Report | Doc. 12719 | 19 September 2011

Violent and extreme pornography

(Former) Committee on Equal Opportunities for Women and Men

Rapporteur : Mr Michał STULIGROSZ, Poland, EPP/CD

Origin - Reference to committee: Doc. 12156, Ref 3662 of 26 April 2010. 2011 - Fourth part-session

Summary

Pornography has become a highly lucrative business and is consumed by a growing number of people, in particular on the Internet. A matter of special concern is the public’s increased accessibility to violent and extreme pornographic material, which graphically portrays scenes of degradation, sexual violence, torture, murder, necrophilia or bestiality for the purposes of sexual arousal.

The Parliamentary Assembly should warn against the desensitisation resulting from continued exposure or addiction to such types of pornography, and against a process of normalisation in which moral coercion and physical violence, in particular against women, become acceptable.

Council of Europe member states should ensure effective implementation of their existing legislation in the field of pornography, encourage scientific research to assess the impact of violent and extreme pornographic images on the user and consider introducing specific legislation criminalising the possession, production and distribution of violent and extreme pornographic material.

A. Draft resolution

(open)

1. In recent years, pornography has become a highly lucrative business, in particular due to the increasing importance of the Internet as a means of distribution. At the same time, new types of equipment and their wide availability have made it possible for private individuals to become producers of pornography, which is distributed and exchanged mainly through social media and networks on the Internet.

2. The Parliamentary Assembly expresses deep concern at the public’s increased accessibility to violent and extreme pornographic material, graphically portraying scenes of degradation, sexual violence, torture, murder, necrophilia or bestiality for the purposes of sexual arousal.

3. While recalling that freedom of expression is a pillar of democratic societies and a right guaranteed by the European Convention on Human Rights (ETS No. 5), the Assembly underlines that it is possible to set limits to this right when they are prescribed by law and are necessary in the interests of, amongst others, the prevention of crime, the protection of morals and the protection of the rights of others.

4. The Assembly notes the great disparities between different Council of Europe member states in the degree of regulation of pornography with, at one end of the spectrum, countries where the production, distribution and possession of pornographic material is totally forbidden, and at the other end, countries where there is hardly any prohibition, even with regard to forms of violent and extreme pornography.

5. It also regrets that a common feature in member states is the poor enforcement of existing law and regulations on the production and distribution of pornography.

6. Acknowledging that the number of consumers of pornography in Europe has increased, the Assembly warns against the desensitisation resulting from continued exposure or addiction to pornography, and against a process of normalisation in which moral coercion and physical violence may be considered as acceptable.

7. In addition, noting that the portrayed victims are in the great majority women, the Assembly is concerned about the negative impact of violent and extreme pornography on women’s dignity and right to live free from sexual violence. In this regard, the Assembly considers that this type of pornography further erodes the conditions for achieving effective gender equality, alongside other forms of hard and soft pornography, the widespread use of sexualised images of women for commercial purposes and the portrayal of gender stereotypes by the media and the entertainment industry.

8. Furthermore, the Assembly reiterates the need to ensure that children are protected against exposure to violent and extreme pornographic material which might affect their balanced development.

9. In the light of these considerations, the Assembly calls on the member states to:

9.1. as concerns law and policy:

9.1.1. ensure the effective implementation of existing law regulating the production, distribution and sale of pornography;

9.1.2. when appropriate, revise existing laws so as to ensure that adequate sanctions are foreseen for breaches, and monitor compliance and implementation;

9.1.3. establish an obligation for companies to submit all audiovisual works for classification prior to commercial distribution;

9.1.4. strengthen sanctions for non-compliance with the obligation to submit audiovisual works for classification with the relevant body and sanctions for distributing such material without classification;

9.1.5. assess the impact of existing law and regulations applying to violent and extreme pornography and revise it, if appropriate, taking into account the possibility of:

9.1.5.1. introducing specific legislation to criminalise the production and distribution of violent and extreme pornography;

9.1.5.2. criminalising possession of violent and extreme pornography, including for personal consumption;

9.1.6. ensure that existing law is implemented in a non-discriminatory way, including with regard to sexual orientation;

9.1.7. set up or support the setting up of hotlines or other facilities to provide advice to the public and receive complaints about illegal content;

9.2. as regards the protection of minors:

9.2.1. step up their efforts to combat child pornography;

9.2.2. introduce and enforce adequate sanctions for the sale of pornographic material to minors;

9.2.3. enforce adequate sanctions for breaches of the prohibition for adults to be portrayed as minors;

9.2.4. introduce the compulsory classification of all videogames, including pornographic and violent games, and make sale and distribution conditional upon receiving clearance from the relevant classification body;

9.3. as concerns research:

9.3.1. encourage and support scientific research to assess the impact of violent and extreme pornographic images on the user, also with a view to investigating the possible links between habitual consumption of violent and extreme pornography and an increased inclination to violent sexual behaviour;

9.3.2. conduct or encourage regular surveys amongst the public and consultations with civil society on standards of obscenity;

9.3.3. encourage or support research on the links between pornography, prostitution and trafficking, as well as between violent and extreme pornography and child-abuse images;

9.4. as regards training and awareness-raising:

9.4.1. develop sex education material and programmes for children and young people;

9.4.2. support training for social workers and health professionals dealing with addiction to pornography;

9.4.3. support training for social workers and law enforcement officials dealing with people who have been coerced into pornography.

10. Finally, the Assembly reiterates its call on Council of Europe member and observer states to sign and ratify:

10.1. the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (CETS No. 210);

10.2. the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (CETS No. 201);

10.3. the Convention on Cybercrime (ETS No. 185).

B. Draft recommendation

(open)

1. Recalling its Resolution …. (2011) on violent and extreme pornography, the Parliamentary Assembly reiterates its concern at the public’s increased accessibility, especially via the Internet, to violent and extreme pornographic material.

2. Taking into account the Committee of Ministers Recommendation Rec(2001)8 on self-regulation concerning cyber content (self-regulation and user protection against illegal or harmful content on new communications and information services), the Assembly recommends that the Committee of Ministers ask the appropriate bodies of the Council of Europe to carry out a comparative study on the law and regulations applying to forms of violent and extreme pornography in member states and, on this basis, consider whether there is scope for a more harmonised approach, in particular as regards responses to the distribution of violent and extreme pornographic material on the Internet.

3. Furthermore, the Assembly recommends that the Committee of Ministers ask the Executive Council of the European Audiovisual Observatory to ask the Observatory to conduct a study on the feasibility of a common system of classification and content descriptors, in order to label the content of audiovisual works.

C. Explanatory memorandum by Mr Stuligrosz, rapporteur

(open)

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. Kijkwijzeris 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.