Online Pornography and the Law

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    This article examines laws, regulations and case law related to online pornography in selected jurisdictions to assess their effectiveness and limitations.

    <u><i>1 The United States and online pornography</i></u>

    «There have been many attempts in the United States to regulate online pornography, although not all of them have been successfully implemented».

    <u><b>1.1 The Communications Decency Act (CDA), 1996</b></u>

    The CDA was the first federal law to impose significant constraints on internet communications. It imposed criminal sanctions on anyone who:

    knowingly (A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.

    It further criminalised the transmission of materials that were «obscene or indecent» to persons known to be under 18.

    So, under the CDA regime, an ISP was liable for allowing dissemination of obscene or indecent material to minors over Internet facilities it controlled and could be criminally punishable by a fine or imprisonment for up to two years or both. However, the ISP could defend itself that it acted in good faith to take reasonable, effective and appropriate actions to prevent minors from receiving indecent material through the Internet. It could also use the defence based on the distinction between an access service provider and a content provider. If the ISP could prove that it only provided access to a network without interfering with the content, it would have been exempted from liability. If it is established that it acted as a content provider, then it will be criminally liable for transmitting indecent materials to a minor.

    However, in Reno v American Civil Liberties Union the US Supreme Court found unconstitutional certain provisions of the CDA that were intended to protect minors from harmful material on the Internet.

    This judgement implied that ISPs could no longer be held liable for the transmission to minors of indecent or obscene materials under the CDA. Thus, a quick reaction from the Congress was required to fill what could be considered as a gap. This reaction came with the enactment of the Child Online Protection Act, sometimes referred to as CDA II.

    <b>1.2 The Child Online Protection Act (COPA), 1998</b>

    Unlike the CDA, the COPA prohibited the transmission of material that is harmful to minors rather than material that is indecent or obscene. Section 231 (a) (1) provided that:

    Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50 000, imprisoned not more than 6 months, or both.

    Consequently, Commercial site operators who offered material deemed to be harmful to minors were required to use bona fide methods to establish the identification of visitors seeking to access their sites. Failure to do so could result in criminal liability with fines of up to $50 000 and six months in jail for each offence.

    On the other hand, ISPs who simply provide access to harmful content to minors could hardly see their responsibility engaged since ISPs cannot be expected to be aware of the character of all materials transmitted through their servers. Indeed, it is technically impossible for them to monitor the enormous quantity of network traffic, which may consist of hundred of thousands of web pages.

    The constitutionality of the COPA was challenged almost immediately after its enactment. In ACLU v Reno II, the Third Circuit Court found the COPA to be unconstitutionally overbroad because it prohibited a wide range of constitutionally protected speech. The Supreme Court upheld that decision.

    <b>Thus, the second attempt of Congress to regulate online pornography also failed.</b>

    1.3 The Children’s Internet Protection Act (CIPA) 2000

    The CIPA required schools and libraries that receive government funding to install filtering technology that blocks or filters Internet access to visual depictions that are obscene, or harmful to minors as well as child pornography in respect of children under the age of 17 years.

    This Act was held invalid under the First Amendment because it required libraries to use filtering technology that inadvertently blocks access to thousands of legitimate websites while allowing access to some pornographic websites.

    Upon appeal to the Supreme Court, however, the law was upheld as constitutional as a condition imposed on institutions in exchange for government funding. In upholding the law, the Supreme Court made it clear that the constitutionality of CIPA would be upheld only «if, as the Government represents, a librarian will unblock filtered material or disable the Internet software filter without significant delay on an adult user’s request.»

    <b>1.4 The Child Pornography Prevention Act (CPPA), 1996</b>

    The CPPA criminalizes the creation, possession and transmission of digital child pornography, whether the pornographic image is computer generated or an actual photograph.

    The constitutionality of the CPPA has been challenged in several federal courts resulting in conflicting decisions. However in Achcroft v Free Speech Coalition, the Supreme Court overturned the provisions of the CPPA that made it a crime to possess or distribute any sexually explicit image that appeared to be a minor engaged in a sexual act because it violated the protection of free speech.

    <i><u>2 United Kingdom</u></i>

    <u><i>2.1 The Obscene Publications Act, 1959</i></u>

    In terms of the Obscene Publications Act, mere possession of an obscene article is not an offence. Possession with the intention of publication for gain, however, is an offence. As set out in the case of R v Fellows this is the case of the Council of Europe’s Convention on Cybercrime. Article 9 (1) of this Convention provides that each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the following conduct:

    <i><u>o Producing child pornography for the purpose of its distribution through a computer system;</u></i>
    <i><u>o Offering or making available child pornography through a computer system;</u></i>
    <u>o Distributing or transmitting child pornography through a computer system;</u>
    <b>o Procuring child pornography through a computer system for oneself or for another;</b>
    o Possessing child pornography in a computer system or on a computer data store medium.

    South Africa as one of the signatories to this Convention has implemented this provision in terms of the Films and Publications Act No 65 as amended in 1999 to make the exploitive use of children in pornographic publications, films or on the Internet, punishable.

    <b>4 South Africa and online pornography</b>

    <b>4.1 The Films and Publications Act No 65 of 1996</b>

    This Act regulates the creation, production, possession and distribution of pornography in South Africa. It also specifically outlaws child pornography, notably on the Internet.

    Let us analyse instances where an ISP can incur liability in terms of this Act, i.e for distribution of pornography to minors as well as for possession and distribution of child pornography.

    <b>4.1.1 Distribution of pornography to minors</b>

    According to the Films and Publications Act No 18 of 2004, distribution includes… the fact of handling or exhibiting a film or a publication to a person under the age of 18 years, and also the failure to take reasonable steps to prevent access thereto by such a person. Consequently, ISPs could face criminal liability for allowing access to pornography to minors on their servers under this Act. This reminds us provisions of the CDA and COPA intended to prevent access to pornography to minors and their fate in the US. So it is interesting to see that South Africa has succeeded where the US legislator has failed.

    This Act prohibits the distribution of pornography to minors. So an ISP could be held liable for distributing to minors inter alia a publication or a film classified XX or X18 or a film not classified at all. But to be liable, an ISP needs to distribute pornography knowingly. It is therefore unlikely that an ISP who simply provides access to Internet without monitoring the content could be held liable for access to pornography to minors on its servers. It results that the duty of ISPs to prevent access to online pornography to minors is unlikely to be effective, parents or guardians are probably the first ant best defense for protecting children from pornography over the Internet. As regards the content provider, it is likely to be liable if it fails to take reasonable steps to prevent access by children to pornography and to face a sentence to a fine or to imprisonment for a period not exceeding five years or to both.

    <u><i>4.1.2 Possession on appeal, the Constitutional Court upheld that decision.</i></u>

    <b> Distribution of child pornography</b>

    The Films and Publications Act No 65 punishes the distribution of child pornography of the same penalty as its possession, i.e. a fine or imprisonment for a period not exceeding 10 years or both. But, like possession, the distribution of child pornography requires the requisite knowledge of it by the ISP to give rise to liability. So ISPs who distribute child pornography in the carrying on of their business without being aware of the content of that material will be exempted from liability under the Films and Publications Act. However that Act imposes obligations on ISPs in order to prevent the use of their services for the hosting or distribution of child pornography as well as a close cooperation with the South African Police Services in the combat against child pornography.

    One should also note that ISPs who merely provide access to or host child pornography without being aware of the content thereof may be exempted from liability in terms of the Electronic Communications and Transactions Act No 25 of 2002.

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