JILT 1997 (1) - Yaman Akdeniz (1)
The Regulation of Pornography and Child Pornography on the Internet Yaman Akdeniz * Contents1. Introduction 2. The Availability of Pornographic Content on the Internet 3. Overview of the UK Pornography Laws
5. The Governance of the Internet
6. Foundation AbstractPornography has been the most controversial topic arising from the use of the Internet in recent years. Its availability on the Internet has caused fear and a 'moral panic' among the government, law enforcement bodies such as the police, prosecutors and judges together with the media in general. There is no settled definition of pornography in a multi-national environment such as the Internet and cultural, moral and legal variations all around the world make it difficult to define 'pornographic content' in a global society. This article will discuss two different issues within one context, the Internet: the regulation of harmful content such as pornography and regulation of illegal content such as child pornography. These issues are different in nature and should not be confused. Any regulatory action intended to protect a certain group of people, such as children, should not take the form of an unconditional prohibition of using the Internet to distribute certain content that is freely available to adults in other media. The production and distribution of child pornography is illegal in the UK and in many other countries. This also applies to the Internet. This article will discuss these issues and will examine the current initiatives to regulate the availability of illegal and harmful content on the Internet. The article will propose a multi-layered' solution for the regulation of pornographic content on the Internet. This may involve the on-line users, Internet Service Providers, codes of practice, self-regulatory bodies, technical solutions, the Government, and the European Union in the near future.
This is a Refereed Article published on 28 February 1997. Citation: Akdeniz Y 'The Regulation of Pornography and Child Pornography on the Internet', 1997 (1) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/internet/97_1akdz/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_1/akdeniz1/> 1 IntroductionPornography has been the most controversial topic arising from the use of the Internet in recent years. Its availability on the Internet has caused fear and a 'moral panic' among the government, law enforcement bodies such as the police, prosecutors and judges together with the media in general. There have been many attempts to limit the availability of 'pornographic content' on the Internet by governments and law enforcement bodies all around the world. While the US Government introduced the Communications Decency Act 1996, the UK police attempted to censor usenet discussion groups allegedly carrying child pornography in the summer of 1996. Both attempts were criticised and the US attempt is being challenged in the courts, with a final decision to be made in the Supreme Court in June 1997. There is no settled definition of pornography either in the United Kingdom itself or especially in a multi-national environment such as the Internet where cultural, moral and legal variations all around the world make it difficult to define 'pornographic content' in a global society. What is considered simply sexually explicit but not obscene in England may well be obscene in many other countries, conversely what is considered in Sweden as pornographic but lawful may well be obscene under the current UK legislation. What might be viewed as the special case of child pornography, which is generally considered illegal in many countries as well as in England, provides a special challenge for regulation on the Internet. This article will discuss two different issues: the regulation of potentially harmful content such as pornography on the Internet and regulation of invariably illegal content such as child pornography. These issues are different in nature and should not be confused. Any regulatory action intended to protect a certain group of people, such as children, should not take the form of an unconditional prohibition of using the Internet to distribute certain content that is freely available to adults in other media. The article examines the various attempts to regulate illegal and harmful content on the Internet and supports the view that a 'multi-layered' governance for the regulation of illegal and harmful content on the Internet would be a better approach. While explaining the 'governance' approach the article tries to identify the difficulties and the rationale behind the various levels such as legislation, self-regulation, and technical solutions. Before examining the United Kingdom legal situation surrounding the availability of 'pornographic content' on the Internet, this article explains how and in which ways these materials are available on the Internet. 2 The Availability of Pornographic Content on the InternetPornography on the Internet is available in different formats. These range from pictures and short animated movies, to sound files and stories. Most of this kind of pornographic content is available through World Wide Web ("WWW") pages. The Internet also makes it possible to discuss sex, see live sex acts (Myers, 1996), and arrange sexual activities [1] from computer screens. There are also sex related discussions on the Internet Relay Chat ("IRC") channels where users in small groups or in private channels exchange messages and files. Like the Usenet discussion groups a small fraction of the IRC channels are dedicated to sex. There are more than 14000 Usenet discussion groups all around the world but only around 200 groups are sex related, and some of these relate to serious and legitimate discussions, such as about homosexuality or sexual abuse. These WWW sites and newsgroups are accessible through the Internet by any on-line users. While Usenet discussion groups are free to access, most of the WWW sites with pornographic content require proof of age and payment by credit card to access their materials [2] 3 Overview of the UK Pornography LawsThis section concentrates mainly on those aspects of the UK laws relating to obscenity which have particular reference to the Internet. The UK obscenity legislation has recently been amended by the Criminal Justice and Public Order Act 1994 ('CJPOA 1994'). This was mainly because of the fear of child pornography and in particular to bring the UK laws up-to-date with technological changes [3] . The following headings will show, however, that there are difficulties with the application of existing laws and their enforcement with respect to the Internet. 3.1 Obscene Publications Act 1959 and 1964These two statutes constitute the major legislation to combat pornographic material of any kind in the UK. Section 1(1) of the 1959 Act provides the following test for obscenity:
This legal definition of obscene is narrower than the ordinary meaning of obscene which is filthy, lewd or disgusting (Smith JC ;1996, p 739 ), see also R v Anderson and others [1971] 3 All ER 1152). Under Section 2(1), Obscene Publications Act, it is an offence to publish an obscene article or to have an obscene article for publication for gain. Under section 1(3) of the 1959 Act, publishing includes:
As far as the computer disks are concerned there should not be any problems because they are 'articles' and so fit the description of publishing under section 1(3), OPA 1959. But most of the pornography on the Internet is transferred electronically from one computer to another using telephone lines and modems. This kind of transaction may not fit with section 1(3), OPA 1959, but schedule 9, paragraph 3, CJPOA 1994 amended the meaning of publication in section 1(3)(b), OPA 1959 by adding the words 'or, where the matter is data stored electronically, transmits that data'. Therefore, the electronic transmission of the pornographic material is now covered under the 1994 Act. When A sends B pornographic pictures attached to an e-mail, this electronic transmission will be a publication covered by the Act (See Akdeniz, 1996). Section 1(2), OPA 1964 Act makes it an offence to have an obscene article in ownership, possession or control with a view to publishing it for gain. This is again no longer a problem in terms of prosecuting obscene materials via the Internet after the government amended the meaning of 'publication' under the 1994 Act. It would even apply when A simply makes the data available to be transferred or downloaded electronically, by providing a password to B so that B can access the materials and copy them (See R v Arnolds; R v Fellows , (1996) The Times , 27 September). Jason Manger (unreported), author of the Internet Bible , was sentenced to one year imprisonment (suspended) and was ordered to pay £ 1000 costs, and to forfeit his computer equipment and pornographic material in Kingston Crown Court in March 1996. Manger was selling hardcore pornographic material to customers all around the world. He pleaded guilty to four charges of having an obscene article for publication for gain. Thomas, J stated that 'the material was as obscene as those who created it could think of'. 3.2 Section 43 of the Telecommunications Act 1984Section 43 of the 1984 Act makes it an offence to send 'by means of a public telecommunications system, a message or other matter that is grossly offensive or of an indecent, obscene or menacing character' and is an imprisonable offence with a maximum term of six months. In addition to dealing with indecent, obscene or offensive telephone calls, the Act also covers the transmission of obscene materials through the telephone systems by electronic means. For the purposes of the Act, a public telecommunication system is any telecommunications system designated by the Secretary of State and is not confined to British Telecom's telephone system. However, the offence is not committed where a telecommunication system located outside the jurisdiction is used to send obscene materials into UK. The Act itself does not penalise the act of procuring a message to be sent. The 1984 Act will also not apply to cases where the data is transmitted by using a local area network unless part of the transmission is routed through a public telecommunications system. According to Gibbons (1995, p 90), the use of leased lines, for example by universities, would also not be caught by the Act [4] . Therefore in some circumstances the Act may be no use for the prosecution of obscene materials transferred by using telecommunication systems. As examined above, the UK laws have been changed to take into account the storage and distribution of computer data. However, these changes created some difficulties with the application of the UK laws to the 'pornographic content' available on the usenet discussion groups, and UK police attempted to censor access to around 130 newsgroups in August 1996 (see below). 4 Child PornographyChild pornography, rather than other forms of pornographic content, has been the main concern and fear of legislators and parents since paedophiles started to use the Internet for circulating pornographic materials related to children [5] . Paedophilia may be a form of expression involving fantasies and imaginings which may be explicitly important to minority sexual groups, the paedophiles. But while pornography may benefit from freedom of speech arguments and less severe laws, the line should be drawn with child pornography at least where physical harm to real children is involved as it almost inevitably will be with the production and use of child pornography. In most cases, child pornography is a permanent record of the sexual abuse of the child who was involved (except for pseudo-photographs where the pictures are created by only the use of computers and without any physical harm to children) (see Williams Committee Report, 1979, p 90, para 6.68). There can be no understanding of the special problem of child pornography until there is understanding of the special way in which child pornography is child abuse (see The Meese Commission Report, 1986, p 406). According to Barry Crimmins, editor for Moving Forward in the USA, 'the increased demand for child pornography directly translates into an increased number of sexually abused children' (quoted in Platt, 1996, p 227). The production of child pornography is itself an act of child molestation or sexual abuse. 4.1 UK Child Pornography Laws4.1.1 Protection of Children Act 1978The 1978 Act was passed in response to a growing problem of child pornography. Its main purpose was to close some potential gaps in the measures available to police and prosecutors (Gibbons, 1995, p 87). The Act particularly deals with the use of children in pornographic photography even where no other form of abuse had occurred. The definition of "photograph" given in section 7(4) of the 1978 Act now includes photographs in electronic data format following the amendments made by section 84 (4) of the Criminal Justice and Public Order Act 1994. The main purpose of section 84 was to deal with the so called "pseudo-photographs" of children. Pseudo-photographs are technically photographs, but they are created by computer software such as MS Paintbrush by using more than one picture. For example a child's face can be superimposed on an adult body or to another child's body together with the alteration of the characteristics of the body to create computer generated images where no physical abuse of a child occurs. Under the new section 7(7) of the 1978 Act, "pseudo-photograph means an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph." Following the amendments made by the 1994 CJPOA, "it is an offence for a person (a) to take, or permit to be taken or to make, any indecent photographs or pseudo-photographs of a child; (b) to distribute or show such indecent photographs or pseudo-photographs" under section 1 of the 1978 Act. According to Richard Stone (1995, p 389), the target was not the photographs themselves, which might or might not be obscene articles under the Obscene Publications Act 1959, but the process by which the photographs were made. Certainly the UK police believe that the creators or possessors of pseudo-photographs will end up abusing children, so the purpose of the new legislation may be seen as a preparatory act being criminalised [6] , and also to close the gap with future problems in prosecution of such cases because it may be very difficult to separate a pseudo-photograph from a real photograph. The only reported case on pseudo-photographs comes from Canada, with the case of R v. Pecchiarich [1995] 22 O.R. (3d) 748-766. Joseph Pecchiarich, 19, was convicted and sentenced to two year probation, and 150 hours of community service for distributing child pornography over the Internet under section 163 (1) of the Canadian Criminal Code. Pecchiarich was never involved in photographing or filming real children and he created his own child pornography collection from altering the characteristics of scanned pictures of children modelling underwear and swimsuits from various store catalogues. Although Pecchiarich created these materials and they prove his paedophilic tendencies and fantasies, he did not commit any offence towards children [7] . As Chad Skelton (1996) argues:
Nevertheless there is a great and justifiable fear of harm to children with child pornography . The Williams Committee (1979, p 90, para 6.68) stated:
The children involved in child pornography may suffer physical and mental injuries but with pseudo-photographs the situation is different. These photographs are created only by the use of computers. There is no involvement of children in production and there is no direct harm to children in their use. The only justification for making pseudo-photographs illegal is that the picture itself may be associated with a danger that is distinct from the harms related to the original making of a picture. There is substantial evidence that photographs of children engaged in sexual activity are used as tools for the further molestation of other children (see The Meese Commission Report, 1986, p 411) and photographs or pseudo-photographs will be used interchangeably for this purpose. There is also an anti-evasion aspect in that people accused of possessing or distributing child pornography may claim that the pictures they possess are not of real children but are pseudo-photographs. The creation of pseudo-photographs would have restricted prosecutors in their ability to obtain convictions because it can be impossible to prove that the materials were produced using real children [8] 4.1.2 Section 160 of the Criminal Justice Act 1988Under 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 any indecent photograph or pseudo-photograph of a child in his possession. This offence also became a serious arrestable offence with a maximum imprisonment term not exceeding six months. It has been successfully used in its new form in the recent cases involving possession of child pornography. 4.1.3 Operation StarburstThe British police were involved in Operation Starburst, in July 1995, an international investigation of a paedophile ring who used the Internet to distribute graphic pictures of child pornography (Darbyshire, 1995). Nine British men were arrested as a result of the operation which involved other arrests in Europe, America, South Africa and the Far East. The operation identified 37 men world wide. Detective Inspector David Davis, head of West Midlands Police Commercial Vice Squad stated that:
4.2 Possession OffencesAs a result of Operation Starburst, many cases of simple possession offences were brought to court. Christopher Sharp has been fined £9000 (Bunyan, 1995) and he is the first person to be prosecuted in a case involving pornography and the Internet in the UK. Sharp admitted two charges of possessing indecent photographs of children under the age of 16 contrary to section 160 of the Criminal Justice Act 1988. In early 1996, Martin Crumpton , a former computer consultant, was sentenced to three months' imprisonment (The Electronic Telegraph, 1996) in a Birmingham magistrates' court. He also admitted to being in possession of indecent pictures of children and is the first person to be jailed in an offence concerning pornography and the Internet (see Akdeniz, 1996 , and Cyber-Rights & Cyber-Liberties UK ). More recently, Dr John Payne, 48, a GP in Warminster, Wiltshire, for 21 years, admitted a string of computer child pornography charges in November 1996 and was sentenced to 120 hours' community service on the 6th of December 1996, by the Trowbridge Magistrates. He had four images of children in indecent poses stored on his home computer ( Reid; 1996 , and O'Neill, 1996 ). 4.3 Distribution Offences4.3.1 Fellows & Arnold: The Birmingham University CaseAlban Fellows, 27, of Birmingham and Stephen Arnold, 25, of Milton Keynes were charged with a total of 18 charges, under the Protection of Children Act 1978, Obscene Publications Act 1959, and the CJPOA 1994 which widened the definition of publication to include computer transmission. Detective Inspector David Davis head of the West Midlands Police Commercial Vice Squad, was contacted by US Customs saying they had identified a site in the UK. Vice Squad officers then swooped on the Department of Metallurgy at Birmingham University and discovered thousands of pictures stored in the computer system of youngsters engaged in obscene acts. The material could be accessed through the Internet across the world. Fellows had built up an extensive library of explicit pornography called "The Archive", featuring children as young as three, on a computer at Birmingham University where he worked. They were arrested before the enactment of the CJPOA 1994 and at their trial they had argued that because the pictures were stored on a computer hard disc they could not be regarded as photographs and could not be covered by obscene publications legislation. The judge ruled that the computerised images could be legally regarded as photographs and the case set a legal precedent that a pornographic computer image was, in law, the same as a photograph (Manchester, 1996). After the ruling of the trial judge, Fellows admitted four charges of possessing indecent photographs of children with a view to distributing them, and one of possessing obscene photographs of adults for publication. Arnold also admitted distributing indecent photographs of children (Graves, 1996). Alban Fellows was jailed for three years by the trial judge who said that what Fellows had done could have incited sexual abuse of the innocent. Owen J. told Fellows that the sentence was intended to act as a deterrent to others considering using the computer information network to circulate pornography. Stephen Arnold was also jailed for six months for providing Fellows with up to 30 pornographic pictures of children. The judge stated that:
Owen J. added:
The significance of this decision following also Crumpton's imprisonment in 1996 shows the attitude of the judges and public policy towards traffickers of child pornography and paedophiles in general. An appeal was dismissed in late September 1996. Evans L.J., in the Court of Appeal, upheld the ruling of the trial judge that images stored on computer disc constitute photographs ( R v. Fellows, R v. Arnold , CA, The Times October 3, 1996). His Lordship reviewed the terms of the 1978 Protection of Children Act and decided that although the computer disk was not a photograph it was "a copy of an indecent photograph". The disk contained data, not visible to the eye, which could be converted into a print which exactly reproduced the original photograph from which it was derived [9] . 4.3.2 Case of Father Adrian McLeishFather Adrian McLeish, 45, a Roman Catholic priest at St Joseph's church in Gilesgate, Durham, held the largest known collection of illegal matter yet gathered electronically. He had amassed a vast store of obscene pictures and drawings in his presbytery and exchanged thousands of explicit e-mail messages with other paedophiles. McLeish was sentenced to six years imprisonment by Newcastle upon Tyne Crown Court on the 13th of November 1996. His activities were exposed a year ago during 'Operation Starburst'(See Wilkinson and Gledhill, 1996 , and Stokes, 1996 ). McLeish admitted 12 specimen charges of indecent assaults against two boys of 10, one aged 12 and another aged 18. He also admitted distributing indecent photographs, possessing them with intent to distribute them and being involved in the importation of pornographic videos of children. The police discovered that McLeish was linked to the Internet through at least four different companies and used encryption software so that his communications could not be read by anyone else. His private code was 'Overhead the moon is beaming'. There was evidence that McLeish had sent pictures of at least one of the boys he had abused and talked on the Internet of "grooming" the boy for use in later life. He had also enhanced some pictures to make them more sexually explicit. In all, some 3,251 different image files each containing up to 15 pictures were recovered. The total number of image files found, including child porn, adult porn and drawings, was 8,998. This is the first time a direct link between child abuse and the use of the Internet has been established. His conviction related to the indecent assault offences, but the use of the Internet for distribution of these images (also involving pseudo-photographs) made his sentence longer. This case once again proves that the UK police is active and combats this kind of illegal content on the Internet [10] . 5 The Governance of the InternetIf some illegal and harmful content on the Internet needs to be regulated then the question is: how should this be achieved? Legislation is probably not the whole answer, and this conclusion appears to be shared by the UK government.
Despite the popular perception, the Internet is not a 'lawless place' (Reidenberg, 1996). Rather the Internet 'poses a fundamental challenge for effective leadership and governance' (Reidenberg, 1996). Professor Walker (1997) states that:
According to Reidenberg, laws, regulations, and standards will affect the development of the Internet and this is also true for self-regulatory solutions introduced for the availability of pornographic content on the Internet. Reidenberg (1996) states that:
The Internet is a complex, anarchic, and multi-national environment where old concepts of regulation, reliant as they are upon tangibility in time and space, may not be easily applicable or enforceable and that is why the wider concept of governance may be more suitable. There appears not to be a single solution for the regulation of illegal and harmful content on the Internet because, for example, the exact definition of offences such as child pornography varies from one country to another and also what is considered harmful will depend upon cultural differences. The European Commission Communication Paper (1996) stated that 'each country may reach its own conclusion in defining the borderline between what is permissible and not permissible'. Therefore, a multi- layered solution is needed in this area, though many of the proposed levels have their own debatable problems as discussed below. Although national legislation may not be efficient to combat illegal and harmful content on the Internet, they will still be needed. The multi-layered governance should be a mixture of national / international legislation [11] , and self imposed regulation by the ISPs and on-line users. This should include rating systems such as Platform for Internet Content Selection ('PICS') and Recreational Software Advisory Council on the Internet ('RSACi'), codes of conduct by the ISPs, software filters to be used by parents, advice to parents and school teachers, hotlines and special organisations to report illegal content on the Internet. Recently a European Commission Communication Paper (1996) suggested that:
5.1 Current Situation in the UK and the Problem with UK ISPsThere has been no particular legislation directed at regulation of the Internet in Britain, although certain recent legislation indirectly relates to the Internet [12] . The UK Government favours a self-regulatory approach and Ian Taylor, the Science and Technology Minister stated that:
He also stated that:
Mr Taylor also added that the UK Government was keen to see the Internet fully exploited for business, education and leisure. But he warned that this may not happen if people were afraid of what they might find on-line. Acceptable use policies on the part of organisations such as JANET [15] and of service providers such as Demon [16] may count as a step towards self-regulation, and there are instances where these have been used to prohibit access to and, provision of, materials considered to be offensive and / or illegal (Burton, 1996). The Home Office also stated that:
Professor Walker (1996, p 537-538) states that:
The Calcutt Committee on Privacy (1990), with respect to press self-regulation, stated that:
Although the status of ISPs in the UK is very much debatable, for instance, whether the ISPs are publishers, distributors or common carriers [18] , the Internet industry should also have a similar responsibility. The tricky question remains: how to achieve this? While it may be difficult to control the content of the Internet its provision by the ISPs may be controlled. The Select Committee on Science and Technology (1996, para 5.50) stated that:
The Internet Services Providers Association of the UK (ISPA-UK ) was founded in February 1996 by some of the UK ISPs but not all of the UK ISPs are members of it. To have an effective self-regulatory system the UK ISPs should act altogether under one body and this could well be the ISPA-UK. The Independent Committee for the Supervision of Standards of Telephone Information Services ("ICSTIS") on the other hand, regulates the adult oriented live telephone services and its code of practice requires service providers themselves to monitor their services ( Robertson and Nicol, 1992, p 562-563 and ICSTIS Code of Practice, 1995 ). ISPA may have features such as the ICSTIS. It is regarded as an essential element of self-regulation that the industry should be responsible for its Code of Practice and that the Code has the confidence of the public [20] . 5.2 UK Police Censorship of Internet NewsgroupsAlthough the UK Government supports self-regulation with respect to the Internet, the UK police had its own views in the summer of 1996. The Clubs & Vice Unit of the Metropolitan Police sent a letter to the UK ISPs in mid August 1996 supplying them with a list of usenet discussion groups that they believe to contain pornographic material. The letter asked the UK ISPs to examine the list and take the necessary action if satisfied about the nature and content of those listed newsgroups. The letter was produced following a meeting between Scotland Yard and the UK Internet Service Providers Association (ISPA) on 2 August 1996. Mike Hoskins, Commander of the Metropolitan Police Clubs & Vice Unit stated at the meeting that there were only two realistic solutions to the problem: 'either the industry takes it upon itself to clean up the Net or the Police intervene.' He felt that the first was the preferable option and the purpose of the letter was to assist UK ISPs in the identification and exclusion of newsgroups involved in the distribution of pornography. The letter signed by Chief Inspector, Stephen French, also stated that the list is only the starting point towards eliminating this kind of content from the usenet discussion groups on the Internet. Mike Hoskins of the Clubs & Vice Unit explained his unit's interest with the problem in a recent interview:
Mike Hoskins also explained that there is material on the Internet that is clearly obscene, and frequently the police arrest people if that kind of material is produced in other media, such as videos, floppy disks, cd-roms, books or magazines. He stated that they had to do something about the Internet, and that they had three options:
He said that the best option was the third one but it was difficult to talk with all the ISPs because there is no organisation representing all of them. He stated that the UK ISPs asked for advice in a recent meeting organised by the ISPA and that is why they provided the list containing 133 Usenet discussion groups. The list mainly covers newsgroups which carry child pornography such as alt.binaries.pictures.lolita.fucking, alt.binaries.pictures.boys, but it also includes such newsgroups as alt.sex.fetish.tickling, alt.sex.fetish.wrestling, alt.homosexual, which may or may not include pornographic content. Seemingly, the Clubs & Vice Unit has seen and found material carried by these newsgroups that would be illegal. Many people multiple post to different newsgroups and most of the posts (pictures & text) are the same in similar newsgroups. So it is possible to find non-relevant materials, like child pornography in newsgroups such as alt.sex.fetish.tickling. It may also be that personal views on pornography affected the decision of the UK police. Mike Hoskins in a recent interview stated that 'there is strong evidence of a direct causal link between violent pornography and violent crime. Rape is glorified and depicted as real life.' (McConnell, 1996, p 1179) On balance, the action taken by the UK police is ill-considered and will not reduce the availability of pornographic content on the Internet. The list of newsgroups provided by the UK police includes much material that is not illegal, such as legitimate discussion groups for homosexuals, and discussion groups which do not contain any pictures, but contain text, sexual fantasies and stories. These would almost certainly not infringe UK obscenity laws. The action of the UK police also amounts to censorship of material without any public debate. Any action with regard to regulation of the Internet should take place following informed debate and policy-making by Parliament and not by the police (See Wall, 1997). Sensible action by the UK government is needed to resolve the problem, together with the help of the Internet industry, to find a technical solution rather than censoring or banning distasteful material on the Internet. 5.3 Developments within the European UnionThere have been also recent calls in Europe for the regulation of the Internet. In January 1996, a European Union Consultative Commission on Racism and Xenophobia called for the creation of protective judicial measures stating that:
This was followed at Strasbourg in April 1996 when Irish Minister of State for European Affairs, Gay Mitchell, called on the EU to investigate controls on the transmission of child pornography on the Internet at a joint meeting to discuss the commercial exploitation of children organised by UNICEF and the Council of Europe (Smyth, 1996). These calls were finally heeded by the European Commission who approved a Communication on Illegal and Harmful Content on the Internet (1996) and a Green Paper (1996) on the protection of minors and human dignity in the context of new electronic services on October 16, 1996. The European Commission documents follow the resolution adopted by the Telecommunications Council of Ministers on September 27, 1996, on preventing the dissemination of illegal content on the Internet, especially child pornography. While the Communication gives policy options for immediate action to fight against harmful and illegal content on the Internet, the Green Paper sets out to examine the challenges that society faces in ensuring that these issues of overriding public interest are adequately taken into account in the rapidly evolving world of audiovisual and information services. The UK Government welcomed the Communication with its emphasis on self-regulation by industry, as entirely consistent with the UK's approach:
The Communication and the Green Paper were followed by the European Commission Working Party Report (1996), in early November 1996. According to the Working Party Report a self-regulatory system should include a Code of Conduct for the ISPs, a hot-line for complaints from the public, an independent self-regulatory body, including representatives of industry and users, to advice on whether or not a breach of the Code of Conduct has occurred. All these initiatives at the European level were adopted in a Resolution at the Telecommunications Council of 28 November 1996 [21] . 5.4 The US Attempts to Regulate the InternetPornography is the central focus of public concern in the US about the Internet and with the introduction of the Communications Decency Act 1996 [22] , there has been a serious attempt to regulate it by the US government. When Senator James Exon introduced the CDA, he described its purpose by waving around a 'blue book' of images and declaring that children must be protected from such images [23] . Most of these images were of hard-core pornography or child pornography, both of which are currently subject to criminal prosecution under existing Federal law in the US [24] . Existing criminal law is capable of dealing with hard-core pornography or paedophiles as the recent case law and FBI operations confirmed [25] . The American Civil Liberties Union ('ACLU') and other civil liberties groups filed a lawsuit to stop the government from implementing the 1996 Act. In ACLU v Janet Reno Civil Action No. 96-963, February 15, 1996, ACLU claimed that the public will be irreparably harmed because their rights under the First Amendment will be infringed. ACLU also claimed that the CDA is ill defined and that plaintiffs do not know what speech or other actions might subject them to prosecution. On the 12th of June 1996, a three-judge panel in the Federal District Court of Philadelphia held that the plaintiffs had established a reasonable probability of eventual success in the litigation by demonstrating that sections 223(a)(1)(B) and 223(a)(2) of the CDA are unconstitutional on their face to the extent that they reach indecency. Sections 223(d)(1) and 223(d)(2) of the CDA are unconstitutional on their face. Accordingly, the plaintiffs had shown irreparable injury, therefore the public interest would be served by granting the preliminary injunction (See American Civil Liberties Union v Reno , 929 F Supp 824 (1996). The case is now on appeal to the Supreme Court and a decision is expected by June 1997. Although the US government claims that their only interest is to protect children from on-line dangers, it is interesting that they also approved the so called V-chip technology which will give parental control over TV and satellite broadcasting [26] . So why does the Internet not enjoy First Amendment rights to the same extent as other mediums? After all the Court in the ACLU, et al. v Janet Reno, 929 F Supp 824 (1996) stated that:
Although the CDA had a chilling effect on the US WWW pages, it will have no legal effect outside the US. But it might influence other countries including the UK to pass similar legislation. Furthermore, because more than 60% of the materials on the Internet come from the US, it would inevitably affect the content of the whole of the Internet receivable in the UK or elsewhere. Legislation such as the CDA may set up a dangerous precedent for similar legislation in modern and in developing societies. 5.5 Technical Solutions and Rating SystemsA self-regulatory system might work if a rating system like the Platform for Internet Content Selections (PICS) [27] is accepted as a standard on the Internet. PICS is similar to the V-chip technology for filtering out violence or pornography on the television systems and it is also supported by the UK Government [28] . But it offers a far more advanced means of vetting the type of material that parents, companies and governments want to enter their computers. This could include political, religious, advertising or commercial topics (Uhlig, 1996b). PICS works by embedding electronic labels in the text or image documents to vet their content before the computer displays them or passes them on to another computer [29] . These can be added by the publisher of the material, by the company providing access to the Internet, or by an independent vetting body [30] . The most common scheme for screening material was developed by the United States based Recreational Software Advisory Council on the Internet ('RSACi'), originally a scheme for rating computer games. [31] It rates material according to the degree of sex, violence, nudity, and bad language depicted. 'It is usually this PICS/RSACi screening combination that people have in mind when they refer to PICS' [32] . The Levels and Categories of PICS/RSACi [33]
PICS/RSACi initiatives are strongly criticised in the UK by 'The Campaign for Internet Freedom' organised by Living Marxism Online [34] .
According to Electronic Frontiers Australia ('EFA'), 'the definitions used in determining the four categories (see above) were clearly chosen with computer games in mind and lack the flexibility required for a wider range of materials. It is ludicrous that such a system should be applied to novels, online libraries, art galleries, and other such resources' (see EFA, 1997). There will be many rating authorities, and different communities will consider the same web pages to be in different PICS/RSACi categories. The Cyber-Rights & Cyber-Liberties (UK) web site, created and maintained by the author of this article, deals with the regulation of child pornography on the Internet. How, will this site be labelled under the PICS/RSACi initiatives? Hopefully, it is an informative and educative site but sometimes there may be strong language such as in the court cases reported in the newspapers. Some rating authorities may judge the site as an offensive even though it has a public purpose. This is the same for various newsgroups or web sites dealing with serious issues such as sexual abuse and AIDS. As Living Marxism Online argues: 'there is no room for dissent' because ratings will be done by private bodies rather than by government agents which means that there will be no space for free speech arguments because the ratings will be done by private bodies and the government will not be involved. Therefore, there may be problems in the near future with this kind of labelling and rating systems and further research into this problem may be needed before implementing it as a standard for labelling the Internet content. 5.6 Parental Advice and Control with SoftwareAnother solution would be to give control of what their children can access on the Internet to parents, just like the violence chip for television. The vast majority of the material available on the Internet is related to everyday topics, such as politics, news, sports, and shopping. In addition, millions of people communicate on issues of interest to them but, just like in the real world, there are areas of cyberspace which may contain materials that are not appropriate for children. The National Center for Missing and Exploited Children produced a brochure called "Child Safety on the Information Highway" [35] . After explaining the benefits of the Internet, it also explains the risks of the Internet for children:
The brochure strongly emphasises the importance of parents and their responsibility for their children's use of on-line services. Similar brochures are also produced in the UK [36] and there is also blocking and filtering software to limit or control children's access to adult oriented Internet sites [37] . By using such technology it will be up to the parents to decide what is good for their children and what is not, and this would also save the Internet's content becoming ultimately suitable only for children. There are many programs available with parental control features including "Surf Watch" [38] , "Net Nanny" [39] and "CYBERsitter" [40] but sometimes this kind of software goes too far away and limits access to or censors inconvenient web sites, or filters potentially educational materials regarding AIDS and drug abuse prevention [41] . Furthermore, the companies creating this software provide no appeal system to the banned content providers, thereby 'subverting the self-regulating exchange of information that has been a hallmark of the Internet community' [42] .
The author has argued elsewhere that the use of software such as CYBERsitter is beneficial (see Akdeniz, 1996) and offers a better approach than laws such as the CDA 1996, by empowering the individual. But CYBERsitter still relies upon an initial form of labelling outside the home which could amount to unchallengeable censorship. 5.7 Self Regulatory Bodies - Internet Watch Foundation (UK)On September 9, 1996, the Internet Developers Association ('IDA - UK') [44] hosted a debate on the problem of child pornography on the Internet. The meeting, attended by representatives from UK ISPs and the Metropolitan Police, was an attempt to arrive at sensible solutions to the problem (Barry, 1996). The meeting highlighted that the police are as confused as everyone else. There have been calls by the Internet industry to modernise the laws related to obscenity in the UK so that it fits with new technologies such as the Internet. Superintendent Michael Hoskins agreed with this view and stated:
Peter Dawe, who made his fortune from the Unipalm Pipex, told the meeting that he was setting up the Safety-Net Foundation (now relabelled as Internet Watch Foundation), which would attempt to cut out "99.9 per cent" of child pornography. He stated:
Safety-Net, supported by the UK Government, was announced on September 23, 1996 and it follows up a similar initiative established by the Dutch Foundation for Internet Providers ('NLIP'), Dutch Internet users, the National Criminal Intelligence Service ('CRI'), National Bureau against Racial Discrimination and a psychologist in May 1996 [45] which has been endorsed by the first World Congress Against the Commercial Sexual Exploitation of Children [46] . Internet Watch Foundation ('IWF') now have an e-mail, telephone and fax hot-line and on-line users are able to report materials related to child pornography and other obscene materials. (See http://www.internetwatch.org.uk/hotline/) IWF then will inform all British ISPs so they know that the unwanted material exists. They will have no excuse in law of being unaware of the offending material and the UK police will probably take action against those ISPs who do not remove the relevant items requested from IWF (DTI Press Release, 1996). Welcoming the Industry's proposals, Science and Technology Minister Ian Taylor stated:
He continued:
Superintendent Mike Hoskins of the Metropolitan Police Clubs and Vice unit added:
The Safety-Net (IWF) proposal states that the UK ISPs should bear responsibility for their services and they need to implement reasonable, practicable and proportionate measures to hinder the use of the Internet for illegal purposes, and to provide a response mechanism in cases where illegal material or activity is identified [47] . "R3 Safety-Net" recommends that Service providers should:
The approach extends the PICS standard to Usenet newsgroups and recommends that service providers should:
These measures will interface with both the IWF's legality ratings for the normal content of news groups, and with the ratings provided by users for material they have placed on the Internet. IWF is a good initiative, but not a total solution to the problem of child pornography on the Internet. Although the European Commission Working Party Report (1996), suggested that 'there should be a European co-ordination of representative and self-regulatory bodies' and that 'a European network of hot-lines should be established', the problem will remain elsewhere; in the real world, where these materials are created. For as long as the sexual abuse of children continues, there can never be a total solution for the availability of child pornography on the Internet. It is just another convenient tool that the paedophiles will use for trafficking these kind of materials. The Metropolitan Police in London has a free confidential telephone hot-line (0800-789321) to combat terrorism, and a similar step should have been taken to combat child pornography and child sexual abuse whether related to the Internet or not. This would have had a general purpose. The idea of removing materials containing child pornography from the Internet at UK level seems not to be a solution in a multi-national environment. There are also technical problems with the utility of the IWF initiatives where on-line users will report the unwanted materials. Users will probably report material unacceptable according to their taste and moral views, but it should be remembered that it is for the Courts and judges to decide whether something is obscene or illegal. The application and utility of the IWF will have to be assessed and maybe reviewed. 6 ConclusionBy providing quick and cheap access to any kind of information, the Internet is the first truly interactive 'mass' medium. It should not be surprising that governments around the globe are anxious to control this new medium (see Human Rights Watch Report, 1996), and the Internet seems to be following a pattern common to the regulation of new media [48] . Most of the people concerned about the Internet are non-users of it, and there is a fear and 'moral panic' (see Cohen, 1987) among these people which includes the government, law enforcement bodies such as the police, prosecutors and judges together with the media in general. In reality, while the Internet tends to produce extreme versions of problems, it rarely produces genuinely new ones. There is a real problem of child pornography on the Internet and elsewhere, as well as that of the availability of explicit material to unsuitable audiences, such as children. But any regulatory action intended to protect children from being abused in the production of pornography or from accessing unsuitable content should not take the form of an unconditional prohibition of using the Internet to distribute content which is available freely for adults in other media. At the moment it would be inappropriate to attempt to regulate pornography on the Internet while it is already available in the streets, and bans or pre-censorship acts would be unworkable because of the diversity of pornographic sources. Following the introduction of the CDA 1996 in the USA, many WWW pages containing 'pornographic content' introduced password protection schemes which required credit card numbers. Adultcheck [49] is one of the main US based companies regulating WWW pages carrying pornography on the Internet and its system requires that both the willing adults and the providers are registered by paying fees to obtain username and passwords. By doing so the pornography industry will self-regulate itself anyway. To do so is in their best interest, since they will wish to safeguard the substantial amount of profits made from the pornography industry each year [50] . However, the prime responsibility for assuring an appropriate moral environment for children must rest elsewhere. Parents and teachers should be responsible for protecting children from accessing pornographic content which may be harmful to their development rather than rating bodies with different cultural backgrounds or the software industry or even the producers of pornography. This is not a forlorn demand for personal responsibility, since the computer industry is also supplying the means of protection (through PICS and so on) as well as the new modes of threat to well-being. Child pornography is an other matter, and its availability and distribution should be regulated whether on the Internet and elsewhere. But the main concern should remain as the prevention of child abuse - the involvement of children in the making of pornography or its use to groom them to become involved in abusive acts, rather than discussion and fantasy. Child pornography is not only 'crime scene photographs' of child sexual abuse and exploitation but also a possible criminal tool for future abuse and exploitation of other children. Child pornography is considered 'illegal' in many countries so there is no need to single it out as special illegal content on the Internet. The police should not make any distinction as to whether the offence is committed in Oxford Street or on the Internet. In regard to the latter, hotlines and monitoring should be encouraged, and Police forces should take action if a content provider refuses to remove the illegal materials. Existing UK legislation is capable of fighting child pornography on the Internet and elsewhere but many of the paedophiles act in international rings and the targeted group should be the distributors rather than the possessors of child pornography (in some countries possession of child pornography is not an offence) [51] . Tougher sentences for the production of child pornography may be needed (under the new US Child Pornography Prevention Act 1996 production of child pornography is punished with a maximum sentence of 15 years). Although the UK police have been successful with 'Operation Starburst' to identify an international paedophile ring, substantial collaboration at an international level is needed between various national police forces.All nations have an important part to play in the fight against child pornography. This can be achieved, as suggested by the European Commission, initially at the EU level. 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Wilkinson, Paul & Gledhill, Ruth (1996) "Paedophile priest circulated porn on the Internet", The Times, November 13 1996. [*] I would like to thank Professor Clive Walker, University of Leeds for his comments on an earlier version of this article. [1] But see section 2, Sexual Offences (Conspiracy and Incitement) Act 1996 which makes it an offence to incite another person to commit certain sexual acts against children abroad. The scope of incitement for the purposes of section 2 extends to the use of Internet and any incitement will be deemed to take place in the UK if the message is received in the UK. [2] See for example Playboy magazine at http://www.playboy.com or Hustler Magazine at http://www.hustler.com [3] See also House of Commons, Home Affairs Committee: First report on Computer Pornography, 1994, London: HMSO. [4] This conclusion is supported by the decision of the House of Lords in R v Effick [1994] 3 All ER 458 where a cordless telephone was not comprised in a telecommunication system although it was connected to it. [5] The Meese Commission Report, in 1986, provides evidence that paedophile offenders and child pornographers had begun to use personal computers and computer networks for communication and distribution of materials. See Attorney General's Commission on Pornography: Final Report, 2 vols. Washington, D.C.: U.S. Government Printing Office, July 1986 [The Meese Commission] at page 629. [6] In March 1996 I had an interview with Detective Inspector David Davis, head of West Midlands police commercial vice unit which deals with child pornography. He clearly stated that the UK police believe that if somebody creates or posses indecent pseudo-photographs of children, he is a potential child abuser and will abuse children in the future. See also Explosive Substances Act 1883 as an example for preparatory acts being criminalised. [7] Jake Baker also had fantasies about torturing, raping and murdering a female student at the University of Michigan. He also sent his story to alt.sex.stories giving the name of a classmate. He was arrested and held without bail, but a US District Count Judge dismissed the case against Baker ruling that he was protected by the First Amendment. Baker's case was tackled as a speech issue and although he had sick fantasies they did not involve immediate danger or any criminal activity. See U.S. v. Baker, 890 F. Supp. 1375 (1995). [8] See also the recent US legislation, Child Pornography Prevention Act 1996 which sets mandatory prison sentences of 15 years for production of child pornography, five years for possession of child pornography, and life imprisonment for repeat offenders convicted of sexual abuse of a minor. The 1996 Act also covers the computer generated images of children as in Canada and the UK. [9] See R v. Fellows, R v. Arnold, CA, The Times (October 3, 1996). There was no restriction on the form of a 'copy of an indecent photograph' within section 7(2) of the 1978 Act and the data represented the original photograph, in another form. This conclusion is supported by R v. Brown (Gregory) [1996] 1 AC 543 which states that 'data' for practical reasons means information recorded in computer readable form and the use of data can only mean the processing of that data in a computer. [10] See Cyber-Rights & Cyber-Liberties (UK) at http://www.leeds.ac.uk/law/pgs/yaman/yaman.htm for further information and for other cases involving child pornography and the Internet. [11] See eg. Defamation Act 1996 and child pornography laws. [12] Computer pornography is included in the Criminal Justice and Public Order Act of 1994 and the position of the ISPs with regard to defamation law is regulated by Section 1 of the Defamation Act 1996. [13] 'Home Office Meeting of January 19th 1996' available at Cityscape manager Clive Feather's home page at http://www.gold.net/users/cdwf/homeoffice/. [14] See Internet Services Providers Association of the UK ( ISPA-UK ) web page at http://www.ispa.org.uk/ for a copy of the proposed Code of Practice. [15] See the JANET Acceptable Use Policy, at http://www.ja.net/documents/use.html [16] Acceptable Use Policy of the UK ISP, Demon Internet Ltd. is available at http://www.demon.net/services/news/newsaup.html [17] Taken from Department of National Heritage, 'Review of Press Self-Regulation', Chairman David Calcutt QC, 1993, Cm. 2135, London:HMSO at page 7. [18] See section 1 of the UK Defamation Act 1996. [19] See Internet Services Providers Association of the UK ( ISPA-UK ) web page at http://www.ispa.org.uk/ for a copy of the proposed Code of Practice. [20] The quotation relates to the Press Complaints Commission but applies to the Internet Industry as well. See Courtney, Newell, Rasaiah, The Law of Journalism, 1995 Butterworths at 1-79. [21] See http://law-www-server.law.strath.ac.uk/diglib/lab/resol.html [22] Title V, Section 502 of the US Telecommunications Act 1996 includes the provisions of the Communications Decency Act 1996 ('CDA') to be codified at 47 U.S.C. Section 223(a) to (h). The clear purpose of the Act is to restrict access by minors to 'patently offensive depictions of sexual or excretory activities' that is to widely available pornographic images and materials on-line over an 'interactive computer service', including materials available on the Internet. [23] See 141 Cong. Rec. S8130-31, June 12, 1995. [24] The Justice Department has already prosecuted online obscenity and child pornography in several cases. See, e.g., See U.S. v. Thomas 74 F.3d 701, 704-05 (6th Cir. 1996). 'Use of Computer Network For Child Sex Sets Off Raids,' The New York Times, 9/14/95. [25] See 18 U.S.C. §§ 1464-65 (criminalising obscene material); id. §§ 2251-52 (criminalising child pornography); see also New York v Ferber, 458 U.S. 747 (1982), and Miller v California, 413 U.S. 15 (1973). [26] See Telecommunications Act 1996, Section 551 which is entitled 'Parental Choice In Television Programming.' [27] PICS has been developed by the World Wide Web Consortium at http://www.w3.org/pub/WWW/PICS/, a non-profit making association of academics, public interest groups and computer companies that looks at the social consequences of technology. It has the backing of 39 global computer and communications companies. The WWW Consortium expects the vetting system to be in widespread use by the end of this year and 80 per cent of information on the Internet to be coded by the end of 1997. [28] See the UK Government Response to the Report by the House of Lords Select Committee on Science and Technology, Cmd 3450, London:HMSO, 1996, para 6.11. [29] See Robin Whittle's web site 'Internet censorship, access control and content regulation' at http://www.ozemail.com.au/~firstpr/contreg/ for an explanation of the PICS system and how it works. See also for a critique of PICS by The Campaign for Internet Freedom, 'Frequently Asked Questions about PICS and Censorship' at http://www.netfreedom.org/uk/faq.html . [30] The major international computer hardware and software companies, including Apple and IBM, on-line services such as CompuServe, and content providers such as Time-Warner, are backing the standard, which should receive its final approval later on this year.. [32] See http://www.netfreedom.org/uk/PICS_menu.html [33] Taken from http://www.netfreedom.org/uk/PICS_menu.html [34] See http://www.netfreedom.org/ [35] NCMEC and Interactive Services Association "Child Safety on the Information Highway" 1994, available at http://www.isa.net/isa . See also the Interactive Working Report to Senator Leahy, 'Parental Empowerment, Child Protection, & Free Speech in Interactive Media' July 24, 1995 available at http://www.cdt.org/. [36] See British Computer Society, "Combatting Computer Pornography: Guidance Notes for the BCS Members" BCS, April 1995, National Council for Educational Technology, "NCET Information Sheet for Schools: Computer Pornography" NCET, February 1995 and Norfolk IT Team, "Organising IT in Schools: Computer Pornography" Norfolk Educational Press, 1994. [37] See eg. Cyber Patrol available on the Internet at http://www.microsys.com/CYBER/. [38] Surf Watch is designed to provide parental control for families who do not subscribe to commercial online services which is available at http://www.surfwatch.com/. Surf Watch allows parents to block their children' access to known Internet sites [39] Net Nanny is designed to prevent children from accessing areas on the Internet that a parent deems inappropriate, prevent children from giving the name, address, telephone number, credit card, or other personal information to strangers via e-mail or chat rooms, and can log off an on-line service or shut down the computer when the child attempts any of these activities. Net Nanny is available at http://www.netnanny.com/netnanny . [40] CYBERsitter is similar to the other two with an option to prevent children from accessing files on the home PC computer. It is available at http://www.solidoak.com/. [41] It has been reported in December 1996 that CYBERsitter completely or partially blocks access to sites such as the National Organization of Women ( http://www.now.org ), and the Yahoo search engine ( http://www.yahoo.com/). [42] From a letter sent to Solid Oak (CYBERsitter) by The Cyber-Rights working group of Computer Professionals for Social Responsibility, a group of computer and network users concerned about the preservation of free and open expression on computer networks in the USA, dated 18 December 1996. See Cyber-Rights at http://www.cpsr.org/cpsr/nii/cyber-rights/. [43] See 'Don't Buy Cybersitter' at The Ethical Spectacle Web page, http://www.spectacle.org/ and Peacefire web pages at http://www.peacefire.org/ [44] See http://www.association.org/chapters/idauk.html [45] See the Dutch Information about the hot-line against child pornography on Internet at http://www.xs4all.nl/~meldpunt/meldpunt-eng.htm [46] The first World Congress Against Commercial Sexual Exploitation of Children, was held in Stockholm, 27 - 31 August 1996, aiming to put the issue of children being sold for sex firmly on the public agenda. It brought together key players in the battle against commercial sexual exploitation of children, to share information, exchange experiences and best practice, and formulate national and regional strategies. See the World Congress web site at http://www.usis.usemb.se/children/csec/ for more information. [47] See Safety-Net proposal, "Rating, Reporting, Responsibility, For Child Pornography & Illegal Material on the Internet" adopted and recommended by the Executive Committee of ISPA - Internet Services Providers Association, LINX - London Internet Exchange and The Safety-Net Foundation at http://dtiinfo1.dti.gov.uk/safety-net/r3.htm . [48] See eg. Cinemas Act 1909, Broadcasting Act 1952. [49] See Adultcheck at http://www.adultcheck.com [50] It has been estimated that pornography, including child pornography is an $8 to $10 billion a year business, and it is also said to be organised crime's third biggest money maker, after drugs and gambling. See US Senate Report 104-358, Child Pornography Prevention Act 1996. [51] The recent cases shown that many cases involved simple possession offences in the UK. See Cyber-Rights & Cyber-Liberties UK at http://www.leeds.ac.uk/law/pgs/yaman/yaman.htm for a complete list of child pornography prosecutions in the UK. |
