Pornography or “porn,” is a socially defined class of sexual communication, which may or may not be protected under national laws. The term may be distinguishable from legal definitions of obscenity or indecency. Pornography is generally considered the depiction of graphic sexual behavior usually designed to promote sexual arousal. Pornographic material may be either legal erotica or illegal obscenity. Many have questioned the validity of the distinction between erotica and pornography, the latter being a pejorative and subjective term.
Regulation of sexual expression varies from society to society. As the Statement on Freedom of Expression for the Commonwealth notes, “The law with respect to obscenity and pornography must arise from, and respect the value of, the society in which it operates. States have a special responsibility for eliminating child pornography.”
Pornography has been in existence for centuries. Some of the earliest cave paintings, sculpture, and pottery discovered by archaeologists contain sexual references. “Pornography” is a word first found in the writing of the Greeks in relation to discussion about porne, or prostitute. Around 1650, some of the first pornography appears to have been published using printing presses.
“Pornography” is considered a general term that is distinct from its legal definitions addressed under a wide range of obscenity laws. Sex was first a legal issue in England in 1663 with the conviction in London of Sir Charles Sedley for breach of peace by becoming drunk, removing his clothes, uttering profane remarks, and pouring urine on a crowd below a tavern balcony. This indecency was not blasphemous, as was the case with previous convictions. Common law courts in England did not tend to be faced with pornography cases. Still, in 1727 Edmund Curll was convicted for corrupting public morals through publication of Venus in the cloister, or The nun in her smock. A few years later, John Cleland’s Fanny Hill, or Memoirs of a woman of pleasure was widely translated, yet later judged to be illegal in the United States.
Technological development of photography and video expanded the distribution of pornography. Much of what we consider pornography today has its roots in Scandinavia and the United States, where there was a dramatic increase in production in the 1960s and 1970s. Movies such as Last Tango in Paris and Deep Throat brought pornographic images into the mainstream. During this period, child pornography surfaced from Europe, Africa, and Asia. Japanese pornography, which began to mingle sex with violence, has flourished using a variety of realistic and animated approaches.
Twentieth-century magazines and adult books found a global market. When the Internet world wide web exploded on the scene in the mid-1990s, pornography could be easily distributed internationally and became the first profitable online industry. In the absence of international pornography laws, national laws prevail that are designed to curb or prohibit the production, distribution, and sale of sexual materials. Current enforcement typically involves attempts to identify sexual predators in the online environment and prosecute them.
Sexual media depictions are often unsolicited. Therefore, concerns have been expressed about the proliferation of Internet spam. Unwanted emails often make offers of a sexual or pornographic nature, and attempts to use email filters have been frequently defeated by the marketers of porn. Pornography is sometimes related to prostitution. Depending on perspective, legal scholars have treated the sale of sexual conduct as either a modern form of slavery or a legal right of work. An extension of prostitution is the depiction of sexual behavior in multimedia forms. These portrayals may be distributed for sale or not. Clearly, such behavior raises international human rights issues.
While laws vary widely from nation to nation, a general international agreement exists on the need to prevent child pornography, although the age of sexual consent is not standardized worldwide. In Japan, soliciting prostitution from a child (under age 18) is punishable under the Law for Punishing Acts related to Child Prostitution and Child Pornography, and for Protecting Children. Prior to 2005, no law existed to prohibit sex trafficking.
The typical legal concern involves sexual depictions of people under 18 years of age, such as the case in the Canadian Penal Code. Nevertheless, this is not universal. The age of concern drops to 16 under Australian law, and 15 in some US states. However, US federal child pornography statutes that make illegal the creation and distribution of photographs or videos limit such sexual behavior between an adult and a teen. In Europe, “audiovisual material which uses children in a sexual context” is restricted under the Council of Europe definition. The International Criminal Police Organization’s (INTERPOL) definition of child pornography goes beyond visual representation to include a “child’s sexual behaviour or genitals.”
Examples of Legal Regulations
United States of America
The US Supreme Court in Miller v. California (1973) has formulated a three-part test to judge whether content is obscene and, thus, not protected speech under the First Amendment: (1) whether the average person, applying contemporary community standards, would find the work, taken as a whole, appeals to prurient interests; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
A local jury might be asked to determine whether the pornographic material appeals to prurient interests based upon local community standards. State law is applied to the question of patent offensiveness. However, a large loophole is the third prong of the obscenity test, which allows sexual material to be legal where serious LAPS value is found. As a general rule, print media have the most freedom to publish sexual material. This is because it is easiest to restrict access to children by zoning, for example, adult bookstores and businesses away from schools and other locations where children may be present. In broadcasting, the Federal Communications Commission (FCC) has restricted indecent speech to a late evening hours “safe harbor” when children are not likely to be present in the audience. Broadcast indecency, which blurs the definition between indecent and obscene, is defined, under the broadcasting community standards, as sexual or excretory activities or organs in material that panders or titillates without value. Profanity, which generally is considered indecent, may not be so in certain serious contexts. The FCC applies a national contemporary community standard for the broadcast medium. Generally, cable systems are either free from indecency regulation or have more freedom than their broadcast brethren. The Internet is similar to print media when it comes to its right to disseminate pornographic content. It is more broadly protected than broadcasting.
The Criminal Code proscribes obscenity. It provides that it is an offense to publish, import, export, or advertise “anything that depicts a child performing a sexual act or assuming a sexually suggestive pose while in a state of undress.” In reporting court proceedings, the Code prohibits news media from including “any indecent matter or indecent medical, surgical or physiological details . . . that if published, are calculated to injure public morals.”
In R. v. Butler, the Supreme Court of Canada, ruling on the obscenity statute, adopted the feminist position that men who are exposed to pornography are induced to commit violence to women. The Court divided sexual expression into three distinct types: (1) explicit sex with violence, (2) explicit sex without violence but which subjects people to treatment that is degrading or dehumanizing, and (3) explicit sex without violence.” The third category is presumptive legal unless it involves child pornography, but the first and second categories are usually unprotected. As the Canadian Supreme Court reasoned, “the portrayal of sex with violence will almost always constitute the undue exploitation of sex,” while “explicit sex which is degrading or dehumanizing may be undue if the risk of harm is substantial.”
Article 10 of the European Convention on Human Rights balances freedom of expression with the protection of morals. Compared to the US Supreme Court, the European Court of Human Rights (ECHR) has rarely struggled with the definitional quandary over obscenity as an unprotected expression because it is, in general, protected. Nonetheless, its few obscenity cases recognize a reality surrounding obscenity as an ambiguous issue in the legal, socio-political, and cultural arenas. The 1976 ECHR obscenity case, Handyside v. United Kingdom, is illuminating.
Handyside started with the police seizure of copies of The Little Red Schoolbook, a reference book for children. Published by Richard Handyside in London, the book dealt with the early sexual experiences of children. In considering whether the English government’s interference with Handyside’s freedom of expression was acceptable, the ECHR found that English judges had authority, in the exercise of their discretion, to conclude that the book would harm the morals of many of the children who would read it. The seizure of the copies of the book by the authorities had the aim to protect the morals of the young – a legitimate purpose under English law.
Widespread concern about the actual or perceived harm of sexual material to children led the European Union in 1989 to declare that member states should take appropriate regulatory steps to prohibit television programs that “might seriously impair the physical, mental or moral development of minors, in particular that involve pornography and violence.” In late 1996, the EU Commission, addressing the issue of illegal and harmful Internet content, made clear that all cyber child pornography falls under the existing legal framework.
European nations were some of the first to restrict Internet distribution. For example, Germany prosecuted and sentenced a manager of a subsidiary of CompuServe in 1998 for distribution of newsgroup online pornography. The case was later reversed when a court found that a subordinate was not in a position to limit illegal content access. Under German law, pornography is grouped with racist, violent, and other speech that is considered harmful.
Japan has been strongly influenced by the United States in its free speech jurisprudence since the end of World War II. Nonetheless, its obscenity law showcases how Japanese cultural values guide its application. The public distribution or sale of obscene material is a crime in Japan. It is regulated under the Criminal Code, the Custom Standards Law, and various mass media laws. Meanwhile, the Japanese Supreme Court has recognized governmental authority to restrict sexual expression, even when it has significant artistic or literary value. The Supreme Court has held obscene materials to be outside the protection of the Constitution of Japan on freedom of speech and the press. As the Court stated, “When writings of artistic and intellectual merit are obscene, then to make them the object of penalties in order to uphold order and healthy customs in sexual life is of benefit to the life of the whole nation.”
Obscenity in traditional media is prohibited as a criminal violation of the Criminal Code and other laws. The judicial interpretations of obscenity law in South Korea borrow heavily from American law. A case in point is the obscenity test drawn up by the Korean Supreme Court:
Whether a document is obscene should be determined by considering the explicit and graphic depiction of sex, the amount and substantiality of the sexual description in relation to the document as a whole, the ideas expressed in the document and their relationship to the sexual portrayal, the lessening impact of the document’s artistic and theoretical values on its sexual titillation. Further, examination should be made of whether the document, taken as a whole, primarily appeals to readers’ prurient interest.
Pornography definitions frequently run into difficulty because the line between porn and art is not clear. Digital artists commonly depict sex, and multimedia materials may blur the age of actors. The use of home computers, digital cameras, and video-recording equipment has created a revolution in the production and distribution of pornography. Inexpensive and available equipment allows individuals to create their own erotic or pornographic materials. Enforcement of laws generally halts at one’s front door, unless the sexual content involves illegal behavior or distribution.
- Barendt, E. M. (2005). Freedom of speech, 2nd edn. New York: Oxford University Press.
- Barnes v. Glen Theatre, 501 US 560 (1991).
- Beer, L. W. (1984). Freedom of expression in Japan: A study in comparative law, politics, and society. Tokyo and New York: Kodansha.
- Christensen, F. M. (1990). Pornography: The other side. New York: Praeger.
- Cohen v. California, 403 US 15 (1971).
- Coliver, S. (1993). The Article 19 freedom of expression handbook. London: Article 19.
- Goldsmsith, J., & Wu, T. (2006). Who controls the Internet? Illusions of a borderless world. New York: Oxford University Press.
- Handyside v. United Kingdom, 1 EHRR 737 (1976).
- Judgement of June 16, 1995, 94 to 2413 (Supreme Court of Korea).
- Krotoszynski, R., Jr. (2006). The First Amendment in cross-cultural perspective: A comparative legal analysis of the freedom of speech. New York: New York University Press.
- Lipschultz, J. H. (2000). Free expression in the age of the Internet: Social and legal boundaries. Boulder, CO: Westview Press.
- Martin, R. (ed.) (1999). Speaking freely: Expression and the law in the Commonwealth. Toronto: Irwin Law.
- Miller v. California, 413 US 15 (1973).
- Paraschos, E. E. (1998). Media law and regulation in the European Union: National, transnational, and U.S. perspectives. Ames, IA: State University Press. v. Butler , 1 SCR 452.
- Reichert, T., & Lambiase, J. (2006). Sex in consumer culture: The erotic content of media and marketing. Mahwah, NJ: Lawrence Erlbaum.