Real porn and pseudo porn: The regulatory road

Abstract

Pornography regulation is an area that has always courted controversy and academic debate. States have responded to pornography in different ways, ranging from absolute prohibition to partial regulation. While regulation of traditional pornography was principally based on morality and prevailing societal values, some post-Internet legislative measures have centred on the detrimental or harmful effects of pornography as the primary cause for censorship and regulation. New forms of technology facilitated new forms of expression, and it did not take too long for pornographers to realise the potential of the Internet, which now plays host to vastly differing types of pornography, from ‘normal’ adult porn to content that includes children, violence, torture and animals. Not all content involves real actors; some being merely realistic depictions produced using digital technology, such as morphing, while some are just cartoons. However, recent legislative initiatives increasingly blur the distinction between what is real and mere acting, or, in some cases, even works of art, albeit that which may be perceived as being in bad taste or repulsive. It is the perceived harm to society that is held out as the rationale for regulation, but this single classification on the basis of harm has generated substantial discussion among legal experts and academics. This paper examines the legality of regulating simulated child pornography and adult extreme pornography with a possession offence, and sheds light on the questionable wisdom of certain state initiatives that sometimes impose constraints on protected civil and fundamental rights. To find a balance between what is acceptable and what should be censored speech is a delicate act in this context, but recent legislative trends represent a worrying deviation from the traditional regulatory approach to pornography. The paper will highlight a number of specific trends in the process and will seek to argue that over-zealous legislation is no panacea to the problem and other alternatives need to be explored.

Keywords:

• Internet
• pornography
• regulation
• possession offence
• human rights

Acknowledgement

I am grateful to Sam Burton, who offered helpful comments and advice on an earlier draft of this paper. Any errors or omissions, of course, remain mine alone.

Notes

For example, see C. Itzin, Pornography – Women, Violence and Civil Liberties (Oxford: Oxford University Press, 1992); D. Zillman and J. Bryant, ‘Pornography, Sexual Callousness, and the Trivialisation of Rape’, Journal of Communication, 32, no. 4 (1982): 10–21.

See S. Ost, ‘Criminalising Fabricated Images of Child Pornography: A Matter of Harm or Morality?’, Legal Studies 30, no. 2 (2010): 230–56.

HC No. 126, Computer Pornography, 1993–94.

The Internet Watch Foundation 2009 Annual and Charity Report, available online at http://www.iwf.org.uk/documents/20100511_iwf_2009_annual_and_charity_report.pdf (last accessed August 2010).

See K. Williams, ‘Child Pornography Law: Does it Protect Children’, Journal of Social Welfare and Family Law 26, no. 3 (2004): 245–61.

R v. Sharpe [2001] 1 S.C.R. 45.

Sections 62–68, Coroners and Justice Act 2009.

Each of these exempt categories is covered by other legislation, discussed above.

Ministry of Justice, ‘Consultation on the Possession of Non-photographic Visual Depictions of Child Sexual Abuse’, available online at www.justice.gov.uk/consultations/non-photographic-depictions.htm (last accessed August 2010).

Cited in Ost, ‘Criminalising Fabricated Images’, 233.

See the Internet Watch Foundation 2009 Annual and Charity Report, at note 4.

2004/68/JHA, 22 December 2003.

European Commission, ‘Proposal for a Council Framework Decision on Combating the Sexual Abuse, Sexual Exploitation of Children and Child Pornography’, repealing Framework Decision 2004/68/JHA, March 2009.

European Commission, ‘Proposal for a Directive on Combating the Sexual Abuse, Sexual Exploitation of Children and Child Pornography’, repealing Framework Decision 2004/68/JHA, March 2010.

See, A. Murray, ‘The Reclassification of Extreme Pornographic Images’, Modern Law Review 72, no. 1 (2009 ): 73–90; A. Nair, ‘Caveat Viewer! The Rationale of the Possession Offence’, International Review of Law, Computers and Technology 22, no. 1–2 (2008): 157–64.

For example, see http://www.backlash-uk.org.uk/

See Nair, ‘Caveat Viewer!’, at note 15.