Nara Chandrababu Naidu's Visionary Policies For Andhra Pradesh's Development
13 intljl infotech260
1. Citation: 13 Int'l J.L. & Info. Tech. 260 2005
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3. ALEXANDER SHYTOV
introduce criminal sanctions and enforce them strictly when combating
pornography on the Internet. International law needs to address deeper
problems which give rise to the wide spread indecency on the Internet.
1.
Introduction
One report from the USATODAY.COM helps us to grasp few of the problems related to indecency on the Internet and international law. It was
reported in 2001:2
Despite a successful Russian-U.S. operation to shut down a Web site
that sold child pornography, police decried legal chaos that leaves
them virtually powerless against Russian child pornographers who peddle their products worldwide. Operation Blue Orchid, a joint effort by
the U.S. Customs Service and the Moscow city police, has led to criminal inquiries in 24 nations against people who ordered child pornography videotapes from the Russian Web site. The police operation was
named after the Web site, which was shut down earlier. Many of the
tapes were bought by people in the United States; others went to
Germany, Britain, France, Denmark, China, Kuwait, Mexico and scores
of other countries. But Russian investigators said the operation
nabbed only a few of the legions of child pornography producers who
run international distribution networks from Russia with near-immunity. 'According to estimates by foreign experts - and though it pains
us to hear this, it is true -
Russia is turning into a kind of Malaysia or
Thailand, where the main flow of child pornography now is coming
from Russia,' said investigator Edward Lapatik. Under Russian law,
possession of pornography is not a crime. Production and trafficking
are illegal, but the law makes no distinction between child pornography and pornography involving adults - treating both as lesser crimes
punishable by a maximum of two years in prison, the same punishment for petty theft or shoplifting. Deep poverty drives scores of children in the Russian hinterlands to flee their homes and their oftenabusive parents, and travel to Moscow. Once there, the children
become easy victims. 'Some are paid for these activities, others just get
food,' investigator Alexander Bynenko told a news conference. Even
when the children fall into the hands of police, there is little the cashstrapped authorities can do. Since the start of the year, some 5,000
teen-agers have been detained in Moscow for various offenses. Of
them, only 98 could be placed in orphanages; the rest were sent home,
and probably ran away again, Lapatik said. During Operation Blue
Orchid, police seized some 600 videotapes, 200 digital video disks and
2 http://www.usatoday.com/tech/news/2001-03-27-porn.htm
4. INDECENCY ON THE INTERNET AND INTERNATIONAL IAW
many boxes of photographs. Bynenko displayed stacks of graphic photographs involving hundreds of children, but said authorities were
unable to track the fate of each child.
Four people have been arrested in the United States and 15 search
warrants have been issued as part of Operation Blue Orchid. At least
four people have been arrested in Russia and two suspects have committed suicide - not out of fear of long prison terms, but of the treatment sex offenders get from other inmates in Russian jails,
investigators said. Adding to the difficulty of fighting child pornography in Russia, the country's age of consent is 14 - but even offenders
convicted of having sex with younger children face a maximum of four
years. The light punishment has stoked sex tourism to Russia, police
said. One such alleged U.S. tourist, Glenn Martikean of Portage, Ind.,
was arrested. The boy was 14, and Russian police were unable to press
charges. Martikean was arrested by U.S. customs agents after he flew
home and was indicted Friday by a grand jury in Indiana on charges of
importing child pornography and interstate and foreign travel to
engage in sexual activity with minors, customs said.
This report has highlighted several important issues related to indecency on the Internet. First, the Internet has become the means of distribution of pornography. A search on the Internet for 'porn' can display
138,000,000 web sites, while the word 'chastity' produces only over
300,000 web sites! It is apparent that chastity is not what is in the head of
the most of the Internet users. There are estimates that almost half of all
searches made using Internet search engines were seeking pornographic
materials.3 Pornography is one of the flourishing areas of e-commerce.
There are many who are so addicted to viewing porn materials, that they
are willing to pay much money for receiving porn materials either directly
through the Internet or using the Internet for ordering them. Should the
government do something to protect people from this addiction? If so is
there a conflict with the rights to privacy and freedom of expression,
which are the parts of international human rights law?
Second, the Internet defies the attempt of a single country to regulate
its content. If the Internet content has to be controlled, it can be done
through the international cooperation. Should the countries cooperate
to suppress pornography on the Internet or not? It seems that there is a
consensus that the child pornography should be suppressed, but there is
a lack of agreement or at least enforcement effort to suppress adult pornography. Even in the case of child pornography, as it has been indicated in the report above, Russian police can do little to solve the
problem.
' Lloyd I. Information Technology Law. - Butterworths, 2000 - P. 273.
5. ALEXANDER sHrov
The third problem can also be deduced from the report: should the
society press their governments to enforce strictly indecency laws? In the
report, the Russian police lamented that law is not strict enough, yet at
the same time a few suspects committed suicide fearing conviction. The
main problem with Russian police is not that there is no law forbidding
distribution of pornography, but the lack of enforcement. How does this
problem affect international law?
2.
International law and pornography: overview
Many countries contain law against pornography. It differs from country
to country. In some countries a mere possession of pornographic materials can be a crime. That was the case in the US before the Supreme Court
began to limit the power of the American states to punish a mere possession of pornography. 4 The same tendency is observed in many other
countries. In A.D.T. v. the United Kingdom5 The European Court of
Human Rights among other issues raised in the case, determined that a
mere possession of videos with indecent content without the intent to distribute it, is a matter of privacy protected by the human rights law. The
situation can be different with child pornography.6 Possession of child
pornography materials is a crime in the UK, 7 and also in the US. 8 However in countries like Russia and Thailand, the law does not distinguish
between child and adult pornography, and as long as there is no intent to
distribute it, it is not a criminal offence to possess it. Even though possession of pornography can be regulated differently in different countries, it
appears that most of the countries prohibit sending pornography, at least
9
the leading producers of it: the USA andJapan.
There is not any specific international agreement which bans all types
of pornography on the Internet. The Council of Europe Cybercrime
Convention, the first and thus far only multilateral treaty to address specifically the problem of computer-related crime and electronic evidence
gathering, bans child pornography only.' Apart from that, there are two
'See for example: Stanley v. Georgia, 394 U.S. 557 (1969).
'Application no. 35765/97 Decision of the Court on 31.07.2000. The text is available at: http://
hudoc.echr.coe.int/Hudocl doc2/HEUD/200210/a.d.t.%20v.%20uk.batj.doc
'On child pornography laws in different countries see: http://www.interpol.int/Public/Children/
SexualAbuse/NationalLaws/
7 Lloyd 1. Information Technology Law. - Butterworths, 2000 - P. 276-7.
8
See Title 18 of the US Code, Chapter 110, Section 2252A. The text is available at: http://
www4.law.cornell.ed/uscode/18/plchl 10.html
'Lloyd I. Information Technology Law. - Butterworths, 2000 - P. 274. The American law will be considered to a greater detail below. For Japanese law see: Makoto lbusuki 'Legal aspects of cyber-porn in
Japan' at: http//www.lex-electronica-org/articles/v-I /Ibsuki.html and AlexanderJ. 'Obscenity, Law
and Pornography in Japan' in: Asian-Pacific Law & PolicyJournaL - Vol. 4.
0
20 0 3
. - p. 149-168.
Article 9 of the Convention. The text is available at: http://conventions.coe.int/Treaty/en/Treaties/
Html/185.htm
6. INDECENCY ON THE INTERNET AND INTERNATIONAL LAW
international agreements which cover the circulation of obscene publications. There is an International Treaty entitled 'Agreement for the Suppression of the Circulation of Obscene Publications' which was signed in
Paris in 1910, and was amended by a Protocol signed at a meeting of the
United Nations in New York in 1949. There is also the International Convention for the Suppression of the Circulation and Traffic in Obscene
Publications (1923) amended in New York in 1947. The USA, Russia and
many European countries are parties to the treaties. Such countries, like
Japan, Thailand and Germany are not among the parties. Denmark and
the Netherlands denounced 1923 Convention.
The most important is article 1 of the 1923 Convention which states
that the states have an obligation to discover, prosecute and punish any
person engaged in trade or distribution, or public exhibition any obscene
objects." There are specific provisions prohibiting export and import of
obscene materials. Advertising availability of obscene materials is also
banned. Article 2 of the 1923 Convention maintains that a person, who
has committed offence defined in article 1, 'shall be amenable to the
courts of the Contracting Party in whose territories the offence, or any of
the constitutive elements of the offence, was committed. ' 12 The 1910
Treaty sets up important procedures for international cooperation to
3
suppress the circulation of indecent materials.'
The weakness of 1910 and 1923 treaties is that they were agreed at the
time when there was a comparative unity in understanding of what indecency or obscenity is about. Therefore, those agreements left the concepts of obscenity or pornography undefined. From the general
wording of the treaties it is apparent that they can be applied to the
Internet. However, the age of the agreements, and particularly the law
enforcement practices in the area of adult pornography questions the
commitment of the parties to be bound by the treaties. The number of
the countries, which remain officially the parties of the treaties, does
not exceed 60 while the total number of the states who are members of
the UN is 191.
If distributing pornography is a crime in many, if not all, countries,
then it is apparent that such country can launch prosecution against porn
distributors worldwide through the procedure of extradition. Moreover,
there are many so called 'Mutual Legal Assistance in criminal matters
Treaties' (MLATs) which can assist in this area. These treaties help to
obtain testimony and tangible evidence from each country. Pursuant to a
request under an MLAT, the requested authorities may: supply official
records, locate persons, execute search and seizures of property, arrange
1
See the text of the Convention: http://www.austlii.edu.au/a/other/dfat/treaties/1935/19.html
2
' ibid.
'3
See the text: http://www.ausflii.edu.au/au/other/dfat/treaties/1912/10.hml
7. ALEXANDER SI-IMTOV
for the appearance of witnesses or experts before the relevant judicial
authority, secure extraditions, transfer accused persons needed in the
requesting country, exchange relevant information relating to the laws,
regulations, and international practices in criminal matters of the contracting state. The MLATs, however, can be used to obtain information
from a foreign country for only those criminal violations listed in the
MLAT.
It is apparent that adult pornography is not commonly at that list and
extradition for publishing adult pornography is not what one can hear
often about. The situation is different with child pornography cases
where extradition was sought and sometimes obtained. 14 In relation to
adult pornography there are two major difficulties to extradite. First of
all, there would be no extradition if the host country does not consider a
particular material to be obscene. Secondly, there is often not enough
information and evidence for the country where the porn materials are
received to prosecute a person who is allegedly running a pornographic
website. For example, a search on the whois for the owner of one porno15
graphic site produces this information:
Registration and WIOIS Service Provided By: directNIC.com Intercosmos Media Group, Inc. provides the data in the directNIC.com Registrar WHOIS database for informational purposes only. The
information may only be used to assist in obtaining information about
a domain name's registration record. directNIC makes this information available 'as is,' and does not guarantee its accuracy.
Registrant: no organization P.O. box 195 Maassluis, none 3140 AD NL
3110595959
Domain Name: HEREISTHEPORN.COM Administrative Contact: de
Ruiter, Ralph ralph de ruiter@hotmail.com P.O. box 195 Maassluis,
none 3140 AD NL 3110595959
It is clear that this information is not sufficient for seeking the extradition
of a person from the Netherlands to, for example, Thailand where posting pornographic materials is illegal.' 6 There is a need for international
cooperation in the area of criminal prosecution and in forcing the registrars
4
See for example: http://www.usatoday-con/tech/news/techpolicy/2002-O849-net-pornograply x.htm;
http / /www.ice.gov/uraphics/news/newsreleases/articles/childporn.htn
US/whois/resultsjhniljsessionid=XQDOBGRIO42VUCW LEAKS"http://www.networksolitions.com/en
FEQ? whoistoken--0& requesuid=1458258)
"'According to Dutch criminal code, offer unasked-for pornography, offer asked-for or unasked-for
pornography to someone younger than 16 years old and use someone younger than 16 years old to make
child pornography for distribution are illegal (articles 240, 240a and 240b). See: httpL/L
web4health.info/en/answers/sex-paraphi-legal. htm. According to Thai penal code (section 287)any distribution of pornography is illegal. If a Thai minor has accessed a Dutch pornographic web site, theoretically, Thai government can ask for extradition of the Dutch porn distributor.
8. INDECENCY ON THE INTERNET AND INTERNATIONAL lAW
of domain names to disclose full information concerning the managers
and registrants of the web sites. Except the area of child pornography it
does not appear that many international efforts have been made to suppress indecency on the Internet.
3.
Pornography and enforcement of morals
by law
The question whether the governments should enforce morals by law is
an old one. In the UK, Judge Devlin and the leading legal scholar of the
last century H.L.A. Hart fought on this issue.' 7 The debate was started in
1959 by Patrick Devlin, who was at that time a High CourtJudge. In his
public lecture, Devlin stated: 'It is wrong to talk of private morality of the
law not being concerned with immorality as such or to try to set rigid
bounds to the part which the law may play in the supervision of vice ....i s
There can be no theoretical limits to legislation against immorality."
Hart responded with the article 'Immorality and Treason' (1959) where
he insisted on separation of law and morals. 19 The separation thesis was
developed in Hart's famous book: The Concept of Law.20 Hart did not
argue that there is no connection between law and morals. But he
insisted that law and morals are different spheres of human activity. 2 ' The
key difference of Hart's thesis from Devlin's is that Hart claimed that
'there is no important necessary or conceptual connection between law
and morality.' 22 Hart maintained that only if there is a harm done to others, then law can intervene into the area of private morality.
The discussion about pornography and the Internet is much focused
on whether pornography, particularly adult pornography is harmful to
others or not. It is important to distinguish between consenting viewing
by adults and by those who do not consent (like in the case of pop-ups) or
children. Organisations like Morality in Media present a number of convincing examples when pornography did indeed have harmful effects on
the adult viewers. At the same time many other organisations like Free
Speech Coalition convincingly argue that there is no proven link between
viewing adult pornography and harm to the consenting adults. The fact
that a single individual under the influence of viewing pornography committed a sexual crime may not necessarily prove the rule. At the same
"Devlin
P. The Enforcement of Morals. - Oxford University Press, 1968. Hart H.L.A. Law, Liberty and
Morality.- Oxford University Press, 1963.
'
"'
Published in: Devlin P. The Enforcement of Morals. - Oxford University Press, 1968. - P. 14.
Reprinted in: The Philosophy of Law. - Ed. By R. Dworkin. - Oxford University Press, 1977.
d
"'
21
2
Hart H.L.A. The Concept of Law. - 2" edit. - Oxford: Clarendon Press, 1994. - Ch. IX.
Ibid., p. 202.
Ibid., p. 259.
9. ALEXANDER SHYrOV
time, the fact that children can access the porn sites does not necessarily
justify the conclusion that all porn sites should be banned. The deeper
problem here is how should we understand the concept of harm in relation to pornography, which is sufficient enough to ban it effectively? For
example, the knowledge that smoking or addiction to alcohol does harm
people does not lead to their prohibition in the most of countries. What
is the exact harm which pornography causes, and why is it so important to
justify the ban on distributing pornography to consenting adults? These
are complex questions and require much expertise beyond pure legal
considerations.
The contemporary discussion, however, misses one particular point on
whether or not the governments around the world have another legitimate reason for the right or duty to stop circulation of pornography
through the Internet independently from the reason of actual harm to adults. In
other words, the question, which this paper tries to address, is whether
there is a legitimate reason to ban pornography on the Internet when
there is no actual harm being established? This is a legal as well as moral
issue, and it can be answered without a necessarily relying on the concept
of harm.
4.
The sovereignty of the states and the Internet
The power of censorship, whether we like it or not, is based on the concept of state sovereignty. The states are free to decide the extent in which
they are prepared to control the content of media for the purposes of
protection of good morals and public policy, even though the human
rights law has established serious constraints on the states in this particular area. As long as there is no violations of international obligations relating to human rights, the idea of sovereignty provides a sufficient basis for
the power of the states to ban pornography within their borders. Even
though the idea of sovereignty remains the key concept of international
law, one cannot ignore remarkable changes in the idea of sovereignty.
The problem with the idea of sovereignty is that it is no longer perceived
as an absolute freedom to determine the internal policy. Thomas Frank
recently showed 'many instances of national sovereignty being23overridden by international law and international or regional regimes.'
The phenomenon of the Internet makes the limitation of national sovereignty exist de-facto. The sovereign states can do little to regulate its
content independently from each other. Paradoxically, whether the states
will opt to ban pornography on the Internet through their collective
action or not, their sovereignty in regulating the Internet content is
2'
Frank Th. Fairness in InternationalLaw. - Oxford University Press, 1995. - P. 3.
10. INDECENCY ON T[IE INTERNETAND IN'ERNATIONAL lAW
seriously impaired. One can even say that the lack of international regulation of the Internet's content is more damaging to national sovereignty
than accepting a binding international obligation to police the content of
the web sites situated within the state. A state, which makes an international agreement, exercises its freedom of choice. The state, which leaves
this area uncontrolled, leaves uncontrolled much of the activities of its
citizens. It may have well elaborated policies to protect family and good
morals, to suppress crime and anti social behaviour. However, without
implementing this policy on the Internet it runs the risk of not being able
to implement it at all.
The issue at the moment is whether the sovereign states have enough
sovereignty to censor the Internet considering their inner constitutional
and external international constraints on controlling the content on the
Internet. Both constraints interrelate and depend on the idea of individual freedom and liberty. The limitation of the sovereignty by human
rights law has at the same time its origin in the sovereignty itself. Human
rights law is based on treaties. In the most successful international treaty
on human rights, the European Convention on Human Rights, it is maintained that the interests of national security, public safety or the economic well-being of the country, the prevention of disorder or crime, the
protection of health or morals, or the protection of the rights and
freedoms of others can be sufficient reasons for the state regulation of
the areas of private life and the freedom of expression. 24 Thus, it does not
appear that international constraints can prevent the states from regulating the Internet tightly.
The inner constraints are more difficult to overcome. It can be presumed that in the democratic society the states can exercise their powers only to the extent the people gave their approval too. Moreover,
even their representatives may agree on strict Internet policing, there
can be a constitution barrier to hurdle. In relation to the Internet regulation, it means a basic uncertainty. If one government does not have
the authority to censor the Internet, this lack of the authority deprives
other governments of the real authority they may have under their
constitutional law.
If one government cannot or does not want to control the content of
the web sites based on its territory, it makes problematic for the other
states to exercise their control over their web sites, because there is no
much difficulty for the nationals of the latter states with a strict control to
move their web sites to the former state with a less control. A solution
could be to adopt the concept of over-national sovereignty at least in the
area of the Internet where the states regulate the content of the Internet
internationally.
" Articles 8 and 10 of the Convention.
11. ALEXANDER SHYfTOV
The idea of sovereignty is not the only principle of international relations. Since Grotius and the Westphalian system, the other principles
have been following: sovereign equality of states; the right of non-interference in domestic affairs of the sovereign state; territorial integrity of
the state; the obligation to abide by international agreements; the principle of the peaceful settlement of disputes; and the obligation to engage
in international cooperation consistent with national interests. The
nature of the Internet is such that uncontrolled content of the Internet in
one country can impair seriously not only the sovereign powers of the
states to determine their internal policy, but also other principles, particularly, the principle to engage in international cooperation. There is a
need for the principle that a State must not allow its citizens to use its sovereign protection to be involved into distributing pornographic materials
considered to be indecent in another State and which affect the territory
or citizens of the another State. Without such principle, it is very problematic to talk about comity of nations as a state of mutual harmony,
friendship, and respect between nations.
5.
Pornography as a threat to traditional
cultures
One problem with the inadequacy of the mentioned discussions on the
harm of pornography is that the harm caused by pornography is not conceived equally among the nations. In fact, the harm of pornography will
be different in different cultures. In so-called 'open societies' people
have acquired a certain element of immunity against pornographic materials. In so called 'closed societies' with a rigid external control of morals
the harm by the open access to porn materials on the Internet can be devastating. Like the exposure of the Eskimos to vodka brought by Russians
led to their not only moral but also near physical extinction, in the same
way the American porn industry can have a similar impact on many cultures in the world. This argument is different from the argument of harm
mentioned above. What is maintained here is not the reason that in order
to justify a universal ban of pornography on the Internet, one has to
establish the fact of a detrimental impact of pornography on other cultures. That would mean a return to the harm argument. What is maintained here is the principle that when dealing with the impact of
pornography on different cultures in this world one has to apply a precautionary principle in order to avoid fatal damage to the cultures.
Precautionary principle is not a simple means to ban everything what
can be harmful. When breathing in a polluted city, it does not mean that
one has to stop breathing following the precautionary principle. When
precautionary principle is applied, law must look at the element of necessity
12. INDECENCY ON THE INTERNET AND INTERNATIONAL LAW
and value of those activities which will be affected by a precautionary ban.
It is difficult to see any overriding necessity for a human being to see pornographic materials on the Internet, even though there are some individuals who can feel such a necessity. Sexual lust may cause immense
suffering to an individual if his or her sexual drive is not met. In this situation, one could say that pornography could provide a means of indirect
satisfaction to such individuals. However, it is difficult to imagine an individual for whom viewing the pornographic images on the Internet
become a matter of life and death. If there is one, then it is doubtful
whether this person is psychologically sound.
Since there is an international obligation to protect world cultures and
cultural diversity, 25 and since it is beyond doubt that pornography threatens many cultural beliefs on what constitutes decency, it is obvious that
the states have a sufficient legal basis to ban pornography on the Internet
even though there is no any proven harm to an individual. It does not
mean that the international law must enforce uniformity on the states in
relation to the standards of obscenity. It means only, that the Internet is
exempted from narrowly national application of parochial standards of
decency. In relation to other means of communicating ideas and images
the states should exercise full freedom in determining their standards of
decency, as long as those means do not transcend their national borders.
6.
The reasons against the absolute ban on
pornography
There are stronger arguments against universal prohibition of pornographic materials. There are several reasons, which can be put forward
against banning adult pornography on the Internet. The first reason is
that one must be free to decide what he is going to see or not to see. As
for the adult models, they can claim freedom to do whatever they want
to do with their body. The state by intervening in this area threatens the
freedom of expression, and also threatens the rights to privacy. Further,
it has to employ public funds. Considering the size of pornography on
the Internet and the vastness of the Internet, it is clear that policing it
would demand a substantial sum of money from the pocket of taxpayers.
Apart from that, over regulation discourages business initiative. Porn
business, even taken in its mild forms only, is one of the booming areas
" For general information see: www.unesco.org/ The text of European Cultural Convention is at:
http//fletcher tufts.edu/multi/www/bh3l2.html. UN Convention Concerning the Protection of the
World Cultural and Natural Heritage is narrow in scope, but its preamble contains customary principles
of international law in relation to protection of cultures as a world heritage of mankind: httpLL
whc.unesco.org/world he.hun. Apart from that cultural rights are often protected as human fights in
innumerable human rights documents.
13. ALEXANDER SHYrOV
of business activities. A pure economic approach would resist the total
suppression of porn business even on the Internet alone because the
capitalist type of economy we live in needs a constant stimulus. If there is
no area where people make money the whole system is in danger of
decay and collapse. For the country like the US, one can argue that it
would be detrimental for the US economy to suppress all forms of porn
industry, because the whole US economy is under the pressure of negative international trade balance. So why not to export porn materials
produced in such abundance? It is an acknowledged fact that the most
26
of pornographic materials, at least until recently, were held in the US.
Even in a healthier capitalist economy, it is important that people consume more and more, because the ever-increasing consumption keeps
economy running. The increasing demand creates offer and encourages
investment.
Let us consider these reasons in greater detail.
6.1
Freedom and pornography
The argument that restriction of pornography violates one's freedom,
and particularly freedom of speech is often put forward against any
attempt to suppress adult pornography, and indeed, to limit significantly child pornography as well. This issue has become one of the
most controversial in American case law. The reason for it is not only
because the US is one of the leading producers and distributors of
pornography, but also because of the constitutional subtleties of that
country. The US Supreme Court occupies a unique position of being
able to strike any legislation provision down which in the opinion of
the Court violates broadly formulated rights of American citizens.
That happened with the Child Pornography Prevention Act of 1996
(CPPA).
This Act is very important for the Internet users because it forbids not
only child pornography which involved particular children as models, but
also forbids so called virtual child pornography, which is produced without involving any particular child. The specialized software is utilized to
produce pornographic images of children that appear realistic. Pornographic images of adults are changed and edited to create sexually
explicit scenes, which have never occurred in reality. These images are
sometimes called as pseudo photographs. The CPPA prohibited pornographic images made with actual children as well as any sexually explicit
image that is advertised or distributed in such a manner that it conveys
the impression it depicts a minor engaging in sexually explicit conduct.
In the case Ashcroft v. Free Speech Coalition the Supreme Court found the
provisions of the CPPA to be too broad and violating the freedom of
'6 Ibid., p. 274.
14. INDECENCY ON THE INTERNET AND INTERNATIONAL LAW
speech. 27 The case was initiated by the Free Speech Coalition, an organization funded by businesses who are involved in the production and distribution of pornographic materials. In principle, the legislative ban of virtual
child pornography has not been denied by the Court. In finding violation of
the freedom of speech, the Court held that the law must ensure that the artistic works are protected as far as their merit does not depend on the presence
of a single pornographic image. This case can serve as an example of how
important the right to expression is in dealing with pornography. This case
has also international significance because of the nature of the Internet.
The issue of freedom of expression and the right to privacy are the
rights which are protected not only by national legislation but also by
international law. It is also clear that this freedom and this right are not
absolute, and when giving protection to them they must be balance
against other rights and freedoms, apart from the considerations of good
morals, public safety and so forth. Pornography on the Internet can be
considered as a violation of the freedoms and the rights of other people.
The right to privacy and family life requires that the private things including sexual relationships must be held private and not exposed internationally through the Internet. The right to family life can be endangered by an
addiction to pornographic materials. Further, the rights to privacy of
those human beings who are used as models must be protected too.
Freedom of thought, conscience and religion can also be threatened
by pornography, as long as this freedom requires practice and observance of faith or belief. For example, a Christian who believes that a lustful look is equal to adultery as unforgivable sin (according to the
Orthodox Christian tradition), can conceive pornography on the Internet
as threatening the most important relationship this person has relationship with God. A Buddhist can consider pornography as a serious impediment to the goal of all being - Nirvana, and as awaking of the
base nature, which leads to the increase of suffering in the world. A Muslim
can view it simply as an abomination for which Allah will hold the whole
earth accountable. A Communist would think that pornography is a
form of exploitation violating the dignity of human being. A mere consideration that pornography can disturb so sizable communities should
give concern to the authorities whose task is preserving public peace.
As for the freedom of expression itself, it is possible to argue that the
most important element of this freedom is expressing one's ideas and
opinions. Even though pornographic images may carry certain ideas, at
the same time they can block other ideas. This blocking can occur not
only though the Internet traffic congestion, but also though diverting
one's attention, intellectual and creative powers from the noble objects of
27
Ashcroft
v.
Free
Speech
Coalition 535
U.S.
supct.law.cornell.edu/supct/html/00-795.ZS.html
234
(2002).
The
text
available
at:
http://
15. ALEXANDER SHYFOV
thought to the base objects of mean nature. In other words, pornography
can become a hindrance to the freedom of expression.
6.2
Economic argument
Economic argument can both support and oppose the international ban
of pornography on the Internet. Moreover, this argument can help to
identify the root of the problem. The roots of pornography lie much
deeper than mere opportunities opened by technological advances of
our age. The report given in the introduction to this paper clearly indicates that poverty and the weakness of family bonds creates conditions for
pressing people become involved in pornographic business. What report,
however, has not underlined, is that the riches are on the other side of
pornographic business. Rich people from 24 countries, mainly developed
countries were among the users of pornographic materials generated in
Russia.
It would be unfair to blame the rich for the evil of pornography, even
though the fact is that the sharp division between the rich and the poor is
one of the sources of social evil. It is not the riches to blame. Nevertheless, being the rich opens the way for a deep moral degradation to display
itself. One has to deal with the root to eliminate completely the consequence. Cultivating good morals on personal and social levels are the
best remedies against all social evils including sexual crimes. Good morals
also provide a good foundation for law enforcement. One of the weaknesses of the economic approach is that it neglects this simple fact.
The economic approach looks at the costs and benefits which can be
financially measured. The economists can argue that attempting to introduce an international ban on pornographic materials on the Internet will
lead to more costs than benefits. They fail, however, to estimate the value
of moral virtues. The economic approach was powerfully defended by
Judge Posner. 28 There is, however, a need for legal scholars to present a
full value of moral virtues like love, sympathy, faithfulness honesty and
integrity. 29 Therefore, economic argument against enforcing morals cannot stand unless the benefits generated by good morals are taking into
account. The utilitarian maxim, that the evil will eventually be felt by the
evildoer, has the following implication: a country or a person who benefits from immoral business will eventually suffer from it. The evil of pornography lies not so much in immediately conceived harm like
stimulating sexual crime, or psycho-traumatic effect on unstable minds of
the viewers, as in impairing one of the most vital human virtues - faithfulness. The value of marriage for the society is contained in the faithfulness
28 Posner
29 Some
R. Economic Analysis of Law. -Toronto: Little, Brown and Company, 1992.
of these issues have been addressed by me in the work: Conscience and Love in MakingJudicial
Decisions. - Kluwer, 2001.
16. INDECENCY ON THE INTERNET AND INTERNATIONAL LAW
of the partners. Family is a school of faithfulness. Sexual relationship only
between husband and wife is a relationship based on trust and mutual
faith. A person who is not faithful to his or her spouse can hardly be faithful in other aspects of social life. Pornography displays a completely different type of sexual relationship driven by lust.
From the economic point of view, a person who is faithful is much
more able to keep his or her promises in the course of economic activities
than the person whose behaviour is determined by lust and carnal desire.
Pornography tends to reproduce such persons of lust who cannot be
trusted. Onora O'Neill, in one of her public lecturers, agreed that trust
for society is more important than material goods like bread, and state
power like the military force.3 0 Even if one has to follow a 'pure economic
approach' without taking into account the economic worth of moral virtues, one can see that in our world of economic disparities it is better for
the society to direct their investments not in the porn business but in the
education, the environment and health. There are already too many
unwanted children who need care and education not to follow the lustful
steps of their parents.
6.3
The internationalstandard obscenity?
for
The Internet, as it has been said, defies a narrow national regulation of
content. It requires an international regulation. This becomes very problematic, because the idea of what is indecent would be different from one
country to another. What is perfectly decent in the US would be completely indecent in Iran. Certain countries are close to the point when all
pornography except child pornography could be seen as acceptable.
Obscene is defined in most dictionaries 3 as offensive, rude or shocking,
usually because too obviously related to sex or showing sex. Pornography
is defined as books, magazines, films, etc. with no artistic value which
describe or show sexual acts or naked people in a way that is intended to
be sexually exciting but would be considered unpleasant or offensive by
many people. In other words, it is the perception of people which matters. What is shocking or considered unpleasant or offensive in one country would not be so in another.
The existing law is unsatisfactory in defining pornography. For
example the European Convention on Cybercrime defines pornography
(in relation to children only) as depicting a person engaged in sexually
explicit conduct. 32 The problem is that the border between explicit and
implicit sexual conduct cannot be established objectively. What matters is
the perception of the viewers. There can be several approaches to solve
' See her lecture in real audio: www.bbc.co.uk/radio4/reith2002
3' See for example: http://dictionary.cambridge.org/
32
Article 9 of the Convention.
17. ALEXANDER SHYrOV
this problem. If eventually the countries decide to ban pornography
internationally, they have to develop a unified standard what pictures
should be considered as pornographic. There is an experience in international law to unify different moral perceptions on what is right or
wrong, or what constitutes good morals. It can be found, for example, in
case law of the European Court of Human Rights. There can be adopted
one of two standards. One is the minimum content of what is perceived as
pornography. According to this standard, only those images which are
considered obscene in all, or almost all, countries will fall into the category of universally banned pornography on the Internet. The second is
an average standard. This standard tries to strike a balance between what
is completely unacceptable in one country with the one which is perfectly
fine in another.
There will be little problem if the countries would decide to follow the
first standard. However, it can hardly satisfy those countries which perceive 'soft' pornography allowed in other countries as a threat to their
culture, religion and morals. If the countries decide to follow the average
standard, there is a need for an authority which would decide on the
applicability of the standard. There will also be a problem with extradition from the country with a less stringent than the average standard of
obscenity. It is possible that all countries will accept an average standard
as their own law. However, in some jurisdictions like the US, the Supreme
Court can strike down such legislation if the Court perceives it as violating constitutional rights to expression or privacy.
Of course, one can take the US law as the standard law to make the
international enforcement efforts combating pornography productive. It
can be seen realistic, firstly, because the US is the leading producer and
the consumer of pornographic materials, and secondly simply because it
is a super power whose voice will be respected in every jurisdiction. The
problem with the US, however, is that there is no guarantee that it will
stick to one stable enough standard of obscenity. The US Supreme Court
applies the American Constitution when it decides on whether the rights
to expression are violated by anti-obscenity laws. The Constitution, however, is silent on this issue, and much depends on the moral perception
of the judges in their interpretation of it.
In the beginning the US law of obscenity followed an English law precedent. In 1868 an English case, Regina v. Hicklin, established a test that was
ultimately adopted in the United States: If a work had the power to 'deprave
and corrupt those whose minds are open to such immoral influences,' it was
obscene and therefore illegal. This definition evolved over time until 1973,
when the famous ruling on the case Miller v. Calfornia was made. In this
case, the appellant was convicted of mailing unsolicited sexually explicit
material in violation of a California statute. The trial court instructed the
jury to evaluate the materials by the contemporary community standards of
California. Appellant's conviction was affirmed on appeal. The Supreme
18. INDECENCY ON THE INTERNET AND INTERNATIONAL LAW
Court reaffirmed that obscene material is not protected by the First Amendment, and that such material can be regulated by the States, subject to the
specific safeguards enunciated in the decision. ChiefJustice Warren Burger
33
established a three-part test for determining obscenity . It inquired
whether (1) "the average person applying contemporary community standards' would find that the work, taken as a whole appeals to the prurient
interest'; (2) it 'depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law'; and (3) 'the work, taken as
a whole, lacks serious literary, artistic, political, or scientific value.'
When the Miller test is compared with the Regina v. Hicklin test, it is
clear that it is more complex and depends more on what the judge or the
jury perceive as community standards or serious literary, artistic, political,
or scientific value. The Miller test will be unlikely suitable for international regulators, because it does not provide a clear guidance in this
issue. It relies on the individual perception of adjudicators. The perception will be enormously different in different parts of the world. What is
perceived as of high value in Hollywood is an abomination to Iranian government. If suppose, the Iranian government wants the US extradite the
distributor of Hollywood soft porn Internet materials, it is apparent that
the American authorities would apply their own standards and perceptions of artistic values. It seems that the Regina v. Hicklin standard is more
stringent and specific. It requires taking a perspective of those who are
open to immoral influences without passing judgement on what constitutes community standards or artistic value.
7.
Child pornography v. adult pornography
There are many reasons for the fact that even though transmitting pornography is illegal in many countries, there is a lack of cases (particularly
involving adult pornography) where the offenders were extradited. Perhaps, one of the key reasons for the lack of extradition for the crime of
indecency is the existence of double standards in relation to child and
adult pornography on the Internet. Child pornography is universally condemned, while many regulators turn their blind eye on the adult pornography. There is an Optional Protocol to the UN Convention on the
Rights of the Child on the sale of children, child prostitution and child
pornography. 34 According to the protocol, producing, distributing, disseminating, importing, exporting, offering, selling or possessing child
35
pornography constitute extraditable criminal offence.
3SThe text is available at: http://caselaw.lp.findlaw.com/scripts/getcase.pl?coirtus&-%,ol=413&invol=15
4
" Text is at: http://www.unicef.org/crc/annex2.htm It is interesting fact that neither Russia not
Thailand are parties to that Protocol: http://www.unicef.org/crc/opsx-tableweb.htm
15 Articles 3 and 5 of the Protocol.
19. ALEXANDER SHYTOV
There is, as was mentioned above, no international agreement on
banning adult pornography specifically on the Internet. In the Council
of Europe Cybercrime Convention nothing is said about adult pornography, even though there are specific provisions banning child pornography.3 6 The fact, however, is that both, adult and child pornography go
together. Pornography can be compared to addiction to drugs. People
start with mild forms of it until they experience the need for 'a stronger
stuff.' The case of David Maycock can serve as a good example. 37 He was
convicted in the UK for viewing indecent images of children on the
Internet. He acknowledged the fact that his addiction began with adult
pornography.
There is some research being conducted on the harmful effects of
pornography on all parties involved.3 8 The models in pornographic
images are subject to various psychological and emotional harms.
Images produced serve as a kind of permanent record of the act. As the
images are capable of being saved, reproduced and distributed, the
lasting memories of the incident threaten greater harm than concealed
molestation or even prostitution. The viewers are also subject to indirect harm. Their inhibitions are weakened and they can be easier
coached into participating in immoral sexual activity. Expert reports
reveal consumers of pornography often become psychologically
addicted to the materials. As the addiction becomes more intense, the
viewer increases his/her tolerance and seeks more deviant material.
Often these individuals act out their fantasies. Children are particularly
39
vulnerable to those negative influences.
There is also a strong feminist criticism of pornography as degrading
the position of women in the society. The leading feminist critic of pornography is Andrea Dworkin. 40 In Woman Hating,Dworkin criticises pornography business for exploiting women and depicting scenes that
abuse women physically and sexually. Another leading legal scholar,
who actively promoted anti-pornography measures, is MacKinnon. 4 1 An
interesting characteristic of feminist anti-pornography movement is
that it views pornography as a violation of civil rights. This position,
"Article 9 of the Convention. The text is available at: http://conventions.coe.int/Treaty/en/Treaties/
Html/185.htm
37 http://news.bbc.co.uk/2/hi/uknews/scotland/3456221.stm
0
For influence on women see: http://
" See http://www.netspeed.com.au/ttguy/refs2.htm
www.cstn.edu/-psy453/pornoy.htm
" Boykin Ch. 'Aschcroft v. Free Speech Coalition' in Southern University Law Review 30 no2 261-75
Spr02003.
4
Dworkin A. Pornography: Men PossessingWomen. London: Women's Press, 1981; Woman Hating.- New
York: E.P. Dutton, 1974. See some of her works on line: http://www.nostatusquo.com/ACLU/dworkin/
"' MacKinnon, Catherine A. Feminism Unmodified: Discourses on Life and Law. Cambridge, Mass.: Harvard
UP, 1987.
20. INDECENCY ON THE INTERNET AND INTERNATIONAL LAW
however, is not shared by all feminists, and there is a feminist defence
of pornography.42
In this respect one can argue that adult pornography must be suppressed as well as child pornography. There are several moral reasons
for doing that. If one has to take a deontological moral position, as
expressed in many religious ethics prescribing unconditional obedience to God or to dharma (in Buddhism), and also in some secular
43
ethical theories, like the theory of categorical imperative of I. Kant,
the evil of pornography becomes self-evident in the light of a religious
authority or individual conscience. For those, whom the appeal to religious or moral authority, or intuitive dictates of conscience is not sufficient, deontological rejection of pornography can be expressed
through the idea of shame, or the idea of sacredness of marital relationships, or the idea of dominion of a rational nature over animal part
of human soul.
If one has to take consequentialist reasoning, as particularly expressed
in the thought of utilitarians likeJ. Bentham orJ.S.Mill, 44 the reason for
suppressing pornography is that the benefits arising from this suppression overweigh the losses. The utilitaians would look for what brings the
most sum of happiness or pleasure for the whole society, and they could
argue that pleasure generated by pornography stands in a very low grade
of pleasures, and more than that, in the end it brings more suffering on
both models and views in emotional aspects as well as physical when sexual drive gets out of control. One could also argue that the cost invested
in pornographic industry, the time spent on viewing pornography, and
even contribution to the traffic congestion on the Internet, all these are
sufficient reasons for suppressing adult pornography as well child
pornography.
Finally, there is also a moral reason which is based on agapic love and
sympathy. One must love one's neighbour as oneself - a principle which
to a more or less degree is articulated not only in almost every religion of
the world and ethical theory, but also in law, including case-law.45 Love is
different from animal lust. Agapic love is expressed fully in a relationship
between parents and children. Only can a man with a perverse and
deprived mind wish his parents and children to be models in pornographic materials or even be viewers enjoying those materials. If one's
mind is repugnant to see one's mother or daughter involved in oral sex on
the Internet, then it is selfish and immoral to allow someone else's mother
or daughter to do such acts. Agapic love requires a firm enforcement of
ban on pornographic materials whether on the Internet or anywhere else.
42 McElroy
4
W. XXX: a Woman's Right to Pornography.- New York: St. Martin's Press, 1995.
Kant I. The Moral Law. - London: Routledge, 1991.
44PlamenatzJ. The Engtish Utilitarians- Blackwell, 1958.
45See: Shytov A.N. Conscience and Love in MakingJudicial Decisions. - Kluwer, 2001.
21. ALEXANDER SHYrOV
8.
The ways to suppress pornography on the
Internet
To have international conventions which would prohibit pornography on
the Internet is unlikely to be sufficient. Pornography can be examined
and fought against not only in legal terms, and not only in narrowly
defined moral terms. It is also a reflection of culture. Pornography flourishes in the culture where sensual pleasure is exalted. The age of materialism and consumerism is a good feeding ground for pornography. The
unwillingness and inability of the law enforcement officers to suppress
pornography, underlines this overwhelming dominion of the materialistic and consumerist culture. Unless there is a serious effort of the international community to grow a different type of culture, all attempts to blot
out pornography from the Internet are doomed to failure. Because the
Internet reflects international culture, there must be an international
effort to shape it. Consequently, international law in this area can be
much more than a mere punitive and repressive means.
The Internet is a technological phenomenon. Therefore, technological means can be used to suppress pornography, even though without serious changes in culture there will be a constant technological war
between those who want pornography on the Internet, and those who do
not. It is important to exercise surveillance of the Internet with the purpose of identifying the web sites containing pornographic materials and
eliminating or at least blocking them. It can be practical to hold the ISP
(Internet Service Providers) responsible for surveillance and blocking
access to the porn sites. This, however, will run against the modern tendency to exempt ISPs from the liability arising out of the content transmitted through the Internet. Legal battles can be long, and sometimes
not effective. One way to efficiently reduce pornography on the Internet
is to oblige all users of the Internet to use protective software. Even
though this software may not be perfect to block all indecent materials,
the technological advances through investment, creativity and effort can
improve it. It is also true that those who are familiar with computer technology will be able to avoid using protective software. However, there are
many users who, even if they wish, do not have such knowledge. These
technological issues raise questions about intellectual property. International law can facilitate the use of protective technologies by the poor
countries and users in the same way it tries to help the poor countries to
get cheap medicines.
In order to suppress pornography one has to win technological battle
through blocking pornographic materials. The Internet technology provides not only a passive defence in the form of blocks and filters. There
can be an active advance against porn sites using technological means to
prevent their functioning. That can be done through data and system
22. INDECENCY ON THE INTERNET AND INTERNATIONAL LAW
interference in relation to the porn web sites. Without international
authorisation of those suppressive practices there can be an international
conflict when the authorities in one country make date and system interference with the purpose of damaging pornography files in the country
where such interference is not allowed.
9.
Conclusion
The first conclusion of this article is that pornography on the Internet
requires an international legal response. Despite the existence of international agreements and national legislation, pornography on the Internet
is flourishing. The international law response cannot be reduced to
enforcing criminal sanctions. Even though the states must not abandon
criminal punishment of pornography, they have to face a failure to
enforce anti-pornography law effectively without taking a complex
approach to this problem. International law needs to address the deeper
problems which give rise to pornography. The roots of pornography lie
in social and moral defects of our society. It reflects economic poverty in
one part of the world and economic affluence in another, under the condition of wide spread spiritual poverty and the lack of relational warmth
between people in all parts of the world. Modern technology has only
emphasised the ills of human relationships. A person and his or her body
are used as the means of pleasure, particularly sexual pleasure, for others.
His or her soul and personality matter nothing. The technology made
this enjoyment of the body, without the regard for human soul and personality, possible in a virtual form. Viewing pornography often substitutes
the encounter with the personality of another person. It expresses the
alienation between the individuals. Sexual lust suppresses genuine love.
International law must and often is the means of communicating the
ethical standards to the states and their citizens on what is right and what
is wrong, on what is good and what is evil. In this respect, the contemporary international law fails to provide the standards of decency. Moreover,
one can notice the existence of double standards in relation to child and
adult pornography. There are, however, serious reasons for the necessity
to draw such standards, These reasons are not purely ethical, they relate
both to the field of human rights and international economics.
