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Why regulating pornography is harder than it sounds

It’s been a quiet couple of weeks since David Cameron announced plans for filtering pornography on the internet. Although the media attention has died down dramatically, I lay out the argument of why this is a bad idea. In the first in a three part series, I explore why demanding internet service providers and search engines filter pornography is wrong from a socio, legal, and technological point of view.

Erotic imagery is as old as time itself. Found in the ancient cultures of the Herculaneum and Pompeii, and from China, Japan and India of the Middle Ages to the present day, the cultural expression of human sexuality has been redefined by the internet The collections of networks that make up our modern day internet have streamlined the way we distribute and view pornography. Couple the personal computer with the cheap HD camera and there is no surprise that there is an explosion of interest in pornographic and obscene images. Currently we treat pornography like we do cigarettes and alcohol. It is illegal for minors, supposed to be difficult to access, and highly regulated by the government. It might not seem logical for me to say that, but it is still against the law to ship by mail order a film rated R18 by the British Board of Film Classification. Secondly, the Obscene Publications Act 1959 makes it illegal to import, publish, or supply into the UK obscene content although it may be possessed legally if there if not any intent to publish. Extreme content cannot be imported, supplied, published or possessed. The former UK approach to pornography was famously stated in R v Hicklin and created what was known as the Hicklin principle. The test was determined to be whether a publication had a tendency “to deprave and corrupt those whose minds are open to… immoral influences”. In the modern regulatory climate, publications that are likely to have this effect on young people are automatically ruled obscene. Some sort of moral code is said to be good for us, and what is wrong with the courts applying the Hicklin principle to our current societal values toward pornography? Thorough application of the Hicklin principle led to the banning of works like Tropic of Cancer, Lady Chatterley’s Lover, and The Well of Lonelinesss. Importing Tropic of Cancer from Paris was an offence under Section 42 of the Customs Consolidation Act of 1876. A key change came about in the form of the Obscene Publications Act which asks the jury to consider the effect of the content on persons who are likely to see the content in question. Essentially, it asked that jurors inquire on the effect that viewing the offending publication had on adults, rather than who might be open to ‘immoral influence’ - like children. A number of cases clarified the standard on obscenity – none more famous than R v Penguin Books, the Lady Chatterley’s Lovers case, where the defence counsel Gerald Gardiner recited entire pieces of the book in his closing speech and asked the court, "Now do you call that moral?", or "Do you think that is a good bit of writing?" The one thing which the Obscene Publications Act made plain is that in future, in fairness to the author, the book must be judged as a whole. Considering a part of Lady Chatterley’s Lover refers to homosexuality, which was then a criminal act, as an affront to British puritanism generally, and one can see that the discussion about pornography and how we should regulate it mirrors, in more ways than one, the scenes from a London courtroom in 1960. This creates a question over who decides what is considered moral. Is it society? It is a courtroom? Is it the legislature? It also begs the question over what is to be considered indecent content? What is immoral content? What is obscene? What is extreme? With traditional content (DVDs, VHS, and Magazines) the UK relies on a matrix of supply and content controls. The importation of extreme pornography is restricted. This allows the government to oversee what is being sold in the UK and what would be in violation of the Obscene Publications Act. This also means that traditional pornography was restricted to the standards of the community. This explains, in part, the limited content that can be viewed on Television on Demand, but also creates further questions about how to regulate an internet that is arguably borderless and undermines effective border controls. Take for example this piece by Mhairi McAlpine, which refers to the story of Linda Lovelace, who starred in the porno film Deep Throat. McAlpine refers to Lovelace as “raped” throughout the film, based on claims made in an autobiography Lovelace had written. However, McAlpine reasserts the rape claim ignoring the fact the Lovelace also wrote two previous pro-pornography autobiographies and one of her male co-stars referred to her as a sexual "super freak" that had no boundaries and was “a pathological liar”. Lovelace also referred to how she felt used by the feminist anti-pornography movement. "They've written so many books, and they mention my name and all that, but financially they've never helped me out. When I showed up with them for speaking engagements, I'd always get five hundred dollars or so. But I know they made a few bucks off me, just like everybody else," she said.Herein lays the difficulty in regulating based on with personal taste in a particular class of porn. Rape is rape. But under the current regulation, Lovelace’s claims about being raped in Deep Throat would mean that anyone viewing Deep Throat would be guilty of an offence. The judge of whether a type of porn would be offensive should be judged by only the person viewing it – barring the types of sex crimes that are already illegal in the real world such as rape, bestiality, and child pornography. It is important to note that “rape-pornography” as defined by the Government would only apply to consensual, simulated, fantasy material. Therefore, the possession of an image capturing an actual rape, for example CCTV footage, would not be illegal; but a “make believe” image created by and for consenting adults would be open to prosecution.I am not for a minute going to argue that we as a society shouldn't take Lovelace's claims about rape seriously. Of course, we should. But it is the adult profession that should be regulated, not the material the profession produces. By following McAlpine and the government's logic, anyone who watched Deep Throat may be guilty of the offence of watching extreme pornography.People choose porn based on their own personal preferences. In a dramatic case regarding how the community chooses the standard by which it compares see no further than the case of R v Michael Peacock. Peacock was a distributor of hard-core gay pornography. Some of the films distributed depicted men raping other men, staged kidnapping, and whipping. Peacock was found not guilty of an offence under the Obscene Publications Act on the basis that they were not meant to deprave or corrupt any viewer watching them. The jury recognised that the pornography found in this case would only be seen by ‘gay men specifically asking for this type of material’ and not by the general public. So where does this leave us? The line between indecency and obscenity is a community standard and the Internet plays host to many different people from many different backgrounds. If law makers across the globe cannot agree a common standard, then how can David Cameron force ISPs and search engines to determine for themselves what this line is? The community standard is a line that is always moving and changing, but the standard is based upon what people what to watch in the privacy of their homes – not what David Cameron thinks it to be. Porn blocking only glosses over the problem and prohibits us from entering into a proper debate about the psychological, social and physical effects of online porn, which is what I imagine people like Mhairi McAlpine really want.

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