Pornography?

Members of an uncovered paedophile ring claimed that the close-up video shots of children's genitals taken by a paedophile at a nudist camp were innocent, did not constitute a breach of the children's rights, and were not pornographic. 

Yet, we can be sure that a great majority of parents would be extremely angry and upset if they found out that junior's innocent and naked frolics on the beach were doing the rounds among the "misunderstood" members of the Men Boy Love Association. 

Nudity in itself is not pornographic.  But to argue that there was therefore nothing wrong with the actions of the video cameraman and of those who subsequently viewed the video is to miss the point entirely. 

The paedophile cameraman is no less culpable than a peeping Tom.  Both are committing an offence.  Both are invading the privacy of another individual with lascivious intent, and without the consent of the subject of the observation.  It is that intent and the absence of consent that sets it aside from making an innocent home movie and it is that which makes it a crime.  Whether the material is also pornographic is essentially in the eye of the beholder, and incidental to the crime that has been committed.  To a paedophile a video of junior frolicking naked around the garden sprinkler would be sexually stimulating and is therefore pornographic.  To junior’s parents the video would just be a home movie if they themselves had made it. 

External censorship is increasingly difficult^[1].  Sexually explicit material that most would define as pornographic is globally and readily available to any who seek it.  But that is not a sufficient reason for us not to set and enforce absolute limits.  There is material that is unquestionably criminal and injurious.  The production, distribution, exchange and possession of such criminal material cannot be tolerated and must be treated as serious criminal offences by a united global community. 

The production of child pornography is criminal because it actually involves child abuse, and the possession of child pornography ought to be an offence simply because those who possess it are accessories to the crime of child abuse.  Production occurs in part because there is a market of willing buyers. 

Child pornography falls into the same category as snuff movies, movies that depict real-life sexual murder.  Both involve unwilling "actors" who were incapable of giving their informed consent because they were children or child-like, or because they had their freedom of choice abrogated by other individuals. 

The test of informed consent - basing the determination of whether material is criminal, and should therefore be banned, on whether or not informed consent was given by those shown - has general applicability beyond child pornography. 

Whatever the material, pornography or not, the question is: ‘Did the individuals specifically shown appear by choice, out of their own free wills?’  If they did not, then the material should not have been produced, should not be distributed, and its possession should be deemed an offence, unless there is a clear public interest to the contrary – as distinct from an interested public. 

Your incidental appearance as an anonymous member of the public whose image has been incidentally captured in a public place would not require your informed consent by the capturer or publisher of the image.  When you venture out into the public you can expect to be seen incidentally and to have your image recorded incidentally.

There is nothing incidental however about paparazzi capturing the images of celebrities in the public arena.  The paparazzi are stalking their prey, just as the paedophile is focused on getting that shot of naked little Johnny on the beach.  In both cases, because the subjects are the specific targets of the image takers and publishers, the prior informed consent of the subjects is required for the actions of image taking or distribution not to be criminal.  Johnny however is incapable of giving his informed consent because he is a minor.

Images taken privately of an adult who has given their informed consent does not at a later time give the holder of the images the right to distribute those images as "revenge Internet porn" for example.  The presumption is that the images were and are intended to remain private.  Sharing or distribution of those images is a violation of the subject's enduring right to privacy and it must be possible to prosecute the distributor.  It is likely that the subject will know who the holder of the images was, and they should be the party prosecuted for the distribution, even if it was somebody else who posted it on the Internet.  The poster would also be prosecuted, if identifiable, as would the ISP hosting any site that facilitates the distribution.

The test of informed consent ought to be extended to all publishable and broadcastable material.  It applies as much to TV News cameras homing in on the gory details and obvious pain of relatives who have lost loved ones in a small town massacre as it does to the unwilling actors in snuff movies.

The test of informed consent has some interesting implications in its application to censorship.  For example, purely written or spoken views and opinions should not be banned or censored because the world of the word is an imagined world.  In the interests of maximising individual liberty and breadth of human experience, we ought not to limit at the outset that which can be thought, written, or spoken - only that which is done. 

Free expression of the word is an important social safety valve and a crucible of truth.  Let the evil that lurks in the mud hatch out and be plain to see.  The enemy you know is much easier to counter than the enemy you do not.  Knowing your enemy often reveals them to be a misunderstood neighbour instead. 

Those that want to incite others to crime, rebellion and hatred thrive on oppression, censorship, and martyrdom.  Let us not make them martyrs.  Let them speak and if their cause be unjust they will only count the lunatic fringes of society among their supporters.  Should they ever move to act criminally, let us be ready for them^[2]. 

"Acting" criminally includes propagating instructions for criminal acts, and such instructions should be censored or blocked.  Equally, "how-to" manuals on the construction of weapons or on the undertaking of destructive and criminal acts should be kept out of the public domain.

We owe it to ourselves to self-censor and to discipline our thoughts and words, but we do not have the right to silence the private communications of others^[3]. 

For words that enter the public domain via the media it is reasonable to expect that lies, innuendo and half-truths are not propagated knowingly or negligently.  Being able to sue for deception and defamation with the onus of proof of veracity on the media is necessary to keep the profit hungry media^[4] relatively honest.  But each of us also has a responsibility to be a sceptical and critical information consumer^[5].

Equally an individual who has been slandered by the private words of another has the right to redress.  But then the onus of proof is on  the slandered party.

Words that find their way onto the Internet are no longer private.  The blogger or anonymous Internet creep who posts slander needs to be treated as an informal element of the media, and the onus of proof of veracity needs to be on them, or on the ISP that protects the anonymity of the poster.  They are guilty until proven innocent.