Download Censorship and Freedom of Speech

Overview
This guide explores censorship, regulation of offensive material and free speech in the digital
environment.
It is complemented by a separate guide on Secrecy, including discussion of official secrets
legislation, commercial confidentiality regimes, freedom of information, archives and
whistleblowing.
contents of this guide
This guide covers  information flows - a discussion of blasphemy, pornography, official secrets and other
issues
 online erotica - how much offensive material is online, is it growing, can it be managed?
 global frameworks - international agreements and national responsibilities in the age of the
global information infrastructure
 Australian legislation - Commonwealth and state/territory legislation, codes of practice,
enforcement measures such as hotlines, and major government/industry initiatives
 elsewhere - overseas national and international legal frameworks for online censorship
 agencies - a map of the Australian and overseas government agencies
 advocacy - making sense of business and community groups
 texts - selections from the online and offline literature about censorship in cyberspace
 freedoms - free speech online and related policy challenges in national and international
information infrastructures
 filters, walls and tunnels - mechanisms for controlling reception rather than distribution of
content (with an evaluation of filters, age-verification schemes and other content
management tools) and for evading national firewalls
 postal - interdiction of letters and other postal items
 journalism - censorship of news, in particular newspapers and journals
 books - censorship of books offers a perspective on the regulation of online content
 comics - censorship of comics and anime
 art - censorship of painting, sculpture and other visual arts
 photos - censorship of photography
 performance - censorship of theatre and music
 film - censorship of film and video
 electronic games - censorship of video, console and networked games
 radio - censorship of radio
 television - censorship of radio
 education - censorship in universities, secondary and junior schools
 street life - 'speech in the street', demonstrations, graffiti and 'blue laws' about Sunday
trading
 advertising - restrictions on advertising as a form of censorship
 unplugged - taking nations offline
 workplace - censorship and free speech in the workplace
 prisons - censorship in custodial institutions
 landmarks - some censorship and free speech landmarks
This site also features a detailed profile examining the shape of censorship in Australia and
New Zealand from the 1780s onwards, providing a point of reference for understanding
online content regulatory mechanisms, issues and advocacy groups.
Questions of jurisdiction, privacy and other issues are explored in the guides on Governance
and Privacy.
our position
Our position? Managing access to content is problematical - in principle and practice whether offline or online. The stridency of advocates for particular positions doesn't assist
consideration of one of the most contentious issues in the regulation of cyberspace.
We urge caution in considering some of the easy answers recurrently peddled by advocates
on the left and right. John Gilmore's glib dictum that "the internet interprets censorship as
damage and routes around it" ignores substantial issues. It may have been valid when the
net was the realm of right thinking wizards. As Jack Goldsmith & Tim Wu note in Who
Controls The Internet? - Illusions Of A Borderless World (New York: Oxford Uni Press 2006) it
is particularly unconvincing now the web has become a mass communication infrastructure.
Irrespective of criticisms by info-libertarians, the net is subject to regulation. Our expectation
is that at the global, national and local levels such regulation will become more
comprehensive and more nuanced.
It also clear that many of the technological quick fixes don't work. Some of the legislative
approaches in Australia and overseas are ill-conceived and oversold. That is important
because those approaches cramp the growth of the information economy, expose the unwary
to abuse and bring law into disrepute.
Information flows
This page considers information flows as an introduction to some questions about censorship,
free speech and secrecy.
It covers 
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information flows and barriers
censorship
blasphemy & lese-majeste
obscenity
violence
symbols, sedition and science
information assets
the shape of regulation
community attitudes
information flows and barriers
Information is an entity with access bounded by legislation, practice and physical constraints
that encompass  censorship (restrictions on offensive and dangerous content)
 intellectual property (copyright, patent, trademark, designs and plant variety rights law),
discussed in a separate Guide on this site
 legislation and expectations about privacy, free speech, about defamation and about racial
or other vilification
 commercial trade secrets and confidentiality regimes, including employment and contract
legislation
 government secrecy regimes and complementary information access regimes (notably
freedom of information and archives legislation)
 physical constraints such as infrastructure (eg the unavailability of broadband and other
digital divides) and the visual, motor or other constraints considered in our accessibility
guide.
Some of those boundaries are fluid, reflecting personal experience, cultural histories and
social priorities.
Attitudes to privacy, for example, vary depending whether you are
 a celebrity (celebrities relinquish privacy as the price of fame?)
 someone viewing that celebrity's personal activity (what are the bounds of personal and
public life?)
 someone who expects the state to surveil potential terrorists
 someone who realises that their consumption patterns and other demographics have
become a data profile as part of what Gandy characterised as the panoptic sort (you are what
you wear or just the barcode on what you wear?) or
 someone who is comfortable commoditising that data in return for promises of improved
service or a cash incentive.
Restrictions on broadcast content similarly vary from Eire, the UK (eg bans on interviews with
some terrorist groups), Sweden, Russia, China and Canada. Within Australia sale of particular
video recordings is legal in the ACT but forbidden in Queensland other jurisdictions:
geography matters.
Others boundaries are fixed.
Blindness, for example, restricts access to information irrespective of legislation or cost. As
one contact told us, in commenting on the often claustrophobic nature of debate about the
Australian regime,
I can use an online screen reader to study Australia's film rating regulation but I'll never be
able to view the films.
Casablanca, Salo or A Night At The Opera don't come in braille. They are always going to be
censored for me, irrespective of the OFLC, the FOL or the EFA.
censorship
As the following pages suggest, censorship has had different meanings in different eras and
different jurisdictions.
A working definition is that it is a mechanism for restricting access to content that is deemed
offensive or dangerous (whether to the state or the individual).
That restriction may take the form of an outright prohibition, for example the specific ban in
most nations on child pornography (although definitions vary). It may instead involve
graduated access, eg content classification schemes aimed at allowing access by adults but
restricting access by minors. It may also differentiate between access to content online and
its availability offline.
Much debate about content regulation has centred on questions of personal autonomy and
morality, with changing expectations about authority, about activities that are innately bad
and about what can be regulated (eg bans from the 1850s to 1950s regarding birth control
information). One point of entry for considering such questions is Alan Hunt's Governing
Morals: A Social History of Moral Regulation (Cambridge: Cambridge Uni Press 1999).
Censorship has never been divorced from technologies, markets and social structures. Over
the past decade it has been fashionable to claim that online censorship is antithetical to the
spirit of the net, on which there are - or merely should be - no restrictions to information
flows. Others have more credibly questioned whether the shape of the global information
infrastructure permits meaningful enforcement of rules applying to particular jurisdictions,
issues explored in the governance guide on this site.
Proponents of internet exceptionalism are now grappling with both the emergence of new
content regulation technologies such as geolocation tools that seek to establish borders in a
borderless cyberspace and with the effectiveness of cruder mechanisms (including
surveillance of cybercafes and large-scale blocking of addresses) in nations such as China,
Iran and Cuba.
In considering online censorship and continuities with past regimes (legislation,
administration, advocacy, expectations) it may be useful to look at areas of restriction.
blasphemy and lese-majeste
For much of history blasphemy (and more broadly offences against religious dogma) was the
primary focus of censorship regimes, with exemplary punishment of blasphemers and
measures for the identification, destruction or deterrence of heterodox works.
The secularisation of industrial societies over the past two hundred years - highlighted in
works such as McLeod's Secularisation in Western Europe 1848-1914 (Basingstoke:
Macmillan 2000) and Owen Chadwick's Secularisation of the European Mind in the 19th
Century (London: Cambridge Uni Press 1975) - has been reflected in declining numbers of
number of blasphemy prosecutions. Legal restrictions on blasphemy in Australia during the
past two decades have essentially attracted attention as a curiosity or as a question about
human rights in a multicultural society. Numerous jurisdictions, however, retain blasphemy
statutes.
Mary Whitehouse for example used UK legislation against blasphemous libel to prosecute Gay
News in 1977 over James Kirkup's The Love That Dares to Speak Its Name, with Justice Alan
King-Hamilton disallowing defence of that poem on any literary or theological grounds. The
defendents were convicted. In 1968 a Dutch novelist was acquitted by the Netherlands
supreme court after prosecution under 'scornful blasphemy' legislation for portraying the
deity as a donky. The 1979 Williams Committee Report on Obscenity & Film Censorship noted
that the statute was solely concerned with Christianity and recommended its abolition, a
suggestion supported by the Law Commission in its 1985 report Criminal Law: Offenses
against Religion & Public Worship.
Germany's somewhat more nuanced 1969 federal legislation deals with "the ridicule of faiths,
religious societies, and ideological groups", with provisions that
1) Whoever publicly or by means of spreading written material ridicules the content of a
religious or ideological society in a manner deemed able to disturb the public peace, is to be
punished by up to three years in prison or a fine.
2) Whoever publicly or by means of spreading written material ridicules a domestic church,
religious society or ideological group, its facilities or customs in a manner deemed able to
disturb the public peace, is to be punished similarly.
Fines under the legislation have been imposed as recently as 1996.
Joss Marsh's Word Crimes: Blasphemy, Culture & Literature in 19th Century England
(Chicago: Uni of Chicago Press 1998) is an academic study of UK blasphemy censorship,
complemented by Geoffrey Robertson's The Justice Game (London: Chatto & Windus 1998)
for the 'Gay News' case. A US perspective is provided by Leonard Levy's Blasphemy: Verbal
Offence against the Sacred, from Moses to Salman Rushdie (New York: Knopf 1993). The
1994 New South Wales Law Reform Commission Blasphemy report covers local
developments.
This site features a more detailed profile on blasphemy in Australia and overseas.
Offences against God's representative on earth were also traditionally deemed worthy of
censorship. In the UK the Treason Felony Act 1848, passed amid concern over the spread of
republican sentiment and the revolutions of that year, made it a serious offence - initially
punishable by transportation, now with life imprisonment as the maximum penalty - to call
for the establishment of a republic in print or writing, by peaceful means or otherwise. The
Act remains in force, although last used in 1883. Most jurisdictions have retained a more
situational censorship, with restrictions under various riot and public gathering enactments.
obscenity
Half a century after Margaret Mead (and two hundred years after the equally romantic JeanJacques Rousseau) it is clear that all societies have some notion of the 'obscene' and that
many, if not all, have sought to restrict the transmission of representations or knowledge
that's considered subversive of sexual mores and power relationships.
Famously cranky UK jurist Lord Devlin argued in The Enforcement of Morals (London: Oxford
Uni Press 1959) that the disgust of "average members of society" provides a compelling
reason to make an act illegal, even if it causes no harm to others, because every society has
the right to preserve itself ... apparently from moral contagion.
The US Supreme Court in Miller v California more liberally held in 1973 that
a work may be subject to state regulation where that work, taken as a whole, appeals to the
prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and, taken as a whole, does not have serious literary,
artistic, political or scientific value.
Censorship relating to obscenity in most nations has reflected a trajectory from perceptions
that some acts were innately bad and should be criminalised to a recognition of the varieties
of erotic experience (often an uneven recognition, given recent convictions in Texas for
consensual adult same-sex activity and belated decriminalisation of homosexuality in
Tasmania within the past decade) and consensus about individual autonomy (eg access to
birth control information and judicial dicta about the inappropriateness of state intervention
in the affairs of "consenting adults in the privacy of their bedroom").
As the following page of this guide suggests, there is continuing disagreement about the
nature of obscenity, its impact and appropriate regulation.
That should deter glib characterisations about the enlightened versus reactionary or left
versus right, with some of the more avant-garde US feminist groups for example allying
themselves with Christian fundamentalists. Robin Morgan for example issued a call to arms
with the 1980 statement that "pornography is the theory; and rape the practice"
(pornography being anything that objectifies women).
As Edward de Grazia's Girls Lean Back Everywhere: The Law of Obscenity & the Assault on
Genius (New York: Random 1992) and David Allyn's Make Love, Not War - The Sexual
Revolution: An Unfettered History (Boston: Little Brown 2000) note, community expectations
have changed.
In 1888 a UK judge condemned Zola's La Terre as
of such a leprous character that it would be impossible for any young man who had not
learned the Divine secret of self-control to have read it without committing some form of
outward sin within twenty-four hours after.
States such as Singapore and Fiji apparently have not read - or instead respected insights in
studies such as the 1950s Kinsey reports, with oral genital contact in the 'cleanest state in
Asia' currently illegal under legislation providing for punishment of "whoever voluntarily has
carnal intercourse against the order of nature with any man, woman or animals" with a fine
and imprisonment of up to 10 years. Fiji and Tonga have imprisoned visiting Australians who
have privately engaged in consensual same sex activity.
Contemporary anxieties about appropriate outlets reflect a new focus on child pornography
and a more traditional concern about new technologies, with much polemic about online
obscenity being strongly reminiscent of past jeremiads against photography (something for
the masses, unlike erotic texts in a learned tongue).
Four points of entry into the literature about consumption and consequences are Berl
Kutchinsky's Australian Institute of Criminology paper Pornography, Sex Crime & Public Policy
(PDF), the 2004 NZ Department of the Interior report on Internet Traders of Child
Pornography and other Censorship Offenders in New Zealand (PDF), Harm & Offence in Media
Content: A review of the evidence (Bristol: Intellect 2006) by Andrea Hargrave & Sonia
Livingstone and The Porn Report (Carlton: Melbourne University Press 2008) by Alan McKee,
Kath Albury & Catharine Lumby.
violence
Community perceptions of individual and collective violence have also shifted, nicely
illustrated in works such as Anthony Rotundo's American Manhood: Transformations in
Masculinity from the Revolution to the Modern Era (New York: Basic Books 1993). The impact
of the media on violent behaviour and the efficacy of censorship is contested.
Some critics argue that 'privatisation' of moral regulation has seen a shift from control of the
erotic sphere to constraints against the depiction and thus encouragement of violence, with
other advocates 'closing the loop' by claiming that all pornography is a representation of
violence. Others - such as the people at Caslon - have adopted an agnostic attitude regarding
the more extreme claims and the proliferation of academic studies indicating the violent
representations do/do not breed violence.
Much of the anxiety about violence has centred on the particular epoch's new media: film
(associated with a succession of moral panics in Australia, New Zealand, UK and US),
television and now the internet. Claims about television in particular have been marked by
assertions that it is peculiarly powerful and dangerous, perhaps at odds with suggestions that
viewers can indeed turn off the idiot box if it is that disturbing and that parental worries
about viewing are rarely matched by supervision of those in their care.
Longitudinal Relations Between Children's Exposure to TV Violence and Their Aggressive and
Violent Behavior in Young Adulthood: 1977-1992 (PDF), one of the more recent studies,
claims that
childhood exposure to TV violence (along with a tendency to identify with aggressive TV
characters and a belief that the violence seen on TV accurately represents real life) better
predicts adult aggressiveness than does a child's initial aggressiveness, intellectual ability, or
parents' educational background. But whereas exposure to violence on TV correlates with
adult physical aggression in men and women alike, it correlates more strongly with "indirect
aggression" in women. Thus girls exposed to considerable TV violence are more likely not
only to grow up to shove, punch, beat, or choke other people but also to try to talk their
friends into disliking someone who has angered them.
Censors have grappled indifferently with regulating information that might be used for violent
crime, financial misdeeds or other inappropriate behaviour - in effect seeking to anticipate
intentions. That is problematical given the desirability of information sharing about
technological principles and processes (for example basic chemical interactions),
administrative protocols and descriptions of infrastructure. A consequence is that much online
censorship regarding violence is based on gesture politics.
The US federal Violent & Repeat Juvenile Offender Accountability Act of 1999, for example,
criminalises the teaching or distribution of information on "how to make a bomb or other
weapon of mass destruction" if the distributor intends use of the information to commit a
federal violent crime or knows that the recipient intends to use it to commit such a crime.
The penalty is a fine of US$250,000 and/or a maximum of 20 years imprisonment.
Critics have responded that use of the law to expunge pyrotechnics information from the web
is inconsistent with the Federal Government's print publication (in for example the Forestry
Service's Blaster's Handbook) of details about explosive manufacture and deployment and
the 1997 report on The Availability of Bombmaking Information by the Department of
Justice's cybercrime unit.
symbols, sedition and science
In discussing censorship of the visual arts later in this guide we've noted the power of
symbols and the attractiveness - if not imperative - to destroy or restrict representations.
That's evident in Byzantine or early Reformation iconoclasm, in the 'rectification of history'
via airbrush of losers in Stalinist and Maoist political struggles, and the more recent
destruction by the Khmer Rouge and Taliban of Buddhist sculptures.
In the West much censorship traditionally centred on sedition: incitements to overthrow
established order or merely to disrespect those at the top end of the social/economic
pyramid. Ithiel de Sola Pool spoke of 'technologies of freedom'; for those on one side of the
regulatory divide all media were instead technologies of subversion - inciting discontent,
asking and answering questions, offering access to tools such as bombs (or, as explosively,
birth control) and to examples of how those tools might be used.
In discussing the history of censorship in Australia and New Zealand we've accordingly noted
the suppression of writings by radical groups and individuals, bans on films and broadcasts
thought to threaten the nation's moral fibre, and censorship of symbols of dissent such as a
Renoir nude from a Melbourne shopfront in 1944. That is consistent with experience
overseas, where for example Nelson Rockelefeller immortalised Diego Rivera through removal
of a portrait of Lenin from the Rockefeller Centre mural.
In any market economy much sedition is self-regulated: subversives are free to mount the
soapbox but will not disturb the advertisers by being given airtime on the idiotbox, leaving
dissent safely quarantined in academia, low-rating public broadcasts or street corners.
Self-censorship is also apparent in some commercial publishing, most insidiously in
curriculum development and publishing. We were struck by a recent account of US
experience "Are you going to tell kids that Thomas Jefferson didn't believe in Jesus?" a textbook editor
asked a history teacher. "Not me! If there's something that's controversial, it's better to take
it out."
leading one critic to speak of the bland leading the blind.
In practice that intolerance is not confined to the agents of capital. Censorship by shoutingdown is a feature of many digital policy online fora and exponents of cyberliberties in
Australia have often been strongly dismissive of alternative views in groups such as the auDA
DNS list and LINK list.
One of the shibboleths of enlightened public discourse over the past hundred years is that
restrictions on a free flow of information are antithetical to scientific development and
consequential social goods. That is reflected in finite rather than perpetual intellectual
property duration, protection for expression rather than idea, and fair dealing/use provisions.
Legislation, such as the US Digital Millennium Copyright Act, that forbids exchange of
information about anti-circumvention, encryption and other technologies thus engenders
considerable passion. For some people figures such as Edward Felten have been seen as
counterparts of Clarence Darrow in the Scopes Monkey Trial in US or other emblematic
instances of an ongoing battle between barbarism and virtue.
information assets
In the aftermath of 11 September - something that's akin to the Haymarket bombing of the
1880s rather than a fundamental clash of civilisations - there has been renewed attention to
government publication of information, particularly the withdrawal of online and offline
content and proposals to strengthen regimes concerning the duties of civil servants and
official secrets. Censorship is one aspect of the 'war against terror', as it has been of most
preceding wars.
One aspect of that censorship is action by government agencies. Another is self-regulation by
media groups and journalists, for whom truth - to adapt Philip Knightley's words - is
necessarily the first casualty.
Given the significance of information in many cultures since the 1650s the notion of a
radically new 'information economy' may be misplaced. However, there is an acceptance
among many businesses - and more analysts (sadly, often the most complicit victims of the
latest zeitgeist) - that information is a critical asset, if not an enterprise's primary asset.
That is reflected in the range of restrictions on information flows identified above, in
particular those relating to
 ownership of knowledge, notably trade secrets, employment and intellectual property law
 positioning within the 'attention economy', encompassing mechanisms for the protection of
corporate brands and personal reputations through for example trademark law and
defamation law
In considering information flows there is an inevitable tension between proprietary rights in
information versus notions of transparency, free speech and achievement of public goods
through whistleblowing.
the shape of regulation
In the governance guide we highlight the debate about whether the net should be regulated.
From our perspective much of that debate is misplaced. Regulation of both the infrastructure
and the applications on that infrastructure is a fact. It will become more so, at the national
and global levels.
The following pages highlight several aspects of regulation  regulation is contested and some of the more vociferous advocacy groups have been
distinguished by zeal rather than a sizeable constituency
 much policymaking regarding the regulation of content on 'new media' has been reactive
and ad hoc, with a shallow understanding of technologies and problematical grounding in
research
 regulatory mechanisms acquire a life of their own, and 'temporary' solutions (eg those
established after what some commentators characterise as a moral panic) often become
embedded in public policy that fails to evolve with community expectations
 such mechanisms, particularly those that co-opt major commercial interests, are often
more effective than might appear from triumphalist accounts of a long march to liberty
In considering Australian regulation of online content a fundamental question is whether the
regulatory schemes (at the international, national and regional level) are effective? Does the
enforcement machinery work? Are the rules - legislation, industry codes, community norms coherent? Are intermediaries such as schools, public libraries and schools bearing an undue
regulatory burden because they're more susceptible to state sanctions than an online porn
vendor?
The answers to those questions will remain in dispute for some time.
Amendment of Australia's rather clumsy online legislation is desirable. It is also likely that the
technological quick fixes strongly promoted by particular governments and advocacy bodies,
notably online filtering software, are ineffective. They may well be superseded as community
perceptions change.
community attitudes
As we've suggested in discussing privacy, community attitudes and community behaviour
regarding censorship, censorship and free speech varies considerably depending on particular
circumstances and who is asking questions.
That is one reason for caution in assessing claims by advocacy groups and governments that
individuals  favour stronger/weaker government regulation of content, whether offline or online
 are committed to free speech in both principle and practice
 understand the operation of existing regulatory regimes and the consequences of particular
policy decisions
Many Australians, for example, appear to believe that the Commonwealth Constitution
duplicates US constitutional and judicial protection for free speech, although in fact it
provides implied and limited protection for communication of a political nature.
Polling in the EU, North America and Australia suggests that consumers want greater
regulation of broadcast content, want less or are comfortable with existing regimes. The
vehemence with which some people have demanded ISP or other filtering of online content to
protect minors seems at odds with the apparent casualness with which many guardians
supervise online access by children. Consumption of adult video and online erotica is not
restricted to a few isolated demographics.
In essence, one conclusion that can be drawn from watching how people behave away from
the pollster or voting booth is that they conceptualise censorship as something that does
(and indeed should) happen to someone else.
erotica
This page considers some questions about online content regulation.
It covers  what is pornography?
 is obscene material available online
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what is its prevalence
who creates it
who consumes it
what is its impact
Censorship online and offline is a mechanism for restricting access to content that is deemed
offensive.
Many claim that online censorship is antithetical to the spirit of the net. Others, more
credibly, question whether the shape the global information infrastructure enables meaningful
enforcement of rules applying to particular jurisdictions.
We've explored broad issues of governance in a separate guide. Later pages of this guide
explore specific legislation, codes of practice, reports, advocacy bodies and models.
As an introduction to that material you may wish to consider several questions:
 is offensive material available online (and what is its impact)?
 what is the prevalence of that material (and can it be readily accessed)?
 can it be regulated?
what is pornography?
Linda Williams' Hard Core: Power, Pleasure & the 'Frenzy of the Visible' (Berkeley: Uni of
California Press 1989) claims that
Pornography is simply whatever representations a particular dominant class or group does
not want in the hands of another, less dominant class or group. Those in power construct the
definitions of pornography through their power to censor it.
Sue Curry Jansen's Censorship: The Knot That Binds Power & Knowledge (New York: Oxford
Uni Press 1991) argues that censorship is
all socially structured proscriptions or prescriptions which inhibit or prohibit dissemination of
ideas, information, images or other messages through a society's channels of communication
whether these obstructions are secured by political, economic, religious or other systems of
authority
A definition that encompasses everything from assassination and the secret policeman's red
pencil to the 'broadband divide' is not, perhaps, particularly meaningful. It does however
highlight the interrelationships between censorship, secrecy, freedom of information and
concepts such as intellectual property.
A sense of disagreements about the nature of pornography and its impacts is provided by
works such as Dirty Looks: Women, Pornography, Power (London: BFI 1993) edited by
Pamela Gibson & Roma Gibson, Sex Exposed: Sexuality & the Pornography Debate (London:
Virago 1992) edited by Lynne Segal & Mary McIntosh, On Pornography: Literature, Sexuality
and Obscenity Law (New York: St. Martin's 1993) by Ian Hunter, David Saunders & Dugald
Williamson, Gay Male Pornography: An Issue of Sex Discrimination (Vancouver: Uni of British
Columbia Press 2005) by Christopher Kendall, Governing Pleasures: Pornography & Social
Change in England, 1815-1914 (New Brunswick: Rutgers Uni Press 2002) by Lisa Sigel, The
Problem of Pornography: Regulation and the Right to Free Speech (London: Routledge 1994)
by Susan Easton and Bound & Gagged: Pornography and the Politics of Fantasy in America
(Durham: Duke Uni Press 1999) by Laura Kipnis. Pornified: How Pornography Is
Transforming Our Lives, Our Relationships, and Our Families (New York: Times Books 2005)
by Pamela Paulis is, for us, overly credulous.
is offensive material available online?
Unsurprisingly, the answer is yes. We've referred later in this guide to changing perceptions
of what is offensive, most succinctly characterised by US Supreme Court Justice Potter
Stewart's comment that he could not intelligibly define obscenity but "I know it when I see
it".
There's an ongoing debate in Australia, the US and most other countries about free speech,
the definition of obscenity and the nature of content that should be restricted.
In January 2001, for example, a Victorian magistrate called for bans on online publishing of
bomb-making instructions. Overseas, a group of activists acknowledged that the US 1999
federal law prohibiting such publication had been a failure, accordingly campaigning for action
by internet service providers.
German courts and politicians have recurrently sought to extend anti-Nazi law to other
jurisdictions in restricting the online Holocaust denial industry. The French government has
pressured eBay and Yahoo! to restrict online sale of Nazi memorabilia.
And in Turkey an ISP's offices were demolished after criticism that it allowed access to
images of women whose arms and faces were uncovered. (Offline, South Australian police
confiscated and then - oops - returned a book of Mapplethorpe photos available in other parts
of Australia.)
While estimates of the size of the web vary significantly, it is likely that there are more than
500 million pages online as at mid 2000. That number is growing rapidly. The web contains
text, still images, audio and video that many people would find offensive. Some of that
content is illegal in Australia and other jurisdictions. Bulletin boards and other parts of the
web include statements or images that are similarly objectionable.
The impact of access to that content is contentious. Later pages of this guide point to official
reports and to polemics by the likes of Andrea Dworkin and Catherine MacKinnon.
Donna Hughes' 2000 paper The Internet & Sex Industries: Partners in Global Sexual
Exploitation is one example. A somewhat more nuanced account was provided by Clive
Hamilton & Michael Flood in the Australia Institute's 2003 Regulating Youth Access to
Pornography study (PDF) and Youth and Pornography in Australia: Evidence on the extent of
exposure and likely effects (PDF), with the former lamenting that
Children in Australia have extensive exposure to pornography. Just under three-quarters (73
per cent) of boys and 11 per cent of girls report that they have watched an X-rated video.
Eighty-four per cent of boys and 60 per cent of girls say they have been exposed accidentally
to sex sites on the Internet and two in five boys deliberately use the Internet to see sexually
explicit material, with four to five per cent doing so frequently.
Historians would note that the 1970 report of the US Presidential Commission on Obscenity &
Pornography indicated that 80% of US boys and 70% of girls had seen visual depictions or
textual descriptions of sexual intercourse by age 18, and that more broadly the
circumstances of most children throughout history exposed them to adult reproductive
activity (often in the same room or even same bed).
The Australia Institute report commented that
In seeing X-rated videos or Internet pornography, young people are exposed to explicit
images of a wide range of sexual acts that are deemed unsuitable viewing for youths under
18. There are special concerns regarding violent and extreme material on the Internet
including depictions of non-consenting sexual acts such as rape and bestiality.
The research literature's documentation of significant associations between use of certain
types of pornography and sexual aggression provide grounds for real concern.
Apart from the intrinsically disturbing nature of much Internet pornography, regular
consumption of pornography and particularly violent and extreme pornography is a risk factor
for boys and young mens perpetration of sexual assault. In addition, it may foster greater
tolerance of this behaviour by others.
In promoting an article about online child porn in 2003 Michael Malone wrote that This is the very heart of darkness. These are images that are more than shocking and
repulsive. They kill your soul, in part because you know that every poor child you see on
these sites is dead, if not now at the hands of a sadist, then decades from now from drugs,
alcoholism or suicide. The pictures first make you sick, then angry, and finally homicidal. If
you could get ahold of the people perpetrating this, you would kill them with your bare
hands. But you can't; the best thing you can do is expose them. So you go on. ... There were
already certain unspeakable images so burned into my brain that, even now, I wish I could
take a scalpel and cut them out. But Bob had no choice. He had to look. Only his fury and
hatred of these people and his desire to destroy them kept him going — and when that
wasn't enough he'd go out at night and get drunk to try to destroy the memories.
In contrast we recommend the thoughtful paper 'E-rogenous Zones: Positioning Pornography
in the Digital Economy' by Blaise Cronin & Elisabeth Davenport in volume 17(1) of The
Information Society, the 2001 Nordic Council Child pornography on the Internet report (PDF)
and the 2002 US National Academies' report on Youth, Pornography & the Internet.
The latter considers approaches to protecting kids from net pornography and other
inappropriate content and threats from online sexual predators, including educational
strategies, technological tools and policy options - in particular how to teach kids to make
appropriate decisions about what they see and experience online.
We've considered some security issues and statistics here. This site also features a profile on
the online 'adult content' industries, questioning some of the hype about supposed facts and
figures.
what is its prevalence?
Our Metrics & Statistics guide highlights the uncertain nature of many internet statistics.
Information about the nature of content (as distinct from more readily identifiable data such
as the number of domains) is particularly problematical.
However, it appears that the notion of the net as awash in snuff-movies, hate sites,
bestiality, child pornography and DIY explosives guides is strictly mythological.
In 1995 Time and other magazines promoted a report by entrepreneur Marty Rimm
purporting to demonstrate that much of the web consisted of 'adult' material, including
violent erotica. It claimed for example that 83.5% of all photographs on the net were
"pornographic" and that paraphilic or paedophilic images accounted for around half of
downloads on bulletin board systems.
Similar figures recur in the mass media, with Jerry Liao for example exhorting parents to "put
God into the center of your family" in 2006 after asking
Did you know that there are 4.2 billion pornographic websites that is equivalent to 12% of
the total websites on the Internet? That there are 372 million pornographic pages, 68 million
daily search engine requests, 2.5 billion daily pornographic emails, and 1.5 billion peer to
peer pornographic downloads monthly?
The Rimm report was methodologically flawed, internally inconsistent and poorly based,
failures demonstrated in cogent studies by Donna Hoffman, Thomas Novak and others.
The major Hoffmann critique for example suggested that under 0.5% of newsgroup
messages relate to groups that contain pornographic images and that the vast majority of
web sites concern non-Adult content: everything from the New York Times (NYT) to this site
or your local Airedale club. Usenet is not restricted to alt.sex; it also encompasses discussion
about knitting patterns, cucumber sandwiches and the born-again.
The 1997 study by Boehringer & Harmon on A Content Analysis of Internet-Accessible
Written Pornographic Depictions explored some research issues. Romin Alavi's 2000
Pornography & the Internet paper quipped that
Rimm's conclusion is the precise methodological equivalent to the following:
(a) restricting a study of printed pornography to magazines located in the "adult" area of a
bookstore,
(b) finding that 83.5% of the reader submissions during a one-week period were to
magazines that contained "pornographic" material, and concluding
(c) that 83.5% of all reader submissions to all magazines are pornographic.
Those studies also offered a more nuanced analysis of the distinction between commercial
publishing and 'backyard' image trading by consumers, explored for example in Max Taylor's
1999 paper The nature & dimensions of child pornography on the Internet and the 2004 NZ
Department of the Interior report on Internet Traders of Child Pornography and other
Censorship Offenders in New Zealand (PDF).
Official and academic reports similarly debunked fears about the availability of bomb-making
instructions. However, what Mike Godwin labelled The Great Cyberporn Panic of 1995 was
followed by a wave of online censorship legislation (identified in the next two pages). Our
assessment is that such legislation, although much derided and clearly often flawed, was an
inevitable result of normalisation of the web.
It followed traditional models, with governments concentrating on 'choke points' in the
information cycle. Sanctions against site operators saw them move to friendlier jurisdictions
and/or screen access, pressure was placed on intermediaries such as ISPs and existing
prohibitions on for example child pornography were reaffirmed.
One consequence has been that commercial erotica has effectively moved behind closed
doors: access involves subscription fees and often requires use of a commercial identification
service (AVS) such as AdultCheck.
That has boosted the revenue of vendors of 'adult' content services, discussed in a more
detailed profile on this site. It has also reduced the likelihood of minors accidentally
encountering large amounts of the more extreme erotica and increased the difficulty of
assessing how much smut is online.
Estimates remain contentious but it is likely that 'Adult' content comprises less than 5% of
the web (several million pages), with only a very small fraction (some analysts suggest 1%)
of that figure involving prohibited content such as child pornography.
The October 2001 Web Characterisation report from the OCLC claims that around 2.5% of
the 3.11 million publicly accessible sites are devoted to adult content (defined as "sexually
explicit text or images"). The 2002 paper by Michael Mehta, Don Best & Nancy Poon on Peerto-peer sharing on the Internet: An analysis of how Gnutella networks are used to distribute
pornographic material covers a very small sample of video files but suggests that much P2P
swapping is innocuous.
Sexual and pornographic Web searching: Trends analysis, a 2006 paper by Amanda Spink,
Helen Partridge & Bernard Jansen considered studies of web search logs from 1997 to 2005,
suggesting that the "level of sexual or pornographic searches" has declined as a proportion of
all queries since 1997 and currently representes less than 4% of queries. Testimony by Philip
Stark to the US Congress during 2006 (PDF) claimed that around 1% of sites indexed by
Google and Microsoft were "sexually explicit" and that 6% of searches yield at least one
explicit site. The figures were criticised by the ACLU and third parties, which noted that art
work by Michelangelo would fall into the 'explicit' category and that the sample of 1,382 URLs
appeared to include substantial double counting. Use of the Google SafeSearch facility more
than halved the search results.
Globally, complaints to regulatory agencies such as the Australian Broadcasting Authority and
to public/private sector hotlines appear to amount to a few thousand each year. Successful
prosecutions or 'take down' action in response to those complaints appear to be significantly
lower, broadly comparable with figures for action against print and video publications.
Exercises in quantifying the production/distribution of illicit content prior to the net are
problematical. However, some sense of volumes is provided by the seizure of 324,000
'obscene' photographs in London and New York alone during 1874.
who creates it?
Questions about the creation of offensive online content presuppose agreement about the
nature of offensiveness, a problem that bedevils much media hype about the online sewer.
Some people would regard any use of 'strong language' (or disagreement with their views) as
liable to corrupt or otherwise deserve suppression. We've - somewhat ruefully - dealt with an
author who appears to consider that free speech is freedom to publish only highly positive
reviews of that author's work, suppressing critical comment and any indication that leading
academics disagree with aspects of that work.
In the Adult Content profile on this site we have highlighted some figures - which vary
significantly - about the size and shape of the online porn sector, which embraces a range of
commercial bodies, amateurs and enthusiasts.
who consumes it?
The answer to questions about consumption of offensive online content is deeply
disappointing to some people.
Put simply, it appears that appetites for heterodox religious content, 'alternative' political
statements and erotica (including content that is publicly stigmatised or illegal) are not
restricted to particular geographical, ethnic, income, age, gender or education demographics.
Consumption of 'mainstream' erotica online in advanced economies is not restricted to male
teens (and is becoming less so as the overall online population normalises). That is consistent
with demographics for consumption of free-to-air and pay television broadcasts and print
publications.
Commercial or other access to non-mainstream erotica similarly doesn't appear to be
quarantined within a particular demographic, although some demographics have easier
access than others (eg because they have broadband, greater experience or online or are not
on the wrong side of what we have characterised as the 'credit card divide').
A useful 2002 review of research into media violence up to 2002 is available as part of the
Free Expression Project.
overseas online censorship law
This page explores overseas legislation, codes of practice, enforcement measures such as
hotlines, and major government and industry initiatives.
It covers 
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the US
the UK
New Zealand
Canada
overseas industry codes
hotlines
major initiatives
US
The controversial US Communications Decency Act (CDA) was struck down by the Supreme
Court in mid-1997, the Court ruling that the legislation violated free speech.
US government approaches to online content regulation have since then been in disarray.
That's likely to continue, following the mid-June 2000 3rd Circuit Court of Appeals decision
against the Child Online Protection Act (COPA) and litigation by the ACLU and others to test
the December 2000 Child Internet Protection Act (CIPA).
The Court disallowed COPA, noting that
because of the peculiarly geography-free nature of cyberspace, a 'community standards' test
would essentially require every Web communication to abide by the most restrictive
community's standards.
Disagreement continues about ratings, filters and even a special "Children's Web".
Libraries and other bodies are currently fighting the CIPA Act, tied to federal Budget
legislation and mandating the use of filters by public libraries despite recurrent official/private
findings that the technology does not perform as advertised. Consumer protection, it
appears, doesn't extend to the smut filtering business.
The Commission on Online Child Protection (COPA Commission), a US federal government
agency, was established in 1998 in conjunction with COPA Act, to "identify technological and
other methods that will help reduce access by minors to material that is harmful to minors on
the Internet".
The Act sought to prohibit sites from knowingly making available to children material that is
sexually explicit. Commercial providers of such material may defend themselves by
restricting access to the sites, eg by using a credit-card based subscription or an identity
service such as AdultCheck.
The Commission survived initial challenges to the Act and presented its final report on 20
October. The report encompasses rating systems, filters, age verification systems and a
special 'X' domain. The Commission held a number of hearings and called on experts such as
Lawrence Lessig in preparation of research papers. Some of those papers are highlighted in
the following pages of this guide.
UK
The regime in the UK is similar to that of Australia.
In the UK the Court of Appeal (in the 2002 R v Westgarth Smith and Jayson) held that mere
internet browsing of web pages or opening of email containing indecent photographs of
children is an offence under the Protection of Children Act 1978.
New Zealand
In New Zealand online censorship is based on the Broadcasting Act 1989 and the
complementary Film, Videos and Publications Classification Act 1993 (here), administered by
the Censorship Compliance Unit (CCU) - formerly the Censorship Board - within the
Department of Internal Affairs and the Office of Film & Literature Classification (OFLC). A
brief overview (PDF) is available, with more detailed coverage on elsewhere on this site. The
Acts are complemented by other legislation relating to imports/exports and other matters.
Around half of ISPs in the shaky isles subscribe to the voluntary New Zealand Internet Code
of Practice (CoP), similar to that developed in Australia under the auspices of the IIA. Official
statements have tended to suggest that "viewing" will be regarded as a significantly lesser
offence than "downloading" or publishing offensive content.
This site features a history of censorship in Australia and New Zealand, examining the
evolution of the regime from the 1850s onwards and pointing to particular resources such as
In the public good? Censorship in New Zealand (Palmerston North: Dunmore Press 1998) by
Chris Watson & Roy Shuker.
Canada
In Canada, on the other hand, despite a recent history of book banning (eg Rushdie's Satanic
Verses) and public debate over proposals from Andrea Dworkin and Catherine McKinnon,
government agencies such as Industry Canada have announced there's neither the will nor it
seems the need to develop discrete online censorship legislation.
An introduction to the Canadian regime is provided by essays in Interpreting Censorship in
Canada (Toronto: Uni of Toronto Press 1999) edited by Klaus Petersen & Allan Hutchinson.
industry codes
The UK Internet Services Providers Association revised code of practice is now available
online; other overseas ISP industry bodies have similar codes.
hotlines
The EU, US and other jurisdictions are increasingly underpinning enforcement of online
content management legislation by supporting the establishment of hotlines for complaints
about illegal material. They are run by a range of organisations - industry, users, child
welfare and public bodies - and have varying functions and procedures.
While their effectiveness is uncertain, advocates argue that since the first was established in
1996 they have resulted in detection of thousands of kiddie porn images, which are removed
or forwarded to police agencies for investigation.
International co-operation between hotlines is growing, especially through the work of the
EU-based INHOPE organisation.
INHOPE's site provides a useful starting point for study of hotlines, in particular through Nigel
Williams' paper The Contribution of Hotlines to Combatting Child Pornography on the
Internet. In Australia the federal government has recently established an advisory service,
NetAlert, that includes a hotline.
major initiatives and community awareness
Globally the contentious nature of online censorship has meant that most attention has
focussed on child pornography. The EU's European Action Plan for Safe Use of the Internet
(IAP) is an attempt at a pan-European policy.
The IAP site identifies individual national and EC initiatives, along with background
documents. The January 1999 Paris conference on The Sexual Abuse of Children, Child
Pornography and Paedophilia on the Internet was organised by UNESCO.
The site of the 1999 Vienna conference on Combating Child Pornography on the Internet
points to many a range of resources. The Bertelsmann Foundation - owner of BMG and other
parts of the global Bertelsmann media conglomerate - has sponsored a series of conferences
and studies on self-regulation and internet content rating of Internet content, in particular
the Munich Internet Content Summit of September 1999.
The US government's Cybercitizenship site - "surf like a hero, not a zero" - joins numerous
private sector sites.