What Are 'Community Standards' When It Comes To Obscenity Online?

from the time-to-fix-the-definition dept

With a guy found guilty of distributing hardcore pornography online sentenced to 46 months in prison, plenty of people are beginning to question obscenity laws and how they apply to the internet. As you probably know, the standard for "obscenity" is a bit subjective -- as it's supposed to be based on local "community standards." That may have made sense when a local community was clearly definable, but it becomes a lot trickier when communities are a lot more complex. Not only does the internet challenge traditional concepts concerning legal jurisdiction, but it also changes how you define a "community." Choosing a local community based on geography makes very little sense when it comes to an online obscenity case, as there's probably not much of a chance that folks in that community were actually impacted by the content. Yet, in this case, prosecutors did some jurisdiction shopping, and found a conservative local community in which to file the case. That could lead to some very dangerous precedents, where "community standards" are based on the lowest common denominator, rather than the actual community involved.

What makes this tricky, also, is the fact that obscenity laws, like copyright laws are actually designed for a "broadcast media" world, where the worry is how a "publisher" produces some kind of content and pushes it out to a mass audience. Yet, the internet isn't designed as a broadcast media, but a communications one -- and suddenly the line gets a lot more blurry. Can you be thrown in jail for sending an obscene joke to a friend? Most people would think that's silly. But when the "audience" gets bigger, then the questions start to creep in, and the law is not equipped to handle it. If this content is only seen by those who seek it out, then is it really doing any actual "damage" to innocent people who are worried about being corrupted by obscenity? Either way, it looks like we may once again need to struggle with adapting laws to the very different nature of the internet.


Reader Comments (rss)

(Flattened / Threaded)

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    Shaun Wilson, Oct 13th, 2008 @ 4:44am

    Which Community?

    The community for a web site would logically have to be the online community. If you are referring to the online community in general then the standard of obscenity would pretty much have to be anything goes, with the only exception being stuff like child rape.

    To tighten the definition of obscenity you have to tighten the definition of which community you are referring to. You could define this as tightly as a single website - for example finding hardcore pornography several links into a children's toys website would be obscene. The same would apply with a hardcore porn site signing up to an aggregator of conservative church websites - the aggregator is the community that the sight has chosen to join, so the "obscenity" standards of the aggregator and it's related sites are those that apply. On the other hand if the site joined an aggregator of porn sites instead it obviously wouldn't be "obscene" by the standards of that community.

    Really it shouldn't be all that hard to determine if something is obscene online, all you have to do is look at the context.

     

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      Anonymous Coward, Oct 13th, 2008 @ 5:25am

      Re: Which Community?

      What about the BDSM on a "big boobs" porn site? Not all kinds of pornography are enjoyable to everyone that watches pornos.

      Like you said, context. But at the same time that alone is not enough. You can Google search for some innocuous things and find pornography. Not all of it is immediately blocked by content control programs either.

      The Internet is causing a whole slew of problems for our current governing systems. It'll be a while before we get it straightened out.

       

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        Pat Dare, Oct 13th, 2008 @ 10:20am

        Re: Re: Which Community?

        I think the teacher of my data communications/networking class inadvertantly addressed this issue last week. He mentioned that most websites fall under the .com (commerce) label. This makes it hard for things such as content blocking software because the only way to block is based on words and lists of websites, however there is no reason so many websites should be .com and why it can't be broken down further than it is (really mostly the only websites we see other than .com are .org or .net but you could have anything).

        His idea was to separate websites this way, for instance all pornographic sites would be .sex, food websites could be .food, etc. etc. This would make it much easier for content blocking software and would also make all this community obscurity a lot more clear (for instance if you had a pornographic image on a .christian site or some such thing it would obviously be obscene in that .christian community).

         

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      Matt, Oct 13th, 2008 @ 6:32am

      Re: Which Community?

      Well, there's a problem here. Mock rape would be thrown in with "rape", which would throw BDSM out the door. In reality, there is nothing that should be considered unacceptable or it will be "throwing the baby out with the bathwater". Back to the "just because you don't like (whatever thing is), doesn't mean it shouldn't be able to be put on the web".

      Obscene is a term which doesn't fit. Obscene to who? If it's not obscene to me but is obscene to you, then why would it qualify? Obscenity is completely subjective.

       

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    Anonymous Coward, Oct 13th, 2008 @ 5:57am

    Community Standards

    Standards based on where you are standing when you apply them. Not really much different then the rule with magazines or movies. Of course the entire community standards doctrine is pretty much a joke at this point anyway.

     

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    sam, Oct 13th, 2008 @ 6:03am

    .

    Bring back the 1998 porn law that requires some form of age verification for a website if it is going to host/allow nasty crap

     

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      Brian, Oct 13th, 2008 @ 7:06am

      Re: .

      Yes, but nasty to whom?

       

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        Anonymous Coward, Oct 13th, 2008 @ 10:10am

        Re: Re: .

        For age verification, I think 'nasty' should be determined by the laws governing that area...then again, I also think age restrictions are a joke as I've been circumventing them since '98...ya'll feel old yet? ;)

         

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    sniperdoc, Oct 13th, 2008 @ 6:20am

    Not such a hard problem...

    If the governments would understand the ICANN registrations and what the hell they stand for, it would make it a lot easier in blocking sites from a network.

    They need to re-address the situation of the .biz, .xxx, .gamble etc. domains and require pornography or small businesses to use those domains. As far as I heard the board on ICANN basically opted not to put those domains into use.

    Personally I could care less about how much money it would cost a company to move over to .xxx for example... I'm sure that the porn houses can afford to make the switch. Anyone not adhering to that standard needs to get fined.

    Hell, the fines would be a source of income to ICANN since they're non-profit.

     

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    shmengie, Oct 13th, 2008 @ 6:49am

    AC said: "The Internet is causing a whole slew of problems for our current governing systems. It'll be a while before we get it straightened out."

    true. but in the meantime, max hardcore (the guy who got convicted) will be sitting in a jail cell for four years. i assume he's appealing, so let's hope he wins. not just for himself, but for everyone.

     

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    chris (profile), Oct 13th, 2008 @ 6:57am

    too much worry

    the internet detects censorship as damage and routes around it. that's why china can't block access to sites it doesn't agree with, and why countries try and fail to block access to youtube.

    so you can convict all the people you want. all that will do is cause people to take more care to hide their identities and move their hosting to countries with friendlier hosting services when they engage in that sort of business.

    this sends more american money overseas which only hurts our economy and does absolutely nothing to stop the spread of materials others may find objectional.

    it will make people who peddle kiddie porn and the like that much harder to catch. thanks a lot and i am sure "the children" thank you as well.

     

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    Greg, Oct 13th, 2008 @ 6:59am

    Require sites to describe content?

    How about laws requiring sites to provide metadata describing the contents? Then you could easily write browser or proxy software to filter those sites/pages out. I suppose it's similar to the .xxx domain name idea, which I think porn sites opposed because it would open them up to blocks by entire 'family friendly' ISPs or network providers, but if the network was neutral it could work. Some sort of complaint process could be implemented where a site could be blocked network-wide if they didn't provide accurate metadata. That way, control would be the responsibility of the individual, not some government agency out to 'protect the children', which has got to be better.

    There's still the problem of how to prosecute content providers for truly illegal acts (e.g. child porn) from outside your jurisdiction, of course. I'm sure all these providers would just set up in a friendly country so they wouldn't have to worry. Taking them off the internet through a standards body would give them a strong incentive, though.

     

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      BTR1701, Oct 13th, 2008 @ 7:11am

      Re: Require sites to describe content?

      > How about laws requiring sites to provide metadata
      > describing the contents? Then you could easily write
      > browser or proxy software to filter those sites/pages out.

      Well, laws are only effective in the country in which they are passed. If the USA passes such a law, what do you do with people from all over the rest of the world who choose to ignore it and put up sites without that metadata?

       

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      Anonymous Coward, Oct 13th, 2008 @ 7:37am

      Re: Require sites to describe content?

      There's still the problem of how to prosecute content providers for truly illegal acts (e.g. child porn) from outside your jurisdiction, of course.

      now a big problem with that idea is that not everyone views child porn as the same thing. for example, in America a 17 year old is considered child porn, but in many other countries a person only has to be 16 to be in porn. America (or any other country for that matter) can't impose it's morals on the rest of the world.

      there is also a problem with the metadata, what do you do when a site doesn't include it? metadata has been available for years and almost no site (porn or otherwise) uses it and there is no way that every country is going to enforce a mandatory metadata rule.

       

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        Anonymous Coward, Oct 13th, 2008 @ 8:35am

        Re: Re: Require sites to describe content?

        What if ICANN enforced it. That way, if the site doesn't put up meta, it gets fined or yanked.

         

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          Anonymous Coward, Oct 13th, 2008 @ 8:43am

          Re: Re: Re: Require sites to describe content?

          Not everyone listens to ICANN, heck, ICANN doesn't even have influence over a sizable portion of the internet. people will just move to countries that don't care a single bit about ICANN if they have to. again, the Internet detects any for of censorship or mandatory process as damage and routes around it.

           

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    Joe Schmoe, Oct 13th, 2008 @ 7:36am

    Couple that with the fact that if meta data were added, pr0n would end up being "easier" to find, when the original, righteous goal was to limit/kill it.

     

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    known coward, Oct 13th, 2008 @ 8:47am

    to a community of

    child rapist snuff film fanatics, child rape snuff films would be OK.

    This is a very difficult issue, it crosses local, state and international borders. Saudi's have a different view of porn than the Dutch do.

     

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    Anonymous Coward, Oct 13th, 2008 @ 9:02am

    The U.S. perverted view

    If naked breasts are so dangerous that a quick flash of one on TV requires a multi-million dollar fine, then half the population is being damaged every day, and women should be prevented from owning mirrors.

    A child was arrested for producing kiddy porn because she took a picture of herself.

    While channel surfing, I stumbled upon a movie in which a woman's ear was being removed without anaesthetic in graphic detail with convincing screams, but on the next channel, a married couple being loving was censored. What kind of perverts think cruelty is acceptable and sanctioned love is not?

    If sexual activity weren't this big secret, this forbidden sin, this scandalous thrill--if it were just a bodily function that might be shared--porn would lose it's draw.
    Are there dining porn sites? Forbidden foods for dieters to view and wish for? Should they be banned?

    Porn isn't intrinsic, it isn't even something that can be measured, specified, or evaluated on a scale. Censorship changes sexual images into to porn.

    My dad said no one ever tried to steal his briefcase until the day he was chained to it. If we censor here, where the message is not delivered with push technology, are we locking up something without value to make it desirable?

    Maybe the judge in this case owns a porn site and wants to make it more profitable by creating false scarcity.

     

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    Anonymous Coward, Oct 13th, 2008 @ 10:22am

    Rule 34

     

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    Anonymous Coward, Oct 13th, 2008 @ 12:07pm

    Techdirt said "porn"

    He he he he he he

     

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    Rekrul, Oct 14th, 2008 @ 9:48pm

    How about laws requiring sites to provide metadata describing the contents? Then you could easily write browser or proxy software to filter those sites/pages out.

    This has absolutely nothing to do with being able to filter out porn sites. It's about a moral crusade to get rid of things that the conservative groups don't like.

    Read up on the history of censorship in America. There were rules about what was acceptable to show in movies. There were rules about what could and couldn't be shown in comic books. We still have rules about what can be shown on broadcast television. Family groups, church groups, etc, may claim that porn is "harmful", but the fact is that if they don't like it, they don't want anyone else to be able to see it either.

    There's still the problem of how to prosecute content providers for truly illegal acts (e.g. child porn) from outside your jurisdiction, of course.

    Whose standards do you use? The USA's? That makes criminals out of everyone in every country who has X-Rated pictures of 17 year olds, which are perfectly legal in many countries. If you're going to go imposing one country's standards on another, let's start with executing every member of the Victoria's Secret company for making and distributing pictures that are highly illegal under strict Islamic law.

    Actually, the above is exactly the problem that should be addressed. If a web-based company in California isn't breaking any CA laws, or any federal laws, why should they be judged by the standards of the most repressive, bible-thumping community that the DOJ can find?

     

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