Catching porn in the Net

John Rubinstein says that banning pornography on the Net is not the way to prevent exploitative child sex. John Rubinstein is a partner in intellectual property at Manches & Co.

Pornography was not initially a significant feature of the Internet. The Net's origins lie in military and academic information exchange requirements, exploiting telephone networks for exchange of information.

The flexibility of the medium and its easy availability to networks of individuals permits easy transmission of pornographic material by telecommunications from jurisdictions with differing attitudes to 'sexploitation'. Those same networks can equally be used for the transmission of material which is seditious, racially offensive, or politically unacceptable to certain governments.

Controlling pornography on the Internet is a problem. The identity, the age and the status of a person accessing the Internet is difficult to regulate and a common worldwide understanding of what is unacceptable pornography is unlikely to be established, let alone enforced.

Government desire to control content is no less prevalent in relation to the Internet than it is for other media, but using a sledgehammer to crack a nut would stifle the value of the Internet as a medium of free expression.

This is particularly true for those who are denied the ability to communicate their views in other media whether because of expense or proprietorial censorship of views with which the proprietors do not agree.

A great deal of fuss has been made about the availability of pornography on the Internet, but the reality is different. Most of the material which is available through Internet Service Providers (ISPs) is no more explicit than what is already available on the top shelves of UK newsagents or capable of being sent through mail services. And secured sites offer interactive visual sex for sale which can otherwise be bought lawfully from prostitutes.

Net content is also monitored by ISPs to ensure that it complies with the domestic laws of countries in which they offer access to the World Wide Web.

Compliance with local obscenity and child protection legislation in the main Internet-using jurisdictions was quickly secured by the widely publicised prosecution of Compuserve in Germany. And in the US, the availability of what is traditionally considered hard-core pornography is limited to those sites to which access is strictly controlled and/or require credit card payment for online services. These requirements deter many of those who do not wish their voyeuristic sexuality to be publicised.

The most serious problem centres on the circulation of paedophile material and the exploitation which the availability of that material may encourage. Paradoxically, ease of access to Internet sites can disclose the existence of paedophile networks on the Net and lead to the tracking down and arrest of paedophiles, whereas detection of mailed material is much more difficult.

A ban on material 'patently offensive as measured by contemporary community standards' to restrict obscene or paedophile material appearing on the Net will not work. Section 223 of the US Communications Decency Act 1996 was held unconstitutional in Civil Liberties Union v Janet Reno when the three-judge Federal Court injuncted the US government from enforcing measures which attempted to impose criminal liability on those who placed or permitted to be carried on the Internet material available to persons under the age of 18 which would be adjudged patently offensive as determined by nationwide juries.

Not only is there no likelihood of agreeing an intelligent threshold of what is unacceptable material, the court regarded the vested interest in promoting freedom of expression as paramount especially in a medium in which individuals have at last obtained the opportunity to put across their views without having to toady to controllers of conventional media organs to get a hearing. The court also pointed out that access by juveniles to the Internet can be controlled by responsible parents.

There is an overriding legitimate public interest in receiving educational and instructive sexually explicit material in relation to scientific research, for example, or to educate juveniles about HIV and other sexually transmitted diseases. These should not be suppressed merely because an Idaho 'boondocker' finds them patently offensive to him.

For as long as humans have engaged in sex, children have been abused. For the Internet, as well as for sex tourism, international police cooperation and effective child protection legislation is what is required to prevent the abuse and exploitation of children.

Urgent consideration should be given to an international treaty to permit cross-frontier prosecutions to deter exploitative child sex. Pulling the plug on the Net is not the answer.