Pornography and Violence
Abstract and Keywords
Chapter Twelve concerns restrictions on the publication of sexual and violent content, which are often highly restrictive where democratic arguments for free speech are not directly engaged. This Chapter examines these restrictions within EU law, which accepts that there is no common European standard in matters of public morals and that member states enjoy considerable discretion in this area, where human dignity and the rights of children are at issue. EU law also contains prescriptive rules concerning the protection of children and the suppression of child pornography. As the Chapter discusses, European human rights law underpins these developments, containing a similar margin of discretion and equivalent prescriptive rules. In international law, national autonomy in this area is wider, although WTO appellate cases have challenged the necessity of measures grounded on the public morals exceptions to the GATT and GATS. The United Nations provides international standards for the protection of children.
For centuries, published words and images evoking sex and violence have flowed or filtered across national boundaries. What began with printed words and illustrations has been a driving force in the commercialization of new communications technologies, from photographs to mobile phone video downloads.1 For just as long, state efforts to suppress or restrict these forms of public entertainment have also helped to define the relationship between the media and the state. Historically, the laws of the state regarding pornography, violence, and other harmful or offensive media content were often dictated by religious doctrine and ethics. The identity of the state was therefore frequently enmeshed with religious orthodoxy and it treated religious non-conformity as a form of political dissent. Despite the secularization of contemporary liberal democracy, few if any states have shed that historic responsibility for the policing of public moral conduct. The state's authority and legitimacy remains bound to public expectations that the state will use its powers to prevent or punish personal conduct that causes gross offence and few democratically elected governments feel entirely free to ignore that sentiment.
State restriction on the publication of sexual and violent content is consequently one of the great sources of public controversy for the liberal democratic state. Liberalism provides powerful economic and political arguments against state restrictions on the liberty to publish on grounds of obscenity or indecency. The publication of words and images evoking sex, violence, and other matters may cause general offence, but it is also sustained by a resilient market driven by strong demand and profitability. The state moreover can only suppress this form of entertainment media if it is prepared to use far reaching measures and unrelenting enforcement that is backed by a sustained public moral consensus. Liberal economic liberties, based on property rights and the freedom to engage in commerce, are in obvious tension with the suppression of this market and operate in tandem with liberal commitments to the political and social liberty of the individual to choose his or her own way of living and expression. For the media, liberalism therefore offers a broad argument for a liberty to publish that includes the right to offend and shock majority opinion in all aspects of life. Society in general, communities, and other individuals must tolerate these consequences of value pluralism. In short, if you do not like it, look away.
(p. 357 ) That broad argument however has several weaknesses. The democratic argument, the mainstay of much liberal free speech theory, focuses on expression that is important to public participation in democratic life. That does not exclude depictions of sex or violence, which are obviously important to many political, social, and economic concerns. There are good reasons to allow the inclusions of sex and violence in dramatic as well as news programmes where it reflects important aspects of human life. Yet the democratic argument has little application to pornographic and violent content that is consumed for personal pleasure and has little or no connection with major public concerns. Similar considerations apply to the argument that sex and violence is an important subject for artistic expression, which can enrich personal and collective understanding of life.2 Mass market pornography is however directed at stimulation rather than intellectual reflection.
Sexual or violent pornography fares better under the Millian argument for an open sphere of debate in which all ideas contend, even the self evidently bad.3 In this market place of ideas, majority demands to suppress the publication of repugnant images and words are subject to close scrutiny, which in principle will expose superstition, ignorance, and misunderstanding.4 The difficulty here is that the liberty to publish is intended to protect a sphere in which ideas of all kinds contend and pornography often does not express ideas. Its object is to gratify sexual lust and similar desires. To include pornography within this open sphere simply because it is a form of human expression reduces this to a market place that is simply a metaphor for indiscriminate consumption. There is nonetheless an alternative argument that the profits from pornography and other entertainment content of little intellectual value help to sustain the general flow of media goods and services. In contrast, liberal deontological arguments for personal autonomy provide a much stronger justification for the liberty to publish and distribute sexual and violent pornography. These arguments embrace personal exploration and fulfilment and give human sexual identity and desire a much higher value when it appears as a form of media content.
Liberal arguments that support the liberty to publish pornography rely heavily on the harm principle to define their limits. According to that idea, the liberty to speak and publish should not be restricted unless the expression at issue causes serious harm, or at least causes a significant risk of serious harm. The question of what forms of pornography are harmful is however one of the irresolvable controversies of contemporary liberal democratic life. It is certainly reasonable to think that the more extreme forms of sexual or violent pornography can influence at least some individuals to engage in physically or mentally harmful acts. Contemporary liberalism has however sought to contain that sphere of content, anxious that it will become an excuse to impose the illiberal moralist demands by democratic majo (p. 358 ) rities.5 Certainly the idea that pornography causes moral harm is often rejected because of its association with perfectionist views of human life that are inconsistent with a liberal society in which individuals are free to pursue their own form of a good life. There is nonetheless an intuitively influential view that extreme images of sex and violence need not result in observable harm to constitute a gross affront to human dignity.6 On that basis, the harm principle arguably does not capture all forms of content that the state ought to restrict and should therefore be extended to include gross offence.7
In liberal democracies, acceptance of different values and the validity of individual choice have tended to transform the public policy problem of pornography from one of general public morality into one of specific harm. Here the focus has been overwhelmingly on the potential harm to children from exposure to images of sex and violence.8 This focus on the protection of children is based on their mental immaturity and consequent susceptibility to harmful influences as well as the right of parents to determine the social and cultural environment in which their children live. While the extent to which children uncritically absorb or emulate what they see or the degree of control parents rather than the state ought to enjoy over their children's understanding of the world are debated in medical and social science, many liberal democracies enforce a public policy position that children require greater protection from sexually explicit or violent content.9 Efforts to build a similar consensus around the argument that adult pornography should be restricted because it harms women have however been markedly less successful.10
(p. 359 ) Child pornography, meaning images of children intended to be sexually arousing, falls into an entirely different category. This form of pornography is suppressed not only because it may influence those who view it to molest children, but also because child pornography is often produced by harming children.11 Efforts to suppress child pornography therefore stand out at one end of the spectrum for most liberal democracies, which typically prohibit the publication, distribution, or possession of such content. Few other categories of sexual or violent content are deemed as intolerable as child pornography and subjected to similar absolute prohibitions.12 Yet, there are few forms of harmful content where it cannot be argued that, in an appropriate context, the content makes a valid contribution to public debate on a matter of general concern or, similarly, is a genuine artistic statement.13 Aside from these public interest arguments, governments are also aware that efforts to suppress any form of pornography completely are usually ineffective. As efforts to suppress child pornography have shown, the demand for pornography remains high despite legal prohibitions and new communications technologies are quickly exploited to create new distribution networks.
In the face of very different perceptions of harm or gross offence and the difficulties of suppressing the commercial publication of sexual or violent images, liberal democracies have tended to favour rules that segregate rather than ban content. Ideally, segregation permits reasonable access for adults to content that is deemed to be harmful for children, but is judged to be an acceptable choice for informed adults. The sale or rental of film or video game DVDs can, for example, be controlled through age restrictions coded on the packaging and made legally enforceable against retail suppliers.14 Children and adolescents can also be denied entry to cinemas showing adult rated films, while in the home adult content can be restricted to late evening television or to subscription channels.15 Access to internet and mobile phone content services can also be limited to users who have access to a valid credit card, which operates as a surrogate age restriction.16 These methods of segregation use typically mix state, provider, and end user control to prevent access (p. 360 ) to potentially harmful or offensive content by children. They also provide methods of prior notice that adults can use to avoid content they also find distasteful or repugnant.
Many commonly used methods of controlling access to harmful or offensive content necessarily rely on the end user's judgement as to who should be allowed to view the content. Where a DVD is restricted to over 18 purchasers, or adult content is reserved for night-time broadcast or internet services require a valid credit card to gain access, the protection of children is plainly in the hands of the individual who is able to gain access. Indeed, in the internet era, there has been a marked shift towards greater consumer responsibility in liberal democratic states that have declined to apply broadcast era regulation to new media services.17 Parents are therefore expected not only to understand a variety of content control methods, but also to use blocking and filtering software programmes in the home to control access to unsuitable content. These expectations can however exceed the capacity of individuals to understand new services and their specific access controls, which include content classification schemes as well as technical features.18 Consequently, sexually explicit or violent content remains easily accessible for many children, not least in the form of user generated content made available through social networking services.
The highly regulated media environment of the analogue broadcast era cannot however be re-established without creating a comprehensive communications and media regulatory regime comparable to that operated in China, which is plainly incompatible with liberal democratic fundamental rights. Instead, many countries rely on an accumulation of regulatory standards and rules that carry different expectations of provider and user responsibility. Free-to-air radio and television may therefore restrict the use of language and images that are relatively unrestricted on competing new media services.19 At the same time, other content restrictions are disappearing from public view as commercial providers block consumer access to websites and other content sources to avoid potential criminal or civil liability. As a result, national boundaries that appeared to be increasingly irrelevant in the borderless world of internet services are being rebuilt in the evolving architecture of new (p. 361 ) media services, in which access rules vary according to the user's location.20 For liberal democracies, the obvious risk here is that these technologies of control not only sacrifice swathes of inoffensive content in order to achieve sufficient breadth to capture targeted harmful content, but also do so beyond public scrutiny.
Pornographic, violent, and offensive content in the European Union
In founding what was to become the European Union, the negotiators of the Treaty of Rome set out a framework that liberalized economic relations between the founding states, but also reserved their powers over the essential functions of the sovereign state. These permissive exceptions to the principles of free movement and market integration inevitably included the policing of public morals, a historic element of the European state. The protection of public morals is consequently both an express ground for legitimate discrimination against the goods and services of other member states under the Treaty on the Functioning of the European Union as well as an implied one under the principle of mandatory public policy exceptions, which covers generally applicable domestic measures.21 National measures that restrict the publication or distribution of sexual or violent media content in most cases apply to all relevant content, whether published domestically or imported. Yet these measures vary considerably across Europe and, even where content standards are equivalent, the often complex regulatory rules and codes designed to protect the public from those images may be incompatible. Discriminatory effects are therefore common. European Union law nonetheless accepts that there is no common European standard in matters of public morals and that member states are entitled to a substantial margin of discretion when determining what content ought to be restricted on public morals grounds and what means should be used, especially where the object of the restrictions is the protection of children.22
That discretion is however subject to the requirements of proportionality, which has been highly effective in exposing major inconsistencies in domestic legislation, which is often directed at the satisfaction of influential public opinion as much as the rational restriction of a particular harm.23 Once it has moved beyond basic (p. 362 ) questions of rationality, proportionality analysis takes increasing account of competing public policy objectives, which brings European market and non-market public policy into the same legal framework. Here, European and international human rights law supply both context and weight to the problem of disciplining measures aimed at the protection of the public from pornography. The fundamental right to freedom of expression, consequently, works in tandem with the principles of free movement to limit the power of member states to restrict media content.24 This however also raises the relatively unexplored issue for European media law of whether the economic and political justifications for greater liberty to publish should be given more weight when combined or whether they are instead incommensurable, belonging to different fields of moral thought and operating in different fields of law even when both are taken into consideration. What is certainly clear enough is that the European Court of Human Rights has made the protection of democracy the core purpose of the right to freedom of expression in European human rights law, which significantly limits its impact on domestic measures that restrict sexual and violent entertainment content.25
Those domestic measures are, on the other hand, more likely to prevail in the process of proportionality analysis when they convincingly place a competing fundamental human right into the balance. The chief difficulty however is that the European Convention on Human Rights does not refer directly to the most potent human rights obligation in this field: the protection of the rights of the child. The European Court of Justice has therefore turned to international human rights law to draw this obligation into consideration, finding that member states are required to take measures to protect children from material injurious to their well being under relevant United Nations human rights treaties, such as the Convention on the Rights of the Child.26 Protection of the rights of the child is also enshrined in the objectives of the European Union in the Treaty on European Union and in the Charter of Fundamental Rights of the European Union.27
(p. 363 ) In European law, restrictions on sexual, violent, and other harmful or offensive content are also associated with the umbrella concept of human dignity. While this concept is not expressly mentioned in the ECHR, it has become an important element in European human rights law and policy. Famously, the European Court of Justice found in its 2004 Omega judgment that the protection of human dignity is a general principle of European Union law and constitutes a legitimate interest capable of justifying a proportionate restriction on free movement.28 That conclusion is now found in the Treaty on European Union, which declares that the EU is founded, inter alia, on respect for human dignity.29 The EU Charter of Fundamental Rights also prominently states that human dignity is inviolable and must be respected and protected.30 While the scope of the European right to the protection of human dignity is uncertain, it plainly encompasses protection from media content that a member state reasonably believes is harmful to children or to a wider part of society.31 That does not however create an unlimited discretion. There will always be a strong EU counter interest in eliminating indefensible discrimination and disproportionate barriers to trade lurking in national controls over pornographic and violent content.
The Audiovisual Media Services Directive
Despite the firm principle of national autonomy in matters of harm and offence in media content, the decision to bring broadcast television services fully into the single market through sector specific legislation made it necessary to harmonize standards for content deemed harmful to children. No European media sector was more encumbered with domestic legal and regulatory restrictions affecting content than broadcast television. It was therefore impossible to achieve a common framework for free movement of television services based on the country of origin principle without addressing the problem of divergent national standards. The Television Without Frontiers Directive, now known as the Audiovisual Media Services Directive, therefore entailed assurances that member states would not be forced to receive television services under the jurisdiction of other member states that contained programme or advertising content falling well below national standards for the protection of children.32 The solution lay in a mix of prescriptive common standards and rights of derogation. Accordingly, the Directive obliges member states to ensure that television broadcasts by broadcasters under their jurisdiction do not include any programmes ‘which might seriously impair the (p. 364 ) physical, mental or moral development of minors, in particular programmes that involve pornography or gratuitous violence’.33 The Directive also requires that they ensure that children are adequately protected from advertising content that causes physical or moral harm.34
These obligations were drafted in language compromised between the need to set out minimum European standards and national demands for autonomy in the field of public morals, which varied across the EU according to religious and cultural circumstances. It was, consequently, necessary to provide additional protection for states concerned that these loosely phrased obligations would force them to permit the reception of content well outside domestic standards for the protection of children. Member states therefore enjoy a right of derogation from the obligation to permit reception and retransmission where a television broadcast coming from another member state ‘manifestly, seriously and gravely’ breaches the Article 27(1) obligation to prevent the broadcast of content which might seriously impair the physical, mental, or moral development of minors.35 While this right is subject to several conditions, which limit its use to extraordinary circumstances, the effect is to leave member states with a broad power to decide what content might harm children.36
Sexual and violent content in the new media
The European Union's initial policies regarding harmful and offensive content transmitted online were formed in the internet boom of the 1990s. To gain the economic rewards of an ‘information society’, European governments were urged not to apply the broadcast model of regulation to new internet content services. As the European Commission similarly stated in 1996 that, ‘…it is too early, at this stage of development of the new services, to make specific proposals, especially of a regulatory nature at the Community level’.37 That year, the Commission also (p. 365 ) issued provisional guidance regarding illegal and harmful content on the internet that called for ‘the right balance between ensuring the free flow of information and guaranteeing protection of the public interest’ and rejected any systems of national censorship or control over internet access.38 The early European policy consensus on internet content was therefore to intervene only where market mechanisms, including self regulation and consumer prudence, had demonstrably failed.
In European Union law, the basic principles were clear enough; newly developing commercial internet services were subject to EU rules on free movement and market integration. The Electronic Commerce Directive, adopted in 2000, built on that legal foundation, adding the principle of country of origin jurisdiction as well as general liability rules for content intermediaries.39 These additional elements therefore extend across the broad field of information society services coordinated by the Directive, which effectively covers all commercial services that make content available to the public over electronic networks, including newspaper and magazine websites as well as video and blog hosting services, but excluding broadcast services and on-demand audiovisual services.40 Unlike the AVMS Directive, however, the Electronic Commerce Directive does not contain prescriptive content rules harmonizing European content standards. Instead, it elaborates on the TFEU powers of member states to derogate conditionally from the obligation to permit free movement for reasons that notably include, ‘public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors‰…’.41
The Directive's rules on intermediary liability include important provisions limiting the liability of information society services hosting third party content that violates national content rules. These stipulate that a hosting service should not be liable for third party content unless it possesses actual or constructive knowledge of its illegality.42 Member states are nonetheless free to set legal and regulatory standards and consequences for harmful and offensive content delivered through information society services, subject of course to EU proportionality factors, including relevant human rights principles.43 At the same time, the European (p. 366 ) Union has adopted a series of instruments to dissuade member states from applying broadcast era content restrictions on harmful and offensive content to the internet. It has put forward instead an alternative model based on self or coregulatory regimes for service providers combined with greater responsibility or prudence on the part of consumers.44 This model was certainly a pragmatic assessment of the difficulties of regulating the internet in any way similar to radio and television, but it also reflected the influence of market based policies on the introduction of internet services into Europe from the United States.45
The combined model of operator self or coregulation and consumer responsibility is set out in the 1998 Recommendation on the protection of minors and human dignity.46 This Recommendation was the first EU legal instrument concerning internet based, content services. While its general principles on minors and human dignity apply to all electronic media, including the broadcasters, its Annex on self regulation only applies to information society services.47 The Recommendation is addressed not only to the member state governments, but also to internet service and access providers, who are asked to develop and implement codes of conduct based on the requirements of applicable laws. In 2006, the EU adopted the supplementary Recommendation on Minors and Human Dignity to extend the range of matters covered by this initiative, including media literacy and media education.48 These recommendations are also closely linked to a series of EU funded programmes that were initiated in 1998 along with the first recommendation.49 The difficulty has been in developing both sides of the self (p. 367 ) regulatory–consumer responsibility model. Governments have had some success in establishing national self or coregulatory regimes for service providers that cooperate to block consumer access to sites hosting harmful content.50 Major internet content providers, such as YouTube or Facebook, have also established their own codes governing permissible content.51 It has been far harder to equip the general public for its role in this regulatory network. The comprehensive systems of content classification and related filtering software the Commission called for in the mid-1990s, such as the once widely touted and now abandoned Platform for Internet Content Selection, have yet to be made effective.52
Over the past decade, European governments have also become increasingly prescriptive in their approach to new media services, classifying types of services and setting specific content standards. In European Union law, the changing public policy environment became evident it the 2007 amendments to the Audiovisual Media Services Directive. As discussed in Chapter 4, the Commission's initial proposals for a single instrument to govern all audiovisual content services aimed at the general public did not gain the support of a sufficient majority of member states. They did eventually agree, however, that on-demand audiovisual programme services, which compete directly with linear broadcast television services in broadband households, should be subject to equivalent content requirements. This was achieved by carving on-demand audiovisual media services out of the general category of ‘information society services’ and bringing them into the AVMS Directive under a new prescriptive content regime that included restrictions on harmful content affecting children.53 The Directive nonetheless affirms the importance of self and coregulation for new media services.54
(p. 368 ) Child pornography
The treatment of child pornography in European media law is distinctively different from issues of general pornography or violent content, reflecting the simple fact that European governments are all committed to suppressing the publication or distribution of sexual images of children. In this policy field, European Union law has gone beyond general and specific powers to derogate from the rules of free movement to create common prescriptive rules concerning the criminalization of child pornography. In 1997, under the then operating Justice and Home Affairs Third Pillar, the member states agreed to criminalize ‘the exploitative use of children in pornographic performances and materials, including the production, sale and distribution or other forms of trafficking in such materials, and the possession of such materials’.55 Another EU Framework Decision followed in 2004, concerning the sexual exploitation of children and child pornography. This instrument broadened the definition of child pornography in EU law, requiring the criminalization of the distribution, dissemination, transmission, supply, or making available of child pornography, as well as its acquisition of possession by consumers.56 Following the Treaty of Lisbon, the 2004 Framework Decision, which is now the core EU instrument on child pornography, will become enforceable by the European Court of Justice.
Council of Europe: offence, harm, and human rights
European human rights law has always shown considerable deference towards national restrictions on the publication and distribution of sexual and violent media content, which fall within a vaguely defined field of European public policy traditionally known as the protection of morals. In this field, broad member state autonomy is anchored in both principle and practicality. At a fundamental level, European human rights law and institutions presume not only the existence of effective states, but also their need to maintain authority and legitimacy. This includes their ability to ensure that media outlets and forums do not make content available in a manner that violates the general public's deeply held views about (p. 369 ) harmful and grossly offensive content. While human rights law limits the impact of majority preferences where they may breach protected individual rights, it also accepts the legitimacy of those preferences, especially when they are expressed through democratic processes. Consequently, European member states are entitled to take into account the religious, social, and cultural traditions and beliefs of their citizens when imposing restrictions on media content. Indeed, the European Court of Human Rights accepts not only that moral standards vary significantly across Europe, but also that state parties to the European Convention on Human Rights are best placed to judge how local sensibilities should be protected, given ‘their direct and continuous contact with the vital forces of their countries’.57
The protection of public morals also has its own foundations in European human rights principles, which potentially give measures that restrict the liberty to publish added weight when balanced against fundamental rights to liberty. These include the principle of human dignity, which underpins the protection of individuals and communities from gratuitous offence and harm, as well as the more specific rights of children to protection from physical and moral hazards.58 As the Council of Ministers has stated,
Freedom of expression also includes, in principle, the right to impart and receive information and ideas which constitute portrayal of violence. However, certain forms of gratuitous portrayal of violence may lawfully be restricted, taking into account the duties and responsibilities which the exercise of freedom of expression carries with it, provided that such interferences with freedom of expression are prescribed by law and are necessary in a democratic society. More specifically, measures taken to counter gratuitous portrayal of violence in the electronic media may legitimately aim at upholding respect for human dignity and at the protection of vulnerable groups such as children and adolescents whose physical, mental or moral development may be impaired by exposure to such portrayal.59
Indeed, the Council of Europe Committee of Ministers has also stated that member states not only have a right but also an obligation to protect children from content which is unsuitable or inappropriate.60 On the other hand, resort to these general principles highlights the flexibility of proportionality analysis and its openness to (p. 370 ) balancing of a wide array of values and interests against the constitutionalized rights of the individual to liberty.61
From a different perspective, all national measures concerning offensive and harmful media content fall within the framework of Article 10 of the ECHR.62 This follows very clearly from the Court's expansive interpretation of Article 10 (1), which includes expression that offends, shocks, or disturbs the state or any sector of the population.63 In the realm of explicitly sexual and violent expression, however, the Article 10 right to freedom of expression has played a remarkably muted role. As discussed in earlier chapters, the Court has identified the protection and fostering of democratic society as the core purpose of the right to freedom of expression under the Convention.64 Consequently, Article 10 has its strongest impact on national measures that limit public access to information and ideas concerning matters of legitimate general interest, especially where they relate to democratic participation and decision making.65 The Court has also determined that works of expression having an artistic value should also be protected under Article 10, although to a much lesser extent than democratically significant expression.66
In distinct contrast, the commercial value of trade in sexual or violent entertainment media has little weight under the ECHR when balanced against national interests in the protection of children from moral harm or the general public from gross offence, particularly where expression is likely to provoke public disorder.67 These interests arise under Article 10(2), which includes the protection of morals as a named legitimate interest as well as the rights of others, which broadens this field to include offence to religious convictions.68 On these grounds, the state enjoys a wide margin of appreciation and may, for example, restrict or even prohibit the exhibition or distribution of works of expression in public places.69 That (p. 371 ) margin is not unlimited, even when democratic interests are not engaged. Where children are adequately protected and no adult is confronted unintentionally or unwillingly with offensive content, there must be compelling reasons to justify an interference with the right to freedom of expression.70
In most cases concerning sexual or violent content, applications to the Court have concerned the proportionality of restricted access rather than absolute prohibitions on content. In these circumstances, the Court has taken a close interest in the methods of separation used to deal with potentially offensive or harmful content. It has found less ground for restrictions where plays, films, and exhibitions are made available in controlled environments, such as licensed sex shops or cinemas, rather than places freely accessible to an undefined audience.71 In Wingrove, the Court noted that delivery of videos by post, for example, did not give adequate protection for children because ‘once they become available on the market they can, in practice, be copied, lent, rented, sold and viewed in different homes, thereby easily escaping any form of control by the authorities’.72
The Court's Article 10 principles regarding the protection of morals have guided the Council of Europe in its efforts to coordinate national laws and policies concerning the broadcast media and later the arrival of internet based media. Throughout the broadcast era, the Court accepted the principle that the broadcast media are more intrusive into households and have greater influence on listeners and viewers than the print media or the cinema.73 National measures aimed at the broadcast media are therefore not necessarily disproportionate even though they may place more restrictions on content than those applied to other forms of media.74 The Council of Europe also created prescriptive content rules for satellite television services under the jurisdiction of member states. The 1989 Convention on Transfrontier Television obliges state parties to ensure that programmes on these services respect human dignity and the fundamental rights of others and, in particular, do not (p. 372 ) contain pornography or give undue prominence to violence.75 The Convention, which is the Council of Europe's most significant legislative initiative in the media sector, has however dwindled in importance as member states have joined the EU or otherwise agreed to accept the obligations of the EU Audiovisual Media Services Directive, which takes precedence over the Convention.76
The internet: new concepts of responsibility and liability
The arrival of public internet access in Europe brought an immediate surge in cross border communications, including a rising commercial and amateur trade in sexual and violent content. A decade later, the advent of broadband access to the internet created a vast new dimension to the European entertainment media sector, rapidly equalling or overtaking the influence of television in the home. The internet therefore also created an expansive new field for the application of European public policy regarding harmful and offensive content. As broadband access has become common across Europe, the perception of the internet as a place of potential harm for children has grown. In 2009, the CE Committee of Ministers stated that,
[t]he risk of harm may arise from content and behaviour, such as online pornography, the degrading and stereotyped portrayal of women, the portrayal and glorification of violence and self-harm, demeaning, discriminatory or racist expressions or apologia for such conduct, solicitation (grooming), the recruitment of child victims of trafficking in human beings, bullying, stalking and other forms of harassment, which are capable of adversely affecting the physical, emotional and psychological well-being of children.77
Six years earlier, the Committee of Ministers had already declared that, ‘[p]rovided that the safeguards of Article 10, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms are respected, measures may be taken to enforce the removal of clearly identifiable Internet content or, alternatively, the blockage of access to it, if the competent national authorities have taken a provisional or final decision on its illegality’.78
Here, however, the organization's initiatives to counter these risks of harm have been complicated by European policy commitments to ensure that the internet fosters economic growth and by differences in domestic standards and definitions for pornographic and violent content. The Council of Europe has consequently (p. 373 ) adopted measures endorsing limited state regulation of internet based media services and greater autonomy for content providers and service operators.79 It has also urged public authorities not to deny public access, through blocking or filtering measures, to information and other communication on the internet, regardless of frontiers. In the same vein, the Committee of Ministers has also declared that member states should not engage in systematic blocking or filtering that restricts public access to internet based information services or impose licence requirements on the operation of personal websites, although they may selectively remove or block illegal content.80 It has however added the proviso that ‘[t]his does not prevent the installation of filters for the protection of minors, in particular in places accessible to them, such as schools or libraries’.81
The Council of Europe has also endorsed the principle that responsibility or liability for content should cascade down from primary content providers, through various intermediary services, to the ultimate consumer. Accordingly, the Committee of Ministers has urged member states not to impose liability on service providers that merely transmit information or provide access to the internet, or oblige them to monitor the content they carry.82 In line with the EU Electronic Commerce Directive, the Committee has further recommended that service providers who host third party content should only be held co-responsible if they do not act expeditiously to remove or disable access to information or services after becoming aware of the illegal nature of content.83 While setting out principles limiting the liability of service providers, the Council of Europe has promoted self or coregulation for internet content or service providers as well as the development of methods to enable greater user control over content.84 This has included strong encouragement to provider companies to create codes of conduct as well as common standards regarding the rating and labelling of content that carries a risk of harm to children.85 While supporting the shift in responsibility for content regulation (p. 374 ) from the state towards private sector providers as well as consumers, the Council of Europe has nonetheless noted some of the problems lurking in that transfer. The Committee of Ministers has emphasized that the public cannot make informed decisions about content without greater transparency and access to information and guidance.86 It has also recommended that content and service providers are encouraged to address the problem of private censorship where these companies block or remove content on their own initiative or on the request of a third party.87
Beyond the Council of Europe's general efforts to influence national public policy regarding sexual and violent content, the organization has sought to coordinate efforts to suppress access to child pornography. Although the organization began to address this issue well before the arrival of public internet access, as the flow of child pornography over the internet has become a pan-European public policy issue, the Council of Europe has become an important forum for the coordination of national measures.88 Unlike other areas of sexual and violent media content, where there are often striking differences across Europe regarding what is deemed to be socially acceptable, child pornography has yielded a common European public policy, albeit one whose uniformity has been strengthened by European measures. It is also a form of expression that enjoys virtually no protection under Article 10 of the ECHR and therefore cannot be opposed by appeal to civil liberties. Indeed, the European Court of Human Rights has indicated that state parties are under a positive obligation to protect children from sexual harm.89
The Council of Europe's most significant work in this area has been the adoption of two major treaties that, among other things, seek to bring about a common standard of criminal responsibility and law enforcement in the field of child pornography.90 The first of these is the 2001 Convention on Cybercrime, which was intended to strengthen international cooperation on crimes committed (p. 375 ) through use of the internet and other computer networks and deals with child pornography amongst an assortment of internet related activities.91 This treaty is also open to participation by selected non-European observer states.92 These prominently included the United States, which took a leading role in the negotiation of the Cybercrime Convention and consequently had a major influence on its structure and content.93 The treaty is therefore more than an instrument for European cooperation and is intended to be a model for global standards, offering a template for the development of further international agreements and domestic laws.
While the suppression of child pornography is grounded in the fundamental principle of human dignity and typically involves no major democratic concerns, the Cybercrime Convention does contain some protections against indiscriminate criminalization. Article 9 obliges state parties to criminalize the production, offering, making available, distribution, transmission, procuring, or possession of child pornography through use of a computer system.94 This article however includes the proviso that these powers and procedures should be subject to ‘conditions and safeguards provided for under its domestic law, which shall provide for the adequate protection of human rights and liberties, including rights arising pursuant to obligations it has undertaken under the 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, the 1966 United Nations International Covenant on Civil and Political Rights…’. Aside from this resort to rights of freedom of expression where definitions of child pornography are overly broad, these treaties also guarantee rights to fair legal proceedings.95
The child pornography provisions of the Cybercrime Convention were however a somewhat opportunistic addition given space in a treaty primarily aimed at the problems of computer network security and intellectual property protection. They are, as a result, tied to internet based communication and isolated from the broader legal and policy context in which states more often deal with the protection of children. In 2007, the Council of Europe remedied that shortcoming when its introduced child pornography provisions into the new Convention on the (p. 376 ) Protection of Children Against Sexual Exploitation and Sexual Abuse. Article 20 of this treaty is adapted from Article 9 of the Cybercrime Convention, reasserting the obligation to criminalize the production, distribution, and possession of child pornography.96 Here, however, the provision is closely related to other obligations and measures concerning the protection of children. It is moreover not limited to internet related activities and includes any form of child pornography.
The 2007 Convention also revisits the question of how child pornography should be defined. Article 20 of the treaty states that ‘child pornography’ means any material that visually depicts a child engaged in real or simulated sexually explicit conduct or any depiction of a child's sexual organs for primarily sexual purposes.97 Photographs of naked children, which may incur liability under some domestic laws, are not sufficient to qualify as child pornography, which requires an explicitly sexual element. Article 20 also allows state parties the option of reservations in relation to computer generated pornographic images, except where such images appear to be images of real children.98 These Council of Europe obligations to criminalize child pornography, although restricted to those states willing to become treaty parties, are a significant development in European law concerning freedom of expression and human dignity. They entrench key elements of the European model of freedom of expression into positive law, including the ease with which expression deemed to cause harm may be rendered a crime. American constitutional law, in comparison, possesses a stronger concept of personal liberty, which has placed the criminalization of child pornography under greater control.99
Pornography and violence in international law
National autonomy in the regulation of public morals has been a basic precept of international law since the Peace of Westphalia, which affirmed that statehood did not depend on the religious and moral convictions of a territory's ruler or its inhabitants. As discussed in preceding chapters, the drafters of the GATT and (p. 377 ) the GATS put that autonomy in matters of public morals at the heart of international trade law.100 Indeed, the protection of public morals is the first listed ground for permissible derogation from GATT obligations under Article XX and occupies a similar place in Article XIV of the GATS.101 The public morals ground is also exceptionally broad, encompassing the protection of many threats to human well being, such as narcotics, alcohol, gambling, prostitution, child labour, and pornography.102 On the other hand, there has certainly been a clear awareness amongst governments and international trade related organizations that national autonomy in the control of harmful and offensive content presents a major obstacle to the development of global markets for electronic commerce.103
In most cases, WTO member states need not resort to permitted GATT and GATS exceptions to secure their autonomy in matters falling within the scope of public morals as the main goal of trade law is to eliminate discriminatory treatment rather than trade barriers per se. In common with most other constraints on the liberty to publish, national restrictions on sexual and violent content are typically non-discriminatory in form. This reflects the fact that governments must include all media sources and outlets under their jurisdiction, regardless of their origins or chief places of business, when seeking effective control over public expression that engages the core concerns of the state. These laws or regulations restricting the publication or distribution of sexual or violent content can however be discriminatory in their application and thereby fall within the scope of the GATT or GATS. Aside from the use of public morals as a pretext for discrimination against foreign media goods and services or their suppliers, the sheer complexity of the contemporary media sector can also lead to inadvertent discrimination. The protection of children from harmful content, for example, frequently involves different legal and regulatory rules and enforcement methods based on qualitative standards spread across the print, broadcast, and internet based media. The risk of different (p. 378 ) consequences for domestic and foreign media is therefore high and those differences may amount to de facto discrimination under the rules of trade law, provided of course there is an applicable commitment to trade liberalization.104
Whether a discriminatory domestic measure is protected from the national treatment and MFN obligations of the GATT and the GATS under the public morals ground of GATT XX and GATS XIV has been considered by WTO panels and the Appellate Body in very few cases.105 The first consideration in the application of these articles is that member states are free to determine what level of protection is necessary to achieve adequate protection of the public.106 It is only the manner of achieving that level of protection that is subject to the necessity and chapeau conditions of the general exception articles. In the context of public morals, the application of the necessity condition is particularly sensitive as the decision whether the contested measure is the least restrictive one available may involve the ‘weighing and balancing’ of various factors that include the importance of the interests or values protected as compared to their restrictive effects on trade.107
While the Appellate Body largely found in favour of the United States on the question of necessity in the US Gambling and Betting Services case, in its December 2009 decision in the China Publications and Audiovisual Entertainment Products case, it found that China had not shown that its restrictive domestic measures were ‘necessary’ to protect public morals as required by Article XX of the GATT. The main reason for that conclusion was the Appellate Body's acceptance that the less trade-restrictive alternative proposed by the United States was ‘reasonably available’ to China.108 For the Chinese government, these conclusions have threatened important elements of its comprehensive media regime, which has been under the exclusive control of the Communist Party since it came to power in 1949.109 The Appellate Body's decision has also underscored the potential for using the necessity principle to strip away state controls on the media in non-democratic states. Yet, as Wu Xiaohui has argued, by focusing on ‘necessity’ and the potential for less trade restrictive measures, the Appellate Body shifted the basic issue away (p. 379 ) from non-discrimination and transparency to the acceptability of China's chosen methods of protecting public morals.110 Wu's complaint, in essence, is that the WTO law is progressing through judicial decisions towards the elimination of trade barriers per se rather than the elimination of discriminatory barriers. A necessity test that demands greater rationality in domestic measures is a serious challenge to national autonomy in the broad sphere of public morals, where national restrictions on media content are often rooted in a jumble of political, social, cultural, and religious objectives and will struggle to satisfy that standard. Considerations of this kind are precisely why, as discussed in earlier chapters, the negotiation of a necessity based domestic regulation discipline in the Doha Round has been so difficult to achieve.111
Outside the WTO, the question of legitimate restrictions on pornographic or violent content has also arisen within the International Corporation for Assigned Names and Numbers (ICANN), which is the principal organization responsible for the orderly operation of the global internet.112 Here, the main point of contention has been the development of a specialized domain name labelled .XXX for the voluntary use of websites featuring explicit sexual content. After initial rejections, the ICANN Board approved then rejected an agreement in 2007 to create the .XXX sponsored Top Level Domain (sTLD).113 However, following an Independent Review Panel declaration that the Board's decision was not consistent with the application of neutral, objective, and fair documented policy, the Board voted to accept the Panel's declaration and initiate procedures to establish the proposed .XXX sTLD.114 The creation of an sTLD for explicit sexual content has provoked intense interest from governments and social organizations since it was first proposed in 2004.115 The opposition of governments, including the United States, has also brought the neutrality of ICANN decision making into question, in particular the potential for improper interference by major states.116 Policy issues related to (p. 380 ) public morals will moreover continue to arise within ICANN as the internet domain name system develops. The body responsible for creating guidelines for new generic Top level Domains (gTLD), is for example, wrestling with the question of how to bar applications deemed to be contrary to ‘generally accepted legal norms relating to morality and public order that are recognised under international principles of law’.117
International human rights law also recognizes the autonomy of states in the regulation of public morals. One of the great purposes of the liberal democratic project has therefore been to ensure that that autonomy is not only yoked to tolerance of social, cultural, and religious differences, but also constrained to prevent the regulation of public morals from being used as a pretext for the suppression of dissent. To achieve this second objective, liberal democracy depends on the right to freedom of expression, which takes precedence over state or popular demands for moral conformity where the expression at issue does not cause harm (or perhaps gross offence) or is a justifiable contribution to public affairs. For states outside the liberal democratic tradition, that set of principles is plainly incompatible with the foundations of an illiberal or non-democratic state. The opposition of these states has therefore helped to frustrate the entrenchment of those principles into international human rights law over the past half century. Major differences between American constitutional law and European human rights law on the proper limits of the liberty to speak and publish have also impeded the development of a clear relationship between the right to freedom of expression and the protection of public morals in human rights law. The extent to which the right to free speech protects expression that causes gross offence has been a particular point of disagreement.118
Article 19 of the International Covenant on Civil and Political Rights has rarely been used to mount a direct challenge to national restrictions concerning public morals before the ICCPR Human Rights Committee. The Article 19(3) public morals exception was left broadly stated to ensure that it remained flexible enough to cover a wide variety of national laws and regulations. Consequently, the leading example of a Committee decision on public morals in the media sector under Article 19(3) concerned restrictions on expression concerning homosexuality, which in many countries even at the time was no longer regarded as a matter self evidently requiring censorship.119 In its 1982 communication on Hertzberg v. Finland, the Human Rights Committee found that Finland did not violate its obligations under Article 19 when prohibiting discussions in the broadcast media (p. 381 ) that may encourage homosexual conduct.120 In the view of the Committee, there is no universally applicable common standard in questions of public morals and consequently state parties enjoy a margin of discretion in determining what matters fall within this legitimate ground for interfering with the right to freedom of expression. It stated further that, ‘[a]ccording to Article 19(3), the exercise of the rights provided for in Article 19(2) carries with it special duties and responsibilities for those organs. As far as radio and TV programmes are concerned, the audience cannot be controlled. In particular, harmful effects on minors cannot be excluded.’ The protection of children from ostensible moral harm was therefore a key element in the decision.
External efforts to inject explicitly liberal democratic elements into the interpretation of Article 19 and the right to freedom of expression generally in international human rights law have also attempted to address the scope and application of the public morals exception. The Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights state that, ‘[s]ince public morality varies over time and from one culture to another, a state which invokes public morality as a ground for restricting human rights, while enjoying a certain margin of discretion, shall demonstrate that the limitation in question is essential to the maintenance of respect for fundamental values of the community’.121 The Principles also state that the ‘necessity’ condition in Article 19(3) should be interpreted as requiring not only that a restriction responds to a pressing public or social need, but that it must also be proportionate to its aim. The Siracusa Principles were not however intended to address the substantive purposes of the Article 19 right to freedom of expression. They therefore do not carry forward the liberal democratic principle that measures intended to protect public morals must be considered in light of their restrictive effects on democratic participation and decision making.
Divisions over the meaning of the public morals exception and its relationship with freedom of expression have also made it difficult to cooperate in areas of mutual concern regarding harm and offence in the new media. Nonetheless, child pornography emerged in the 1990s as a key area for intergovernmental cooperation as well as a limited harmonization of national standards. In the United Nations human rights system, the Convention on the Rights of the Child is the principal instrument creating obligations to protect children in relation to child pornography.122 Article 34 of the Convention requires state parties to protect children from all forms of sexual exploitation and sexual abuse, including the exploitative use of children in pornographic performances and materials. These obligations have been substantially supplemented by the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child (p. 382 ) pornography.123 Article 3 of the Protocol requires that state parties must prohibit, by the use of criminal or penal law, the production, distribution, dissemination, import, export, offer, sale, or possession of child pornography.124 These obligations stand out in a legal field where universal obligations to restrict freedom of expression are exceedingly rare.
Efforts to create positive obligations requiring states to prohibit or restrict the publication of other forms of sexual and violent content have accordingly been far less successful. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) has, for example, been a focus for arguments that there is a legal duty to take positive action to prohibit or restrict the circulation of violent or degrading content concerning women. Article 5 of the Convention requires that state parties shall take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. In 1992, the CEDAW Committee on the Elimination of Discrimination Against Women outlined the basis for such an obligation in its General Recommendation No. 19 concerning Violence Against Women.125 In this recommendation, the Committee found that states parties have a duty to take positive measures to eliminate all forms of violence against women, including the portrayal of women in ways that encourage violence. In relation to Article 5 of the Convention, the Committee identified a connection between traditional attitudes in which women are regarded as subordinate to men and violence against women, asserting that, ‘[t]hese attitudes also contribute to the propagation of pornography and the depiction and other commercial exploitation of women as sexual objects, rather than as individuals. This in turn contributes to gender-based violence.’126 Despite the rise of an enormous global trade in explicitly sexual and violent content since the arrival of the internet, these suggestions of a legal obligation have not led to further work on prescriptive obligations outside the area of child pornography.
(1) ‘Indeed, it is porn that has made the net into a viable medium for conducting electronic business, and continues to do so’, Bradwell, D., ‘Sex Drive’, Internet Magazine (October 1998), 38.
(2) On the importance of artistic expression within the framework of freedom of speech, Bezanson, R., Art and Freedom of Speech (University of Illinois Press, 2009).
(4) DeCew, J., ‘Free Speech and Offensive Expression’, 21(2) Social Philosophy and Policy (2004), 81–103 at 101.
(6) See, for example, Koppelman, A., ‘Does Obscenity Cause Moral Harm?’, 105 Columbia Law Review (2005).
(7) Joel Feinberg argued that ‘[i]t is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense (as opposed to injury or harm) to persons other than the actor, and that it is probably a necessary means to that end’, Feinberg, J., Offense to Others: The Moral Limits of the Criminal Law (Oxford University Press, 1985), 1. Feinberg, however, also maintained that offence, as a justification for restricting expression, should be tightly limited (26).
(8) See, for example, Livingstone, S., Children and the Internet: Great Expectations, Challenging Realities (Polity Press, 2009), ch 6.
(9) On research issues, see United Kingdom, Safer Children in a Digital World, The report of the Byron Review for the Department for Children, Schools and Families (2008), paras 1.38–1.44. In Britain, it is a criminal offence to take, permit to be taken, make, possess, show, distribute, or advertise indecent images of children, which includes any images of children, apparently under 18 years of age, involved in sexual activity or posed to be sexually provocative. Section 1, Protection of Children Act 1978 (as amended).
(10) The feminist argument for severe restrictions on the publication or distribution of pornography is based on several kinds of apparent harm to women. The production of highly sexual images of women creates a repressive social environment, which limits the personal autonomy of women. This ultimately encourages violence against women. These arguments face several liberal concerns, including the basic objection that the contending desires and preferences of human beings make the world a hostile environment for many people in different ways. To attempt to restrict expression whenever it has those general negative effects would be ineffective and suffocate the liberty of every individual. See, for example, Feinberg, J., n. 7 above, 127–164; MacKinnon, C., Feminism Unmodified (Harvard University Press, 1987); Dworkin, A., Pornography: Men Possessing Women, (E.P. Dutton, 1989); Dworkin, R., ‘Women and Pornography’, 40 (17) New York Review of Books (21 October 1993) ; Strossen, N., Defending Pornography: free speech, sex, and the fight for women's rights (Scribner, 1995), 242–244; and Watson, L., ‘Pornography’, 5 Philosophy Compass (2010), 535–550.
(11) On the criminalization of child pornography, see O'Donnel, I. and Milner, C., Child Pornography; Crime, Computers and Society (Willan, 2007).
(12) See, for example, United Kingdom, Criminal Justice and Immigration Act 2008, section 63, which criminalizes possession of ‘extreme pornographic images’, which include images of acts involving or appearing to involve ‘sexual interference with a human corpse’.
(13) See, for example, United Kingdom, Obscene Publications Act 1959, which makes it an offence to publish an obscene article, and also contains a defence that applies where the publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern (s. 4).
(14) See, for example, United Kingdom, Digital Economy Act 2010, ss. 40–41, which concern the regulation of children's access to potentially harmful video games through a combination of industry content rating and statutory offences.
(15) See, for example, United Kingdom, Office of Communications (OFCOM), Broadcasting Code, Section 1. Protecting the Under-Eighteens.
(16) See, for example, United Kingdom, Mobile Broadband Group, Code of Practice for the Self-Regulation of new Forms of Content on Mobiles (June 2009).
(17) See Edwards, L., ‘Pornography, Censorship and the Internet’, in Edwards, L. (ed.), Law and the Internet. 3rd edn (Hart Publishing, 2009).
(18) In the United Kingdom, cinema and video films are classified according to the rating categories of the British Board of Film Classification and video games are classified according to the Pan European Game Information (PEGI) industry code, while content rules for television and radio programmes are set by OFCOM.
(19) In Britain, as the government debated the future of media regulation in the late 1990s, the BBC argued that ‘[b]roadcast media, particularly television, are such a powerful and pervasive influence in daily life that it is important that there are safeguards to protect children and other vulnerable groups against stumbling across unacceptable material at times when they might be watching or listening’. [BBC Presentation to the Culture, Media and Sport Committee Hearings, 1998, 18]. The Communications Act 2003, which underpins the current regulatory system, reflects that view. In the United States, restrictions on broadcast media were upheld under Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978), but see Fox Television Stations v. Federal Communications Commission (2d Cir. 13 July 2010).
(20) See Maurushat, A. and Watt, R., ‘Clean Feed: Australia's Internet Filtering Proposal’ (19 March 2009), Internet Law Bulletin, 2009, UNSW Law Research Paper No. 2009–7.
(22) ‘The principles of proportionality and subsidiarity must be applied and particular respect paid to the cultural diversity manifested in national and local perceptions of the protection of minors and human dignity’, European Commission, Protection of Minors and Human Dignity in Audiovisual and Information Services, Consultations on the Green Paper, Commission Working Document SEC (97) 1203. On the special significance of the protection of children, see Case C-244/06, Dynamic Medien Vertriebs GmbH v. Avides Media AG (2008) 2 CMLR 23, para. 44.
(23) See, for example, Case 34/79, Regina v. Henn and Derby  ECR 3795, Case 121/85, Conegate Limited v. HM Customs & Excise  ECR 1007. See also Green Paper on the Protection of Minors and Human Dignity in Audiovisual and Information Services COM (96) 483 final (16 October 1996), which states, ‘[m]ember states are entitled to take non-discriminatory measures where justified for overriding reasons of the public interest, provided that they are strictly proportional to the aim pursued and that there are no other less restrictive measures of equivalent effect available’.
(26) Case C-244/06, Dynamic Medien Vertriebs GmbH v. Avides Media AG  ECR I-505, paras 39–40. See also Case C-540/03, Parliament v. Council  ECR I-5769, para. 37. Note also the UN Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography, to which most European countries have already become, or have taken steps towards becoming, state parties. See below for further discussion of the Convention on the Rights of the Child.
(27) Treaty on European Union, Article 3(3) ‘It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child.’ Article 24(1), ‘Children shall have the right to such protection and care as is necessary for their well-being…’ See also the Memorandum of Understanding between the Council of Europe and the European Union (2007), which includes ‘the protection of the rights of the child’ as a subject for cooperation between the two regional organizations.
(28) Case C-36/02, Omega Spielhallen- und Automatenaufstellungs-GmbH v. Oberburgermeisterin der Bundesstadt Bonn  ECR I-09609, 14.
(29) Article 2 TEU, ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’
(30) European Union, Charter of Fundamental Rights, Article 1.
(31) Case C-244/06, n. 26 above, para. 37.
(33) Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (AVMS Directive), Article 27(1). Under Article 27(2), ‘the measures provided for in paragraph 1 shall also extend to other programmes which are likely to impair the physical, mental or moral development of minors, except where it is ensured, by selecting the time of the broadcast or by any technical measure, that minors in the area of transmission will not normally hear or see such broadcasts’. On the AVMS Directive more generally, see Chapter 4.
(34) Ibid., Article 9(1)(g), ‘Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements: (g) audiovisual commercial communications shall not cause physical or moral detriment to minors.’
(35) Ibid., Article 3(2). See also Case C-14/96, Proceedings against Paul Denuit  ECR I-2785 in which the ECJ determined that a member state cannot unilaterally adopt, on its own authority, corrective or protective measures, designed to obviate any breach by another Member State of rules of Community law, except for the Article 2a right of provisional derogation.
(36) Case E-8/97, TV 1000 Sverige AB v. Norwegian Government  3 CMLR 318 (EFTA Court). In the United Kingdom, the Article 2a right to provisional derogation is exercised under ss. 177 and 178 of the Broadcasting Act 1990. See also Regina v. Independent Television Commission, ex parte TV Danmark 1 Limited  UKHL 42.
(37) Green Paper on the Protection of Minors and Human Dignity in Audiovisual and Information Services COM (96) 483 final (16 October 1996).
(38) Commission Communication on ‘Illegal and Harmful Content on the Internet’ COM (96) 487. See also EC Telecommunications Council Resolution on preventing the dissemination of illegal content on the Internet (27 September 1996), in which the Commission alluding to the model of internet control then developing in Singapore, stated: ‘Such a restrictive regime is inconceivable for Europe as it would severely interfere with the freedom of the individual and its political traditions. Due to Europe's complex and open communications infrastructure the practical feasibility of such an approach also remains open to question.’
(39) Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce)  OJ L178/1. On the Electronic Commerce Directive generally, see Chapter 4.
(41) Directive 2000/31/EC, n. 39 above, Article 3(4). See also Recitals (24)–(26).
(43) ‘Whereas the national laws in which Member States have laid down rules and principles on the protection of minors and human dignity reflect cultural diversity and national and local sensitivities; whereas, in this regard, particular attention must be paid to the application of the principle of subsidiarity.’ Council Recommendation of 24 September 1998 on the development of the competitiveness of the European audiovisual and information services industry by promoting national frameworks aimed at achieving a comparable and effective level of protection of minors and human dignity, Recital (18).
(44) Commission Communication, COM (96) 487, n. 38 above.
(45) ‘For the moment, self-regulation seems the best way to promote good practice, possibly backed up by government measures.’ European Commission, Protection of Minors and Human Dignity in Audiovisual and Information Services, Consultations on the Green Paper, Commission Working Document SEC (97) 1203. See also 1997: European Ministerial Conference at Bonn, ‘Global Information Networks: Realising the Potential’, 6–8 July 1997, Ministerial Declaration, which states: ‘19. Ministers stress the role which the private sector can play in protecting the interests of consumers and in promoting and respecting ethical standards, through properly functioning systems of self-regulation in compliance with and supported by the legal system.’
(46) Council Recommendation of 24 September 1998, n. 43 above, is a legal act under Article 249 (ex-A 189) of the EC Treaty.
(47) Annex: Indicative Guidelines for the Implementation, at National Levels, of a Self Regulation Framework for the Protection of Minors and Human Dignity in On-Line Audiovisual and Information Services. The Recommendation asks television broadcasters to try out new digital methods of parental control (such as personal codes, filtering software, or control chips), although it acknowledges the ultimate responsibility of broadcasters for programme content.
(48) Recommendation of the European Parliament and of the Council of 20 December 2006 on the protection of minors and human dignity and on the right of reply in relation to the competitiveness of the European audiovisual and on-line information services industry (2006/952/EC).
(49) The latest of these is the Safer Internet plus programme (IP/08/1571), which runs from 2009 to 2013. It follows on from the Safer Internet Action Plan (1999–2004) and its replacement the Safer Internet Plus programme (2005–08). See also Decision no. 276/1999/EC of the European Parliament and of the Council of 25 January 1999 adopting a Multiannual Community Action Plan on promoting safer use of the Internet and new online technologies by combating illegal and harmful content primarily in the area of the protection of children and minors. The aim of the Safer Internet plus programme is to promote, as a supplement to the regulatory framework, the establishment on a voluntary basis of national frameworks for the protection of minors and human dignity in audiovisual and information services through: the encouragement, in accordance with national traditions and practices, of the participation of relevant parties (such as users, consumers, businesses, and public authorities) in the definition, implementation, and evaluation of national measures in the fields covered by this recommendation; the establishment of a national framework for self-regulation by operators of online services, taking into account the indicative principles and methodology described in the Annex; and cooperation at Community level in developing comparable assessment methodologies.
(50) See, for example, the Internet Watch Foundation, which was established in the United Kingdom to assist internet service providers in blocking access to child pornography and other specified illegal content (〈http://www.iwf.org.uk〉).
(52) See Resnick, P. and Miller, J., ‘PICS: Internet Access Controls Without Censorship’, Communications of the ACM 39(10) (October 1996), 87–93. See also Commission Communication, COM (96) 487, n. 38 above, European Commission, Protection of Minors and Human Dignity in Audiovisual and Information Services, Consultations on the Green Paper, Commission Working Document SEC (97) 1203, and European Ministerial Conference at Bonn, Ministerial Declaration, n. 45 above, ‘19…Ministers encourage industry to implement open, platform independent content rating systems, and to propose rating services which meet the needs of different users and take account of Europe's cultural and linguistic diversity.’
(53) Directive 2010/13/EU, n. 33 above, Article 12.
(54) Ibid., Article 4 (7), ‘Member States shall encourage co- and/or self-regulatory regimes at national level in the fields coordinated by this Directive to the extent permitted by their legal systems. These regimes shall be such that they are broadly accepted by the main stakeholders in the Member States concerned and provide for effective enforcement.’ See also Recitals (44) and (58).
(55) Joint Action 97/154/JHA of 24 February 1997 adopted by the Council on the basis of Article K.3 of the Treaty on European Union concerning action to combat trafficking in human beings and sexual exploitation of children.
(56) Council of the European Union Framework Decision 2004/68/JHA on combating the sexual exploitation of children and child pornography, See also the Council Decision of 29 May 2000 to combat child pornography on the Internet. The Framework Decision defines ‘child pornography’ as pornographic material that visually depicts or represents a real child involved or engaged in sexually explicit conduct, including lascivious exhibition of the genitals or the pubic area of a child, or a real person appearing to be a child involved or engaged in such conduct, or realistic images of a non-existent child involved or engaged in such conduct.
(57) Müller and Others v. Switzerland (Application No. 10737/84) (24 May 1988), para. 35, Wingrove v. The United Kingdom, (Application No. 17419/90) (25 November 1996), para. 58.
(58) See, for example, the European Social Charter, (CETS No. 035), Part I, Principle 7: Children and young persons have the right to a special protection against the physical and moral hazards to which they are exposed. Article 7—The right of children and young persons to protection. See also European Social Charter (revised) (CETS No. 163), Part I: 17 Children and young persons have the right to appropriate social, legal and economic protection. Article 17, The right of children and young persons to social, legal and economic protection: With a view to ensuring the effective exercise of the right of children and young persons to grow up in an environment which encourages the full development of their personality and of their physical and mental capacities, the Parties undertake, either directly or in co-operation with public and private organisations, to take all appropriate and necessary measures designed: 1(b) to protect children and young persons against negligence, violence or exploitation.
(59) Council of Europe, Committee of Ministers, Recommendation on the portrayal of violence in the electronic media, R (97) 19, Guideline No. 1—General framework.
(60) Council of Europe, Committee of Ministers, Recommendation on measures to protect children against harmful content and behaviour and to promote their active participation in the new information and communications environment, CM/Rec (2009) 5, Guidelines: I. Providing safe and secure spaces for children on the Internet.
(62) ‘Article 10 of the European Convention on Human Rights, as interpreted in the case-law of the European Court of Human Rights, must constitute the general legal framework for addressing questions concerning the portrayal of violence in the electronic media.’ Council of Europe, Committee of Ministers Recommendation no. R (97) 19 on the portrayal of violence in the electronic media, Guideline No. 1—General framework.
(63) Handyside v. United Kingdom (Application No. 5493/72) (7 December 1976), para. 49.
(65) ‘…there is little scope under Article 10 para. 2 of the Convention (art. 10–2) for restrictions on political speech or on debate of questions of public interest’, Wingrove n. 57 above, para. 58. See also Vereinigung Bildender Künstler v. Austria (Application No. 68354/01) (25 January 2007).
(66) Müller and Others v. Switzerland, n. 57 above, paras 35–36.
(67) On commercial expression under the ECHR, see Markt Intern Verlag Gmbh and Klaus Beermann v. Germany (Application No. 10572/83) (20 November 1989), para. 26. See Otto Preminger Institut v. Austria (Application No. 13470/87) (20 September 1994), in which the commercial elements of the film exhibition were virtually irrelevant.
(68) ‘[A] wider margin of appreciation is generally available to the Contracting States when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion’, Wingrove, n. 57 above, para. 58.
(69) Müller and others v. Switzerland n. 57 above.
(70) Scherer v. Switzerland (Application No. 17116/90) (14 January 1993) (E.Comm.H.R., Admissibility Decision), para. 65.
(71) Ibid., para. 62. Similarly, in Müller v. Switzerland and others, n. 57 above, at para. 36, the Court pointed out that the paintings at issue, ‘…were painted on the spot—in accordance with the aims of the exhibition, which was meant to be spontaneous—and the general public had free access to them, as the organisers had not imposed any admission charge or any age-limit. Indeed, the paintings were displayed in an exhibition which was unrestrictedly open to—and sought to attract—the public at large’. See also Council of Europe, Committee of Ministers, Recommendation concerning principles on the distribution of videograms having a violent, brutal or pornographic content, R (89)7, and, Council of Europe, Committee of Ministers, Recommendation on cinema for children and adolescents, R (90)10.
(72) See also Handyside, n. 63 above, which concerned the public sale of a book aimed at children that was therefore deemed likely to have a corrupting influence on a substantial proportion of the readers.
(73) Jersild v. Denmark (Application No. 15890/89), (Grand Chamber, 23 September 1994).
(74) See Murphy v. Ireland (Application No. 44179/98) (10 July 2003), which concerned a prohibition on religious advertising. See also Committee of Ministers Recommendation on the portrayal of violence in the electronic media, R (97) 19, which recommends that the licensing conditions for broadcasters include, ‘certain obligations concerning the portrayal of violence, accompanied by dissuasive measures of an administrative nature, such as non-renewal of the licence when these obligations are not respected’.
(75) Council of Europe, European Transfrontier Television Convention (ETS No. 132), Article 7.
(77) Council of Europe, Committee of Ministers, Recommendation on measures to protect children against harmful content and behaviour and to promote their active participation in the new information and communications environment, CM/Rec (2009) 5. See also Committee of Ministers Declaration on protecting the dignity, security and privacy of children on the Internet (2008), Committee of Minsters Recommendation on empowering children in the new information and communications environment, Rec (2006) 12, and Committee of Ministers Recommendation of the Committee of Ministers on self-regulation concerning cyber content (self-regulation and user protection against illegal or harmful content on new communications and information services), Rec (2001) 8.
(78) Council of Europe, Committee of Ministers, Declaration on Freedom of Communication on the Internet (Strasbourg, 28 May 2003).
(80) Ibid., Principle 3: Absence of prior state control; see also Council of Europe, Committee of Ministers Recommendation on measures to promote the public service value of the Internet, Rec (2007) 16E, Part III, Openness.
(81) Declaration on Freedom of Communication on the Internet, n. 78 above, Principle 3: Absence of prior state control.
(83) Recommendation on the portrayal of violence in the electronic media, n. 74 above. See also ibid., Principle 6: Limited liability of service providers for Internet content. On the provisions of the Electronic Commerce Directive concerning limits to the liability of internet intermediaries, see Chapter 4.
(84) See Committee of Ministers, Recommendation on self-regulation concerning cyber content, Rec (2001) 8, Declaration on Freedom of Communication on the Internet, n. 78 above, and, Committee of Ministers, Declaration on Human Rights and the Rule of Law in the Information Society, CM (2005) 56 final E (13 May 2005).
(85) Council of Europe, Committee of Ministers, Recommendation on measures to protect children against harmful content and behaviour and to promote their active participation in the new information and communications environment, CM/Rec (2009) 5: Guidelines: I. Providing safe and secure spaces for children on the Internet, II. Encouraging the development of a pan-European trustmark and labelling systems, III. Promoting Internet skills and literacy for children, parents and educators; see also Committee of Ministers, Recommendation on self-regulation concerning cyber content, Rec (2001) 8, and, Declaration on Human Rights and the Rule of Law in the Information Society, ibid., and Council of Europe, Committee of Ministers Recommendation on promoting freedom of expression and information in the new information and communications environment, CM/Rec (2007) 11.
(86) Recommendation on promoting freedom of expression and information in the new information and communications environment, ibid., and Committee of Ministers, Recommendation on measures to promote the respect for freedom of expression and information with regard to Internet filters, Rec (2008) 6.
(87) Declaration on Human Rights and the Rule of Law in the Information Society, n. 84 above.
(88) Committee of Ministers Recommendation concerning sexual exploitation, pornography and prostitution of, and trafficking in, children and young adults, R (91) 11.
(89) K.U. v. Finland (Application No. 2872/02) (2 December 2008), para. 46. ‘…Where the physical and moral welfare of a child is threatened such injunction assumes even greater importance. The Court recalls in this connection that sexual abuse is unquestionably an abhorrent type of wrongdoing, with debilitating effects on its victims. Children and other vulnerable individuals are entitled to State protection, in the form of effective deterrence, from such grave types of interference with essential aspects of their private lives.’ See also Stubbings and others v. The United Kingdom (Application No. 22083/93), (22 October 1996).
(90) See also Declaration on Human Rights and the Rule of Law in the Information Society, n. 84 above, II. 3. ‘[P]rivate sector actors are urged to participate in the combat against virtual trafficking of child pornography images and virtual trafficking of human beings.’
(91) Council of Europe, Convention on Cybercrime, (ETS No. 185), Articles 9, 15. The Cybercrime Convention came into force in 2004. It obliges state parties to establish and enforce laws concerning unauthorized access, interception, or interference with a computer or computer system as well as interference or misuse of devices, computer-related forgery, computer-related fraud, prohibited acts related to child pornography, or copyright and neighbouring rights.
(92) Aside from member states of the Council of Europe, the Cybercrime Convention is open to participation by Canada, Costa Rica, Dominican Republic, Japan, Mexico, Philippines, South Africa, and the United States, of which the United States alone has ratified the treaty. On participation by non-Council of Europe countries, see the Council of Europe, Committee of Ministers Recommendation on measures to promote the public service value of the Internet, Rec(2007)16.
(94) Cybercrime Convention, n. 91 above, Article 9, which contains three possible elements: involvement of a child in sexually explicit conduct, involvement of a person appearing to be a child engaged in sexually explicit conduct, or realistic images representing a child engaged in sexually explicit conduct.
(95) See, for example, ECHR Article 6 and ICCPR Article 14.
(96) Council of Europe, Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse, (ETS No. 201). According to the Explanatory Report to the Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse, Article 20 on child pornography is inspired by the Council of Europe's Convention on Cybercrime (the Article 9—offences related to child pornography). It is also related to Article 3 of the Council of the European Union Framework Decision on Combating the Sexual Exploitation of Children and Child Pornography, and Article 2 of the Optional Protocol to the United Nations Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography.
(97) Convention on the Protection of Children, n. 96 above, Article 20(2). This definition is based on the Optional Protocol to the United Nations Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. See also the Explanatory Report, ibid., para.143.
(98) Convention on the Protection of Children, n. 97 above, Article 20 and Explanatory Report, n. 97 above, para. 144. Article 20(4) also contains a further option for states to decline to criminalize the act of ‘knowingly obtaining access, through information and communication technologies, to child pornography’ as required by Article 20(1)(f).
(99) See Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). See also Child Pornography Prevention Act 1996, 18 USC 2256 (8)(B).
(100) General Agreement on Tariffs and Trade 1994 (incorporating GATT 1947), (15 April 1994), 33 ILM 1153 (1994), Article XX: General Exceptions, ‘(a) necessary to protect public morals’, and General Agreement on Trade in Services, (15 April 1994), 33 ILM 1167 (1994), Article XIV: General Exceptions, ‘(a) necessary to protect public morals or to maintain public order’. On the general exception provisions of the GATT and the GATS, see Chapter 5.
(101) See Charnovitz, S., ‘The Moral Exception in Trade Policy,’ 38 Virginia Journal of International Law (Spring 1998), 689–745, 697, and see Voon, T., Cultural Products and the World Trade Organization (Cambridge University Press, 2007), 101–109.
(102) The WTO Appellate Body affirmed in the US—Gambling case that under GATS Article XIV(a), the term ‘public morals’ denotes standards of right and wrong conduct maintained by or on behalf of a community or nation. Appellate Body Report, United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Service, WT/DS285/AB/R (7 April 2005), para. 296. See also Marwell, J.C., ‘Trade and Morality: The WTO Public Morals Exception after Gambling’, 81 New York University Law Review (2006), 802.
(103) See, for example, ‘The issue of illegal and harmful content over global electronic networks needs to be addressed in a manner which is proportional to the problem and which recognises the importance of the principle of free speech. The identification and implementation of appropriate and effective global solutions requires international cooperation.’ OECD Committee for Information, Computers and Communications Policy, ‘Global Information infrastructure—Global information Society (GII-GIS) Policy Recommendations for Action’ OECD 1997 [approved by OECD Council at Ministerial level, May 1997]. See also International Chamber of Commerce, Policy Statement: The Impact of Internet Content Regulation, doc no. 373–37/1 (18 November 2002).
(105) The WTO Appellate Body decided its first GATS public morals case in 2005: US—Measures Affecting the Cross-border Supply of Gambling and Betting Services, Report of the Appellate Body, AB-2005–1, WT/DS285/AB/R (7 April 2005), and its first GATT public morals case in 2009: China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, (WT/DS363/AB/R), Appellate Body (21 December 2009).
(106) Korea—Measures Affecting Imports of Fresh,Chilled and Frozen Beef, AB-2000–8, Appellate Body Report, para. 176.
(107) Ibid., para. 164, ‘the contribution made by the compliance measure to the enforcement of the law or regulation at issue, the importance of the common interests or values protected by that law or regulation, and the accompanying impact of the law or regulation on imports or exports’. On the argument for a strict application of the GATT Article XX and GATS Article XIV tests, see Diebold, N.F.,‘The Morals and Order Exceptions in WTO Law: Balancing the Toothless Tiger and the Undermining Mole’, 11(1) Journal of International Economic Law (2008), 43–74.
(108) China—Publications and Audiovisual Entertainment Products, n. 105 above, para. 415(e).
(109) See Brady, A., Marketing Dictatorship: Propaganda and Thought Work in Contemporary China, (Rowman and Littlefield, 2008), ch 2, ‘Guiding Hand: The Role of the Propaganda System’.
(110) Wu, X., ‘Case Note: China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (WT/DS363/AB/R)’, 9(2) Chinese Journal of International Law (2010) 415–432. See also Qin, J., ‘Pushing the Limit of Global Governance: Trading Rights, Censorship, and WTO Jurisprudence—A Commentary on China-Audiovisual Services’, (23 November 2010), Wayne State University Law School Research Paper, and Delimatsis, P., ‘Protecting Public Morals in a Digital Era: Revisiting the WTO Rulings in US—Gambling and China—Publications and Audiovisual Products’, TILEC Discussion Paper No. 2010-041.
(112) ICANN is an independent, non-profit-making private corporation established and operated under the laws of California and entrusted with the coordination of technical administration of the global internet under the 2009 Affirmation of Commitments made between the United States Department of Commerce. See ‘ICANN be independent: Regulating the internet’, The Economist (25 September 2009).
(113) Adopted Resolutions from ICANN Board Meeting, 30 March 2007.
(114) Adopted ICANN Board Resolutions, 25 June 2010.
(115) Milton Mueller, ‘Triple X, Internet Content Regulation and the ICANN Regime’ (14 January 2007). Internet Governance Project, Paper IGP07-001.
(116) Mac Síthigh, D., ‘More than words: the introduction of internationalised domain names and the reform of generic top-level domains at ICANN’, 18(3) International Journal of Law, Information and Technology, Autumn 2010.
(117) New gTLD Recommendation #6 Cross-Community Working Group (‘Rec6 CWG’), Report on Implementation of GNSO New GTLD Recommendation #6, (21 September 2010).
(119) Greater tolerance towards homosexuality in many countries, as well as legislative and judicial recognition in some countries that freedom to engage in homosexual acts is grounded in fundamental rights, has had a clear influence on interpretations of the right to privacy under Article 17 of the ICCPR. See, for example, Toonen v. Australia, Communication No. 488/1992. See also International Commission of Jurists, International Human Rights References to Human Rights Violations on the Grounds of Sexual Orientation and Gender Identity (October 2006).
(120) Hertzberg v. Finland, Communication No. 61/1979.
(121) Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1985/4 (1985), para. 27. On the role of the Siracusa Principles in international human rights law and policy, see Chapter 6.
(122) United Nations, Convention on the Rights of the Child, A/RES/44/25 (12 December 1989).
(123) The United Nations, Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, A/RES/54/263 (25 May 2000) entered into force on 18 January 2002. It has attracted widespread support from many countries, including the United Kingdom, the United States, and China.
(124) Article 2 of the Optional Protocol, ibid., defines child pornography to mean any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes. The Protocol also provides basic rules of jurisdiction based on nationality, residence, or presence of the offender or the nationality of the victim (Article 4) and establishes that the offences referred to in Article 3 are extraditable offences (Article 5). The Protocol also obliges state parties to afford one another the greatest measure of assistance in connection with investigations or criminal or extradition proceedings brought in respect of the offences (Article 6).
(125) CEDAW General Recommendation 19, A/47/38. (Violence against women) (29 January 1992). The CEDAW Committee monitors the implementation of the Women's Convention based on state parties’ reports and also has the power to adopt suggestions and general recommendations.