Australian Computer Society
Canberra Branch Conference - 20 April 1996
Panel Session
'Erotica in Cyberspace:
Does It Need to be Regulated?'
Statement by Panel Member - Roger Clarke
Some Principles
- Freedom of thought and expression are crucial elements of a free society.
- In general, human communications should not be subjected to regulation,
nor to surveillance by the State. Exceptions require very strong and very
clear justification, based not just on pious hopes, but on demonstrated net
benefits to society.
- Legislation has two purposes:
- to state in fairly precise terms what behaviour is illegal and subject to
sanctions; and
- to provide an expression of societal values.
Some Definitions
- Erotica is "literature or art dealing with sexual love" (Macquarie
Dictionary, 1981, p.609).
- Arguments for censorship of many kinds of erotica are based merely on the
arguer's taste or morality. These arguments in many cases extend to literature
and art that represent what many people see as 'unnatural acts', and even to
immodest disportment of the subject's body. It is not obvious how the banning
of such materials will help society.
- However, erotica which "arouses sexual desire"(Macquarie, p.609) to the
extent that it represents an incitement to action, might reasonably give rise
to concern, particularly in the cases of:
- erotica which incorporates violence, because that may
represent an incitement to violent action; and
- erotica which involves children, commonly referred to as
paedophilia.
- Pornography is "obscene literature, art or photography,
designed to excite sexual desire" (Macquarie, p.1346). Because of this loose
definition, it is used sometimes quite generally (to refer to material that any
particular person finds objectionable), and sometimes quite specifically (e.g.
to refer to material whose publication breaks the law).
The Present Situation
- Some people of conservative leanings have a very low level of tolerance of
erotica of any kind. Many more people, not all of conservative leanings, are
very concerned about erotica which involves violence or children.
- Australian law currently includes
a
classification scheme for published materials, comprising:
- unrestricted materials;
- restricted materials (based on such considerations as the age of the user
or viewer, whether the material has to be sold in a special section of a shop
or inside a wrapper, what time of night in can be shown, etc.); and
- refused materials (including erotica involving violence,
bestiality and bondage, and child pornography). Generally speaking, refused
materials depict an act which is seriously illegal (whether through recording
an actual act, or simulating one).
- Doubt exists, at least in some people's minds, as to whether the various
existing laws will be effective in the case of communications using the
Internet, or using particular kinds of Internet services such as email attached
documents, ftp and http.
- Various people have called for the enactment of laws to address the
distribution of 'undesirable' materials using the Internet.
In many cases, it is unclear precisely what kinds of materials are being talked
about. Proposals appear to range from 'refused materials', via materials whose
distribution is currently subject to restrictions, some significant and some
quite minor, right up to some kinds of unrestricted materials such as 'pin-up'
photographs.
- The primary organisations pursuing these matters have
been the Attorney-General's Departments in several States and the Commonwealth,
the Commonwealth Department of Communications and the Arts, the Senate Select
Committee on Community Standards Relevant to the Supply of Services Utilising
Electronic Technologies, and most recently the Australian Broadcasting
Authority.
- Few of the organisations which are urging action have
publicly identified themselves (see for example
the
list of submissions to the Australian Broadcasting Authority enquiry). One
which has is the Religious Alliance Against Pornography, which appears to be a
sub-unit of the Church of Jesus Christ of Latter-Day Saints.
Interim Conclusion
- The steps which need to be taken are:
- to establish whether the law regulating 'refused materials' is inadequate
to cope with the Internet and Internet-based services; and
- if so:
- to define in precisely what ways it is inadequate; and
- to propose and evaluate alternative approaches to overcoming those
specific deficiencies.
Tentative Analysis
- It's not clear that the law is inadequate. A Canberra
man has recently been charged with an offence of distributing paedophilia over
the Internet, and when he failed to appear to answer the charge on 19 April
1996, a warrant was issued for his arrest (reported by various radio news
broadcasts, but apparently not carried by the print media). This suggests
confidence on the part of the Police and the magistrate that a case exists, and
a lack of confidence on the part of the accused.
- It's not clear what part of the law is claimed by the proponents
for new legislation to be inadequate. It may be that they are simply
claiming that an expression is needed to the effect that the proscribed kinds
of communication are 'beyond the pale'. Many people, not all of them of
conservative leanings, might well be supportive of such a public statement by
the Parliament and/or the Executive.
- The formulations suggested for new laws have generally been inequitable
and would have significant deleterious effects of both a social and an economic
nature. This is because they apply, to a new family of media using a new form
of carrier, a model and a language that derive from conventional media on
conventional carrier mechanisms. In particular:
- some formulations assume that the providers of carrying
capacity and/or the providers of storage space are
the providers of content. This is possible, and in some cases
is correct; but in most cases is not correct. It is very important
that any regulatory measures distinguish among the following kinds of
organisations, and apply to them only those responsibilities that are
appropriate to the roles that they play:
- network infrastructure providers;
- access providers;
- content providers; and
- users; and
- some formulations assume that pre-classification of
Internet material, along the lines of that used for film censorship, is
feasible. This is not the case, because the volume of material and the
rate at which it is published are too great, and the locations in which it is
published are too diverse.
- The formulations suggested for new laws have generally been ineffectual,
because law is restricted to a specific jurisdiction, and the Internet
and services available using it are intrinsically supra-jursidictional.
- There may be more effective approaches available than the passage of
ineffectual legislation. Alternative measures that require evaluation include:
- the stimulation of and support for self-classification, monitoring
and filtering mechanisms, applicable, at their choice, at the level of
individual users, parents and teachers, and individual user organisations;
- education of the public, of parents and of children; and
- codes of conduct for carriers and services providers.
Conclusions
- Analysis of the problem should precede design of the solution.
- Laws creating responsibilities should reflect both the needs of society,
and the realities of the domain they seek to regulate.
- Laws should balance various social and economic interests, rather than
being designed to serve one need to the exclusion of all others.
- In general, regulatory measures should address the content of materials,
rather than the media by which they are carried.
- Existing international institutions and processes should be used to ensure
that a reasonable level of protection of commonly held values is achieved
across many jurisdictions rather than just one.
Some Sources
The Australian Computer Society's
source-page
on 'Regulating the Net', which in turn provides access to a vast array of
information on the topic, both Australian and overseas.
A set of
cases
on Netethiquette.
Navigation
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Created: 19 April 1996
Last Amended: 22 April 1996
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