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

  1. Freedom of thought and expression are crucial elements of a free society.
  2. 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.
  3. Legislation has two purposes:
    1. to state in fairly precise terms what behaviour is illegal and subject to sanctions; and
    2. to provide an expression of societal values.

Some Definitions

  1. Erotica is "literature or art dealing with sexual love" (Macquarie Dictionary, 1981, p.609).
  2. 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.
  3. 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:
    1. erotica which incorporates violence, because that may represent an incitement to violent action; and
    2. erotica which involves children, commonly referred to as paedophilia.
  4. 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

  1. 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.
  2. Australian law currently includes a classification scheme for published materials, comprising:
  3. 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.
  4. 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.
  5. 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.
  6. 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

  1. The steps which need to be taken are:
    1. to establish whether the law regulating 'refused materials' is inadequate to cope with the Internet and Internet-based services; and
    2. if so:
      1. to define in precisely what ways it is inadequate; and
      2. to propose and evaluate alternative approaches to overcoming those specific deficiencies.

Tentative Analysis

  1. 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.
  2. 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.
  3. 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:
    1. 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:
      1. network infrastructure providers;
      2. access providers;
      3. content providers; and
      4. users; and
    2. 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.
  4. 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.
  5. There may be more effective approaches available than the passage of ineffectual legislation. Alternative measures that require evaluation include:
    1. 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;
    2. education of the public, of parents and of children; and
    3. codes of conduct for carriers and services providers.


  1. Analysis of the problem should precede design of the solution.
  2. Laws creating responsibilities should reflect both the needs of society, and the realities of the domain they seek to regulate.
  3. Laws should balance various social and economic interests, rather than being designed to serve one need to the exclusion of all others.
  4. In general, regulatory measures should address the content of materials, rather than the media by which they are carried.
  5. 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.


Go to Roger's Home Page.

Go to the contents-page for this segment.

Send an email to Roger

Created: 19 April 1996

Last Amended: 22 April 1996

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