1. Introduction
1. Pornography is a big industry, involving a large
number of workers and making huge profits. Its products are increasingly
available and used by individuals and companies. However, it would
be naïve – or cynical – to consider pornography as a form of entertainment
like any other, as it affects the perception of women and sexual
relations in society, and the standards of what is considered acceptable,
not only in the private sphere but in society at large.
2. This consideration is particularly true with regard to violent
and extreme pornography. Although a generally accepted definition
of violent and extreme pornography does not exist, I would like
to refer to the clear and comprehensive definition provided under
English law. An extreme pornographic image is “one that is produced
for the purpose of sexual arousal, is grossly offensive, disgusting
or otherwise obscene, and portrays any of the following elements:
an act which threatens a person's life, an act which results or
is likely to result in serious injury to a person's anus, breasts
or genitals, an act which involves sexual interference with a human corpse,
or with an animal (whether dead or alive)”.
3. While providing an overview of the concerns raised by pornography
in general, this report will focus on violent and extreme pornography.
It will not deal with the issue of child abuse pornography, which
is currently being addressed by another rapporteur, even if I may
refer to such pornography occasionally.
4. I am aware that dealing with the matter of pornography is
very delicate, because it calls into question freedom of expression,
a human right which in all democracies is guaranteed by national
law – sometimes at constitutional level – and a number of human
rights instruments, including the European Convention on Human Rights
(ETS No. 5, “the Convention”).
5. However, let me also recall that freedom of expression is
not an absolute right. According to the Convention, for instance,
the exercise of this freedom, “since it carries with it duties and
responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary in
a democratic society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or crime,
for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of
information received in confidence, or for maintaining the authority
and impartiality of the judiciary”.
Similar limitations
are set out in national law.
6. Some readers might argue that in so far as the production
or consumption of violent and extreme pornography concerns free
and consenting adults, it is these individuals’ own business, and
there are no reasons why it should be limited or interfered with
by the state.
7. I cannot agree with this view. I am convinced that a public
debate on the emergence and the widespread diffusion of violent
and extreme pornography is needed. Its dangers are manifold and
its potential victims numerous.
8. Violent and extreme pornography is first and foremost a threat
to the dignity of women, who represent the great majority of the
victims of the violent acts depicted. Secondly, pornography’s normalisation
of these acts contributes to the creation of an environment in which
violence is considered acceptable, with an impact on society’s standards
of tolerance. Finally, some vulnerable categories, especially minors,
may be particularly affected by the display of violence and grossly
revolting acts contained in extreme pornography, which may be sometimes
accessed accidentally.
9. Likewise, the danger of imitation should not be underestimated.
Violent and extreme pornography dehumanises women and turns them
into sexual objects who are forced to experience violence for the
sole purpose of exciting sexual arousal. Several cases of crimes
committed by men addicted to extreme pornography demonstrate the
risk that some viewers can be led or encouraged to act out their
criminal fantasies.
10. The issue of violent and extreme pornography has not been,
so far, the subject of any thorough analysis by the Council of Europe
or even its member states. In order to collect information and elements
for reflection on this delicate issue, on 8 June 2011 the Committee
on Equal Opportunities for Women and Men organised an exchange of
views with two experts, Detective Inspector Andrew Shortland of
the Abusive and Extreme Images Unit within the London Metropolitan
Police Service and Mr Marko Künnapu, Chairperson of the Council of
Europe Committee on Cybercrime (T-CY), created in the framework
of the Convention on Cybercrime (ETS No. 185). This exchange of
views has greatly contributed to this report.
2. Origin
and aims of the report
11. The origin of this report is a motion for a recommendation
on “Violent pornography: a threat to women’s dignity and rights”
presented by Mr Mendes Bota and others (
Doc. 12156). The motion asserted
that while sexualised images of women were pervasively present in
our urban landscape, new forms of pornography glorifying rape and
other forms of violence were on the rise. In addition, images of
sexual acts, whether consensual or not, were made public through
the Internet, either with or without the approval of the people involved.
These factors contributed to harming the dignity of women and represented
a threat to their rights, including the right to live free from
sexual violence.
12. I find it particularly timely for the Assembly to deal with
this matter, in the light of the fresh impetus which has been given
to the Council of Europe work in the area of violence against women
by the opening for signature of the Council of Europe Convention
on preventing and combating violence against women and domestic
violence (CETS No. 210, hereafter “the Istanbul Convention”), in
May 2011.
13. The Istanbul Convention, which has been signed by 17 member
states,
requires
the states parties to respond to the phenomenon of violence against
women with a holistic approach, involving all stakeholders – public
and private.
14. In particular, Article 17 of the Istanbul Convention, on participation
of the private sector and the media, affirms that:
“1. Parties shall encourage the
private sector, the information and communication technology sector and
the media, with due respect for freedom of expression and their
independence, to participate in the elaboration and implementation
of policies and to set guidelines and self-regulatory standards
to prevent violence against women and to enhance respect for their
dignity.
2. Parties shall develop and promote, in co-operation
with private sector actors, skills among children, parents and educators
on how to deal with the information and communications environment that
provides access to degrading content of a sexual or violent nature
which might be harmful.”
15. In addition, it should be borne in mind that the explicit
inclusion of domestic violence in the Istanbul Convention is in
itself a telling political step, as it is evidence of the state
parties’ awareness of the need to overcome the distinction between
the public and the private sphere in this domain: violence against
women is a human rights violation and should not be tolerated in
any circumstances or in any context.
16. I would like the present report to be considered as complementary
to the Istanbul Convention: violence against women finds its roots
in the unequal power relations between men and women in society
and a consistent pattern of discrimination against women; violent
and extreme pornography contributes to promoting, directly or indirectly,
a culture which condones or is conducive to violence against women.
17. If member states are serious about their commitment to eradicate
the root causes of gender inequality and violence against women,
they should start an in-depth reflection on how to ensure that the
media and the entertainment industry become allies in this endeavour
rather than enemies. At the same time, member states should consider
taking legal steps to regulate violent and extreme pornography,
not only with a view to protecting the vulnerable – especially minors
– but also to promoting a culture of equal rights and dignity for women
and men in society.
3. The commercial
use of sexual images of women
18. I do not need to recall that images of women portrayed
in a sexualised way are all around us: in advertising, television
programmes, music videos and magazines. These images, focusing on
specific parts of the body or using nudity, are mainly used for
commercial aims. Sex sells and companies are hardly likely to pass
up this opportunity to increase their commercial turnover.
19. In 2010, in Poland, the case of a furniture shop whose publicity
material included the text: “prices are going down very quickly”
and a photograph of a woman’s legs with a pair of pants at knee-height,
was examined by the Ethics Advertising Committee.
The
applicants complained that the advertising was an offence to morals
and women’s dignity. To my surprise, the committee rejected the
complaint.
20. I was even more surprised when I realised, in April 2011,
that the same poster was being used by a restaurant in the centre
of Strasbourg to advertise its
tartes
flambées.
21. Not only does sex sell, but it is used to sell any product
and its message is transnational. Some readers might consider this
advertising only as an aggressive form of communication, aimed at
attracting visibility by shocking; others might dismiss it as being
in bad taste. We should be careful, however, not to underestimate the
not-so-subtle message conveyed by this kind of image, and its impact
on women’s dignity.
22. In this respect, I would like to briefly recall some texts
recently adopted by the Parliamentary Assembly: in its
Resolution 1751 (2010) on
combating sexist stereotypes in the media, the Assembly identified
combating sexist stereotypes in the media as a key objective in
the pursuit of gender equality. To this end, it recommended that
member states set up regulatory or self-regulatory media authorities
to guarantee respect for human dignity, to contribute to the fight
against gender-based discrimination, and to promote equality between
women and men.
23. In addition, in its
Recommendation
1882 (2009) on the promotion of Internet and online media
services appropriate for minors, the Assembly highlighted the risks
stemming from new technologies. While praising the Internet for
enhancing the opportunities for information and communication in
an unprecedented way, it underlined that content depicting women
and girls as objects, or limiting their depiction to nefarious gender stereotypes,
can lead in certain cases to gender-based violence both in the virtual
and the real world, including (cyber-)bullying, harassment and rape.
24. As regards the influence of visual images on people’s perception
of reality, as early as 1995, the Assembly stated that “visual images
record reality but they also convey stereotypes. … Most people do
not know how to 'read' visual images and this can lead to misinterpretation
and manipulation. However real they may seem, images should not
be taken for reality”. In addition, it rightly pointed out the “increasing
evidence that, under certain circumstances, a direct relation may
exist between viewing violence and acting violently”.
4. The thriving business
of pornography
25. Over the past decades, the sex industry has expanded
globally at an unprecedented pace. It comprises a variety of activities,
from prostitution to pornography, from adult entertainment – including
lap dancing and strip performances – to the production and sale
of sex toys.
26. Prostitution and pornography are arguably the biggest parts
of the industry. In 2001, an article published by the New York Times estimated that pornography
had an annual turnover of between 10 billion and 14 billion dollars
in the United States. The author of the article, Frank Rich, suggested
that pornography was more profitable than any of the major league
sports, and perhaps even more so than the cinema industry.
27. Although the reliability of estimates can be a matter for
discussion, they all point to a similar scale: it seems that, in
2006, the turnover of the pornography industry in the United States
was approximately 13 billion dollars, placing this country in fourth
position, after China (27 billion), South Korea (25 billion), and
Japan (19 billion).
28. As far as Europe is concerned, in 2006, the turnover of the
pornography industry in the United Kingdom was estimated at 1.97
billion dollars, in Italy 1.40, in Germany 0.64, in Finland 0.60,
in the Czech Republic 0.46, in the Russian Federation 0.25, and
in the Netherlands 0.20 billion dollars.
29. The market is shared by a few big companies. The largest one
is the Private Media Group, based in Barcelona and San Francisco,
which produces and distributes adult entertainment via print publications,
home videos and DVDs, the Internet and mobile phones. Created in
1965 in Sweden under the name of Private,
the company was the first in the field of adult entertainment to
be traded on the NASDAQ stock market, in 1999. In 2009, the Private
Media Group had a net income of 29.43 million US dollars.
30. Other large adult entertainment companies include Vivid Entertainment
(US), Playboy (US), Frenesi Films (Brazil) and Erostream (Netherlands).
Alongside them, smaller companies, often operating on a national basis,
compete in the business with different levels of success.
31. Producers of pornography are not the only ones to make huge
profits. Amongst those who gain considerable revenues from pornography
are major hotel chains (which make profits by renting in-room sex movies),
cable and satellite television companies (which show both soft-core
and hard-core pornographic movies) and Internet companies, including
major search engines which sell ads and links to pornographic websites.
32. There are no estimates of what portion of the income of these
companies can be attributed to pornography. In the United States,
in 1998, the hotel chain Omni decided to stop showing adult movies,
citing its commitment to family values. It claims to have lost 1
million dollars in annual revenue as a result of this decision.
In
2011, the
Marriott also announced
that it will phase out adult movie entertainment in over 3 000 hotels
worldwide.
33. Search for profit and a demand-driven approach have led large
pornography companies to launch new products, aimed at market niches.
An increasing number of such companies have started to diversify
their production by including material portraying violent and extreme
scenes, bestiality, sado-masochism, etc.
34. In fact, new companies specialising in violence have emerged.
Amongst them is Extreme Associates, an American company which specialises
in films depicting sexual violence and humiliation and which bills
itself as having the hardest hardcore pornography on the Internet.
5. The spread of pornography
5.1. The Internet
35. Pornographic material has become so easy to buy and
consume that the number of habitual users has hugely increased.
In other words, supply has created its own demand. This development
has been made possible by the expansion of the Internet, which is
nowadays the most effective way of selling, buying and consuming
pornography.
36. Caslon Analytics, an Australian consultancy, has estimated
that 4% of Internet content is adult material.
The United States is the
top producer of pornographic web pages by far, with 89% (more than 240 million
pages); it is followed by Germany and the United Kingdom respectively
with 4% and 3%.
37. According to estimates, in the United States, 40 million people
regularly visit Internet pornography sites; 72% of the viewers are
men while 28% are women; 20% of men admit accessing pornography
at work; 10% of adults admit they suffer from Internet sexual addiction;
17% of women admit to struggling with a pornography addiction.
38. In addition to the deliberate choice of accessing pornography
on the Internet, unwanted exposure to pornography occurs quite frequently,
through pop-ups, misleading links, emails and the use of file-sharing software.
39. Adult material is commercialised over the Internet by companies
which, having experienced a downturn in the sales of pornographic
DVDs and printed material in the last few years, have intensified
digital content distribution.
40. However, an increasing amount of pornography is placed on
the Internet and made available for sale or exchange by private
individuals. New types of equipment, such as high-quality digital
cameras and recorders, enable the creation of images that do not
need professional processing and have made it easier for people
to become producers of pornography.
Specialised social media and networks have
emerged to facilitate sale and exchange.
41. Unlike pornography produced by companies, the content of this
kind of work is not classified by any specific body according to
the harm it might cause. The sheer amount of it, as well as technical
difficulties, defeat any attempt by law enforcement authorities
of countries where pornography is regulated to investigate possible
breaches of the law. The only exception is child abuse pornography,
which is considered as a priority by the law enforcement authorities
of a number of countries and which is allocated more resources.
42. Similarly, the effectiveness of Internet filters is challenged
by the “sheer volume of pornographic material online and the number
of ways that people access it: via the web, file-sharing networks,
news groups, discussion boards”.
Research
conducted on Internet filters shows that they do contribute to reducing children’s
access to adult content but only to a certain extent.
43. Some people even allege the existence on the Internet of “snuff
movies”, films in which torture and murder are not simulated but
happen for real. In fact, snuff is a genre which originated in the
1970s, with a film shot in Argentina which portrayed heavy images
of sexual violence and murder. An American producer distributed
it in the United States alleging that the murder scenes were real.
Even if in 1976 the murder was proven to be a hoax, rumours persisted
about its authenticity.
Since
then, several movies belonging to this genre have been produced.
However,
in the course of my research, I did not find any reliable source confirming
that the murders portrayed were actually committed.
5.2. The workplace
44. Research carried out in 2008 in the United Kingdom
by the Fawcett Society, a long-established non-governmental organisation
promoting equality between women and men, indicates that the sex
industry has infiltrated the workplace and even become a barrier
to women’s full participation at work.
45. The sex industry has become part of the workplace culture
in different ways. Employers using lap dancing clubs as entertainment
for staff or clients are a clear example of this, as reported to
the Fawcett Society by both female and male employees. Exposure
to pornographic and degrading images of women, which are accessed
by colleagues or displayed by employers who sell, them are also
widespread.
46. Amongst the findings of the research is the fact that 86%
of lap dancing clubs in London also provide “discreet receipts”,
which do not mention the name of the club, so that employers and
employees can use their services in a work context. These practices,
clearly aimed at male employees, create a sexist environment and perpetuate
a climate unsuitable to achieving gender equality.
6. The link between
violent pornography and sexual violence
47. The effects of pornography on society remain controversial,
with some research pointing to the existence of clear links between
violent pornography and an increased inclination to sexual violence,
while other research refutes it.
48. It has been argued that pornographic images could not turn
a decent person into a criminal. However, repeated exposure to violence
in pornography can have a desensitising effect. According to Dr
Geraldine Moane, the consumption of pornography can be associated
with an increase in aggressive attitudes to women and may increase
a proclivity to rape or sexual assault in some men.
49. Pornography, in particular in its violent and extreme forms,
can affect the perception of women among habitual users, with women
being dehumanised and perceived as victims of violent acts. In her
book “Pornland: How Porn Has Hijacked Our Sexuality”, Gail Dines
argues that pornography is driving men to commit particular acts
of violence towards women, giving permission to its consumers to
treat women the same way.
7. Legal approaches
to pornography
50. The debate on the prohibition of pornography opposed
for decades those who defended the freedom to publish and consume
pornography in private and those who wanted pornography banned for
its negative impact on traditional family and religious values.
The
terms of the equation were how to balance freedom of expression
with the possible harm caused by pornography.
51. Obscene publications, defined in various ways, were banned
in most European countries from the 19th century. The Obscene Publications
Act, passed by the British parliament in 1857, was the first piece
of legislation to criminalise the publication and distribution of
obscene material.
52. As the concept of obscenity evolved and the idea that sexual
images could pose a threat to family and traditional values lost
momentum, the argument of freedom of expression became stronger.
Therefore, in the second half of the last century, a new tendency
emerged towards liberalisation. The ban on pornography has been
lifted in many countries since the late 1960s.
53. Once pornography was legalised in most Western countries,
the debate on the reasons for banning shifted to different grounds.
Rather than traditional moral or religious reasons, what prompted
many to call for a prohibition was the negative impact that pornography
had on the status of women: the images of women being reduced to
sexual objects should be considered as a factor of discrimination,
harmful to women’s dignity and their standing in society. Traditional
opponents of obscenity found by their side as unexpected allies
a part of the feminist movement.
54. Today, adult pornography is legal in most European countries,
with some limitations:
- in
all Council of Europe member states:
- pornography in which adults are portrayed as minors is
illegal;
- child-abuse pornography is illegal;
- pornography and videos portraying sexualised images of
children are illegal;
- in all of them, with the exception
of Sweden, the minimum age for purchasing pornography is 18;
- in some countries, such as in Germany and the United Kingdom,
pornographic material can only be sold in licensed shops.
55. Pornography is illegal in a limited number of European countries.
Amongst Council of Europe member states, the production and/or distribution
of pornographic material is illegal in Bulgaria, Iceland (where
it is punishable with a fine or imprisonment of up to six months)
and Lithuania (where it is punishable with a fine, confinement or
imprisonment of up to one year). In Ukraine, in addition to production
and distribution, possession is also criminalised and can result
in a three-year prison sentence.
56. This overview shows the great disparities in the degree of
regulation in this area, as well as in the legislative approach.
In my opinion, this is not surprising, given the disparities between
different societies with regard to their legal traditions, approaches
to privacy and the sexual sphere, and, to a certain extent, the standards
of what is considered acceptable.
57. Sweden stands out as a particularly liberal country. Here,
not only is pornography legal, but the Swedish Film Institute
took
the controversial decision to finance a considerable part of the
production of the collection of pornographic short movies
Dirty Diaries, which was released
in September 2009.
58. A common feature in all member states is the poor enforcement
of existing legislation: breaches of the law are not systematically
investigated and the imposition of sanctions is erratic. This might
be due to several factors: the need to prioritise limited police
resources and use them for those issues that are considered as priority
issues (for instance, child abuse pornography, trafficking in human
beings, etc.); a feeling that existing legislation is out of step
with society, and a lack of understanding of the dangers of pornography,
at least in its violent and extreme forms.
8. Criminalisation
of violent and extreme pornography
8.1. In the United Kingdom
59. Few countries today deal with violent and extreme
pornography through comprehensive legislation. In England, this
kind of pornography was banned after a long campaign led by Liz
Longhurst, mother of Jane Longhurst who was murdered in 2003 by
a man who was obsessed with asphyxiation and necrophilia, and addicted
to violent pornographic films.
60. Sections 63-67 of the Criminal Justice and Immigration Act
2008 build on the already existing notion of obscenity. According
to the 1959 Obscene Publications Act, which replaced the 1857 Act,
“an article shall be deemed to be obscene if its effect is such
as to tend to deprave and corrupt persons who are likely, having regard
to all the circumstances, to see, read or hear the matter contained
or embodied in it”.
61. The 2008 Act introduces three elements which distinguish violent
and extreme images from the rest of pornography. Firstly, the image
has to be pornographic – that is, it is meant to cause sexual arousal.
Secondly, it has to be grossly offensive or disgusting, and thirdly,
it has to portray in an explicit and realistic way bestiality, necrophilia,
life-threatening acts or serious injuries to intimate parts of the
human body. When these three elements are present, the specific
provisions of this law, much stricter that those covering pornography
in general, apply.
62. At the heart of these provisions, which apply to England and
Wales, is the criminal offence of possession of extreme pornographic
images. In other words not only producing or selling such material
is criminally sanctioned, but also the very fact of being in possession
of it. Scotland introduced similar provisions in section 42 of the
Criminal Justice and Licensing (Scotland) Act 2010. These entered
into force very recently, on 28 March 2011.
63. During the exchange of views organised by the Committee on
Equal Opportunities for Women and Men on 8 June 2001, Detective
Inspector Andrew Shortland of the London Metropolitan Police gave
an insight into the implementation of the Criminal Justice and Immigration
Act 2008.
64. Within the London Metropolitan Police, the Abusive and Extreme
Images Unit, led by Mr Shortland himself, investigates cases of
possession, production and distribution of violent and extreme pornographic material
on the basis of the 2008 Act, in the London region. The Unit has
the power to initiate investigations ex officio even
if, due to its limited resources, it normally acts on the basis
of information and complaints from citizens, or when other police
forces come across violent and extreme pornographic material in
the course of investigations. On a number of occasions, referrals
to the police have been made by the British Board of Film Classification,
the Internet Watch Foundation and the Federation against Copyright
Theft.
65. Violent and extreme pornographic material prohibited under
the 2008 Act can be seized and those involved in production or distribution
or those who are in possession of it are subjected to prosecution.
Since the law came into force, investigations have led to the seizure
of large amounts of money (up to £750 000 on one single occasion).
66. It is, however, interesting to note that, since 2008, only
13 cases of possession of violent and extreme pornography have been
prosecuted. According to the information provided by Mr Shortland,
the material in question had been commercialised illegally – without
having received clearance from the British Board of Film Classification
– and was “home-made”, as opposed to a professional studio production.
In no case had it been possible to identify the people who appeared
in the movies.
8.2. In other Council
of Europe member states
67. Some member states criminalise some forms of violent
and extreme pornography. In Germany, pornography involving violence
or bestiality may not be produced or distributed but it is legal
to possess it. The German criminal code prescribes a fine or no
more than three years of imprisonment for whoever “disseminates,
displays publicly, presents, produces … pornographic materials that
have as their object acts of violence or sexual acts of persons
with animals”.
68. Similarly, in Norway, the depiction of sexual activities involving
animals, necrophilia, rape, violence or the use of force is illegal.
In addition to production and distribution, in Malta the possession
of material depicting bestiality is forbidden. Formally, there is
no ban on the possession and/or distribution of violent pornography, although
such items may be, in practice, very difficult to acquire.
69. In Belgium, bestiality has been forbidden since 2007 and the
spreading of pornography involving bestiality is unlawful.
In the Netherlands,
a piece of legislation adopted in 2010 after years of debate prohibits the
production or distribution of bestiality pornography.
In
Sweden, pornographic material involving animals is authorised, as
long as it does not cause injury that can be classified as cruelty
to animals causing physical or psychological suffering.
8.3. In Canada
70. Canadian law criminalises the fabrication and distribution
of obscene pornographic material, as well as its possession for
the purposes of distribution. These offences may be punished on
summary conviction or by indictment, with up to two years’ imprisonment
in the latter case. The law also provides for the seizure and confiscation
of obscene material.
71. The definition of obscenity is laid down in section 163(8)
of the Criminal Code: “For the purposes of this Act, any publication
a dominant characteristic of which is the undue exploitation of
sex, or of sex and any one or more of the following subjects, mainly,
crime, horror, cruelty and violence, shall be deemed to be obscene”.
72. The requirement of “undue exploitation of sex” implies a large
element of subjective appreciation. It has been interpreted by Canadian
courts as the standards of tolerance of a given community. The fact
remains that such standards of tolerance may change not only over
time but also between different communities in the same country.
73. In 1992, the Supreme Court of Canada handed down a landmark
decision in the case of R. v. Butler, in which it unanimously upheld
the constitutionality of the obscenity provisions of the Criminal
Code.
Its reasoning
was that the prohibition of obscene pornography did not contravene
the freedom of expression guarantee provided by the constitutional
charter, but it constituted a reasonable limitation prescribed by
law. “Mr Justice Sopinka, writing on behalf of the Court, said that,
although a direct link between obscenity and harm to society may
be difficult, if not impossible, to establish, there was nevertheless
sufficient evidence that depictions of degrading
and dehumanising sex do harm society, and, in particular, adversely
affect attitudes towards women”
[emphasis
added].
8.4. In the United States
74. In the United States, pornography is lawful unless
it meets the three-pronged obscenity test set out in the case of
Miller v. California:
“a) whether
'the average person, applying contemporary community standards’
would find that the work, taken as a whole, appeals to the prurient
interest;
b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the applicable
state law; and
c) whether the work, taken as a whole, lacks serious literary,
artistic, political or scientific value”.
75. This test is rarely met and, in most cases concerning pornography,
the courts have found that compliance with the First Amendment on
freedom of speech outweighed obscenity law.
76. Recently, the trial against the company Extreme Associates,
mentioned above, has attracted much attention and stirred up a great
deal of controversy in the United States. The company was accused
of having produced and distributed through the post and over the
Internet three films whose content violated federal obscenity law.
One of them portrayed the rape and murder of three women, who were
slapped, hit, spat upon and generally abused and degraded throughout
graphic portrayals of forced sex acts. In the second film, women
engaged in sex acts with multiple partners while a bowl, placed
in front of the women, was filled with various bodily liquids. At
the conclusion of each vignette, the women drank the concoction.
The third portrayed abusive sexual acts between adult males and
females dressed to look like children.
77. After a long legal battle lasting six years, in 2009, the
owners of Extreme Associates finally pleaded guilty and were sentenced
to one year and one day in prison. While being welcomed by some
sections of the public, the sentence was severely criticised by
others as an attack on free speech and sexual privacy.
9. Potential relevance
of the Convention on Cybercrime
78. The Council of Europe Convention on Cybercrime, which
came into force in July 2004, is the only binding international
treaty on cybercrime to have been adopted to date. It lays down
guidelines for all governments wishing to develop legislation in
this area.
79. Cybercrime is the most global form of transnational crime.
It comprises all forms of criminality perpetrated by means of the
Internet, from spamming to dissemination of hatred, e-commerce fraud
to terrorism. Given the transnational character of cybercrime, it
can only be tackled through co-operation at global level. Several
non-European countries, namely Canada, Japan, South Africa and the
United States, took part in the negotiations and subsequently signed
the Convention. As at September 2011, it has been ratified by 30 member
states and the United States.
80. Setting common standards on legislation against cybercrime
is instrumental in establishing co-operation between two countries.
Co-operation, however, is based on “double criminalisation”, requiring
an act to be considered as a criminal offence by the legislation
of both the requesting state and the state receiving the request.
81. The only reference to pornography in the Cybercrime Convention
can be found in Article 9, relating to child pornography. Producing,
offering or making available, distributing or transmitting, and
procuring child pornography are criminal acts, and so is possessing
this kind of material in a computer system or on a computer-data
storage medium.
82. As Mr Marko Künnapu, Chair of the Committee on Cybercrime,
clearly explained during the exchange of views organised by the
Committee on Equal Opportunities for Women and Men, the Convention
on Cybercrime does not cover the issue of violent and extreme pornography,
as at the moment only a few countries criminalise some forms of
it. However, if more countries introduced criminal legislation to
ban this kind of pornography, the principles on international co-operation
for criminal prosecution set out in the Convention would be engaged,
in the same way as they are currently engaged with respect to child
abuse pornography. Should member states pursue this avenue, they
should take care to clearly formulate the definition of violent
and extreme pornography.
83. For clarification, I would like to add that future potential
international co-operation in the field of violent and extreme pornography,
established on the basis of the Convention on Cybercrime, could
tackle the most conspicuous part of the violent and extreme pornography
market, that is available on the Internet, but would not affect
other forms of distribution, sale or exchange.
10. Classification
of audiovisual work
84. The great majority of member states have classification
bodies which examine artistic works such as films, videos and visual
performances, and classify them according to categories depending
on their content and suitability for a certain audience, in particular
certain age groups. In some cases, these bodies can cut images,
as a condition for classification. In some countries, they can prohibit
the release of products which contravene the law. In other countries,
they only have the right to refuse classification but have no enforcement powers;
on the other hand, products without classification cannot be legally
distributed.
10.1. Diversity of classification
systems
85. There is no international or European harmonisation
regarding either the classification system or the products for which
classification is required. Audiovisual products are classified
at national level, in accordance with the rating system in force
in each particular country. There are great disparities in the way
in which classification bodies of different European countries assess
the same audiovisual product: in 2003, the European Commission commissioned
a study on the practice of classifying films distributed in cinema, television,
video and DVD in the European Union and European Economic Area member
states.
The
study showed that for 78% of the films surveyed, there was more
than a six-year difference between the age ratings set by the national
classification bodies. For 23% of the films, the ratings varied
from the lowest level (open to everyone) to the highest (restriction
to over 18 or over 16).
86. To clarify the work conducted by classification bodies, I
would like to give the example of the British Board of Film Classification
(BBFC) in the United Kingdom.
The
BBFC is an independent body that classifies all video works that
are released for commercial purposes, including video games, films,
other programmes released on DVD or Blu-ray, or distributed by means
of downloading or streaming on the Internet. Companies submit products
that they wish to be distributed in the United Kingdom. They have
the right to appeal against a classification or cut decision.
87. Products are classified according to their potential harm
to the viewer and society, according to criteria set out in periodically
reviewed guidelines, which are elaborated also through public consultations
(the latest one took place in 2009). Non-pornographic material which
contains strong images of scenes of violence or sex, which may be
simulated, as well as soft-core pornographic material, is put in
category “18”; while hard-core pornographic material is put in category
“R18”, and in the United Kingdom can be shown only in licensed shops or
venues.
88. As regards violent images, “classification decisions will
also take account of the degree and nature of violence. Sexualised
violence or works which glorify or glamorise violence receive a
restrictive classification and may be cut. A strict policy on sexual
violence and rape is applied. Content which might eroticise or endorse sexual
violence may require cuts at any classification level. This is more
likely with video works than films because of the potential or replaying
scenes out of context. Any association of sex with non-consensual restraint,
pain or humiliation may be cut’’.
89. Cuts are also a condition for classification when the images
promote illegal activities, are obscene or otherwise illegal, have
been created by means of the commission of a criminal offence, portray
children in a sexualised or abusive context, contain sadist violence
or torture which invites the viewer to identify with the perpetrator
or contain graphic images of real injury, violence or death presented
in a salacious or sensationalist manner which risks harm by encouraging
callous or sadistic attitudes.
90. Examining the statistics released by the BBFC, I realised
that classification in category “R18” is rare: in 2010, out of 654
works presented, none was classified as “R18”, 63 were classified
as “18”, 3.2% of which were cut. In 2009, out of 555 works, none
was classified as “R18” and 50 were classified as “18”, of which
none was cut. Overall, in the period 1985-2010, only three movies
were given the “R18” rating. In the same period, only four works
were rejected.
91. The huge gap between the number of video works classified
by the BBFC as hard-core in recent years, and the amount which is
actually in circulation makes me think that compliance with British
regulations on classification is poor to say the least. The fact
that pornographic movies have a much longer life than ordinary movies,
and continue to be sold, purchased and exchanged many years after
their initial distribution, cannot explain this gap.
92. To give an idea of the difference between classification systems,
let me briefly mention the work conducted by another classification
body, the Statens Filmtilsyn in Norway. This is an independent body attached
but not directly answerable to the Ministry for Cultural Affairs.
All films, videos and DVDs must be registered with it before distribution.
However, registration does not include any form of content evaluation. Ratings
only indicate age groups, without any clarification of the kind
of content portrayed. Videos and DVDs do not require an age rating.
The distributors themselves may recommend age restrictions or, on
a voluntary basis, ask the Statens Filmtilsyn to rate a product.
However, if the content of a piece of audiovisual work is pornographic
or involves criminal law, videos and DVDs are also checked.
93. In the Netherlands, the Kijkwijzer system has been used since
2001 for the classification of cinema and television films, videos
and DVDs, and is operated by the Netherlands Institute for the Classification
of Audiovisual Media (NICAM). Computer games and Internet content
are not classified, although these markets are monitored. Kijkwijzer
is based on a self-classification
system by the supplier, which fills in a questionnaire provided
by NICAM. The product is then evaluated using a computer programme,
which works out its rating. The rating includes an age restriction
as well as content description in the form of pictograms. The highest
age restriction is 16.
94. I am not aware of any member state requiring the compulsory
classification of video games as a pre-condition for their legal
distribution. However, in some countries such as Norway and the
United Kingdom, companies can submit video-games to the national
classification body, on a voluntary basis. It is worth noting that,
as regards video games, the main content problem is not usually
sex but violence.
95. Despite the lack of legal obligation, there exists a transnational
classification system. In 2003, the Interactive Software Federation
of Europe (ISFE) – a group of games console manufacturers and developers and
suppliers of interactive games – introduced the Pan-European Game
Information System (PEGI), which currently operates in 31 European
countries as well as in Canada and Israel.
96. Like Kijkwijzer, PEGI
works on the basis of a questionnaire which has to be filled in
by the producer, and results in a dual classification – age rating
(3+, 7+, 12+, 16+, 18+) and content description – which is the same when
the product is distributed in any of the above-mentioned countries.
Unlike Kijkwijzer, however, PEGI is a purely private system which
has not been integrated in any state regulatory framework.
10.2. Effectiveness of
classification
97. In recent years, the effectiveness of classification
systems has been called into question. Digital convergence presents
daunting challenges to national media surveillance authorities on
how to ensure compliance with national law and regulations: material
which is prohibited or may be sold or rented only to adults in a
particular country can be obtained via the Internet, where there
is often no age control. By the same token, access via mobile phone
appears totally impossible to control.
98. Similarly, films distributed via cable or satellite can often
be received in countries where they could not be shown or could
be shown only at certain times. In 2003, the Norwegian Mass Media
Authority prohibited the retransmission of Swedish pornographic
channels in Norway, since they could be watched uncensored if the Swedish
subtitles were switched on.
99. Although the great cultural and legislative difference between
member states in this area does not make it possible to envisage
a single pan-European classification body, appeals for more homogeneity
and co-operation have been made for some time.
100. In its Recommendation Rec(2001)8,
the Committee of Ministers
suggested several measures on how to protect users against the harmful
content of new communications and information services. Amongst
others, it recommended:
- that
current national classification systems also be applied to the Internet;
- closer co-operation between national classification bodies;
- the development of common content descriptors in order
to provide for neutral labelling of content. In fact, in its guidelines
attached to the recommendation, the Committee of Ministers also
proposed content categories to which descriptors could refer, including
violence and pornography.
101. In my opinion, Recommendation Rec(2001)8 indicates a sound
approach. In particular, there is scope for setting up a Council
of Europe-wide system of classification and content descriptors,
to label the content of audiovisual work which is placed in circulation,
inspired by the model of PEGI for computer games. This common system
would enable the potential buyer in any member state to know whether
the product in question contains pornographic or violent images,
or violent and extreme pornography.
102. On the basis of this classification, the national classification
bodies would decide whether they should further examine the work,
because there is a risk that it might need cutting before distribution
in order to comply with national obscenity laws, or that it might
be banned altogether.
103. Furthermore, member states should strengthen their co-operation
as well as their dialogue with the private sector and civil society,
in order to elaborate effective ways to monitor Internet content.
For instance, 30 member states have established safer Internet centres,
which conduct awareness-raising activities, operate hotlines where
illegal content is reported, and provide advice for staying safe
online through helplines for young people, parents, teachers.
The
other member states should be encouraged to develop similar initiatives.
11. Conclusions
and recommendations
104. Although all member states consider freedom of expression
as a fundamental right, often guaranteed at constitutional level,
all of them also provide for safeguards and limitations, aimed at
protecting other fundamental concerns and values.
105. These safeguards and limitations have in some instances been
nullified by the advent of the digital era, which has made it possible
to obtain pornographic material that is banned in a given country
by downloading it on the Internet or watching it on a foreign cable
or satellite channel. At the same time, new types of equipment and
their wide availability have enabled private individuals to become
producers of pornography, which is distributed and exchanged mainly
through Internet social media, with virtually no control on the
part of the authorities.
106. The result is increased accessibility and exposure by the
public to violent and extreme pornographic material, which takes
place against the background of a poor enforcement of existing laws
on pornography and obscenity and the systematic use of sexualised
images of women for commercial purposes.
107. However, even though they must evolve over time to be in tune
with society, legal safeguards and limitations to freedom of expression
are necessary, because there continue to be fundamental concerns
and values to protect: the dignity and equality of all human beings;
the safety and security of our societies; the well-being and safety
of children.
108. The images contained in violent and extreme pornography, which
often portray women as victims of violence for the purpose of the
viewer’s sexual arousal, are degrading and harmful to women’s dignity
and their status in society. These images also put at stake the
personal safety and physical integrity of women, who may become
victims of violent acts by perpetrators who imitate what they have
seen. In addition, by being accessible to anybody, they are particularly
harmful to the balanced development of children.
109. I cannot agree with the argument that as long as violent and
extreme pornography concerns free and consenting adults, it is a
matter for the private sphere in which the state should have no
involvement. The Internet has made the distinction between private
and public largely obsolete in this respect: there is nothing private
about violent and pornographic images being put on the Internet
and shared with millions of viewers, sometimes accidentally, and
sometimes with minors.
110. In the course of my work, I have realised that the issue of
violent and extreme pornography is largely unexplored and neglected.
There is a widespread assumption that this is a marginal problem
and that, in a situation of limited resources, priority should be
given to other activities which constitute serious crimes.
111. I hope that this report can contribute to raising awareness
of its implications and give a push forward in the following three
main areas:
- as regards research,
there is a need for in-depth scientific studies to be conducted
on the accessibility of violent and extreme pornographic material,
in particular on the Internet; on its impact on the viewer; and
on its links with child abuse pornography and with other forms of
human exploitation, such as trafficking and prostitution;
- as regards the law, given the different cultural traditions
of member states and, to a certain extent, their different approach
to freedom of expression, youth protection and sexual freedom, it
would be unfeasible for me to propose a harmonisation of criminal
law on pornography or obscenity. However, there is wide scope for
improving the enforcement of existing national laws and regulations
and strengthening co-ordination amongst member states. In particular,
they could assess the impact of their existing laws and regulations
on violent and extreme pornography and revise them to bring them
closer at European level;
- as regards classification, there is scope for setting
up a system of classification and content descriptors for violent
and extreme pornographic material, applicable in all member states.