complaint about these photos available on the internet having been fabricated and might charge the offender for defamation.
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.
Gaza Strip
HamasHamas
Hamas is the Palestinian Sunni Islamic or Islamist political party that governs the Gaza Strip. Hamas also has a military wing, the Izz ad-Din al-Qassam Brigades...
authorities of the Gaza Strip
Gaza Strip
thumb|Gaza city skylineThe Gaza Strip lies on the Eastern coast of the Mediterranean Sea. The Strip borders Egypt on the southwest and Israel on the south, east and north. It is about long, and between 6 and 12 kilometres wide, with a total area of...
began blocking Internet porn sites in late May 2008.
Singapore
The Media Development AuthorityMedia Development Authority
The Media Development Authority is a statutory board of the Singapore Government, under the Ministry of Information, Communications and the Arts .-History:...
, a government-run agency in Singapore
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
, blocks
Internet censorship in Singapore
In Singapore, Internet services provided by the three major Internet service providers are subject to regulation by the Media Development Authority to block a "symbolic" number of websites containing "mass impact objectionable" material, including Playboy and YouPorn...
a "symbolic" number of websites containing "mass impact objectionable" material, including Playboy
Playboy
Playboy is an American men's magazine that features photographs of nude women as well as journalism and fiction. It was founded in Chicago in 1953 by Hugh Hefner and his associates, and funded in part by a $1,000 loan from Hefner's mother. The magazine has grown into Playboy Enterprises, Inc., with...
, YouPorn
YouPorn
YouPorn is a free pornographic video sharing website. Since starting in August 2006, it has become the most popular pornographic website. In November 2007, it was reported to be the largest free pornographic website on the Internet...
, and Sex.com
Sex.com
Sex.com is an Internet domain name and web portal currently owned by Clover Holdings LTD. The domain name was the focus of one of the most publicized legal actions about ownership of domain names...
. In addition, the Ministry of Education, Singapore blocks access to pornographic websites.