Echo Issue Outline: copyright Echo Education Services
First published in The Echo news digest and newspaper sources index.
Should sexually explicit material on the Net be legally prohibited?
Issue outline by J M McInerney
The first eight months of 1996 have seen a range of attempts made across the world to limit access to sexually explicit material on the Internet.
In February, the United States passed the Communications Decency Act making it an offence to supply `offensive material' over the Internet to those under 18.
Also at the start of 1996 the Victorian government legislated to criminalise on-line transmission of obscene material to minors. The New South Wales government outlined similar draft legislation in April.
However, these moves have met with significant opposition from Internet users, Internet service providers and other Net lobby groups.
Perhaps more significant challenges have come on the legal and political fronts.
In the United States, two district courts have now declared the Communications Decency Act unconstitutional.
In Australia the Federal Government has called on the Australian Broadcasting Authority to develop a classification system for Internet material as part of a self-regulatory regime for Internet service providers and those who develop material for the Net. (This approach is at odds with the criminal sanctions strategy to be used in Victoria and New South Wales.)
Background
There are three basic approaches to the regulation of the Internet.
The first is simply to have no regulation at all. The second is to legally prohibit the carrying of `offensive' materials, to make it an offence to do so and to impose fines or prison terms upon those found guilty of doing so. The third is to have a self-regulatory system, where Internet service providers are responsible for the material they allow to be stored on or pass through their servers.
(The Australian Broadcasting Tribunal is proposing a Government supported self-regulating system, where service providers are made aware, through classifications, of the type of material being presented to them.)
The Federal Government of the United States is currently attempting to use criminal sanctions and legal prohibitions to control the Net. On February 8, 1996, the President of the United States, Mr Bill Clinton, signed into law the Communications Decency Act which sought to prohibit indecent material on the Internet and other computer networks.
The aim of the Act was to protect minors. The Act makes it an offence to use Internet computer services to display `patently offensive' sexually explicit material, available to people under 18.
Criminal penalties of fines and possible imprisonment could be faced by service providers and others who transmit prohibited material.
However, in June, 1996, a US court in Philadelphia ruled the Communications Decency Act unconstitutional on the grounds that it denied adults the freedom of speech guaranteed them under the First Amendment.
In August, 1996, a US federal court in New York also ruled the Communications Decency Act unconstitutional on the same grounds.
The United States Justice Department has said it will appeal against the Philadelphia ruling to the Supreme Court. As of August 6, 1997, the Justice Department had made no comment on the New York ruling.
In the interim, the US Government has voluntarily suspended enforcement of the Communications Decency Act. The Act is being suspended until the Supreme Court makes a determination on it.
In England, in July, 1996, the first criminal conviction for the distribution of child pornography on the Internet was brought down. It appears that no new legislation was required and that the initial charges were made under the Protection of Children Act and the Obscene Publications Act.
The legislation proposed for New South Wales is probably the most rigorous and sanctioning in Australia to date.
Under the New south Wales legislation as originally outlined, material that would be prohibited from the Internet would include
* Material refused classification (RC);
* Material unsuitable for minors of any age, such as films classified X or R;
* Explicit sexual material;
* Material unsuitable for minors under 15, that is classified as MA.
Under the penalties proposed individuals could be fined $10,000 or jailed for up to one year and corporations face a maximum fine of $25,000.
On July 5, 1996, the Australian Broadcasting Authority publicly released the report based on its year-long investigation into the content of on-line services.
The report recommends a self-regulatory approach for Internet service providers and would have the Australian Broadcasting Authority take on a watchdog role to monitor the Internet.
The report recommends the establishment of an industry code of conduct which would have material supplied to the Internet screened and classified first.
People or companies lacing content on the Internet would risk their material being excluded for selection unless they submitted it for classification.
Under the code, access providers would be required to make available software blocking devices, similar to the proposed V-chip, which would, when installed, allow access only to material with certain classifications. This is intended to stop children gaining access to unsuitable material.
The Australian Federal Government is considering asking the Victorian and other state governments not to go ahead with criminal sanctions against the transmission of obscene material on the Internet, in favour of the self-regulatory approach recommended by the Australian Broadcasting Authority.
Arguments in favour of legally prohibiting sexually explicit material on the Internet
There are three major arguments offered in support of governments legally prohibiting the transmission of sexually explicit material on the Internet.
The first of these arguments centres around concern for children. Most of those who wish to have the Internet censored are not so much concerned to protect adults as they are to protect minors - those under the age of 18, from being exposed to what they believe may be damaging material.
The Australian representative of the Religious Alliance Against Pornography, Mr Alan Wakeley, has put this case in the following way, `Violent and destructive depictions, some far worse than [those] presented on television or film, may now be accessed without apparent difficulty [by children].
`Sexualisation of a pre-adolescent child can occur in front of a computer screen, behind a closed bedroom door, without the physical intrusion of a sexual predator.'
According to this line of argument, children can be frightened or have their value-systems damaged by sexually explicit material presented on the Internet.
Those whom argue for legal sanctions to prevent this claim that at the moment the risk to children is particularly great because this material can be accessed through the Internet with such ease.
Mr Gerard van Hees, in a letter published in The Australian on April 10, has noted `Material available from outlets other than the Internet requires a conscious decision, spending of money and permission from an adult. None of these constraints is in place once access to the Internet is available.'
According to this line of argument, children are particularly vulnerable to sexually explicit material presented on the Net because they can access it without having to leave the house, without having to seek parental permission and without any immediate cost to themselves.
It is suggested that such material may be accessed either deliberately or accidentally, but that either way the consequences for the child could be damaging.
The next major argument offered is that the responsibility for protecting children from sexually explicit material cannot be left solely with parents.
Alan Wakeley has noted the argument presented by numerous Net lobbyists that centralised regulation of the Net is impossible and that therefore concerned parents need to control their children's access to the Net,`Now, for the very first time, there are attempts by some in the on-line industry to place the onus on parents to control access to undesirable material ...'
Critics of this view maintain that it is no more appropriate to make parents solely responsible for their children's access to the Internet then it is to expect Government regulation to completely control the problem.
Those who argue that Government sanctions have a role to play, note that in all others areas of human mass communication there are laws attempting to control what type of material may be transmitted or reproduced.
This position has been put by Alan Wakeley, who has argued that attempts to make parents solely responsible for the children's use of the Net is `a view that authorities must firmly resist. These people are promoting as acceptable an anarchic regime for the Internet that leaves parents without any form of government-sponsored defence and that is totally out of step with the regimes applying to other broadcast media.'
The third argument put is that it is not reasonable to argue that the Net is some sort of special case which it is either impossible to regulate by law or which should not be regulated in this manner.
The Australian, in its editorial of June 20, argued,
`... the mere novelty of the Net and the tricky business of enforcement are, in themselves, not good reasons for resisting reasonable regulation. The community will expect governments to help make sure children are shielded from material of a sexual or violent nature.'
Those who hold the view that Governments can and should play a part in regulating the Internet acknowledge that `... there is nothing Australian laws can do to prevent objectionable material being made available on the Net in, say, North America. But they can and should regulate what is available through the Internet service providers.'
According to this line of argument, it may not be possible to control what material is produced overseas or perhaps even within Australia. However, those who hold this view maintain that it is possible to regulate what service providers allow to be stored on their servers.
It is claimed that service providers are already regulating what is held on their servers and that this is the reason that pornographic material is estimated to occupy only some 5 per cent of the net.
The Australian's editorial of June 20, has argued, `The providers are conduits for a tremendous volume of material. They cannot exercise the control a conventional publisher can. Already, however, the providers have engaged in de facto self-regulation and there are developments in technology suggesting they could soon have greater power to monitor material. It is in their interests to co-operate with governments so that regulation presents the minimum restriction to the global conversation that is the Net.'
Alan Wakeley, Australian representative of the Religious Alliance Against pornography, has also claimed that Internet service providers can monitor and restrict what comes through their servers.
Mr Wakeley has stated, `The "behind-the-scenes" reality ... is that many Australian Internet service providers have been quietly restricting access to the very worst news groups and World Wide Web pages.'
Those who would have Government place legal restrictions on what can be accessed through the Net claim that self-regulation has only occurred because service providers have feared that governments would take action if large amounts of highly offensive material were available to be accessed on the Net.
According to this line of argument, if Australian governments indicate that they will play no role in regulating what is available on the Net, then self-regulation by the service providers will largely stop.
Arguments against legally prohibiting sexually explicit material on the Internet
There are three major arguments offered against legal attempts to restrict what is made available on the Internet.
The first argument is that the extent of pornographic or sexually explicit material on the Internet has been significantly exaggerated.
A spokesperson for Electronic Frontiers Australia, Mr Greg Taylor has claimed, `First we believe ... new legislation is unnecessary because there are already laws in existence that cover the subject and have been used to charge and prosecute people for supplying and receiving objectionable material on the Internet.'
The `bad content' on the Internet is claimed to be largely invisible to the average user. Greg Taylor has stated that anyone wanting to find the so-called offensive material has to really look hard. `This material makes up a tiny percentage of the total and gets far too much attention - particularly from the media, I'm afraid.'
Critics of attempts to censor the Net note that a common guesstimate as to the amount of Net space occupied by sexually explicit material is some 5 per cent.
The second major argument offered against attempts to censor the Net is that it is impossible to control what is available on the Internet.
The Australian in its editorial of June 20 claimed that those who want to hold Internet service providers responsible for what is stored on their servers `are talking about something that is not technically feasible - they want Internet Service providers (ISP) to be made responsible for the information that may be accessed by minors. It's ridiculous. The ISP is, after all, just a conduit.'
A similar point is made by Age columnist, Jon Casimir, who has pointed out that our previous modes of intercepting prohibited material coming into Australia and of prosecuting those responsible, no longer apply. Referring to Internet material, Jon Casimir has noted,
`Nobody shipped that material to Australia. Nobody smuggled it in. Nobody that the government has jurisdiction over is printing or circulating it in any physical form.
`Regardless of how we may feel about any of these books or on-line "resources", the ease of access to such material, banned or not, is evidence of a crumbling of those safe and secure borders ... '
According to this line of argument, it is impossible to effectively limit or restrict material which can be accessed electronically from countries over which Australia has no jurisdiction or legal authority.
The third argument offered against attempts to legally censor the Net and penalise offenders is that this is likely to represent an infringement of individuals' rights.
For example, it is claimed that most attempts by governments to limit legally what is made available to children on the Net will unreasonably restrict what adults can access.
The three-judge court in Philadelphia, which ruled against the Communications Decency Act, claimed there was no way to identify who was using the Internet, and no way to screen out only minors, so the law inevitably would cut off adults' access to programs that the American Constitution allows them to see and use.
(The United States District Court in Philadelphia decided that is was impossible to introduce a system which would validate the age of Internet users. They judged that any such system would be too easy to circumvent, too expensive to implement and too restricting for Net users.)
Those who oppose censorship generally, and censorship on the Net in particular, argue that the principal of freedom of expression is worth some sacrifices.
Terry Lane, a columnist for The Age, has noted, `We libertarians know that, as a matter of fact, many things will be said or shown in cyberspace that will offend, disgust or disquiet us.
Nevertheless, we still value freedom, even though it brings with it onerous obligations to grow a society that is wise enough to handle the heady and dangerous consequences of liberty.'
Similarly, part of the proposed legislation for New South Wales requires that Internet service providers make random checks of user activity. It has been argued that to do so violates the privacy of Net users.
Greg Taylor has noted, `The ... major concern is that the draft [legislation] suggests that the [Internet service providers] ISPs should be required to do random monitoring of user activity; it's the equivalent of asking Telstra to randomly monitor telephone conversations, which is a grave offence under the relevant legislation.'
Finally, the judges of the Philadelphia district court argued that a law which prohibited `indecency' was so vague as to put most Internet service providers in peril. `A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.'
A related problem with defining what should be banned or censored has been noted with the New South Wales legislation. Under this proposed legislation a number of popular, award-winning films, such as Dead man walking, would be prohibited.
Further implications
It now seems unlikely that New South Wales will go ahead with its sanction-driven legislation which would make it a crime to supply prohibited material. Victoria has also expressed a willingness to work in with the system that has been proposed by the Australian Broadcasting Authority.
The Australian Broadcasting Authority's recommendation that material stored with service providers be classified is an interesting one. It would be of obvious help to parents attempting to responsibly limit what their children accessed on the Net.
The recommendation is coupled with one that service providers supply customers with a blocking device. (This would be similar to the V-chip which prevents the televising of violent material on television sets fitted with the chip. For the V-chip to be effective the material being blocked needs to have been classified so that it can be blocked out, or not, according to its identification code.)
A similar procedure is proposed for material carried on the Net. Numbers of such devices or blocking programs are currently commercially available.
The Australian Broadcasting Authority has suggested itself as a screening body which would classify material. Unclassified material could not be accepted by a service provider.
Though this proposal appears attractive, it would seem to require an enormous number of Net censors to vet materials prior to their being accepted by a service provider.
It will be interesting to note whether the Australian Federal Government is prepared to approve the sort of spending that would be necessary to employ censors in large numbers.
Even if the funding were made available to employ additional censors, the amount of material that would have to be scrutinised might still make the task impossible.
Further, the Australian Broadcasting Commission has indicated that it would not attempt to classify or monitor e-mail or private correspondence on the Net.
It is not clear whether this is a practical decision, made because to do so would be impossible, or whether it is a decision of principle, based on respect for individual privacy.
Whatever the reason for it, it is a significant decision as much of the more offensive material carried on the Net is claimed to be transmitted via e-mail.
Jon Casimir has argued,` We must come to terms with the basic truth that the point at which information can be blocked is more likely to be reception than transmission. The responsibility of governing what we see is going to move more and more from the state to us.'
If this is so, there will be increasing calls on schools to teach students how to use the Net with discrimination and there is also going to be additional responsibility placed on adults to attempt to ensure that the children in their charge are guided through the Net.
Sources
The Age
14/5/96 page 15 comment by Alan Wakeley, `The new stranger danger on the Net'
11/6/96 page C5 news item, `Prison terms for child pornographers on Net'
11/6/96 page C11 analysis by Mary Riekert, `Porn busters get serious'
14/6/96 page 14 news item by Lyle Denniston, `US court protects speech on Internet'
16/6/96 page 22 comment by Terry Lane, `The Net worth on indecent exposure'
18/6/96 page C4 comment by Jon Casimir, `High tech catches Censor in the Net'
18/6/96 page C1 news item by Mark Lawrence, `Censorship fight hots up'
18/6/96 page C4 4/7/96 page 10 news item, `Internet a sex-tour guide for perverts, says academic'
6/7/96 page 1 news item by Mike van Niekerk and Clare Kermond, `No censoring on the Net'
9/7/96 page D1 news item by Mike van Niekerk and Sue Lowe, `Public to vet Net code'
9/7/96 page D9 news item by Louise McElvogue, `Sex gets a reprieve on the Net'
The Australian
3/4/96 page 3 news item by Stephen Lunn, `Legislators to crack down on Internet pornography'
4/4/96 page 3 news item by Rob Corben, `Internet defies child porn fight'
4/4/96 page 11 comment by McKenzie Wark, `No place for cyber-censorship in a free society'
10/4/96 page 8 four letters to the editor under the heading, `Pros and cans of laws against cyber-porn'
13/4/96 page 2 news item by Carolyn Jones, `School Internet porn fears dispelled'
20/6/96 page 12 editorial, `Watching over the Internet'
2/7/96 page 35 news item, `Appeal against sex on Net law'
6/7/96 page 3 news item by Deborah Brewster, `ABA aims to censor Internet violence'
6/8/96 page 45 news item by Seena Smon, `Another US court rules in favour of Internet porn'
The Herald Sun
13/5/96 page 18 editorial, `Policing the Net'
It's wrong to hand out pornography on a street corner and it's wrong to do it in cyberspace
US Senator James Exon
We libertarians know ... many things will be said or shown in cyberspace that will offend, disgust or disquiet us. Nevertheless, we still value freedom, even though it brings with it onerous obligations to grow a society that is wise enough to handle the heady and dangerous consequences of liberty
Terry Lane, a columnist for The Age