Abhilash Nair

The regulation of online extreme pornography: purposive teleology (in)action

The Internet has necessitated some changes in the way pornography is regulated. In the UK, there has been a demonstrable shift of focus in the regulation of the end user. The traditional regulatory model, focussing on the producer and distributor of content, has altered with the introduction of simple possession offences for pornography that makes the end user also liable for illegal content. This article analyses the issue by considering the general teleological reasoning for the regulation of pornography, and applies this to the legislation dealing with extreme adult pornography. The article points out that a sound teleological basis is imperative for pornography regulation, and that legislative action that overlooks this is fundamentally flawed and will ultimately fail in providing efficacious protection. The article argues that in order to restore confidence in the regulatory system there should be a coherent teleology behind the regulation of pornography, and also that the focus of legal regulation for extreme pornography should remain with producers and distributors rather than content recipients.

Real porn and pseudo porn: The regulatory road

Pornography regulation is an area that has always courted controversy and academic debate. States have responded to pornography in different ways, ranging from absolute prohibition to partial regulation. While regulation of traditional pornography was principally based on morality and prevailing societal values, some post-Internet legislative measures have centred on the detrimental or harmful effects of pornography as the primary cause for censorship and regulation. New forms of technology facilitated new forms of expression, and it did not take too long for pornographers to realise the potential of the Internet, which now plays host to vastly differing types of pornography, from ‘normal’ adult porn to content that includes children, violence, torture and animals. Not all content involves real actors; some being merely realistic depictions produced using digital technology, such as morphing, while some are just cartoons. However, recent legislative initiatives increasingly blur the distinction between what is real and mere acting, or, in some cases, even works of art, albeit that which may be perceived as being in bad taste or repulsive. It is the perceived harm to society that is held out as the rationale for regulation, but this single classification on the basis of harm has generated substantial discussion among legal experts and academics. This paper examines the legality of regulating simulated child pornography and adult extreme pornography with a possession offence, and sheds light on the questionable wisdom of certain state initiatives that sometimes impose constraints on protected civil and fundamental rights. To find a balance between what is acceptable and what should be censored speech is a delicate act in this context, but recent legislative trends represent a worrying deviation from the traditional regulatory approach to pornography. The paper will highlight a number of specific trends in the process and will seek to argue that over-zealous legislation is no panacea to the problem and other alternatives need to be explored.

Mobile phones and the internet: Legal issues in the protection of children

Abstract The issue of protecting children from the potential hazards of the Internet environment has led to various legislative attempts to regulate content on the Internet. However, the constraints it imposed on valuable free speech rendered most of them futile. While the importance of protecting children is not disputed, the problem lay in the delicate issue of finding a balance between free speech rights and the protection of children. This paper looks at the legal aspects involved in the protection of children, privacy issues, etc in the context of the growing popularity of mobile phones and other portable devices that offer Internet access. The Internet was mainly confined to PC or laptops until recently. However, over the last few years newer technology devices such as wireless, PDAs and 3G mobile phones, etc also provide Internet access, which are probably more invasive and direct than the traditional PC. These new media and delivery channels give new dimensions to the problems associated with the impact of inappropriate content on the child, especially with the widespread use of camera-phones. These forms of access for content may lead to quite different expectations regarding privacy and freedom of expression and raise new issues in the arguments for strengthening the law for protecting children from potential dangers. In the absence of a consensus on whether/how to regulate content on the Internet for the protection of children, an examination of some of the legal issues involved merits consideration. While acknowledging that technology does more good than harm, the paper argues that it is important to take adequate measures to counter its abuse and create a safer environment for children, more so in light of the growing popularity of mobile Internet.

Internet Content Regulation: Is a Global Community Standard a Fallacy or the Only Way Out?

Abstract One of the major factors that render it difficult to regulate content on the Internet is its borderless nature. The concept of ‘contemporary community standards’ was initially seen as unworkable in the Internet context. While the line of argument that if a publisher chooses to send its material into a particular community, it is the publishers responsibility to abide by that communitys standards was the accepted norm in the traditional forms of media, this was considered too harsh an approach to be applied for the Internet. There has been a shift in this rigid position over the years, which was reflected in the US Supreme Court decision in Ashcroft v. ACLU when the court held that reliance on community standards to identify material that is harmful to minors does not by itself render the statute substantially overbroad for purposes of the First Amendment. Protection of children is at the core of all arguments for regulating content, so there has been no dearth for analogies drawn to the considerable uniform standard already achieved in other areas such as child pornography. The article will examine the strength of different arguments in favour of establishing a global community standard for the Internet, and in particular will analyse this in the context of sovereignty of states, free expression rights, and the rights children already enjoy in the offline world but unfortunately not so much in the online world. It is argued that while a global standard is difficult to achieve, it is not impossible and there are factors that are worthy of consideration that should prompt us to look towards this direction.

'Caveat Viewer!': The rationale of the possession offence

In the light of the increasing availability of extreme and violent pornography on the Internet and its perceived harmful effect on society, a new law is being proposed that would render the simple possession of such material a criminal offence. Child pornography laws are similar to the proposed law in some respect, but there are major differences between them. This article looks at the rationale behind possession offence and analyses it in the context of child pornography. The article will then proceed by highlighting some of the legal issues involved in regulating extreme pornography, both at domestic and EU levels, and contrast this with child pornography laws. This will be examined from a human rights perspective, with particular reference to free expression and privacy rights. The article will analyse if the possession offence for extreme pornography undermines any of these rights, in which case it would be wiser to explore other possible avenues for regulation.

Scientia potentia est: Making threats of copyright infringement

There has been much debate in the UK as to whether copyright law should have an unjustified threats provision similar to that found in UK patent, trade mark, and registered design law. Unjustified threats provisions for copyright law exist in other commonwealth jurisdictions, such as Australia and India. We argue that all of the existing unjustified threats provisions in the UK are too narrow in their scope. Threats more generally have played a significant role in the development of copyright law, and a provision aimed at ‘unjustified’ threats may paradoxically restrict discourse about the scope of copyrights. We therefore suggest that the best way to proceed is not just to introduce an unjustified threats provision but instead to make clearer what is, and is not, protected by copyright.

‘Too many laws, too few examples’: Law, Regulation and Technology

The Leicester Polytechnic School of Law Yearbook of Law Computers and Technology (now the International Review of Law, Computers & Technology) was first published in 1984. A cursory glance at its contents shows that of the seven refereed articles published, only one was on substantive information technology law; the six other articles were on topics ranging from information retrieval systems to the use of technology in the court room. This focus on the technology in law rather than on the law of technology was also reflected in BILETA (the then British and Irish Law and Technology Association) which was formed very soon after in 1986. The Association’s founding institutions were the then North East London Polytechnic (now University of East London), University of Warwick and Leicester Polytechnic (now De Montfort University). At its inception the association had four constituent parts, of which only one was for the embryonic subject of information technology law. The Association’s main focus was on technology in law and legal education, that being retrieval systems, computers in legal education and expert legal systems. BILETA and the International Review shared common founders and through them a common philosophy to carry the message of the importance of the academic discipline of law and technology in whatever form it takes. It was obvious that for the furtherance of both organisations that the International Review should therefore publish at least some part of the proceedings from BILETA conferences. Scroll forward almost thirty years, the International Review in its present incarnation is publishing its 27 volume and in March 2012 BILETA held its 27 Annual Conference at Northumbria University Law School, organised by Paul Maharg and Abhilash Nair.. The International Review is again devoting a special edition to the publication of proceedings from that 27 conference, but how things have changed. Another cursory glance this time at the conference proceedings and indeed at the contents of this edition shows how the pendulum has swung in the discipline away from technology to law. Over 75% of the papers were on matters of substantive law arising from the development and use of technology. In short, what is the appropriate type, level or scope of legal regulation required. The remaining 25% of papers were on technology within legal education. The theme of the 2012 conference was ‘Too many laws, too few examples’, a quotation borrowed from the French revolutionary, Louis Antoine Léon de Saint-Just. The papers presented at the conference explored a wide range of issues within this theme. Do too many laws stifle creativity? Or do we have the wrong laws? Is there a better alternative to legal regulation in our technological societies? Is our world a better place because we have too many laws that regulate our use of technology? How best can technology be regulated for educational and ethical purposes in learning justice? These and many more complex questions and issues were discussed and debated at what proved to be a highly successful and lively conference. This double issue contains a collection of papers presented in a variety of streams including intellectual property, regulation, defamation, and data protection and privacy. Selected papers presented in the legal education stream are being published in the European Journal of Law and Technology, by Paul Maharg and Sefton Bloxham.

Technology: used or misused?

Technology and the internet, and the myriad of legal issues associated with their proliferation and use, have provided the theme for many scholarly works, articles, commentaries and conferences. A variety of debates concerning the merits and demerits of technology take place, both domestically and internationally, ranging from small group seminars at academic institutions, to large-scale international events such as the Internet Governance Forum Meeting, held annually under the mandate of the United Nations, where different stakeholders from all walks of life gather to discuss the future of the internet. Technology is undoubtedly a good thing, and does more good than harm. However, whilst technology evolves and changes at a rapid pace, law and legal processes, in comparison, are relatively slow to change. This is not to say that law is not flexible and does not adapt to changes in technology. Indeed, traditional legal principles have been successfully applied to address various situations and issues raised by rapidly changing technology. In some cases, sui generis legislation was employed, whereas in some others, self-regulation proved to be more useful. This edition contains a collection of thought-provoking articles that consider a range of issues and discussion surrounding different aspects of technology, and its application and interaction with the law. The papers demonstrate how technology can be used in the creation and operation of the law, and also how it proves to be a valuable tool in crime prevention and crime solving. Philip Leith, in his article ‘E-participation and e-participants: solving the patent “crisis”’, provides an insightful discussion on e-participation, from a patent system perspective. Leith argues that, whilst e-participation and e-consultation demonstrate active involvement and are undoubtedly educative, their projected outcomes in terms of achieving the goals may be overstated. The UK has initiated a trial system utilising New York Law School’s Peer-to-Patent Project, and has also used consultation exercises previously, which Leith uses to demonstrate some of the challenges e-participation, as a new form of e-governance, has met. Focusing upon the patents field for his study, Leith points out that Wiki-Gov and citizen involvement is not a panacea to cure the deficiencies of the existing patent system, but nevertheless contributes to improving the patenting process to a limited degree. He suggests that the lessons learnt from this patent-system based study can be viewed as indicators having wider governance relevance. On a separate issue of major significance to intellectual property, copyright infringement in music has become more widespread than ever before with the advent of the internet. The music industry is worth billions of dollars, and musical plagiarism causes significant concerns to the industry and its different stakeholders. Technological developments have played a key role in the advancement of music industry with the introduction of new and innovative ways and mediums of composition, storage and transfer. However, it has also raised new challenges for copyright law, as reported by the recent Hargreaves Review. Technology has been used in proving infringement for a while, for instance, for comparing infringed and infringing works, but as Robert Cason and Daniel Müllensiefen point out in

Perils of technology and the regulatory dilemma

The exponential growth of the Internet has also meant that nature of content available online has become more varied and diverse. As the omnipresent medium that lets anyone be a publisher and reader at the same time, the Internet is home to an unprecedented volume of content, which caters to all tastes and demands. Law has always adapted to the changes in technology, as evident from the appropriate legal responses to the telecommunications and broadcast revolution in the pre-Internet era. The Internet is, however, different from other forms of technology and also unique in some ways. There is a myriad of issues and challenges that the Internet raises for law, but content regulation stands out from the rest as an area, never failing to provoke controversy. This special issue, therefore, focuses on the theme of Internet content regulation and offers a collection of thought provoking articles that examine the challenges and responses to some of the key issues within this broad area. A rich and informative Current Developments section enhances the issue with three interesting papers, followed by an insightful Case Note in the final section. McIntyre (‘Blocking child pornography on the Internet: European Union developments’), provides an overview of key European Union (EU) level developments in relation to the blocking of child pornography. McIntyre analyses the changing policy trends at EU level in this area, which is moving towards greater use of blocking. He examines these developments in light of the implications they might have for freedom of expression and argues that the current EU policies may result in unaccountable and unseen censorship. The regulatory response to Internet pornography has undergone substantial changes in policy over time. Some recent legislative initiatives place a greater reliance on the notion of harm as the basis for regulation. The introduction of simple possession offences for certain types of criminally obscene content has shifted liability to the content-recipient. The paper authored by the guest editor of this issue (‘Real porn and pseudo porn: The regulatory road’), examines these changes and argues that overzealous legislation on the basis of a mere notion of harm, rather than one based on clear and conclusive evidence, leads to undesirable results for individual freedom and liberty. James Banks’ paper (‘Regulating hate speech online’) provides a useful insight into the complexities of regulating hate speech, in light of the increase in far-right and extremist web sites and hate based activity on the Internet. Banks highlights the deficiencies of unilateral national level legislation to address the issues, and advocates a mix of regulation and selfregulation with the support of the industry and technological regulatory mechanisms. Mark Conrad (‘The new paradigm for American broadcasting – Changing the content regulation regimen in the age of new media’), in his eloquent paper argues the case for freeing the US broadcast regime from dated regulatory chains. He puts forth convincing reasons for treating radio and television licensees as full-fledged members of the free speech sphere. He argues that technological changes and the broadband revolution have blurred the distinctions between broadcasters and other content providers. Furthermore,