Critically examine the development of on-line pornographic material and its legal regulation

Running parallel to the censorship debate are the arguments surrounding how the internet should be regulated. There are already a number of legal and non-legal provisions in place.  One of which is the Obscene Publications Act 1959 & 1964. This act provides:

It is a criminal offence to publish an obscene article…that has been viewed as having the tendency to deprave or corrupt those likely to encounter it. 

The Act is not without fault. One of which being the ambiguity surrounding the definition of section 1:

An article shall be deemed obscene if its effect….if taken as a whole…such as to deprave and corrupt persons… 

To ensure a successful prosecution the meaning of ‘article’ has to be ascertained. This can be overcome by examination of section 1 (2):

Matter to be read or looked at…any sound record… any other film or other record of a picture or pictures.11

Which is now successful in including internet material.

 Definition is also a problem with another of the leading authorities; The Protection of Children Act 1978.

R V Fellows best illustrates this. Fellows stored indecent images of children on his computer, printed copies and made them available on the internet. In his defence Fellows argued that computer data did not comprise a photograph for the purpose of the 1978 Act. He alleged that when the legislation was enacted parliament could not have envisaged data stored on a computer. This is an example of technology progressing at a faster pace than the law. The court of Appeal proved that the law could be sufficiently applied professing that images held in digital form were copies of a photograph for the purposes of the Act. The authority in this case was the Attorney General’s Reference 1980 where it was held that a video cassette was an article for the purpose of section 1 of the Obscene Publications Act. This is significant as it illustrates the flexibility within the two pieces of legislation and their ability to be applied effectively alongside the advancement of technology.

The phrase ‘to deprave and corrupt’ also caused controversy. In defence it can be claimed that those viewing pornographic material are already depraved and corrupted. Such was the case in DPP v Whyte [1972.]  The respondent owned a bookshop containing items of pornography. The customers were predominantly seedy, middle aged men so it was argued that they were already depraved and corrupted. It was held by the House of Lords that a person could be re-depraved and re-corrupted. This is difficult to relate to the internet. Although the characters described in the above case are most likely to be the target audience for internet pornographers it is easy for a child to stumble across the material on the internet. This is due to the number of innocuous domain names, such as . 

A number of defences have arisen due to the Obscene Publications Act. One of which is the Aversion defence, where the material can be deemed so horrific that individuals are more likely to be repelled by it. However I believe a visit to such a website would have a considerable impact on a vulnerable individual. A positive response to this defence was heard in R V Anderson [1972] where the trial judge undermined the defence:

The effect of obscene material on the healthy mind was not always truly assessed.

Contrarily it has to be noted:

There is no known correlation between pornography and sexual abuse

An alternative defence is the public good defence as outlined in section 4 (1) of the Obscene Publication Act

A person shall not be convicted…if ‘publication of the article is justified as being for the public good’

This was used in R v Calder & Boyars ltd [1969]. The company published a book, ‘Last Exit to Brooklyn’ and upon prosecution argued that it was of literary importance. In terms of internet pornography the above defence can be applied to rescue educational material, such as, information regarding Sexual health and contraception.

 According to section 2 of The Obscene Publications Act17 the question of obscenity is for a jury to decide. This should strengthen the Act’s standing as juries provide an adequate representation of the population, consisting of parents, teachers and reputable members of our communities. This is flawed however as the jury are not always properly informed of the provisions outlined in section 4. This was the case in R V Calder & Boyars [1969] :

He did not [the judge] give them any guidance at all, beyond telling them that if they were satisfied on the balance of probabilities that it was published for the public good.

So it needs to be ensured that the jury are properly aware of their duty so that this section can be considered a useful player in the fight against offensive material on the internet.

A number of modifications have been made to existing legislation so that they can survive in this new technological era. The Sexual Offences Act 2003 Section 15 now makes it an offence to ‘groom’ a child on the internet, and the Criminal Justice Act 1988 now makes possession of an indecent computer graphic an offence.  

There are also a number of non legal sources that aid in the regulation of the internet. Filtering software aims to block users from obtaining access to harmful websites. One of the most sophisticated is the Platform for Internet Content Selection. This is effective in regulating pornographic material as it enables users to censor any unwanted material. However such software tends to block educational material that would be otherwise considered useful. This type of regulation is very subjective as the user personally sets up a filter to their specification and each individual has different view regarding obscenity. Neither is this method is suitable in a university or library environment where such a diverse community is catered for.

Another solution comes from the Internet Watch Foundation. A hotline is used to report websites containing obscene material. Although this is a step forward there are worries that its progress will be hindered by the differing of individual tastes. This means that it is likely that legal but obscene material will be targeted and removed. This has a negative effect upon the internet and society as a whole. It strips the adult population of their freedom to choose:

Their [the IWF] possible future involvement with other kinds of content, offensive but totally legal, may set up a dangerous unprecedented act of privatised censorship.

It has also been argued that it is the responsibility of the parent to shield their children from harmful material on the internet. This is not as clear cut as it seems; computers are not always based in the lounge but in bedrooms so constant monitoring is impossible. However I do believe parents are better equipped to personally regulate the internet as each parent has his/her own moral standards that cannot be represented by a pre-set computer package.

These moral standards also differ across boarders so it is important to assess the situation on a global scale.

The steps necessary in a democratic society for the protection of morals will depend on the type of morality to which a country is committed.

It is also useful to consider that most illegal content on the internet does not derive from the UK:

From a reported 1000 illegal items, only 75 originated in the UK 

National legislation will therefore be ineffective as the problem will still exist on a global scale. All nations need to participate in the fight against the availability of pornographic material.

However different countries approach the situation with differing perspectives. Censorship is particularly difficult in the US due to their first amendment right to freedom of speech. The American Civil Liberties Union has fought for the internet regulation and seemed to have won with the introduction of the Communications Decency Act 1996. That is until the case of Reno v ACLU  where the Supreme Court held that the Act was unconstitutional. Justice Stevens commented:

Any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox

This is an example of the law struggling to accommodate the internet due to the lack of positive precedent. Justice Stevens recognises technology’s role in the amounting collection of pornographic material but refuses to defy the constitution. Until American judges are willing to challenge their constitution and issue a controversial judgement the law will remain unchanged and unsatisfactory.

I believe the problem requires global action which can only be achieved by strong national regulations in the individual countries. However the question of where to draw the line regarding censorship will always be posed. The constant tug between freedom of expression and the regulation of pornographic material will always be in existence and it remains to be seen whether or not a happy medium can be attained.

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