Neil Brown draws out a number of themes likely to be of interest to Internet lawyers from Jane Fae’s recent publication ‘Taming the Beast’, which critiques the UK legal framework for the regulation of pornography, obscenity and indecent images of children, and explores the challenges posed by the Internet, and the current technical approaches to filtering and blocking these types of content
Let's get one thing out of the way at the very beginning: on one level — perhaps the obvious level — this is a book about pornography. The regulation of pornography and attempts to control access to it, but still pornography. And although it contains no pornography itself, and its title and cover pages are sufficiently anodyne that one is unlikely to attract so much as a raised eyebrow if reading it on public transport, there is perhaps still a stigma associated with reading a book about pornography, particularly one which does not condemn it. But if you were to give 'Taming the Beast' a miss on this basis, you would indeed be missing out. Sure, it has some colourful language, and some descriptions that may make you wince, whatever your gender or orientation, but look beyond those and you will find a book which, through the prism of porn, describes a range of challenges of relevance to Internet and content regulation more generally. Challenges of definition, and of trying to elucidate precisely what is, and is not, acceptable, and under what circumstances. Problems arising from the different attitudes and perspectives of different regions and communities. Issues of overseas hosting and distribution, and online dissemination and access. Porn may be the topic, but the themes traceable through the book are important to the broader discourse of online regulation.
The second introductory point is that, while the author herself insists that this is 'not a law textbook', she does herself a disservice. It is, in fact, a very good law textbook. It might not have formal case citations or devote half its printable area to footnotes, but, as an exposition on the law, policy and practice in this area, it does a good job. Moreover, it goes further than many law books tend to do, and explains some of the technical challenges associated with different approaches to filtering. Lawyers unfamiliar with these technologies will certainly benefit from these later chapters, and probably most of the earlier ones too. Fae also does an excellent job of discussing pornography without smuttiness, and makes a still relatively obscure area of law accessible and interesting. If you have been stuck wading through the Payment Services Directive, or wondering how the Public Contract Regulations 2015 managed to stretch to 133 sections and six schedules, 'Taming the Beast' will come as light relief.
The book starts by depicting a range of various notions of 'harm' which some perceive to be caused by pornography, including both anti-pornography feminist and moralist perspectives, as well as various religious positions.
Importantly, in a book seeking to bring a balanced perspective, it considers a number of arguments against regulation, before dedicating an entire chapter to an interesting deconstruction of statistics used in support of a pro-regulatory position. Fae's conclusion is that commonly cited figures need to be taken with a pinch of salt at the very least — a finding not unlike that of the United States Government Accountability Office's 2010 report, 'Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods', in respect of purported statistics relating to copyright infringement.
The middle section of the book contains the main analysis of the regulatory framework for pornography. I drew from this a number of more general themes.
First, the regulation of pornography is a microcosm of the broader issues which arise when one attempts to define standards of acceptable behaviour in an environment where there are multiple different communities, each with different norms and expectations.
This is pertinent in the case of legislation which uses relative or subjective notions of harm or violation: what is considered 'obscene' or 'offensive' by a conservative religious community in the context of their online space may be entirely unexceptional or inflammatory in a more liberal community. Likewise, an image which may be entirely non-erotic to one distributor may, in the context of distribution to a particular community, have strong erotic connotations. How does, or should, the law deal with such context-sensitive issues?
However, the challenge of determining what is, and is not, appropriate is even more relevant in the case of what is, on its face, objective regulation: while a piece of legislation may be objective on its face, setting common standards, what is included or excluded is likely to reflect the subjective beliefs of those responsible for its creation. Without the ability to apply the legislation in a community-specific way, everyone is bound by the framework of acceptability of the majority of the legislative, which may reflect largely conservative, heteronormative approaches, failing to recognise or accept the norms of different groups.
Second, there are challenges in determining what is, and is not, worthy of prosecution. Fae recounts a particularly amusing case in the context of a prosecution brought in respect of a video clip prohibited under the Criminal Justice and Immigration Act 2008, s 63(7)(d), being one which 'portrays, in an explicit and realistic way ... a person performing an act of intercourse or oral sex with an animal (whether dead or alive)'. The clip in question featured a 'woman and a tiger' which (perhaps not entirely surprisingly) turned out to be a man in a tiger costume who, unlike most tigers, spoke seemingly good English. One might contrast this with the Communications Act 2003, s 127, and the debate over the extent to which one person's online joke should be prosecuted as an improper use of a communications network.
Third, there is the incredibly tricky issue of the need to maintain a consistent regulatory regime in the face of a changing technological environment. Fae comments on the changes in the way in which pornography is disseminated, moving from carvings to pamphlets to books to images to videos to online stories to online conversations to streaming on demand, as well as the shift in the nature of the participants and producers, from professional content (where professional publishers may welcome a regulatory regime which has an effect of stifling competition) to amateur creation and distribution. The increasing consumerisation of production, and the shift from traditional models of creation and distribution are, of course, challenges faced in many other areas of online activity.
Common threads running through these chapters are the need for evidence-based policy making, the need for clarity in determining the basis of harm which underpins regulatory intervention, and the challenge of finding a proportionate response in the event that regulation is required. As with other topics, particularly those which may evoke a strong personal reaction, ensuring that those in a position to influence policy, and especially those with power over legislation, understand the demarcation of the issues, rather than (inadvertently or otherwise) colluding different topics: the distinction between the regulation of lawful content (pornography, generally) versus issues relating to illegal content, such as indecent images of children.
The third section of the book focusses on issues of pornography regulation and the Internet. It looks at non-legal alternatives to regulation (including filtering, content classification, notice and takedown), the dissemination of indecent images of children and the role of the Internet Watch Foundation, and, lastly, an analysis of the ISP-centric approach currently prevalent in the UK, of filtering and blocking at network level. This is an approach to regulation which will be familiar to readers of Lessig, Benkler and Murray, and is currently being repurposed from protecting children from harm into the realm of protecting commercial interests online, through copyright and trade mark blocking injunctions.
Increasingly, those advising on network deployment and operation will need to have an understanding of the political and technical climates, as well as the (lack of) legal framework, and this group of chapters is a useful introduction to those issues. Having looked after the legal and policy issues around filtering and blocking on Vodafone's mobile network in the UK for a number of years, Fae's treatment of both the criticism of operators' approaches, and of the challenges faced by operators, strikes me as even-handed and fair.
Fae comments very briefly on one of the particularly interesting issues for lawyers in this area, which is that of liability around over- and under-blocking in respect of software-based filtering systems, particularly given the lack of an express legal framework requiring filtering. Although not an entirely untrodden path, there is room for further research and thinking in this area, especially given the arguably competing policy objectives and political pressures on service providers.
The most obvious comparison to make in respect of this work is Alan Travis's 'Bound and Gagged'. While there is a degree of overlap, in that Fae touches lightly on some of the more detailed analysis of Travis on the political machinations around obscenity regulation in the early 20th century, much of Fae's legal discussion is on the framework, and the tribulations in applying it, in more modern times, as well a far more detailed commentary on Internet technologies and filtering/blocking software. Taming the Beast makes a novel contribution to the literature in this area.
The only downside to this book is that, while the quality of the content is high, the production occasionally stumbles. In the copy I purchased, pages 25 and 30 appear to have been swapped, and there are a few inconsistencies in punctuation. In the context of the broader piece, these are minor irritants rather than major objections, particularly since it is a fraction of the price of the average law book, but I found they did niggle as I read through.
Neil Brown is an experienced telecoms and technology lawyer at a global communications company and is writing his PhD on the regulation of over the top communications services.
'Taming the Beast' is £15 plus £2.50 postage and packaging, and is probably not available from all good bookshops. Details are available at https://sexualitymatters.wordpress.com/2014/12/05/taming-the-beast-a-new-book-on-internet-pron/ which, ironically enough, will probably be blocked by your firm's web filter.