Last updated: February 21, 2019
Topic: ArtBooks
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Introduction

American author William Gibson (1984) once said, “the space promised a kind of society that real space could never allow – freedom without anarchy, control without government, and consensus without power” (Mijatovic, D., 2002). Basically, Gibson defined that “space” as cyberspace which is a consensual hallucination experienced daily by billions of operators globally and by children being taught mathematical concepts, and is a graphic representation of data abstracted from the banks of every computer in the human system [of unthinkable complexity], lines of light ranged in the non-space of the mind, clusters, and constellations of data like city lights receding (Gibson, 1984; in Mijatovic, 2002).

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Like cyberspace, the Internet transforms the peoples’ way of life as it gives astounding prospects for improving creativeness and knowledge, cultural exchange, promoting human rights, revitalizing freedom and ethics, and harnessing diversity of cultures. However, accessing the Internet poses critical challenges. The ultimate challenge addresses parental concern as to how to uphold the children’s moral values by preventing them from accessing uncensored and free flowing information on the Internet.

Consequently, systems have to be in placed to deal with unlawful Internet contents in order to defend without prejudice on the rights of speech, especially the children.

After the Internet was first introduced in 1993, pornography became a severe legal issue that has been constantly a subject of legislative battles over the years. The issue on pornography is plainly defined as the illicit exhibition of nudity and sexual intimacy of opposite sexes that depicts the object of commercial value. On the other hand, similar depiction and exhibition of pornographic materials in the Internet exposes children to pornography. In this regard, this paper will discuss legal issues and examine existing policies that regulate pornography on the Internet.

The legal issues

The prelude to legal issues is to first describe the distinct character of Internet relating to exposition of pornography. According to the European Communication Commission (1995), the internet has a multi-media function to publish and communicate. The Internet supports a variety of communication modes: one-to-one, one-to-many, and many-to-many. An Internet user (online) may speak or listen interchangeably. At any given time, a receiver can and does become content provider, of his own accord, or through “re-posting” of content by a third party (Panos Institute, 1995). In other words, the Internet therefore is radically different from traditional broadcasting. It also differs radically from a conventional telecommunication device

The rapid development of the Internet has increased the number of websites that pose contents depicting uncensored features, like pornography and even methods of bomb manufacturing. As a result, the advocates of cyber censorship from diverse international communities have called on all governments and the United Nations to ventilate the moral and legal issues on cyber censorship. In addition, responsive governments and states have acknowledged the call and critically studied the propagation of the illicit Internet manipulations and labeled it as a “cyber crime”. Moreover, subsequent policy proposals have continuously battled for ethical and judicial legislation that will regulate the Internet contents.

The commercial value

One of the legal issues on cyber crime is the commercial manipulations in the exposition of pornographic materials in the Internet. The web site of Playboy.Com and hundreds of other pornographic magazine publishers [prior to utilizing the Internet] have followed suit through the creation of websites that are rated with adult contents.  The influx of the so-called adult web sites has extensively occupied the cyberspace into uncontrolled proportion.

Meanwhile, a new twist of enticement in the pornographic materials’ exposition has not only dwelt on the photographic posting but on interactive or live exhibition of pay-to-view web sites that offer real time interaction. The pay-to-view web sites are accessed through numerous payment modalities from credit card to wire transfer fees. In addition, payment charges also offer long-time membership to online viewers or members. Although membership is exclusively for legal ages, online registration may not accurately identify the exact age of the person accessing the site so anyone in the family, including minors, can register by using someone else’s credit card.

It is clear that the utilization of the Internet has reached a variety of commercial values through the proliferation of pornography. In addition, the commercial value of pornography has virtually transformed into an industry in cyberspace. It may be then perceived that the cyberspace is indeed a “free enterprise” that profits from online business ventures of web site publishers.

Furthermore, according to Hugh Hefner, the founding czar of Playboy Magazine, the Internet has created a booming commerce of a once dying freedom of public nudism when the mainstream lifestyle publication that celebrated sex at a time when Americans were none too willing to talk about such things in public, referring to the first published photographs of Marilyn Monroe in 1953(Answers.com, 2008).

Exploitation and decadent culture

It is obvious that the commercial value through massive proliferation of pornography in the Internet is continuously characterized by exploitation and the promotion of decadent culture. The commercial value may be uncontrolled and remain phenomenal due to the massive patronization of Internet. It is then perceived that decadent culture is one of the impacts of seeming mass production of pornography in the cyberspace to which, the legal issue resides on the exploitation of women [and even children] who becomes sexual objects in the adult web sites. Moreover, Internet pornography is generally a gender issue of exploitation as interactive communication through the Internet offers a readily accessible network which is open to vulnerabilities and abuse of any gender regardless of age, race and religious beliefs.

Moreover, all forms of Internet-related exploitation and crime growth are attributed to pornography, such as pedophilia, sexual assault and abuse, and similar cases of kidnapping. It may be deduced that the abuse and misuse of Internet web sites primarily instigate a decadent cultural orientation.

The Panos Institute of London (1995) reported that the European communities have large prevalence of sexual abuse [especially child pedophilia] ranging from children (minors) and young adults to older women. In a related report, the US-based Forrester Research Institute (2003) said that the Internet is now used by around one tenth of the world’s population. With Europe leading the way, it is expected to reach more than 200 million, accounting for 67% of the population by the end of 2008 (Global Reach Internet Statistics, 2008).

Cyber crimes

Another legal issue is the extraordinary criminal acts that have been related to manipulation of the Internet. Hundreds of web sites offer online job opportunities to households that are potential targets of pornographic web publishers. As previously discussed in the section of this paper, the interactive online communication encourages and offers substantial amount of compensation to participants on the so-called “cyber sex” activities. Since the Internet has a multi-media component, the “online female or male models” can virtually communicate with each other.

Furthermore, the virtual (live and on-time appearance) pornography has subsequently developed from the old pornographic exposition in the Internet.  According to Dr. Adam Graycar, Director of Australian Institute of Criminology and Author of the article, ‘Nine Types of Cyber Crimes’, the Wonderland Club web site has an international network with members of at least 14 nations ranging from Europe, to North America, to Australia. Access to the group is password protected and content is encrypted.  The Police investigation of the activity, codenamed “Operation Cathedral” resulted in approximately 100 arrests around the world, and the seizure of over 100,000 images in September, 1998 (Graycar, 2000).

Based on Dr. Graycar’s findings, there are 9 types of cyber crimes. These are: (1) theft of telecommunication services, (2) communications in furtherance of criminal conspiracies, (3) telecommunications piracy, (4) dissemination of offensive materials, (5) electronic money laundering and tax evasion, (6) electronic vandalism, terrorism and extortion, (7) sales and investment fraud, (8) illegal interception of telecommunications, and (9) electronic fund transfer fraud.  From these 9-types of cyber crimes, pornography fits in all areas since it represents and covers the “acts” in committing and violating the categories of cyber crime (Graycar, 2000).  Further cited from Dr. Graycar, the term “cybercrime” is usually restricted to describing criminal activity in which the computer or Internet network is an essential part of the crime. In addition, this term is also used to include traditional crimes in which computers or networks are used to conduct illicit activities.

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Literature Review

This section of the paper will review related literatures and findings that will be used as a derivative of legal issues previously discussed and an espousal of regulatory schemes that will be examined relating to regulations on the use of Internet.

Based on the journal, ‘Internet Censorship: Be careful What You Ask For’,  which was written by Ian Brown, a growing number of states worldwide are imposing mandatory requirements on Internet Service Providers (ISP’s) to prevent their subscribers from accessing overseas content that are banned under local laws. It is well known that undemocratic states such as China implement online censorship but a number of democracies with constitutional guarantees of freedom of expression are also imposing digital filters. States have further put pressure on Web publishers to remove content hosted outside their jurisdiction (Anderson, 2006; in Brown, 2007).

The works of Brown evaluate the Internet filtering system and technologies utilized within the types of democratic and undemocratic countries. Basically, Brown believed in the efficiency of filters and the effect on newest delivery system such as like person-to-person communication that reflects mutual interactions and therefore freely discusses the fundamentals of the rights to speech and of expression. Brown concluded in his journal that the mutual and expressive thoughts eradicate totalitarianism or tyranny of censorship.

Moreover, Brown believes that the Internet is the safest space or place to express, convey, and exhibit the freedom of ideas and virtual acts [as capably enhanced by the Internet’s multi-media features]. Based on Brown’s journal, the Internet allows millions of citizens (online users) across the globe to access information from borders-to-borders, however, most states control the import of printed materials, and have attempted to control audio and television broadcasts in their respective territories.

A brief review of Brown’s particular finding on the “Internet filtering system” points out the existing tyrannical nature of governments that are still narrowed by understanding the character of Internet in today’s access to information. In other words, this “narrowed mind” is basically the result of a “filtering regime,” which represents the government’s regulation on the Internet. Brown cited an example of Internet regulations in Iran that blocks the ISP’s to access over 10 million web sites, including “immoral” sites and “political sites which rudely make fun of religious and political figures in the country” (BBC News, 2003; in Brown, 2007).

Based on findings similar to Brown’s, the Kingdom of Saudi Arabia (KSA) redirects web site access to a government-controlled alternate server that filters access to web sites that “violate the tenants of the Islamic religion or societal norms,” which was imposed by the KSA’s Ministry of the Interior Committee on Internet Services Unit (Boyle, J. 2004). Similarly, the governments of Europe and Canada began their “filtering system” to necessitate blocking of ISPs that access websites that promote child pornography. On the other hand, the government of Finland persuades its Internet users for “voluntary ISP blocking system” and consent to the police to monitor the user’s access to web sites that hosts child pornography. Moreover, in Sweden and Norway, users will not have any choice whether their access is filtered although the Finnish constitution would make it difficult for the imposition of an openly mandatory filtering system (Lehdonvirta, 2006). Likewise, the “Save the Children Program” of the Danish police has set up a blacklist of sites which are “voluntarily” blocked once they have confirmed that it contains illegal or pornographic material and notify the record from the ISPs (Jorgenson, 2006).

Furthermore, the filtering system in China may be considered as methodical. China’s filtering system basically resembles its “great wall”, in which there are only 9 Internet providers being licensed by the Chinese government to access the World Wide Web. In addition, routers on the national network are configured to drop packets carrying data to and from blocked websites (OpenNet Initiative, 2004).

Moreover, the Chinese government has gone as far as directing Google and Microsoft’s MSN to apply “self-censor” in their search results and blog posts. This system led to discovery of the identity of Yahoo! user journalist Shi Tao who was consequently sentenced to ten-year imprisonment for accessing these sites (Claeburn, 2006).

In this regard, we may then go back to Ian Brown’s finding that “censorship” represents a “filtering regime” of tyranny to the freedom of expression. To recapitulate Brown’s findings, we may then cite his standpoint correlating Sigmund Freud (1933) observation; “What progress we are making. In the middle Ages they would have burned me. Now they are content with burning my books” (Jones, 1957; in Brown, 2007). In addition according to Brown, the curtailment of freedom of expression puts in place an unwieldy and ineffective censorship infrastructure that could easily be abused by future governments and repressive regimes which also means that people have learned nothing since Sigmund Freud made the same observation (Brown, 2007).

The Legal Jurisdiction and Policy Environment

The review of literatures and findings on Internet regulations relating to censorship of access to delinquent web sites has been discussed and likewise will be expounded in the preceding section of this paper. Basically, this section will discuss how the enactment of laws takes shape in regulating pornography.

It may be assessed upon the review of literatures that regulatory efforts on the Internet access have been implemented by several governments. However, the question is could these efforts emanate from a policy environment or merely representing public initiatives? The lethargy on the seemingly uncontrolled and proliferating vulnerability of morals and righteousness against violence, abuse, and scandals brought in by Internet may defeat the true sense of technological freedom.

In this regard, General Counsel John D. Gregory of the Ministry of the Attorney General in Ontario Canada and author of the journal, ‘Solving Legal Issues in Electronic Government: Jurisdiction, Regulation, Governance’, lamented: “who can be governed, what can be governed, and how it can be governed in an electronic world?  Gregory emphasizes that whether law endeavors to be facilitating and affirming the legal effectiveness, the latest cyber media has obscurity for its rational evolution” (Gregory, 2002).

The works of Gregory examined the jurisdiction of the court over legal issues on cyber abuse and misuse. Based on his journal, the debate is a legal battle in courts and application of juridical norms to resolve legal issues affecting and regulating unlawful conduct in the Internet. In addition, according to him, to enable penalties, the government must critically examine the impact of Internet on the function of the “democratic system”.

In relation to pursue Gregory’s inquiry on legal jurisdiction, an example on the framing of “legal jurisdiction” from the enactment of the Computer Misuse and Cybercrime Act of 2003 in the Republic of Mauritius will be discussed. Precedent to penalizing and convicting criminals relating to electronic crimes or cybercrimes, there is a provision of the Act that states: “notwithstanding any other enactment, the intermediate Court shall have jurisdiction to try any offence under this Act or any regulations made under it and may, on conviction, impose any penalty or forfeiture provided for under this Act” (Sec.19; Par.1; in Parliament of Mauritius, 2003). The jurisdiction on the Act penalizes cyber manipulation of pornography which states, “pseudo-photograph” means an image made by computer graphics or by any other means [of multi-media types],which appears to be indecent” (Sec.19; Par.1b; in Parliament of Mauritius, 2003). In short, even animated or caricatured depiction of pornographic photograph is imposed with penalty under court’s jurisdiction.

The matter of legal jurisdiction in penalizing and convicting cyber criminals, which also pointed out by Gregory over the jurisdiction issue, is even supported by the United Nations’ International Education Children’s Fund (UNICEF). In addition, the President of the Inter- Parliamentary Union Fernando Casini has quoted the UNICEF’s handbook for Parliamentarians, “Freedom from violence will only be possible if we parliamentarians respect our duties to children and act upon them. We have the power to legislate, to oversee proper enforcement of laws”. In other words, it is clear that the jurisdiction is mandated within the courts who may call for prosecution of the perpetrators of the crime.

Moreover, the US Department of Justice-Computer Crime and Intellectual Property Section Criminal Division has been given jurisdiction over Internet crimes by the US Congress under the provision that states: using telecommunications device to make, create, or solicit, and transmit any obscene comment, request, suggestion, proposal, image, or other communication (47 US Code 223(a)(1)(A); in USDOJ, 2006).

The empowerment of legal jurisdiction in penalizing and prosecuting cyber criminals has been supplanted by policy environment that will consistently and comprehensively address legal issues in regulating pornography on the Internet. In the US, the enactment of the Adam Walsh Child Protection And Safety Act Of 2006 has been described to resolutely resolve the issue on legal jurisdiction. Basically this law works in 4 important ways: (1) Expanding the national sex offender registry, (2) Strengthening Federal penalties for crimes against children, (3) Making harder for sex predators to reach the children on the Internet, and (4) Creating a new national child abuse registry and requiring investigators to do background checks of adoptive and foster parents before they are approved to take custody of a child (Whitehouse.Gov, 2006).

Noticeably, the policy environment pertaining to regulating pornography in the Internet single out and focuses on the vulnerability of children to sexual abuse, violence, and coercion. In other words, pornography is primarily viewed as threatening to the rights and welfare of children. Moreover, the US Congressional finding states that the Government has a compelling interest in ensuring that the criminal prohibitions against child pornography remain enforceable and effective, and the most expeditious [if not the only practical method of law] enforcement may be to dry up the market from pornographic materials by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product. (Ferber, 458 USC at 760; in 18 US Code 2251, 2006).

The classification of regulating Internet pornography has been ruled out by the US Supreme Court and upheld its decision in “Free Speech v. Reno at the US 9th Circuit Court of Appeals, Case No.97-16536”. To cite the decision of the Supreme Court, it imposed the provisions of Children Pornography Protection Act that states: child pornography is any visual depiction, including computer images, of sexually explicit conduct; subsection (B) bans sexually explicit depictions that “appear to be” minors, subsection (D) prohibits depictions that “convey the impression” that they contain sexually explicit portrayals of minors (Section 2556 (8) of Subsection B ; D; in Ferguson, Thomas and Molloy, 1999).
With regard to similar prosecution of cyber criminals, Yaman Akedeniz of United Kingdom has compiled news items involving hundreds of cases relating to convictions on Internet pornography in Europe from 1996 to 2001. One of the news items he compiled was the UK National Crime Squad’s biggest crackdown on news groups in possession of pedophilic multi-media images, in which Demon Internet (an Internet Service Provider) was recovered with data showing that nearly 1,500 newsgroups has established almost 10,000 Internet Protocol (IP) addresses that accessed 30 web sites of pedophilia (Akedeniz, 2001).

Conflicts of Jurisdiction and Regulation

The legal jurisdiction and policy environment has passed on to critical debates by legal experts and scholars. According to Jack Goldsmith, author of the journal, ‘The Internet Conflicts of Regulation and International Harmonization’, unilateral national regulation of the Internet invariably leads to multiple and conflicting regulation of the Internet and is being exaggerated for several reasons.

Based on Goldsmith’s perception, the enactment of laws in every nation does not represent transnational regulation on the flow of information in the Internet. Moreover, according to him, it is a necessity to understand and differentiate a nation’s prescriptive jurisdiction from its enforcement jurisdiction as prescriptive jurisdiction is a nation’s power to make its laws applicable to particular transactions although the power of law [whether or not the regulation is effective] relies on the nation’s ability to persuade or force compliance with the law.

It may be deduced from Goldsmith’s perception that the application of law is “prescriptive” only in the clamor of regulating Internet pornography and other cyber crimes. However, what Goldsmith pinpoints is the aspect of “force” or power of law to totally impose the “mighty ruling” which refers to the jurisdiction of enforcement. It may be recalled from the discussion in the previous section of this paper in which there is a policy environment in every country that is briefly presented but may have been viewed only with “prescriptive” typologies on the issue of enacting policy.

The claim of Goldsmith, therefore, seeks the “forcible character” in order to provide resoluteness to the policy environment which is called “enforcement jurisdiction”. Furthermore, according to Goldsmith, the true scope and power of a nation’s regulation is measured by its enforcement jurisdiction, not its prescriptive jurisdiction.

On the transnational issues regarding enforcement jurisdiction, the Middle East countries may be considered as forcibly implementing enforcement jurisdiction which is characterized by its religious-social standards and cultural-religious beliefs. It may be recalled from the previous discussions that Iran and the Kingdom of Saudi Arabia has enabled the regulation of Internet providers. Likewise, China has the same type of laws that regulate the access to the World Wide Web.

A critical consideration that may regard legal jurisprudence is the fact that a particular country may only enable enforcement jurisdiction by prosecuting individuals or organizations that has material resources in a country where crime is committed. However, without these resources, the country can only resort to extradition. Like the policy environment in the Republic of Mauritius, wherein Internet-related sexual trafficking of foreigners is prevalent, it is less effective to prosecute cyber criminals in this manner as the Provision 19A of the Extradition Treaty only penalizes (grants) the foreign offender with extradition (Sec.15 under Extradition Act).

Furthermore, Goldsmith pointed out that what may then transpire are multiple and conflicts between jurisdiction and regulation. Based on his prognosis, Internet content providers will not be subject to any regulation other than the one in the territory in which they have presence, thus, the Internet-related entities that involve multiple, potentially-conflicting regulatory requirements are persons and firms with a multi-jurisdictional presence. In closing, jurisdiction and regulation may be perceived as conflicting in the real-time and non-virtual space, in which the effort of enforcement depends upon the policy environment of international treaties. In other words, cyberspace remains spacious for legal impediments to take place.

Conclusion

The legal issues faced in regulating pornography on the Internet may not only be a national challenge to a country but also a transnational or international concern. Pornography may indeed be a substantial commerce with tremendous business values that insatiably entice overnight investment into an industry.

However, what confronts the morality of families is the decisiveness of regulating the cyber enterprise by enforcing strong consciousness to the children. The virtue of assertiveness and consciousness would tie the bond of transnational families to solidarity of values.

Basically, in today’s proliferation of pornography in the Internet, the governments of the world should re-examine the juridical processes relating to cyber violence, abuse, and misuse. Although the Internet considered as a bulwark in the freedom of expression, the cyber enterprise that it promotes is a virtual bailiwick of opportunism and autocracy of those who malign the practice of freedom.

In short, global families and governments may turn the tides of renewing the freedom to converge against cyber commercialism and decadence of the virtual world. It is only then that the cyberspace may harmonize the value of family and return the innocence to a child.

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