Akdeniz, Yaman "Governance of Pornography and Child Pornography on the Global Internet: A Multi-Layered Approach," in Edwards, L and Waelde, C eds, Law and the Internet: Regulating Cyberspace, Hart Publishing, 1997, pp 223-241. Introduction The availability of pornographic content on the Internet The governance of the Internet Overview of UK pornography laws Obscene Publications Act 19 Child pornography UK child pornography laws Protection of Children Act 1978 Section 160 of the Criminal Justice Act 1988 Operation Starburst Possession offences Distribution offences Fellows and Arnold: The Birmingham University Case US attempts to regulate the Internet - the Communications Decency Act 1996 (CDA) Legal challenges to the CDA Developments within the European Union Responsibility of Internet Service Providers (ISPs) Self- regulation by ISPs - the Internet Watch Foundation UK police censorship of Internet newsgroups Technical solutions and rating systems Parental control software Conclusion Copyright 1997, 1998 Yaman Akdeniz.
Student at the Centre for Criminal Justice Studies, Law Faculty, University of Leeds, Leeds LS2 9JT. For further information see 1997-2000, Yaman Akdeniz.
Reidenberg 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.This is why the wider concept of governance may be more suitable.A recent European Commission Communication Paper stated that each country may reach its own conclusion in defining the borderline between what is permissible and not permissible.(10) The multi-layered governance system should be a mixture of national and international legislation, and self-imposed regulation by the ISPs and on-line users.This should include 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.According to Walker, social regulation within modern society has developed within physical bounds of time and space, but the development of cyberspace distanciates its inhabitants from local controls and the physical confines of nationality, sovereignty and governmentality leading to new possibilities in relationships and interaction.(8) The idea of governance without government may be the best approach for the development of the Internet.
But if such mechanisms of international governance and re-regulation are to be initiated then the role of nation states is pivotal.(9) There appears to be no single solution to 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.
Before explaining the possibilities of how to govern the availability of pornographic content on the global Internet, I will briefly discuss how and in what form these materials are available on the Internet.
The availability of pornographic content on the Internet Pornography on the Internet is available in different formats.
Section 1(1) of the 1959 Act provides that an article shall be deemed to be obscene if its effect or the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.(14) Under Section 2(1) of the Obscene Publications Act ( OPA), it is an offence to publish an obscene article or to have an obscene article for publication for gain.
Section 1(3) of the 1959 Act makes it clear that the articles contemplated were such items as computer disks; however most of the pornography on the Internet is now transferred electronically from one computer to another using telephone lines and modems rather than via any tangible medium such as discs.
This left a possible lacuna in section 1(3), OPA 1959, but this has now been plugged by CJPOA 1994 ,which amended the meaning of "publication" in that section, so that electronic transmission of pornographic material is now clearly covered by the 1994 Act.