HARD-CORE  PORNOGRAPHY: Can  it  be  sent  over  the Internet? 

The question stated in the title of this piece has been a perplexing one for many years. It has never been an offence to possess pornography at least from the middle of the last century however it is against the law to possess child pornography in any manner whatsoever. However, this article is not about child pornography. It is about sending hard-core pornography that is shockingly gross, both in pictures and in the text over the Internet.

The legal question often raised is; “Does creating pornographic material that may be harmful to minors if sent over the Internet conflict with a person’s right to free speech?”  This is not an easy question to answer because there can be no doubt that some hard-core pornography is definitely something that minors shouldn’t have access to. Let me give you examples. In the course of researching this article, I found 15 short stories involving the eating of young women. I found a movie that is on a disk called Cannibal Holocaust that is extremely graphic. I found seven short stories involving rape and torture. They too were extremely graphic in detail.

How is it, you may ask, that this material can be found on the Internet? The answer can be found in three words—freedom of speech.                                                                  
On June 22^nd, 2000, the United States Court of Appeals for the third Circuit had had announced its ruling on an issue that is the same as the one I have raised. The appeal dealt with book stores selling pornographic material, Internet content and electronic privacy.  

Much of the information I have placed in this article is either quoted or it is paraphrased from the case of AMERICAN CIVIL LIBERTIES UNION et al v. JANET RENO, IN HER OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES et al, a United States Court of Appeal case and from the case of R. v. BUTLER, a Canadian Supreme Court case and R. v. KATIGBAK, another Supreme Court of Canada case.

The appeal (US case) dealt with a conflict between one of society's most cherished rights—freedom of expression and one of the government's most profound obligations—the protection of minors.

The government challenged the District Court's issuance of a preliminary injunction which prevented the enforcement of the Child Online Protection Act (COPA) constitutionality, a statute designed to protect minors from harmful material measured by contemporary community standards knowingly posted on the World Wide Web (Web) for commercial purposes.  

Because material posted on the Web is accessible by all Internet users worldwide, and because current technology does not permit a Web publisher to restrict access to its site based on the geographic locale of each particular Internet user, (except in China and similar locales) COPA essentially requires that every Web publisher subject to the statute abide by the most restrictive and conservative state's community standards in order to avoid criminal liability. The standard by which COPA gauges whether material is harmful to minors is based on identifying contemporary community standards and because the inability of Web publishers to restrict access to their Web sites based on the geographic locale of the site visitor, in and of itself, imposes an impermissible burden on constitutionally protected First Amendment speech.

COPA was enacted into law on October 21, 1998. Commercial Web publishers subject to the statute that distribute material that is harmful to minors are required under COPA to ensure that minors do not access the harmful material on their Web site. Blocking pornographic material from computers is technically possible when parents of children have a program inserted into the computers that can block out pornographic material they don’t want their children to see. However, not all parents have such blocking programs in their computers and there is nothing that will prevent a child from going to a friend’s home and in which the friend’s computer isn’t blocked. Under COPA, a minor is defined as a person who is under the age of seventeen.

But what the government wanted was the Internet providers to make it possible that no pornographic material that is considered harmful to children would be sent into the Internet. That can’t be done however; COPA was set up so that no one could legally place pornographic material that is harmful to children into the Internet. As it turned out, pornographic material is still being placed into the Internet.

The Court explained that, as applied to the Internet, a community standards criterion would effectively mean that because all Internet communication is made available to a worldwide audience, the content of the conveyed message will be judged by the standards of the community most likely to be offended by the content. Attempting to judge what constitutes community standards that are offensive is as futile as building a snowman in the tropics. There are some prudes who object to seeing a picture of a naked man or woman; others have no objection of any form of looking at or reading pornographic material, no matter how explicit or how gross it may be.

Under COPA, whether material published on the Web is harmful to minors is governed by a three-part test, each of which must be found before liability can attach to the presumed offender. They are;

(1) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient (lustful) interest;                               

(2) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

(3)  taken as a whole, lacks serious, literary, artistic, political, or scientific value for minors.

The Supreme Court has noted that because of the peculiar geography-free nature of cyberspace, a ‘community standards’ test would essentially require every Web communication to abide by the most restrictive community's standards.

To avoid liability under COPA, affected Web publishers would either need to severely censor their publications or implement an age or credit card verification system whereby any material that might be deemed harmful by the most puritan of communities in any state is shielded behind such a verification system. Shielding such vast amounts of material behind verification systems would prevent access to protected material by any adult seventeen or over without the necessary age verification credentials. Moreover, it would completely bar access to those materials to all minors under seventeen even if the material would not otherwise have been deemed ‘harmful’ to them in their respective geographic communities. Many times pornographic web sites merely ask the users to merely state that they are over a certain age before getting into the sites. That is not really a suitable means of controlling access to pornographic websites because Web publishers cannot really restrict access to their site based on the geographic locale of the Internet users visiting their sites.

It had however previously been adjudicated in the United States that irrespective as to whether or not the material on a Web publisher’s electronic bulletin board is harmful, it must be judged by the standards of each individual community wherein the disputed material was received, even if the standards in each of the recipient communities varied one from the next, and even if the material was acceptable in the community from which it was sent. The more liberal community standards of Amsterdam or the much more restrictive community standards of Tehran would not impact upon the analysis of whether material is harmful to minors under COPA

It has been suggested that if Web publishers do not wish to subject themselves to liability in jurisdictions with less tolerant standards for determining obscenity, they could refuse to give passwords to potential users of their websites in those districts, thus precluding the risk of liability. Under that proposition, there would be no need for the government to continue to apply community standards with respect to getting access to pornographic sites.  However, in my opinion, this wouldn’t work. The Web publisher wouldn’t really know if the user is a minor or not when applying for membership into the site. 

The problem I have about this concept is that in attempting to obtain membership to a particular pornographic site, the applicant may be required to disclose personal information about himself that the applicant normally wouldn’t do or in fact, would be foolish to do. A scammer could create a pornographic site easily enough by downloading existing pictures of similar sites and then ask potential uses to disclose personal information about them. Once the information is obtained, the scammer could use that information for illegal purposes.  

The appeal court said that the District Court had determined that losing First Amendment freedoms; even if only for a moment, constitutes irreparable harm. That court also said that in balancing the interests at stake, the scale tipped in favor of the being less restrictive, especially since the government lacks an interest in enforcing an unconstitutional law.

The U.S. Supreme Court had already noted that because of the peculiar geography-free nature of cyberspace, a ‘community standards’ test would essentially require every Web communication to abide by the most restrictive community's standards. It is undisputed that the government has a compelling interest in protecting children from material that is harmful to them, even if the material if not obscene by adult standards. 

The American Congress has articulated a constitutionally permissible means to achieve its objective without curtailing the protected free speech rights of Web site producers.

The Supreme Court of Canada in 1992 dealt with a case (R v. Butler) in which the issue was whether or not Butler’s shop sold obscene material in the form of hard-core video tapes and magazines.

The trial judge at his trial concluded that the obscene material was protected by the guarantee of freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms, and that prima facie (clear cut) only those materials which contained scenes involving violence or cruelty intermingled with sexual activity or depicted lack of consent to sexual contact or otherwise could be said to dehumanize men or women in a sexual context were legitimately proscribed under Section 1. The prosecution appeal that that decision.

Section 2(b) of the Charter states;

2. Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

Section 1 of the Charter states;

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Emphasis mine

What these two sections of the Charter is really saying is that people in Canada are free to express their views in any media of communication which would also include the Internet. The question however that the Supreme Court had to deal with was whether or not the freedom extends to obscene and hard-core material.

Any limit on the creation, publication or distribution of what might be referred to as hard-core material must be reasonable and demonstrably justified in a free and democratic society. A law which is aimed at deciding for someone else what he may read or view is discordant with the principles integral to a free and democratic society.

There has been a growing recognition in recent cases that material which may be said to exploit sex in a "degrading or dehumanizing" manner will necessarily fail the community standards test, not because it offends against morals but because it is perceived by public opinion to be harmful to society, particularly women. 

In the appreciation of whether material is degrading or dehumanizing, the appearance of consent is not necessarily determinative.  The last step in the analysis of whether the exploitation of sex is ‘undue’ is the internal necessities test or artistic defence.  Even material which by itself offends community standards will not be considered ‘undue’  if it is required for the serious treatment of a theme. 

For example, in a movie that starred Michael Cain in which a stage play was shown in the story about the murder of King Richard II by having a meat-roasting shaft thrust through his anus, the scene was permitted to be shown because the scene, although extremely gross, was considered necessary for the serious treatment of the story. The butchery of human beings in the various movies titled Texas Chainsaw and scenes of cannibalism in those films was also considered to be pertinent in the films. The book Forever Amber was considered too obscene to be sold to the public according to the authorities in Massachusetts but that state’s Supreme Court ruled that the author’s research was thorough and as such, the story represented the mores of the time and place where the story was set therefore the writings in the book were required for the serious treatment of the theme of the story.

In the Butler case, the court said in part;

“The portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex.  Explicit sex which is degrading or dehumanizing may be undue if the risk of harm is substantial.  Explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production.” 

However, the court also said;

“The portrayal of sex must then be viewed in context to determine whether undue exploitation of sex is the main object of the work or whether the portrayal of sex is essential to a wider artistic, literary or other similar purpose.” 

A good example of this is in the first film of a series called, Death Wish staring Charles Bronson in which the rape scene of the protagonist’s daughter is vividly shown. It was considered necessary that this scene be shown as it explained the cause for the anger of the protagonist in the story.

While a direct link between obscenity and harm to society may be difficult to establish, it is reasonable to presume that exposure to images bears a causal relationship to changes in attitudes and beliefs.  Section 163 of the Criminal Code of Canada minimally impairs freedom of expression.  It does not proscribe sexually explicit erotica without violence that is not degrading or dehumanizing, but it is designed to catch material that creates a risk of harm to society.  The intent of the legislation is to bar the distribution or sale of prurient materials devoid of a redeeming meaning. On the other hand, materials which have scientific, artistic or literary merit are not caught by the provision. 

In order to warrant an override of Charter rights, the moral claims must be grounded; they must involve concrete problems such as life, harm and well‑being, and not merely differences of opinion or taste.  A consensus must also exist among the population on these claims.  The avoidance of harm caused to society through attitudinal changes certainly qualifies as a fundamental conception of morality.  It is well grounded, since the harm takes the form of violations of the principles of human equality and dignity.

Section 163(3) originally stated;

“No person shall be convicted of an offence under this section if he establishes that the public good was served by the acts that are alleged to constitute the offence and that the acts alleged did not extend beyond what served the public good.”

That is a complicated law to interpret because interpreting what the words ‘public good’ really means is rather difficult to define. I interpret it to mean what is in the public’s best interests.

After November 1, 2005, the public good defence with respect to the defendant’s motives no longer applied and section 163.1(6) was amended to provide a defence if the acts:  (1) had a legitimate purpose related to the administration of justice or to science, medicine, education or art; and (2) did not pose undue risk of harm to persons under the age of eighteen. 

The court must begin by reaching factual conclusions about what the accused did, and the effects of his actions on those who have access to it.  Once his or her conduct has been characterized, the court must then consider whether or not the accused’s actions served the public good.  The focus is on the effect of the activity, not the motives of the accused.                                                               

Under section 163(4), it is a question of law whether there is evidence that the act alleged went beyond what served the public good, but it is a question of fact whether the acts did or did not extend beyond what served the public good.  Here again, the prosecution bears the burden of proving beyond a reasonable doubt that the defence does not apply.

The assertion that the accused’s purpose is to advance the public good is not enough to establish the defence.  The first requirement is whether or not, viewed objectively, the evidence supports the contention that the activities in question actually serves the public good. 

The second requirement of the current defence is that the accused’s actions may not pose an undue risk of harm to persons under the age of eighteen years.  Once again, this provision must be interpreted purposively.  The courts must strike a balance between the importance of freedom of expression and reducing the risk of harm to children.  This provision only comes into play after the court has held that the accused had a “legitimate purpose related to the administration of justice or to science, medicine, education or art”.  The question then is; what degree of harm will be tolerated in the case of activity that has a legitimate purpose.  This requires the judge to determine whether such activities pose an ‘undue risk of harm’ to children.  This raises the question of how the judge determines the risk of harm that the publication of hard-core pornography poses to children.

Over time, courts increasingly came to recognize that morals and taste were subjective, arbitrary and unworkable in the criminal context, and that a diverse society could function only with a generous measure of tolerance for minority mores and practices. The words ‘undue risk of harm’ set out in section 163.1(6)(b) should be interpreted to mean a significant risk of objectively ascertainable harm as required by the law of obscenity, rather than the former ‘moral views of the community’ This led to a legal norm of objectively ascertainable harm instead of subjective disapproval. Certainly the publishing of child pornography would be considered ‘undue risk of harm’. Reasonable people no doubt hold sharply divergent views about the level of risk to young persons that should be tolerated as a result of artistic expression, or scientific research.  However the courts must ask whether the harm is objectively ascertainable and whether the level of the harm poses a significant psychological risk to children. 

My proposed solution.

In May 1975, the Lieutenant Governor of Ontario appointed Judy LaMarsh to head a Royal Commission to deal with the issue of violence in the Communications Industry. At that time, the term ‘communications’ was referring more towards television since the Internet wasn’t a factor to be concerned with at that time. The Commission heard submissions from October 1975 until May 1976.

As the months progressed, I came to the sad conclusion that nothing was being accomplished since the television industry and parents were at an impasse. I decided to search for a solution and since I was the host and producer of a TV talk show during those years, I knew something about the workings of television. I finally found the solution that would break through the impasse.

When I was invited by the counsel to the commissioner to address the Commission, I proposed the following;

1.     Parental blocking and filtering technology would likely be as effective as COPA while imposing fewer constitutional burdens on free speech.

2.     This could be done by the television industry if it classified every program in varying degrees such as 1-classification being no unnecessary violence, no swear words and no sex. 2-classification being more violence than in the 1-classification, no swear words and no sex, 3-classification being considerable violence, swear words and some sex and finally 4-classification, considerable violence, considerable swear words and considerable sex.

3.      The parent could then adjust the blocking and filtering monitor so that the child will see only what the parent wants the child to see. As the child gets older, the settings are then adjusted higher.

The day after I addressed the Commission, Ms. LaMarsh publically stated that at long last, a solution had been proposed that would break through the impasse.

In consultation with an expert on the workings of television stations, we drafted up the schematics as to how this could be done. I sent them to the patent office while the expert contacted the television manufacturers. The patent office wrote me back saying that our patent application would have to be perfected—a complicated and expensive endeavour. Since the manufacturers weren’t interested and I didn’t have enough money to go ahead, we both dropped the idea.  

Twenty years later, a Canadian in Vancouver after learning that our patent application hadn’t been perfected, he worked on his own to make my original proposal become a reality. By then, television sets weren’t using tubes but instead they were using microchips. He created a V-chip of which the V stood for violence. He patented it and in 1994, President Clinton announced that he wanted all television sets manufactured in the U.S. to be recipients of such monitoring. Nowadays, parents can control what TV shows they want their children to watch.

There has been for some time now, computer software for parents who want to block specific kinds of websites such as pornographic websites or certain kinds of chat rooms. That being so, we don’t have to really be that concerned about the Internet having extremely gross and graphically defined sexual material in it. I envision the day when all computers will have such software in them to be used by parents who want to monitor what their children see and do on the Internet.