Developments in the media - Essay Example

Developments in the media Introduction: In the case of ACLU v Reno, the Internet was described as “a decentralized, global medium of communicationcomprising a global web of linked networks and computers.”1 Esen states that the open nature of the global network has increased criminal activities online and lawmakers in different countries are struggling to put in place a legal framework adequate to combat Internet related offences2. According to Room, child pornography is one of the infamous categories of crime that have cropped up through the facility of the electronic medium. Young children are often made the subject of degrading and abusive sexual acts and photographed in an indecent, graphic manner that is targeted at the sexual pervert or pedophile who garners a thrill from viewing such pictures or videos. Since children are young and impressionable and also very vulnerable in a mental and psychological sense, they may be ill equipped to deal with the trauma caused by being forced into performing such degrading acts. Moreover, there is also another aspect to the circulation of such pornographic pictures and videos over the web and this is, the harm caused to the children who may inadvertently access and view such pictures. While it may be possible to control other media channels, such as TV or books by using specific devices to block out certain objectionable material, the Internet does not afford the facility of identification of the specific age of the viewer. Therefore, material that is targeted at adults may be accessed by young children. While adults may access such material with the full knowledge of what they are viewing, the same standard cannot be applied to children because neither can be said to have given valid consent to engage in sexual acts, neither to viewing such objectionable material. The nature of the electronic medium and the ease and facility of access, distribution and duplication afforded by the Internet has made it very difficult for Governments to devise effective systems to regulate content on the Internet and prevent the exploitation of impressionable youngsters. While several measures have been taken to tackle the problem, the difficulties in pinpointing jurisdiction and the absence of effective filtering methods are significant drawbacks in bringing about effective regulation to protect children from pedophiles and distributors of obscene material. Internet and regulation: One of the major issues that needs to be considered is the enormous capacity for copying and reproduction that is afforded by the digital environment.3 In a digital environment, with free availability of information and the facility for easy duplication of material coupled with the difficulties in restricting access, potent dangers are posed to children who may be exposed to offensive, pornographic material on the Net. For example, Lewis has discussed the scope of the reforms to the Sexual Offenders Act of 1997 by way of the Sexual Offences Act of 2003, as a result of which a wider range of offensive activities against children have been brought under the purview of protection offered for children who are vulnerable to sexual abuse4. This Act also creates a new offence of “grooming” whereby a person attempting to lure a child into a sexual activity will be guilty even if the actual offence has not occurred. Hence, the range of conduct that previously fell just short of a sexual offence and could not be prosecuted under the law, are now addressed in the New Act. Where the electronic medium is concerned, the question of grooming is as much a causal factor of harm as actual physical abuse and therefore is precisely the issue to be addressed. The crimes of exposing young children to pornographic material are virtual and suggestive of sexual activity, causing danger to the vulnerable minds of children, yet falling short of actual physical activity. Dr. Esen has pointed out how the electronic medium has facilitated child pornography, since it can be used by paedophiles to prepare and distribute sexually suggestive and pornographic material through online chat rooms, however detection is a problem since the material is encrypted and not easily accessible5. In one instance, there was a network of 12 countries and 180 members who were engaging in Internet pornographic activity, specifically targeting young people.6 For legal purposes, the general consensus in European countries is that any sexually explicit material that is targeted towards children below the age of eighteen or involves children below 18 being involved in sexually explicit conduct is to be classified as pornographic material that is harmful to children7. Sexually explicit material is that which involves nudity or lewd acts which are shown in a graphic manner that could be offensive to vulnerable young minds. Moreover since the range of sexual activities may also involve sadomasochistic or violent acts, including masturbation and lewd depiction of sexual organs – intended to stimulate sexual stimulation in viewers, there is a very real danger of innocent children being exposed to irreparable harm, while children who view such material may end up imitating such acts, thereby causing irreparable harm to their mental and physical state, with consequent damages to standards of common morality as well8. Cojocarasu discussed child pornography on the Internet and points out that the pornographic industry is one of the most profitable ones for perpetrators. However, while adult expression of sexuality is acceptable in the interest of protecting individual rights, this is not so in the case of children. The validity of their consent is questionable due to their impressionable nature and lack of experience9. The problem of Regulation: The question of regulating content is difficult due to the dispersed nature of the Internet and specific problem of pinpointing locations, so that the identity of the perpetrators can be successfully hidden in the anonymity of the electronic medium. Mitchell provides a detailed examination into the development of wireless communication over the last century and he concludes that the network itself has become denser, while the equipment used for such transmissions has been scaled down considerably13 resulting in the facility of easy and anonymous transmission of large volumes of offensive material. Collins has highlighted the problems posed by the broad international reach of the Internet in the context of defamation - the facility of free flow of information across geographical boundaries gives rise to difficulties in prosecution of online criminal activity, since it is difficult to determine which jurisdiction such criminal activity would rightfully fall into.14 Using the electronic medium, it’s now possible to achieve individually, using minimal resources, a range and scope of photographic manipulation and duplication that would have previously necessitated the availability of a vast amount of resources and several people. Information and communication technology (ICT) is used by unscrupulous individuals to distort or modify information. Such cyber crimes involve combat with an unseen enemy, anonymous in the e-maze of the Internet, who is at an unspecific geographic location that cannot be determined and may not be organized in the traditional hierarchical framework which law enforcement agencies are familiar with, so that the focus of the attack becomes indeterminate. Where terrorism is concerned, increasing globalization has seen Internet use widening to encompass a new sphere of activities facilitated through the electronic medium,15 however this is also the case with all kinds of criminal activity, including the large scale dissemination of pornographic material over the Internet. Another aspect that must also be taken into account is the rapid developments that have taken place and continue to take place over the Internet – the development of Google and blogging has been so rapid and all pervasive that it makes the question of regulation a very difficult one. It would be next to impossible to regulate the content of millions of websites and blogs, especially since there could also be problems posed with invasion of privacy of individual users. The proliferation in such sites has produced an open network that may be accessed from any part of the world, creating an amorphous, plastic medium known as Cyberspace, that is all encompassing and difficult to regulate effectively, unless the law can be applied to require changes or modification of the software, codes or minimum standards16. Cyberspace and regulation of activity: Cyberspace has been defined as “the total interconnectedness of human beings through computers and telecommunication without regard to Physical geography.”17 and “crime has ceased to be largely local in origin and effect.”18 Crimes could be multifaceted and multinational, raising issues of local jurisdiction. Cyberspace is better regulated by law – not through its limits as the regulating factor; rather through the exercise of the law in modifying the “natural” architecture of cyberspace that will render it a more effective tool19. Material circulated on the Internet poses one particular problem - the facility for manipulation of images, such that the result could more aptly be termed “pseudo-pornography” or the generation of an illusory effect through the transformation of real images into fictional ones as defined in the Criminal Justice and Public order Act of 1994.20 This category of images has also rightly been included under the umbrella of offensive pornographic material. The fact that pornographic material available on the Internet which is targeted at children is often encrypted is one of the difficult aspects in tracking down the perpetrators. In this instance, the by products of information and communication technology are relied upon to generate information. As stated by Room, a website that displays pornographic pictures may leave some evidential traces of the images that have been used through the site, and such trace data can be recovered from hard drives even after they have been deleted by the users21. Hence, these ICT byproducts are an important part of regulatory tracking activity. However, as pointed out by Akdeniz, the regulation of child pornography on the Net gives rise to the conflict between regulating harmful material on an internationally acceptable basis, since standards for regulating such material may be different in different countries where individual liberties encompass a wider range of activities.22 According to Andrew Murray, “people have come to regard e-mail and the Internet as their private space. If they feel someone is violating this space, even legally, its bound to create friction.”23 “Privacy is a guaranteed human right -- at home and at work” and “workplace monitoring is an unnecessary infringement on that right.”24 Therefore, regulating Internet activity that indisputably requires the invasion of private communications is a thorny issue that does not easily lend itself to the development of controls that can be accepted on a worldwide basis. Since individual privacy that is guaranteed in many countries, especially the United States, the facility of the freedom afforded in democratic countries like the UK may be misused by some individuals to sponsor and promote pornographic activity over the Net. Recent crackdowns on child pornography: However, significant efforts are being made on an international basis, to crack down on illegal Internet activity targeting children. For example, in March 2001, 45 paedophiles were arrested and 14 people were later arrested under the Protection of Children Act of 1978 for distribution of pornographic material across Ireland and the UK25. In the case of R v Jonathan Bowden26 it was held that printing out indecent images from computer data could amount to an offence under Section 1(1) of the Children Act of 1978 which states inter alia: “It is an offence for a person (a) to take, or permit to be taken or to make, any indecent photographs or pseudo-photographs of a child; (b) to distribute or show such indecent photographs or pseudo-photographs….” A recent case that is very significant in terms of highlights the growing perception of the harm that is caused through indecent images of children available over the Internet was highlighted in the case of R v Beaney.27 In this case the applicant pleaded guilty to using the electronic medium to generate indecent pictures of children and was sentenced to sis months imprisonment and a restraining order issued under Section 5A of the Sex Offenders Act. The appellant however contested the restraining order, relying upon the precedent in an earlier case28 to show that there was a lack of evidence before the court which could justify a restraining order. However, the Court turned down this Appeal offering the justification that there was evidence for a restraining order, because harm was being caused to the children in the pictures not only through the abuse, but through the continuing harm that would result from others using their pictures for their own sexual gratification. Gillespie analyzes the astonishing contrast in the verdicts handed out in the two cases of Beaney and Halloran, where the Court in effect, reversed its own decision within the short time frame of a month32. He points out the significance of this reversal lies in the recognition by the courts of the serious nature of the harm that is perpetrated by child pornography over the Internet. This harm is not merely physical, entailing abuse of the children through forcing them to engage in degrading and hurtful acts. There is also the question of continuing psychological harm that is likely to perpetuate over the years with the persistent awareness of the children thus abused about the perverted thrills that numerous strangers all over the globe could be receiving from the wide spread dissemination of such images. Owing to the international nature of the Internet, efforts have also been made on a worldwide basis of cooperation between countries to crack down on those guilty of distributing pornographic material. For example, the pedophile ring which was known as the Wonderland Club was raided in Operation Cathedral, which involved the cooperation of 12 different countries and resulted in the seizure of 1 million child pornographic images and 1800 video clips.33 In another case, the cooperation of the Internet Service Provider, Demon Internet was sought by the police, who were then able to access the servers and recover data that revealed 10,000 internet addresses that carried pornographic images of children with about 400 of these addresses specifically distributing pedophilic images.34 The efficacy of regulatory activity: The pervasiveness of Cyberspace results in the availability of large quantities of information which can be a weapon of control in the wrong hands.35 However, attempts to regulate Internet activity are often contested on the basis of the following arguments: (a) The open nature of the Internet medium is intended to ensure that it remains a free area where communication takes place without restraints except those that are voluntarily imposed by Netiquette. (b) Since the accessing of information over the Internet is one that is voluntarily accessed by the user, it differs from the kind of activity where certain undesirable goods or commodities may be pushed upon a consumer and therefore need to be regulated (c) It is not possible to derive a uniform, common international standard of regulation that could be uniformly applied across all nations since notions of limitations on privacy differ in different countries (d) The advancements in the electronic medium are taking place at such a breathtaking pace that any attempt to regulate it is futile36. The regulation of cyberspace activity therefore presents a problem that does not conform to the traditional framework of law, where jurisdiction is clearly specified and laws framed in accordance with common public perceptions and needs within that particular geographical area. Lawrence Lessig has identified the regulation of cyberspace through law, norms, markets and architecture37. Cahir has examined the concept of the creative commons advocated by Lessig to regulate unauthorized access to material over the Internet38. The Creative Commons Project, set up by Lawrence Lessig has presented a solution through the availability of special licenses which are simple and easy to obtain, whereby the owners of copyrighted property can elect to make their material available according to terms for which they lay out the parameters.39 In this way, access is provided to users, provided they duly credit the creator of the property and adhere to minimal terms specified by him/her. The application of the same concept to the field of regulation of child pornography could possibly offer a solution, in that licenses could be required to access certain kinds of material and these licenses could be restricted in the case of children below eighteen. This could help to offset to some measure the free and unrestricted access that currently exists on the World Wide Web, allowing vulnerable children to access pornographic material that may be harmful to their moral and sexual welfare. According to the views proposed by Lessig and others, it is therefore unrealistic to view the Internet as a medium where freedom is completely secured; as also stated by Boyle, cyberspace also includes certain laws and regulations and these can be enforced.40 For example, while there is no written set of rules that constitutes Netiquette, to a set of rules spelling out etiquette over the worldwide web, a general code is developing based upon good neighborly conduct while using the Internet. On this basis therefore, the sending of bulk, unsolicited e-mail for instance would be considered to be an “inappropriate and unacceptable” use of the Internet41 just as sending out pornographic materials to vulnerable young users could constitute a flagrant violation of general netiquette. On this basis therefore, Lessig has proposed the view that Cyberspace is in the nature of a huge, commons, wherein access to materials can be regulated by manipulating the code in such a way as to allow selective access. As pointed out by Lessig, technology itself provides the means to regulate access to information in the digital environment, which he presents as the “code of law”42 To regulate and control online activity, Lessig’s framework proposes code as the most pervasive and effective constraint in Cyberspace.43 Law is just one of the aspects of the four modalities of regulation, functioning as the silent, implied threat of punitive action for violation of the norms and rules governing cyberspace.44 There is a common underlying structure of law that also pervades cyberspace, “The architecture of cyberspace is neutral”45, therefore it can be molded to function as a regulatory mechanism through the implementation of code that limits and restricts online activity. Governments control cyberspace architecture to quite an extent through legislation, while ISPs, through the judicious use of code regulate user activity to some extent.46 In the case of cyber terrorist and pornographic websites, it is the availability of the target market that has resulted in the proliferation of such activity. Norms will affect the kind of product that is traded in the cyber marketplace47 and the norms governing the operation of pornographic websites are conditioned by the huge demand generated by sexual materials and the facility to cheaply and effectively reach out to millions of people, including impressionable youngsters who are often unwittingly the target of creators of such materials. But the biggest advantage offered by the cyber architectural framework is the relative anonymity and the facility of secret communication through encoding. This is why the regulation of cyberspace through the restructuring of code appears to offer one of the most viable resources to bring about effective regulation in this difficult medium. Applying Lessig’s four phase framework of cyber architecture, this regulatory activity is carried out through the manipulation of cyber architecture code, such that Government and private employers are able to monitor and regulate undesirable cyber activity48. Through manipulation of cyberspace architecture and increased surveillance, online activity is being regulated and through the imposition of cyber restraints and manipulation of code to regulate cyber activity, the Government is rendering cyber architecture less plastic and flexible. One example that may be cited is the Australian Telecommunications Act of 1997, which requires that carriage and service providers provide the ability to decrypt traffic but does not hinder individual users from encrypting their messages49. This is one example of law regulating the architecture without interfering with end users or dealing with ambiguity in controls. The law modifying the architecture rests on international standards, posing the threat of action for non compliance with architectural norms without the complexities imposed by unpredictable and uncontrollable forces in cyberspace. While regulation of Internet activity is contested by some, most users are anxious for some form of regulation or control to be introduced, in view of the high incidence of criminal activity over the Net.50 In respect to child pornography in particular, the activity over the Internet is being self-regulated by the Internet Watch Foundation. The IWF was founded in 1996 by the Internet Service Providers Association (ISPA) and the London Internet Exchange (LINX) and this body maintains a close watch on the content of Internet sites, being supported by ministerial statements in Government despite the absence of actual state Government funding. In tackling child pornography, the Internet service Providers themselves use BT’s clean feed technology block the URLs where contents of the sites are believed to be peddling illegal images.51 The question of jurisdiction is a vital one that needs to be addressed if any regulatory measures are to be effective in curtailing the levels of pornographic activity. In this context, Kohl offers an analysis of jurisdictional issues, in the pre and post-Internet era52. Kohl concludes that there appears to be no clearly defined solution to the jurisdictional problems posed by the emergence of the Internet and that the overhaul of the jurisdictional process will be a long term one. However, the new jurisdictional challenges posed by the Internet have been tackled from the perspective of balancing of rights, especially in issues involving criminal aspects. Therefore, where child pornography is concerned, for example, the Courts are likely to apply stricter standards in arriving at their decisions. They will be conditioned less by what is just and fair and more towards the protection of the public interest, especially those of young children, where the overriding urgency of the damages that could be caused may justify a more flexible approach in dealing with jurisdictional limits. Conclusions: In conclusion, it must therefore be noted that the emergence of the Internet and the tools of technology have produced a situation where the harm that is caused through child pornography is magnified. The plasticity of the Internet provides the facility for unrestricted duplication and distribution of images, added to which is the anonymity of the medium which makes it difficult to pinpoint specific geographic locations of users of pedophilic websites. While laws against sexual abuse of children are more easily applied when the perpetrator can be identified, the difficulty with indecent pictures over the Net is the identification of the perpetrators of such acts. This is a two fold problem. On the one hand, children who are younger than eighteen years of age and at a vulnerable, impressionable stage may be exposed to pictures depicting violent and sadomasochistic sexual acts in a very graphic manner. On the other hand is the harm caused to those children who are made the subjects of such sexual violence and degradation. As the Court recognized in the case of Beaney, such harm is long lasting and wide ranging, involving not only physical abuse of the child but also long term psychological abuse. Over and above all, is the question of the harm caused to morality and the maintenance of moral standards in private conduct. The problem of regulation of Internet content has a great deal to do with jurisdictional issues, since the framework of the law is structured to operate within a specific jurisdiction. The determination of uniform standards that may be applied universally is yet another thorny issue, since pornographic material on the Internet cannot be prohibited on an ad hoc basis because adults have the right to sexual expression and the choice on whether or not to access pornographic websites. As detailed above, various methods and means have been suggested and put into operation to tackle the problems of child pornography. For example, the Internet watch network that regulated content on websites through the cooperation of the servers appears to be one good measure that is being effected against criminals. There is also a greater recognition of the heinous nature of crimes against children through propagation of indecent pictures, as revealed in the strict sentence that was passed in the beaney case and the enhanced provisions in the law to prosecute those individuals who are guilty of sexual “grooming’ of children. Moreover, it has also been suggested that in view of the nature of the Internet medium, there must be controls imposed upon cyber architecture, through the imposition of the appropriate codes, etc in order to regulate content and access to websites. While some progress is evident, the speed at which the worldwide web and blogging is proliferating will require creative and far reaching, wide ranging solutions that have not yet been effected. Bibliography * Akdeniz,Yaman. “The regulation of pornography and child pornography on the Internet” [online] available at: * Akdeniz, Yaman, 1997. “Governance of Pornography and child pornography on the global Internet: A multi-layered approach.” IN Edwards, L, Waelde, C (edn) “Law and the Internet: regulating Cyberspace.” Oxford: Hart Publishing at pp 223-241 * Barry, R. “Seven Britons Guilty over child Porn ring.” [online] http://www.cyber-rights.org/reports/ukcases.htm * Boyle, J, 2003. “The Second Enclosure Movement and the Construction of the Public Domain” 66 Law and Contemporary Problems 33 * Cahir, John, 2004. “The withering way of property: The rise of the Internet Information Commons.” Oxford Journal of legal Studies, 24 (619). * Cojocarasu, Dana Irina. “Internet child pornography” [online[ available at: http://www.legi-internet.ro/index.php/Internet_child_pornography/122/0/?&L=2 * Collins, Matthew, 2001. “The Law of defamation and the Internet.” Oxford: oxford University Press * Conry-Murray, Andrew (2001): Special report – the Pros and Cons of Employee surveillance, Network Magazine, retrieved from URL: http://www.networkmagazine.com/shared/article/showArticle.jhtml?articleId * Esen, Rita, 2002. “Cyber Crime: A growing problem.” Journal of criminal Law, 66 (269) * “Fourteen arrested after internet child porn investigation: 30 October, 2001” [online] available at: [online] http://www.cyber-rights.org/reports/ukcases.htm * Fitzgerald, B. “Creative Commons (CC): Accessing, Negotiating and Remixing Online Content”, in J. Servaes and P. Thomas (eds), Communications, Intellectual Property and the Public Domain in the Asia Pacific Region: Contestants and Consensus ; available online at: * Fitzgerald Anne and Fitzgerald Brian (2002) “Cyber Law: cases and materials on the Internet, Digital Intellectual property and e-commerce”, Sydney: Prospect Publishing, Butterworths.ch 13 at page 3 * Greenleaf, Graham. (1998). “An end note on regulating Cyber space: Architecture vs. Law?” [Online] Available at: http://www.austlii.edu.au/au/journals/UNSWLJ/1998/52.html * Gibson, William. (1984).” Neuromancer.” Ace Science Fiction * Gillespie, Alisdair A, 2004. “Court of Appeal – Child Pornography: restraining Order” Journal of Criminal Law, 68 (276) * * Holland, K. (1998) “Recent International legal developments in Encryption” IIR Conferences 1998. [Online] Available at: http://www2.austlii.edu/itlaw/articles/Holland.html. * “How the Internet could be regulated” [online] available at: http://www.rogerdarlington.me.uk/Internetregulation.html * Kohl, Uta, 2002. “Eggs, Jurisdiction and the Internet.” International and Comparative Law Quarterly, 51.3 (555) * Kushner, Harvey, W. (1998). The Future of Terrorism: Violence in the New Millenium. London: Sage * Lessig, Lawrence (1999) “Code and other laws of Cyberspace” Basic Books * Lessig, Lawrence. (1999). “The Law of the Horse: What Cyber law might teach” , pp 508-509 [Online] Available at: http://www.lessig.org/content/articles/works/finalhls.pdf; * Lewis, Paul, 2004. “Practice Points: Tougher regime for sex offenders.” Law Society Gazette, 101.11(39) * Mitchell, William, 2003. “Me++:The Cyborg self and the networked city.” MIT Press * “National Crime Squad Press release” [online] available at: http://www.cyber-rights.org/reports/ukcases.htm * Room, Stewart, 2004. “Criminalising Cybercrime.” New Law Journal, 154.7134 (950) * Zimmerman, Eileen (2002): HR must know when employee surveillance cross the line, Workforce, February 2002, pp. 38-45 Cases cited: * ACLU v Reno 929 F Supp 824 (ED Pa 1996). * Liangsiriprasert v United States (1991) 1 AC 225 * R v Beaney [2004] EWCA Crim 449 * R v Jonathan Bowden (1999) * R v Halloren [2004] EWCA Crim 233 Read More