The widespread availability of pornography on the Internet has stirred up a moral panic(1) shared by the government, law enforcement bodies such as the police, prosecutors and judges along with the media in general.(2) There have been many attempts to limit the availability of pornographic content on the Internet by governments and law enforcement bodies all around the world.
These issues are different in nature and should not be confused.
It is the submission of this paper that any regulatory action intended to protect a certain group of people, such as children, should not take the form of an unconditional prohibition of using the Internet to distribute certain content where that is freely available to adults in other media.
Following the amendments made by CJPOA 1994, this would even apply when A simply makes the data available to be transferred or downloaded electronically, by providing a password to B, so that B can access the materials and copy them.(16) The main concern of legislators and parents in relation to Internet content is child pornography, rather than other forms of pornographic content.
This has been the case ever since paedophiles started to use the Internet for circulating pornographic materials related to children.(17) Paedophilia can be seen as a minority sexual group, with its own form of expression explicitly involving fantasies and imaginings about sex with children.
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.
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.
UK obscenity legislation has recently been amended by the Criminal Justice and Public Order Act 1994 ( CJPOA 1994) to deal with the specific problem of Internet pornography.(13) The following will show, however, that there are difficulties with the application of existing national laws to a medium such as the global Internet which does not have any borders.
Obscene Publications Act 19 These two statutes constitute the major legislation to combat pornographic material of any kind in the UK.
What is considered simply sexually explicit but not obscene in England may well be obscene in many other countries; conversely what is considered lawful but not pornographic in Sweden may well be obscene under the current UK legislation.