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	Digital Technology Law Journal

Australia's New Internet Censorship Regime: Is this Progress?

Christopher N Kendall
Senior Lecturer, School of Law, Murdoch University *

This paper examines Australia's new Broadcasting Services Amendment (Online Services) Act. This legislation, which now awaits Royal assent, aims to regulate the distribution of obscenity via the Internet. The author argues that Australia's new Internet censorship regime stands as an example of how not to address the harms that result from the production and distribution of pornography. The author focuses specifically on the extent to which the legislation's definitions of what is and is not prohibited Internet content relies on a misguided understanding of what pornography is and what it does. He argues that while there is much merit in the claims of those who argue that little thought has gone into how best to implement control mechanisms, there is little point in trying to improve technological capacity if, after having done so, little thought has gone into what it is, exactly, we want to regulate and why we want to do it. The author concludes that the legislation is more indicative of the federal government's desire to assert values than punish those whose actions threaten the equality rights of those most harmed by pornographic material.

The question pornography poses in cyberspace is the same one it poses everywhere else: whether anything will be done about it.

Catharine A MacKinnon [1]

Contents

• Introduction: What is "offensive online material"? - the moralist in Cyberspace
• Pornography as an Issue of Sex Discrimination: the Case of R v Butler
• Re-Thinking "Obscenity" Post-Butler: An Australian Comparative Perspective
• Australia's New Internet Regulators
• Pornography as a Human Rights Violation
• Notes

Introduction: What is "offensive online material"? - the moralist in Cyberspace

1. In Australia, pornography on the Net is big business and, if recent international findings are any indication, immensely popular.[2] Indeed, trading in sexually explicit material is now one of the biggest recreational applications of users of computer networks, with frequently visited newsgroups sporting names like "alt.sex.stories," "rec.arts.erotica" and "alt.sex.bondage" -- newsgroups which, in addition to providing materials now readily available via mail order etc, offer the on line browser materials featuring paedophilia (the use of children in sexual acts), hebaphilia (the use of youths in sexual acts) and paraphilia (material that includes images of bondage, sadomasochism, urination, defecation, and sex acts with animals).[3]

2. In June, 1999, the Commonwealth Parliament passed the Broadcasting Services Amendment (Online Services) Act. This legislation, which now awaits Royal assent, amends the Broadcasting Services Act 1992 , to include Internet regulation as part of regulatory framework. Specifically, the main elements of this new framework are such that:
   • a complaints mechanism will be established under which any person can complain to the Australian Broadcasting Authority (ABA) about offensive material online;
   • material that will trigger action by the ABA will be defined, on the basis of current National Classification Board guidelines for film, as material Refused Classification and rated X, and material rated R that is not protected by adult verification procedures;
   • the ABA will be given powers to issue notices to service providers aimed at preventing access to prohibited material which is subject to a complaint if it is hosted in Australia or,
   • indemnities will be provided for service providers to protect them from litigation by customers affected by ABA notices;
   • a graduated scale of sanctions against service providers breaching ABA notices or the legislation will apply;
   • the framework will not apply to private or restricted distribution communications such as Intranets or communications not in a stored form; however, current provisions of the Crimes Act 1914 (Cth) in relation to offensive or harassing use of a telecommunications service will apply in this context;
   • a community advisory body will be established to monitor material, operate a 'hotline' to receive complaints about illegal material and pass this information to the ABA and police authorities, and advise the public about options such as filtering software that are available to address concerns about online content;
   • the Commonwealth will be responsible for regulating the activities of Internet service providers (ISPs) and Internet content hosts (ICHs) and the Attorney-General will encourage the development of uniform State and Territory offence provisions complementing the Commonwealth legislation (including section 85ZE of the Crimes Act ) that create offences for the publication and transmission of prohibited material by users and content creators.[4]

3. The Act's overriding intention is to prohibit the availability of sexually explicit materials "likely to cause offence to the reasonable adult." Given this, it should come as no surprise that there has been much public debate and outcry regarding the Act's scope and possible impact.[5] The issue of how best to address the harms caused by the unbridled production and distribution of pornography in our society is perhaps one of the more contentious issues facing modern legislators. The Internet offers nothing new in this regard, at least in so far as defining the harms that result from pornography is concerned. For many, pornography represents the clearest example and source of sexualized, systemic gender inequality.[6]  This is a view best summarised by Catharine MacKinnon, who argues that:

   Pornography, in the feminist view, is a form of forced sex, a practice of sexual politics, an institution of gender inequality. In this perspective, pornography is not harmless fantasy or a corrupt and confused misrepresentation of an otherwise natural and healthy sexuality. Along with the rape and prostitution in which it participates, pornography institutionalizes the sexuality of male supremacy, which fuses the eroticization of dominance and submission with the social construction of male and female. Gender is sexual. Pornography constitutes the meaning of that sexuality. Men treat women as who they see women as being. Pornography constructs who that is. Men's power over women means that the way men see women defines who women can be. Pornography is that way.

4. For others, any attempt to regulate what to them represents little more than sexual expression represents an unacceptable infringement on their right to practise and access free speech and to do in private what they wish and with whom they wish.[7] Still others, while acknowledging that pornography might actually undermine the rights of some to participate freely and equally in our society, query how best to ensure that the power to censor is not used arbitrarily and in a discriminatory manner.[8]

5. One might have hoped, given the amount of writing and research already undertaken on pornography and state censorship of it, that those governments presently attempting to regulate pornographic content would take seriously and attempt to address in an equitable manner the concerns of those for whom pornography is an issue in need of attention. Indeed, given the amount of academic and judicial pronouncements on this topic, both within Australia and internationally, one might have expected that any government undertaking this task might find itself in the unique position of devising a truly progressive means of ensuring that the harms of pornography are addressed both effectively and fairly.

6. It is my purpose in writing this paper to argue that, expectations aside, Australia's new Internet censorship regime stands as a rather unfortunate example of how not to address the individual and systemic harms that result from the production and distribution of pornography. I write this paper from the perspective of those who accept that the types of material available on WebPages like "alt.sex.stories, rec.arts.erotica and alt.sex.bondage" are but one source of the daily discrimination to which many are subjected on account of their gender. I accept that pornography does in fact cause considerable harm to those used to produce it and to those harmed by its primary message (ie, that female subordination is the norm and sexual inequality empowering). Specifically, I accept that pornography is sex discrimination and should be addressed as such. It is not my purpose in writing this paper to change the views of those who refuse to believe or acknowledge the reality of those who claim to be harmed by the inequality that is pornography.[9] This is an effort that has been tackled elsewhere.[10] Nor is it my intention to outline and critique every aspect of Australia's new Internet censorship legislation.[11] While many have focussed on the technical difficulties involved in regulating Internet content,[12] I intend to focus on an issue that has received surprisingly little media attention in this country - that is, the extent to which this legislation's definitions of what is and is not prohibited Internet content relies on a misguided understanding of what pornography and is and what it does .

7. While there is much merit in the claims of those who argue that little thought has gone into how best to implement control mechanisms, my own view, expressed in this paper, is that there is little point in trying to improve our technological capacity if, after having done so, we have not given any thought to what it is, exactly, we want to regulate and why we want to do it. My conclusion in this regard is that this legislation, in its present form, is more indicative of the federal government's desire to assert values than punish those whose actions threaten and undermine the equality rights of those most harmed by the production and distribution of pornographic material.

8. The Broadcasting Services Amendment (Online Services) Act , although lauded by the Australian government as an effective means to address pornographic harm, will ultimately fail as a means of doing so because it fails to understand the types of harms inflicted on individuals and society as a result of pornographic production and distribution. It also fails to offer any effective means through which to curtail and compensate for these harms. By focussing on pornography as an issue of immorality, rather than as an issue of inequality (and the harms that result from inequality), the government fails to ensure that those most in need of recourse and protection will find it. It also risks imposing unjustified limits on legitimate forms of sexual expression -- expression which, far from harmful, may in fact prove quite liberatory to those who use it and central to the goal of systemic equality.[13] My own belief is that by redefining pornography as a threat to social equality and by adopting enforcement measures which ensure that this threat is curtailed, our legislators could do much to ensure that the harms of pornography are taken seriously, while guaranteeing that the "right to speak" is a right shared by all citizens.

9. To assist me in this regard, I will turn to international precedent in an effort to convince legislators that pornography must be seen and addressed for what it is -- a practice of sex discrimination. Specifically, I will look to recent case law in Canada and recent legislative efforts in the United States. In 1992, in the case of R v Butler[14] a case concerning the interpretation and application of Canada's Criminal Code obscenity provisions, the Canadian Supreme Court ruled that pornography is an issue of sex discrimination and that laws aimed at restricting pornographic materials, in so far as they aim to eliminate this injustice, are in the best interests of any society committed to systemic equality. The Court's findings on the effects of pornography and the need to balance the need for free speech with the need for equality are particularly instructive. They offer a solid starting point from which legislators can begin to tackle the harms articulated by those who claim to be harmed by pornography.

10. Although I accept the equality-based analysis articulated in Butler, I also acknowledge that much has been written since the decision in Butler on the way in which the decision is likely to be enforced and the problems that result from enforcement mechanisms generally. It has been argued that the application of the Supreme Court of Canada's equality-based test is susceptible to abuse in the hands of police and law enforcement officials who understand little if anything about the need to protect society's equality interests. I accept these concerns but believe that they can be addressed such that the equality test for pornographic harm is implemented fairly and effectively. Specifically, I believe the civil-rights approach to pornographic harm devised by American feminists Catharine MacKinnon and Andrea Dworkin offers a fair and effective solution to the issue of how best to address this harm.

11. In 1983, Andrea Dworkin and Catharine MacKinnon drafted and attempted to implement a civil rights ordinance for the City of Minneapolis aimed at addressing the harms to equality caused by the production and distribution of pornography.[15] The Ordinance was originally drafted and implemented in Minneapolis, Minnesota. In 1983, residents of two working class areas in down town Minneapolis asked Andrea Dworkin and Catharine MacKinnon to assist them in doing something about the pornography in their neighbourhoods. Although the city originally intended to draft a zoning ordinance, which would only permit the sale of pornography in specified (low income) neighbourhoods, Dworkin and MacKinnon convinced the Zoning and Planning Committee that such a measure would only legitimize pornography. They urged the city to take a "civil rights" approach which would allow those harmed by the production and sale of pornography to sue those responsible for their harm. The idea was ultimately implemented as an amendment to the sexual discrimination provisions of the Minneapolis Civil Rights Ordinance.  The legislation was ultimately vetoed by then Mayor Donald M Fraser.[16]

12. In April, 1984, similar legislation was passed in Indianapolis and supported by Mayor William H Hudnut III. This legislation was challenged as unconstitutional by an alliance of booksellers. In American Booksellers Association v Hudnut ,[17] the Court of Appeals for the Seventh Circuit held that the Indiannapolis Ordinance was unconstitutional as a violation of free speech. The Court accepted the factual premises of the ordinance, conceding that "depictions of subordination tend to perpetuate subordination" and that the " subordinate status of women in turn leads to affront and lower pay at work, insult and injury at home, battery and rape on the streets." Despite this, the Court also held that "racial bigotry, anti-Semitism, violence on television [and other forms of expression also] influence culture and shape our socialization. Yet all is protected speech, however insidious. Any other answer leaves the government in control of all of the institutions of culture, the great censor and director of which thoughts are good for us."

13. It is not my intention in this paper to critique the decision in Hudnut .[18] I will, however, outline in some detail the Canadian Supreme Court's decision in Butler as indicative of an approach which accurately recognizes the need to link the need for speech with the need for equality and which thus justifies and permits legislative efforts aimed at preventing the sale of those pornographic materials which undermine sex equality. It is my belief that this decision accurately summarises the real harms and role of pornography and, when supplemented with the regulatory approach provided in the MacKinnon-Dworkin Ordinances, offers the Australian Parliament a unique opportunity to radically overhaul its anti-pornography mandate. The Ordinance declared that pornography and sexual harassment injure the public welfare by degrading women and fostering intolerance for other persons. It also stated that pornography is a systemic practice of exploitation and subordination which plays a central role in maintaining sexual inequality. Unlike other efforts aimed at reducing the harms of pornography, the Ordinance removed the power to regulate and control pornographic harm from those least harmed by pornography -- ie the state and those who exercise its power -- and allowed those most harmed by pornography to take direct legal action against the agents of their harm without relying on the state to act on their behalf.

14. Although the Ordinance was ultimately struck down as a violation of the right to free speech guaranteed in the First Amendment of the United States Constitution, I believe that in light of the equality-based analysis of pornographic harm recently offered in Canada in Butler (an approach which essentially rejects the US approach to free speech and pornography), the Ordinance offers a valid approach to addressing the harms of pornography in Australia. In particular, in light of Australia's recognition of the need for equality and its willingness to impose restrictions on speech which undermine this equality (as evidenced most recently in attempts to introduce anti-vilification statutes)[19] the Dworkin-MacKinnon anti-pornography ordinance can be successfully integrated into already existing equal opportunity legislation. By focussing on what I perceive to be one of the many troublesome aspects of Australia's new Internet censorship legislation, I will outline why exactly our legislators should radically re-think the methods they have chosen to combat pornographic harm. I will further outline why I believe the MacKinnon-Dworkin anti-pornography approach offers the best method with which to achieve this objective.

    Pornography as an Issue of Sex Discrimination: the Case of R v Butler

    I was abused, molested, insulted and frightened by my older brother when I was seven and he was thirteen. He had a waist-high stack of pornographic magazines. It is something I will never forget. Pornography is about hate for women, power over women, revenge on women, ridicule and contempt of women.

     My large bust presumably means that I am available and an easy lay. I feel these ridiculous connections can only come from page 3-type porn where big equals no brain. [20]

15. On August 21, 1987, most of the inventory (pornographic videotapes and pornographic magazines) in the Avenue Video Boutique in Winnipeg, Manitoba, Canada was seized by Winnipeg police. The owner of the Boutique, Donald Victor Butler, was subsequently charged pursuant to s. 159 (now s. 163) of the Canadian Criminal Code [21] for various offences[22] related to the possession and sale of obscene materials.

16. On June 6, 1991 Donald Butler's case was heard by the Supreme Court of Canada. The Court was asked to consider two constitutional questions in determining the validity of Butler's conviction:
    1. Whether s. 163 of the Criminal Code violated the appellants right to free expression as guaranteed under s. 2(b) of the Canadian Charter of Rights and Freedoms (the Charter)?; [23] and

    2. If so, whether it could be demonstrably justified under s. 1 of the Charter as a reasonable limit prescribed by law?[24]

17. Although the constitutional questions raised on appeal brought into scrutiny the entirety of s. 163 of the Criminal Code , the Supreme Court confined its examination to the constitutional validity of the definition of obscene in s. 163(8), which provides:

    (8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and one or more of the following subjects, namely crime, horror, cruelty and violence, shall be deemed to be obscene.

18. Much has already been written outlining the constitutional analysis offered by the Court and I do not intend to repeat that work here.[25] What is important to note, however, is the Court's analysis regarding the interaction between the right to speak and the right to participate equally and without discrimination in society. Although Canadian-based, the analysis offered by the Court stands as strong precedent for any future judicial and legislative efforts to regulate pornographic harm. Most important within the context of an analysis of the Australia's new Internet censorship regime is the Court's finding on the need to reject traditional approaches to obscenity regulation (like those embodied in legislation throughout Australia and which, I will argue, is best typified in the new Commonwealth Australian legislation which is the focus of this paper) which views pornography in terms of its effect on public morality and which, as such, does little to protect those most in need of protection while unjustifiably limiting speech which should not be limited.

19. Donald Butler argued that the test for obscenity in section 163(8) of the Canadian Criminal Code prohibited him from asserting his constitutional right to free expression. In the final analysis, the Court found that although section 163 (8) did indeed violate Butler's constitutional right to free expression, the section nonetheless constituted a reasonable limit on this right and was saved by virtue of section 1 of the Charter . The Court held that the limit imposed on Butler's right to distribute and display pornography was justifiable because the overriding objective of the Criminal Code provision is to prevent harm to society -- specifically, the harms that result from the production and distribution of pornographic representations and pictures that undermine the right of other people to live equally, without fear of harassment and discrimination.

20. In rendering its decision, the Court outlines what type of harm s. 163 of the Code aims to address and what kind of "expression" creates and promotes this harm. It is this analysis which is most ground-breaking. At a very basic level, the Court completely redrafts the law of obscenity by offering a radical reconceptualisation of the analysis traditionally offered by the Courts. Quoting from the MacGuigan Report [26] on the effects of pornography, the Court notes that the harm of pornography is the harm of gender inequality:

    The effect of this material is to reinforce male-female stereotypes to the detriment of both sexes. It attempts to make degradation, humiliation, victimization, and violence in human relationships appear normal and acceptable. A society which holds that egalitarianism (is) basic to any human interaction , is clearly justified in controlling any medium of depiction which violates this principle (emphasis added).[27]

    In rendering its decision, the Court relied on, and certainly had available to it, a considerable amount of social and scientific research on the harmful effects of pornography on women, on men, and thus on society as a whole -- research from which there is sufficient reason to believe that pornography amounts to a practice of sex discrimination.[28]

21. Generally, these findings indicate that when explicit sex and express violence against women are combined, particularly when rape is portrayed as pleasurable for the victim, the risk of violence against women is known to increase.[29] There is also considerable evidence regarding materials which are not violent but which are nonetheless degrading or dehumanising. These findings indicate that pornographic materials lower inhibitions on aggression by men against women, increase acceptance of women's sexual servitude, increase sexual callousness toward women, decrease the desire of both sexes to have female children and increase the belief in male dominance in intimate relationships.[30] When read in conjunction with the testimonies of those women harmed during the production of pornography,[31] with the concerns of those whose partners have humiliated or terrorised them into imitating pornographic materials and who have battered and psychologically harmed them when they have refused,[32] and when read in conjunction with the testimonies of those women who have simply stated point blank that pornography renders them unsafe, open to harassment, or unable to function as equals in a society rife with sexual inequality,[33] these findings all provide an undeniably strong case in support of the argument that pornography is a practice of sex discrimination resulting in systemic gender inequality.

22. Admittedly, there is research that questions some of these findings -- a point pro-porn advocates are quick to exploit.[34] The Court in Butler accepts this but notes that although exact scientific proof can never provided, absolute accuracy is not required and this is particularly so if one aims, as one must, to place speech rights within the context of undeniable systemic inequality. In making this decision the Court relies specifically on its judgment in R v Keegstra ,[35] a case concerning Canada's hate speech laws, in which the Court notes that although a direct causal connection between hate speech and minority victimization cannot be proven, this does not render the resulting harm any less real:

    Essentially, there are two sorts of injury caused by hate propaganda. First, there is harm done to members of the target group. It is indisputable that the emotional damage caused by words may be of grave psychological and social consequence....Words and writings that wilfully promote hatred can constitute a serious attack on persons belonging to a racial or religious group, and in this regard...these persons are humiliated and degraded...A second harmful effect of hate propaganda which is of pressing and substantial concern is its influence upon society at large. The Cohen Committee noted that individuals can be persuaded to believe almost anything if information or ideas are communicated using the right technique and in the proper circumstances...The threat to the self respect of target group members is thus matched by the possibility that prejudice will gain some credence, with the attendant result of discrimination, and perhaps even violence, against minority groups in Canada.[36]

23. In Butler, the Court affirmed its reasoning in Keegstra, concluding that to require absolute proof of harm ignores the very real consequences of speech which promotes inequality and which, in the process, silences those most in need of speech and equality.[37] Noting that pornography can be seen to negatively affect individual attitudes and behaviours and in the process create a substantial risk of harm to individual women and society at large (because society's equality interest will be threatened), the Court goes a long way towards addressing the many discriminatory effects of pornographic "speech." By taking seriously the voices of those most harmed by pornography, by understanding that, for example, "images of a speculum inserted in a woman's anus, of a woman jerking off a pig, of a woman tied up, hooded and hanging from her breasts from the ceiling",[38] actually say something to some people (indeed, a great many I would imagine) about the accepted and expected role of women and men in our society, and by noting that this in turn results in some rather discriminatory attitudes which go a long way towards undermining systemic equality, the Court finally takes seriously and puts into perspective the meaning of and need for systemic equality.

24. In the final analysis, the Court offers a test for obscenity which recognizes that the ultimate community harm to be addressed is the harm caused by expression which makes degradation, humiliation, victimization and violence in human relationships -- all of which, the Court recognizes, can be seen to threaten the right to equality -- appear normal and acceptable. Implicit in this reasoning is the conclusion that although free expression is a fundamental value, it is not the only value worth protecting and it does not always rank above other values. Indeed, noting that any constitutional guarantee of free expression which develops without taking "the reality of substantive social inequality or the guarantee of legal equality into account"[39] only serves to preserve, if not promote, present inequalities, the Court further notes that "the harm caused by the proliferation of materials which seriously offend other values fundamental to our society is a substantial concern which justifies restricting the otherwise full exercise of the freedom of expression".[40]

25. The fact that the Court focuses so predominantly on the effect that pornography, once distributed, has on equality, should not be seen as implying that it does not acknowledge that real women are actually physically harmed in the production of these materials. The Court does accept evidence of this fact. Rather than focus on it exclusively, however, the Court relies on this evidence as a further indication that pornography is a tool of inequality through which those with power control those without it. The inequality evident during the production of the material is real and self-evident.[41] Once distributed, however, it serves to reinforce the very inequalities that make its production possible in the first place.[42]

26. By focusing on this inequality, the Court also specifically rejects the notion that pornographic speech should be limited in order to protect public morality. In so doing, it rejects an entire history of judicial reasoning concerned only with the preservation of majoritarian moral codes[43]

    ...this particular objective is no longer defensible in view of the Charter . To impose a certain standard of public and sexual morality, solely because it reflects the conventions of a given community, is inimical to the exercise and enjoyment of individual freedoms...This is "legal moralism" - a majority deciding what values should inform individual lives and then coercively imposing those values on minorities. The prevention of "dirt for dirt's sake" is not a legitimate objective which would justify the violation of one of the most fundamental freedoms enshrined in the Charter .[44]

27. The Court, rejecting morality, thus defines the harms of pornography within a strict sex equality context, adding that "if true equality between male and female persons is to be achieved, we cannot ignore the threat to equality resulting from exposure to audiences of certain types of violent and degrading materials."[45] With respect to what constitutes degrading or dehumanizing behaviour, the Court accepts the graphic but all too accurate description of the Manitoba Queen's Bench in R v Ramsingh , which described the type of material that qualified for this label as follows:

    (Individuals) are exploited, portrayed as desiring pleasure from pain, by being humiliated and treated only as an object of male domination sexually, or in cruel or violent bondage. Women are portrayed in these films as pining away their lives waiting for a huge male penis to come along, on the person of a so-called sex therapist, or window washer, supposedly to transport them into sexual ecstasy. Or even more false and degrading one is led to believe their raison d'etre is to savour semen as a life elixir, or that they secretly desire to be forcefully taken by a male.[46]

    Accepting this definition, the Court in Butler then explains that:

    among other things, degrading or dehumanizing materials place women (and sometimes men) in positions of subordination, servile submission or humiliation. They run against the principles of equality and dignity of all human beings . (Emphasis added.)[47]

28. In Butler, the Supreme Court of Canada mandates that the overriding objective in limiting the production and distribution of pornography is the avoidance of real harm to society - the harm caused to real people from materials that exploit them and depict them as inferior and unequal .[48] In so ruling, the Court recognizes that not all speech is equal and that some speech is in fact the very source of that inequality. The right to express oneself must thus be viewed within the context of real systemic inequalities.

    Re-Thinking "Obscenity" Post-Butler: An Australian Comparative Perspective

29. As women and minority persons are all too aware, our right to free expression has for too long been silenced by a majority discourse that refuses to give our ideas, politics and pains expression. In the name of free speech, we have been subjected to expression that does little more than oppress and further entrench our place in society as second class citizens or, for those of us who have been completely denied any voice, non-existent citizens.[49] By recognizing that some speech encourages and promotes those societal norms that cause inequality, the Canadian Supreme Court has done much to advance the rights of all persons who do not benefit from a now recognized unequal distribution of power. It is a recognition long overdue and one which others would do well to emulate.

30. If we accept the reasoning of the Court in R vButler, then the question that needs to be asked is whether or not any lessons can be or should be learned from it and ultimately applied within the context of Australian laws attempting to limit the harms of pornography. It is my belief that the decision most definitely is instructive and, if we truly are committed to both the concept of equality and to eliminating the harms of pornography, a review of Australia's most recent censorship legislation demonstrates why it must be.

31. The argument can, of course, be made that Canadian precedent holds no weight in Australian law. While it is arguably true that nations are under no obligation to follow the legislative and judicial efforts of other nations, it would seem to me that any nation truly committed to the concept of systemic equality would attempt to do all that it can do to ensure that this objective is met. The Canadian Courts have long struggled with the concept of obscenity. Until recently, Canadian and Australian approaches to the regulation of obscenity remained almost indistinguishable.[50] Similarly, both nations have done much to pass legislation aimed at eliminating social inequalities. In 1993, the Canadian Supreme Court took this step one step further by acknowledging the role of pornography in maintaining these inequalities. While Australian jurisdictions are under no obligation to do the same, it would seem to us that, given this country's apparent commitment to systemic justice, that the decision in Butler might at least merit consideration. Again, this becomes particularly evident if we examine the possible implications of our most recent efforts to regulate the harms of pornography.

32. In 1868, in the case of R v Hicklin[51] Cockburn CJ, outlined when the State can justifiably limit the distribution of materials it deems obscene. He held that the depravation and corruption of "those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall" is the primary issue to be considered. This test, concerned primarily with corruption of those who use pornography and the need to impose a rigid moral code, again finds expression throughout the soon to be implemented Broadcasting Services Amendment Act , an analysis of which follows.

    Australia's New Internet Regulators

33. In May 1999, the Australian Senate Select Committee on Information Technologies released its Report on the Broadcasting Services Amendment Bill .[52] The Committee's findings indicate that the government's agenda in this regard is to establish a regulatory framework relating to "illegal or offensive material published and transmitted through online services such as the Internet."[53] The Committee explains that this objective will be achieved in the following manner.

34. The substantive part of the legislation amends the Broadcasting Services Act (BSA) to add a comprehensive legislative framework to regulate a new category: online services. The legislation establishes a regime to be administered by the Australian Broadcasting Authority (ABA) to regulate the carriage of content over such online services as the Internet. In particular, the regime aims to remove and exclude certain material (described as either prohibited content or potential prohibited content - discussed in detail below) from the Internet.[54]

35. The Committee explains that the objects of the newly amended BSA will be to provide a means for addressing complaints about certain Internet content; restricting access to Internet content likely to "cause offence to a reasonable adult; and protecting children from exposure to Internet content that is unsuitable for children."[55] In order to achieve its stated objects, the legislation amends the BSA so that the ABA will be responsible for monitoring the Internet industry as well as the broadcasting services.[56]

36. A new schedule 5 is to be inserted in the BSA that will establish a regime for regulating certain aspects of the online industry. The regime will operate via a complaints mechanism. If a person has reason to believe that an Internet Service Provider is supplying an Internet carriage service enabling end-users to access either prohibited content or potential prohibited content or that an ICH is hosting prohibited content or potential prohibited content, then that person may make a complaint to the ABA. The ABA must investigate such complaints except where the complaint is, amongst other things, frivolous, vexatious or not made in good faith. The ABA must notify complainants about the outcome of the investigation. The ABA may also investigate any of the above matters on its own initiative.[57]

37. One of the essential elements of the regulatory scheme is that it defines material that will trigger a complaint as either prohibited content or potential prohibited content. The classification of Internet content is central to those definitions.[58] The legislation requires that written information and static information on the Internet be classified by a Classification Board established under the Classification (Publications, Films and Computer Games) Act 1995 as if it were a film.[59] If the material was classified under the Classification (Publications, Films and Computer Games) Act, the Internet content will be deemed to have the same classification. If the material has not been so classified, then the Classification Board must give the Internet content the same classification it would be given as a film under the Classification (Publications, Films and Computer Games) Act. The result is such that Internet content hosted in Australia will be classified as prohibited content if it has been classified RC (refused classification) or X by the Classification Board or it has been classified R by the Classification Board and access to the content is not subject to a restricted access system. Internet content hosted outside Australia is prohibited content if the content has been classified RC or X by the Classification Board. Potential prohibited content is content that has not be classified by the Classification Board but, were it to be so classified, there is a substantial likelihood that the content would be prohibited content.[60] This material may also be removed until by the ABA until a formal classification can occur.

38. The Bill divides the regulatory regime into two parts: that dealing with prohibited content hosted in Australia and that dealing with prohibited content hosted outside Australia.[61] If the ABA is satisfied that Internet content hosted in Australia is prohibited content, the ABA must give the Internet content host a written notice, being a final take-down notice, directing the host not to host the prohibited content.[62] Other provisions apply where the ABA is satisfied that the Internet content is potential prohibited content. If the ABA is satisfied that there is a substantial likelihood that the content would be classified as RC or X, the ABA must issue the host with a (written) interim take-down notice directing the host not to host the content pending an actual classification by the Classification Board. Further, the ABA must request such a classification from that Board. If, however, the ABA is satisfied that there is a substantial likelihood the Internet content would be given an R classification, then the ABA must only request the Classification Board to classify the content. In either case, the ABA must notify the ICH of the result of the classification and, where the result is that the content is prohibited, then the ABA must issue a final take-down notice,[63] which requires that the material be permanently removed from the Internet.

39. Particular provisions apply where the ABA is satisfied that Internet content hosted outside Australia is sufficiently serious to warrant referral to a law enforcement agency (within or outside Australia). In those circumstances, the ABA must notify, amongst others, a member of an Australian police force.[64] Finally, the legislation introduces an amendment to section 85ZE of the Crimes Act . That section prohibits a person from knowingly or recklessly using a carriage service supplied by a carrier to menace or harass others or from using that carriage service in an offensive manner.[65]

40. To understand the extent to which this new legislative scheme will prove ineffective in regulating that which must be regulated, one must take a closer look at the actual definitions provided in the Classification (Publications, Films and Computer Games) Act 1995. Recall that under the Broadcasting Services Amendment (Online Services) Act 1999, all Internet images will be classified by the OFLC in the same way as they would classify films under the Classification Act 1995. This is problematic.

41. Pursuant to section 9 of the Classification Act, all films (read: all forms of Internet presentation), are to be classified in accordance with the "National Classification Code", found in Schedule 5 of the Classification Act and the "Classification Guidelines." Pursuant to section 11 of the Classification Act , the matters to be taken into account when making a decision on the classification of a film include:
    1. the standards of morality, decency and propriety generally accepted by reasonable adults.

42. Pursuant to the National Classification Code, all Internet content should now be classified as followed:

    Description of film	Classification
    Films that: (a) depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified; or (b) depict in a way that is likely to cause offence to a reasonable adult a minor who is, or who appears to be, under 16 (whether or not engaged in sexual activity); or (c) promote, incite or instruct in matters of crime or violence.	RC
    Films (except RC films) that: (a) explicitly depict sexual activity between adults, where there is no sexual violence, coercion or non consent of any kind, in a way that is likely to cause offence to a reasonable adult; and (b) are unsuitable for a minor to see.	X
    Films (except RC films and X films) that are unsuitable for a minor to see.	R

43. The Classification Guidelines, referred to in section 9 of the Classification Act , are detailed in the Classification Board and Classification Review Board Annual Report for 1998. Important for our purposes is the fact that the Guidelines (which are quite brief and arguably lacking in content) state that, when making its classification decisions, the Board is required to "reflect contemporary community standards". With respect to R Rated films, the Guidelines outline that films will be rated 'R' if:
    • Sexual activity is only realistically simulated; the general rule is 'simulation yes - the real thing no'.
    • Nudity in a sexual context does not include actual genital contact
    • Verbal references are more detailed than actual depictions

44. The Guidelines also point out that films must be refused classification if they "offend against generally accepted standards of morality, decency and propriety" and if they contain:

    (a)	depictions of child sexual abuse or any other exploitative or offensive depictions involving a person who is or who looks like a child under 16;
    (b)	detailed instruction in: i. matters of crime or violence, ii. the use of proscribed drugs;
    (c)	depictions of practices such as bestiality.

45. Films and videos will be also be refused classification if they contain gratuitous, exploitative or offensive depictions of:

    (d)	violence with a very high degree of impact or which are excessively frequent, prolonged or detailed;
    (e)	cruelty or real violence which are very detailed or which have a high impact;
    (f)	sexual violence;
    (g)	sexual activity accompanied by fetishes or practices which are offensive or abhorrent;
    (h)	incest fantasies or other fantasies which are offensive or abhorrent.

46. A review of the above would seem to indicate that the primary focus of the Act is on the regulation of materials which are likely to offend those who view them and which, because they are indecent (hence offensive), are likely to undermine society's moral fibre. This focus permeates the entire Act and as such, tends to undermine those sections of it which might in fact prove useful. For example, although the Act seems to recognise the link between pornography and violence, this recognition is undermined by the fact that it fails at a very basic level to also recognise the harms of non-violent pornography. This is problematic, for as Susan Cole notes:

    But what do we do with the real facts, the ones that tell us that it isn't only the violent materials that are being used to keep women down or used as sex manuals forced on the victims of battery? What about the fact that the so-called "non-violent" materials are often made under near violent conditions? In fact, much of the pornography implicated in the battery of women has been these so-called non-violent materials. More to the point, the items through which women are forced into sexual acts are very often soft-core items that, even given the long arm of the law, obscenity legislation cannot and will not touch.[66]

47. Similarly, the determination of what is violent seems to depend on the Act's preoccupation with what, in the eyes of the reasonable person, is not in the community interest. This is problematic, to say the least. In the eyes of the law, the reasonable "person" has tended to find expression through the voice of the reasonable "man".[67] The reasonable man, charged with the responsibility of protecting the community against public indecency, lives in a community in which violence against women is ideologically encouraged; a community where women are battered and raped daily, simply for being women. As Andrea Dworkin notes:

    What do community standards mean in a society when violence against women is pandemic, when according to the FBI a woman is battered every eighteen seconds and it's the most commonly committed crime in the country? What would community standards have meant in the segregated south? What would community standards have meant as we approached the atrocity of Nazi Germany? What are community standards in a society where women are persecuted for being women and pornography is a form of political persecution?[68]

48. The community standards approach, defined as it is by a male standard far removed from this reality, also ignores the fact that the more pornography (because it glorifies and normalises these harms) is allowed to exist, the more likely it is that it will set the standards for those men expected to determine whether or not they, as the reasonable person and representative of the community, are offended. The determination of whether something is "decent" will thus tend to be measured against that which men find more and more sexually arousing -- resulting, ultimately, in a situation where inequality (because it is sexualized, normalized and romanticised in pornography and in society generally) ultimately becomes the community standard, such that inequality is unlikely to be seen as corruptive, hence indecent, hence harmful to the public interest.[69]

49. Because morality in our society has come to be linked with the community's perception of decency and offensiveness and because inequality is unlikely to be seen as offensive to those for whom inequality is not a daily reality and for whom it is, in fact, sexually arousing -- ie those men to whom we turn in determining what is in the public interest -- any attempt to regulate pornography which uses concepts like immorality, indecency or impropriety as the basis for determining harm, will ultimately prove futile in protecting those who do not benefit from a community standard set by gender male privilege and who do not benefit from debates about morality which centre on little more than the proper boundaries of female objectification. The question that legislation of this sort poses is whether men are offended by what they see, rather than whether women are abused, violated and degraded as a consequence of the production and use of what these men see. By emphasising the corruptive effect of pornography on the consumer (usually male), laws of this sort ignore the fact that women are overwhelmingly pornography's victims. They concern themselves "more with whether men blush than with whether women bleed,"[70] such that the harms caused to women and ultimately to the public's equality interest are completely ignored.

50. The above becomes even more apparent once we note the extent to which the interpretation of what is and is not "reasonable" or "morally acceptable" will now need to be made by adjudicators appointed by a government which sees itself as the guardian of Australian family values. One of the other real concerns with legislation which focuses on moral upkeep, is the extent to which it will be used to suppress the expression of sexual practices and identities which are not socially harmful. This is particularly true of some images and representations of same-sex sexual activity -- images which, it can be argued, are liberating and central to the formations of a positive sexual identity. For as Jerald Moldenhaur explains:

    As gay people, we know how important literature is in informing our evolving identity and furthering our social empowerment. Because our 'difference' as gay and lesbian people is largely defined by our sexuality, it is especially important for us to be able to communicate and share experiences about this subject.[71]

51. Although I generally agree with Moldenhaur's views, it is important to clarify that not all representations of same-sex sexuality are necessarily empowering. Indeed, some lesbian and gay activists (myself included) have expressed the concern that a great deal of gay and lesbian pornography is far from a tool of liberation and is, in fact, central to the promotion of the very inequalities that lesbians and gay men must reject if they are truly committed to the goal of social equality. These writers take issue with the claims of some gay activists[72] that lesbian and gay male pornography undermines the gendered power inequalities evident in heterosexual pornography because it presents a sexuality which tends to subvert and challenge heterosexual male power. In particular, it has been argued that:

    Gay male pornography creates a sexual hierarchy in which 'he' who is aggressive and dominant (read masculine) is powerful (read the epitome of what it means to be male as socially defined) and the person over/upon whom that power is exercised is non-masculine, hence feminised, hence non-powerful (read 'female' as socially defined). It is this sexuality that violates women and it is this sexuality that leads to the oppression of gay men. Gay male pornography, because it glorifies the masculine, reinforces a male/female social dichotomy. In doing so, it strengthens those stereotypes that allow society to view certain behaviour as feminine, hence inferior, and reaffirms, because it reinforces, the idea that it is unnatural to engage in a sexual dynamic not premised on male/female polarity. It is, in essence, homophobic and, as such, central to the maintenance of sex discrimination and systemic inequality.[73]

52. These writers, and those who support them, agree that some same-sex sexual imagery can be affirming and central to a more liberating identity. They also accept and understand that positive images of same sex sexuality are vital for those coming to terms with their sexuality in an environment which does much to portray it as deviant and abnormal. Most importantly, these writers agree that present efforts to restrict pornography, because they tend to focus on the need to protect public morality, risk restricting much needed lesbian and gay male expression. Where these activists disagree with other activists, however, is in their analysis of the importance of the types of lesbian and gay male pornography presently lauded as liberating, hence in need of protection. These writers believe that present efforts to protect gay pornography do little more than promote and reinforce those gender constructs that are the very source of gay male suppression and sex discrimination.[74] This in turn leads them to believe that efforts which aim to limit the distribution and production of pornography in the name of sex equality (as opposed to present procedures that appear to do so on the grounds of public morality) should be supported by lesbian and gay male activists alike, rather than condemned as anti-speech or anti-gay. Their goal is to ensure the implementation of anti-pornography measures which both protect against the harms of pornography while ensuring that legitimate forms of minority sexual expression (ie those which do not simply support gender inequality) are allowed production and distribution and not arbitrarily censored.

53. It is not my purpose in writing this paper to "prove" that lesbian or gay male pornography undermines society's sex equality interest. This is clearly beyond the scope of this work. Having said this, I do write this paper from the perspective of those who believe that it does do so. I acknowledge, however, that present obscenity regulations are susceptible to considerable abuse -- abuse which frequently results in the seizure of materials which clearly should not be restricted and which fails to restrict those materials which clearly should be. This obviously poses a challenge to all persons committed to equality. That is, how should those representations of same sex sexuality which do undermine systemic equality be regulated and how do we ensure that those which do not, are not regulated?

54. This is a point to which I will return later in this paper, as I believe the MacKinnon-Dworkin anti-pornography ordinances offer an effective solution to this challenge by allowing all persons who claim to have had their equality rights undermined by pornography (lesbians and gay men included) to personally challenge those who they believe are responsible for this harm. It is my assertion that the best way to reconcile the interests of those who quite justifiably fear unwarranted state censorship with the interests of those who are frustrated with the ineffective use of state censorship is to take away the power to regulate and control pornographic harm from those least harmed by pornography -- ie the state and those who exercise its power -- and allow those most harmed by pornography to take direct legal action against the agents of their harm without relying on the state to act on their behalf. The MacKinnon Dworkin Anti-Pornography Ordinance offers this alternative and, far from threatening the interests of lesbians and gay men, provides a creative solution to the problems of gender inequality and discriminatory, thus ineffective censorship guidelines and practices.

55. For the time being, however, it is worth noting recent statements by elected officials throughout Australia on the issue of sexuality and equality. When viewed within the context of the government's new censorship legislation, these comments highlight the very real likelihood that legislation which is completely devoid of any equality analysis will prove ineffective in dealing with sexual representations which are harmful, while being used to restrict some representations which clearly are not.

56. In 1995, the work of Robert Mapplethorpe was exhibited in Perth, Western Australia. Prior to the retrospectives arrival in Perth, a "Life Ministries" church representative, Dwight Randall, stated that "the depraved works of a dead homosexual were sick and should be banned" and argued that the Attorney General should act swiftly to ensure that the exhibit was banned. [75] Although the exhibit was not banned, it was denied funding by the government's arts sponsoring ministry, Healthway. Health Minister Graham Kierath, the Minister ultimately responsible for pulling funding from the exhibit, explained his decision by telling Parliament that, although much of Mapplethorpe's work is brilliant, some of the photographs were "nauseating, perverse, sleazy and depraved...(showing) some of the most horrific records of anal sex." He later added that "if it were not for the sort of activity that is displayed in some of Mapplethorpe's works, he and many other talented people might be alive today."[76]

57. There are many valid reasons to oppose the work of Robert Mapplethorpe. One might start with the fact that much of his work sexualizes and celebrates some of society's most oppressive racial stereotypes and the inequalities built on racial difference.[77] Indeed, one might ultimately ask whether the images encourage racial hatred and promote racial inequality. These questions were not asked, however. Instead, those who are concerned with sexualized racism and inequality again found themselves confronted with a government minister concerned only with what, in his eyes, was the perverse expression of a perverse sexuality.

58. Similar concerns have arisen elsewhere throughout Australia, particularly within the context of those efforts aimed at educating young gay men about the need for safe-sex practices. It is clear that safe sex education materials, to be effective, must demonstrate to young gay men and lesbians what, exactly, safe sex constitutes. As such, visual representations of such safe sexual activity will often form an integral role within the context of educational policies aimed at teaching necessary safe sexual practices. Unfortunately, a reading of these new censorship laws in Australia reveals that this may not prove feasible.

59. Recall that the legislation in place aims to regulate "offensive" materials which are likely to undermine "the standards of morality, decency and propriety generally accepted by reasonable adults." Although relatively recent, experience thus far in a number of Australian jurisdictions indicates that legislation aimed at protecting the prurient interest can, once applied, be used in a discriminatory and harmful manner. Because legislation of this sort focuses solely on the harms of immorality, it is quite feasible that those materials which are not harmful, but which are deemed "offensive", will be deemed illegal and ultimately censored.[78] This is particularly problematic for educators who now find themselves having to teach the realities of safe same sex sexual activity but who are confronted with a piece of legislation which appears to disallow access to those materials needed to do it.

60. Lest it be thought that these concerns are far-fetched, one need only examine recent censorship campaigns targeted directly at HIV/AIDS prevention campaigns to see that the opposite is in fact quite true. In 1996, for example, Queensland Health Minister Mike Horan banned an AIDS education campaign aimed at young men. The campaign included "some explicit sexual images, in association with information about how to minimise the transmission of HIV during sexual practices including oral and anal sex" and was based on "research conducted among service providers which acknowledged changes to the ways in which gay men approach sex and HIV, given such factors as 'safe sex fatigue' and 'negotiated safety'. Although the campaign had already been released in Victoria and was widely regarded as having an important role in the HIV/AIDS education, Horan argued that the campaign did little more than promote the homosexual lifestyle and was far too graphic for release to the public.[79] He was supported in his conclusions by Mr Laurie Toppling, the director of a Brisbane-based AIDS counselling service for heterosexuals, who argued that the campaign did little more than promote "immoral behaviour" - statements not assisted by Federal Minister for Health, Dr Woolridge's assertion that although Queensland risked "significant health and social costs if they failed to provide an appropriately targeted alternative", governments do "have the right to ban material they regard as pornographic."[80] In 1998, Mr Horan again blocked publication of an advertisement designed to reduce HIV transmission among men having sex with other men in rural areas. The ad, intended for a local newspaper in rural Queensland, was to read: "There are many guys who enjoy sex with other guys and have a girlfriend or a wife", and "You don't have to be gay or bi to want to have sex with guys." The ad then encourages "men who like to get together with other men" to contact the AIDS Council." Mr Horan banned the ad on the basis that it "offends public decency". He added, "We have always told the AIDS Council that their money is not to be used to for the promotion of a particular lifestyle."[81]

61. Similar views were expressed by Senator Herron during debate on the scope and impact of the government's Internet amendments to the Broadcasting Act. The Senate debate is interesting in that it reveals the type of publications that individual senators believe should not be allowed as unrestricted publications. Senator Herron's comments, in particular, reveal a rather obsessive fixation with anal sex, which he refers to as a 'deviant practice.' Referring to a safe sex publication put out by the Ministry of Health in Cleo Magazine which depicts safe sex activity, the Senator is quoted in the 1 March 1995 Hansard at 1212 as saying:

    Where do we go when we get an X-rated pornographic government publication that is put out by the Minister of Human Services and Health, and which advocates deviant sexual practices and is not, as she says in the preamble to it, a non judgemental resource. This so called safe sex guide is an official government publication, endorsed by the government . . . It is X-rated and pornographic, and any right minded person . . . would classify it unsuitable for publication, but it is on the bookstands of this country and can be bought by any 13 year old child.

    I have on record the names and addresses of people who want to speak out because they are so enraged at this attack on the morals, as well as the health aspects, of this publication. This is an official government publication. It is full of lies. The publication states that between 40 and 60 per cent of women in this country have anal sex. This is an official government publication. . . . I have been a colorectal surgeon . . . I have treated many AIDS patients. I have treated many active homosexual patients. The damage that occurs through this deviant practice is unimaginable, and we have the government advocating it as normal practice.

62. Regardless of one's personal views on anal or oral intercourse, it should by now be evident to even the most prudish that systemic harm is unlikely to arise from consensual non-vaginal penetrative sex and, indeed, that for young gay men who are raised to believe that homosexual contact is deviant and unnatural, representations of safe and consensual same-sex sexuality can in fact be quite life affirming. This is an issue that has as much as been laid to rest in other jurisdictions, for as explained in the recent Canadian case of Little Sisters Book and Art Emporium v. AG Canada[82]

    There is no jurisprudence supporting the proposition that all depictions or descriptions of anal intercourse are obscene in and of themselves on the basis that anal penetration is inherently degrading or dehumanizing.[83] The prohibition of representations of that practice (anal sex) discriminated against male homosexuals. It deprived them of representations central to the values and culture of the minority group to which they belong. It (also) constituted an embargo on safe-sex guidelines within Canadian homosexual communities at a time, in the context of the AIDS epidemic, when such guidelines have been particularly important.[84]

63. The rationale articulated in the Little Sisters case arose within the context of the equality analysis outlined in Butler. Important for our purposes is the Court's reasoning that presentations of those sexual practices equated with homosexual sex are not, per se, harmful. This is not to say that same sex pornography cannot be seen to violate the equality standard against which pornography should be tested,[85] but that gay sex, per se, is not harmful unless presented in such a way as to make degradation, dehumanisation and the harms of inequality that result from stereotypical gender differences appear normal.

64. What is clear from the above is that anti-pornography legislation which fails to see pornography as an issue of systemic gender equality is ripe for abuse, inconsistent application and overall ineffectiveness. Given the attitude of the government in charge of enforcing the legislation, reflected in the comments of a number of elected officials, there is little reason to believe that Australia's most recent efforts will prove any different in this regard. This is particularly troubling given that this officials will now be responsible for appointing those persons required to adjudicate the varied effects of an entire host of Internet images and representations - a decision making process which is made more difficult and ineffective as a result of the standards set under this legislative scheme and by the fact that there are few if any guidelines in place for determining who, exactly, is an appropriate person for making this determination. Section 48 of the Classification Act states only that the Minister shall appoint persons who are "broadly representative of the Australian community." It offers little guidance as to how and on what basis these people should be appointed and the Classification Guidelines are disturbingly silent in this regard.

65. For those harmed by pornography, the apparent lack of experience of, and guidance given to, Board members is further compounded by the fact that the appeal mechanisms in place do not appear to grant any right of appeal to persons other than those responsible for producing or distributing the material which is the subject of the classification. Section 42 of the Act states only that "persons aggrieved" by any classification decision can apply to a Review Board for a review of a decision. The Act does not explain what is meant by the term "aggrieved person." Similar legislation at the state level does clarify the expression, however, such that "person aggrieved" means an author or publisher of the publication to which the appeal relates.[86] Given the extent to which the federal government wishes to work closely with the states in this regard, there is little reason to believe this definition will not apply the federal level. If this is to be the case, the Act again does little in the way of ensuring a voice to those most in need of one. Specifically, no reference is made in this section (or indeed in any other section of the Act) to those "aggrieved" during the production of the pornography now available online -- predominantly women who, as MacKinnon and Dworkin explain, are pornography's first victims:

    Pornography indelibly makes those it uses into its presentation of them, so that no matter who they are or what they say about how they really felt, to those who have seen them in pornography, they are pornography for life. Pornographers promote an image of free consent because it is good for business. But most women in pornography are poor, were sexually abused as children, and have reached the end of this society's options for them, options that were biased against them as women in the first place. The fact that some women may "choose" pornography from a stacked deck of life pursuits (if you call a loaded choice a choice, like the "choice" of those with brown skin to pick cabbages or the "choice" of those with black skin to clean toilets) and the fact that some women in pornography say they made a free choice do not mean that women who are coerced into pornography are not coerced.[87]

66. The Broadcasting Act does nothing to ensure that those used during the production of pornography are offered an opportunity to ensure that those who profit or who find sexual arousal in their abuse are not entitled to do so. Nor does it offer any recourse to those who suffer considerable physical and psychological harm as a result of the distribution of this pornography. Rather than empower pornography's victims, it does little more than provide yet another opportunity for those who produce and profit from victimization to justify sexism and legitimise inequality.

67. Although designed to radically re-write Australia's censorship laws in the area of Internet regulation, a careful reading of the legislation reveals that the Broadcasting Services Amendment (Online Services) Act stands as a rather unfortunate example of how not to address the individual and systemic harms that result from the production and distribution of pornography. Focusing solely on the need to protect against moral corruption, as opposed to seeing pornography for what it really is (a form of sex discrimination resulting in systemic inequality), the legislation fails to ensure that those most in need of protection from pornographic harm are not so protected.

68. By focussing on pornography as an issue of immorality, rather than as an issue of inequality and the harms that result from inequality, the Australian government fails to ensure that those most in need of legal recourse will find it. It also risks imposing unjustified limits on legitimate forms of sexual expression -- expression which, far from harmful, may in fact prove quite central to the goal of achieving systemic equality. What is needed is legislation which is radical in so far as it really does offer those who have been harmed by pornography the opportunity to do something about it. By redefining pornography as a threat to social equality and by adopting enforcement measures which ensure that this threat is curtailed, our legislators would do much to ensure that the harms of pornography are taken seriously, while guaranteeing that the "right to speak" is a right shared by all citizens. This legislation, in its present form, does neither.

    Pornography as a Human Rights Violation

    Through its production, pornography is a traffic in female sexual slavery. Through its consumption, pornography further institutionalizes a subhuman, victimized, second-class status for women by conditioning orgasm to sex inequality. When men use pornography, they experience in their bodies that one-sided sex - sex between a person and a thing - is sex, that sexual use is sex, sexual abuse is sex, sexual domination is sex. This is the sexuality they then demand, practice, and purchase. Pornography makes sexism sexy. It is a major way that gender hierarchy is enjoyed and practiced.[88]

69. The question that needs to be asked then is: where to from here? It has been my purpose in writing this paper to convince those who claim to take the issue of pornography seriously to re-think the law of obscenity. I have argued that the recent decision of the Canadian Supreme Court in R v Butler offers strong support for the claims of those committed to the elimination of sex discrimination that pornography must be seen as a source of the types of gendered inequalities that result in sex discrimination. An analysis of Australia's new Internet censorship legislation demonstrates just what can go wrong when a radical re-thinking is not undertaken. I am not convinced, however, that simply re-defining pornography as an issue of inequality is enough. It is an important and necessary start, but it is not enough.

70. While the reasoning of the Supreme Court of Canada in R v Butler is to be applauded, it is important to note that the Court could only go so far in ensuring that its goal of equality was in fact achieved. Specifically, the distribution of pornography in Canada remains a criminal offence. As a result, the determination of whether or not attempts should be made to stop pornographic distribution remains in the hands of the police -- a fact which essentially ensures that those most harmed by pornography are again provided no say as to whether or not something should be regulated. Similarly, the decision in Butler, although progressive and much needed, does nothing to provide compensation to those who have been victimised as a result of the production an distribution of pornography. While the decision might ensure, assuming the state does decide to act, this does little to compensate victims of past abuse.

71. While the equality test adopted in Butler improves on traditional obscenity law standards, and should be adopted in principle throughout Australia, the test alone will not succeed in halting the production of pornography and the harms that result from it so long as the power to do so remains in the hands of those for whom pornography is not an issue of inequality and personal harm. What is needed is an approach which empowers pornography's victims and which, as such, effectively and fairly addresses the systemic inequality caused by sexualized gender discrimination - an approach which allows those most harmed by pornography to fight back against those who harm them and which, as such, puts some teeth into the Butler equality mandate.

72. The human rights approach to pornographic harm drafted by American feminists Catharine MacKinnon and Andrea Dworkin offers such an approach. MacKinnon and Dworkin conceptualise pornography as a practice of sex discrimination, arguing that it actively promotes inequality between the sexes by eroticising dominance and male supremacy. It is unique both in procedure and substance in that the approach offered provides a definition of pornography which is specific and unambiguous and allows those most harmed by it to do something about it, without relying on the determination of others as to whether or not to act on their behalf. Most importantly, it locates the regulation of pornography within the context of eliminating sexualized gender hierarchies and the inequalities that result from them. While it is not my intention to provide a complete analysis of the Ordinances (as this has been done quite effectively elsewhere)[89] it is worth noting that pornography under this approach is defined as follows:

    Pornography. Pornography is a form of discrimination on the basis of sex.

    (1)	Pornography is the sexually explicit subordination of women, graphically depicted, whether in pictures or in words, that also includes one or more of the following:
    	(i)	women are presented dehumanized as sexual objects, things or commodities; or
    	(ii)	women are presented as sexual objects who enjoy pain or humiliation; or
    	(iii)	women are presented as sexual objects who experience sexual pleasure in being raped; or
    	(iv)	women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt; or
    	(v)	women are presented in postures of sexual submission; or
    	(vi)	women's body parts - including but not limited to vaginas, breasts, and buttocks - are exhibited, such that women are reduced to those parts; or
    	(vii)	women are presented as whores by nature; or
    	(viii)	women are presented being penetrated by objects or animals; or
    	(ix)	women are presented in scenarios of degradation, injury, abasement, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual.
    (2)	The use of men, children, or transsexuals in the place of women in (1)(i-ix) above is pornography for the purposes of this statute.[90]

73. The Ordinance allows those harmed by pornography to bring a civil or human rights-based action against those responsible for their harm. It can be passed as an amendment to an already existing civil or human rights law or it can be passed as a freestanding statute.[91] In Australia, this can best be achieved by amending state and federal Equal Opportunity legislation, with necessary amendments being made to the compensation limits imposed by legislation of this sort.[92] Under its provisions, it is deemed to be sex discrimination to coerce, intimidate or fraudulently coerce any person into performing for pornography.[93] The makers, sellers, exhibitors and/or distributors of any resulting pornography can then be sued for damages and for an injunction to eliminate the product of the performance from public view.[94] It is also deemed to be sex discrimination to produce, sell, exhibit, or distribute pornography, including through private clubs and to force pornography on a person in any place of employment, education, home or public place.[95] Finally, victims of an assault, physical attack, or injury that is directly caused by specific pornography are entitled to file a complaint against the maker(s), seller(s), exhibitor(s) or distributor(s) of the pornography believed to have caused the assault.[96]

74. Catharine MacKinnon and Andrea Dworkin argue that pornography contributes to the social construction of the masculine (read dominant) norm and feminine (read submissive) "other". This is an analysis with which I agree. Ultimately, it constructs and defines the way in which we see and interpret the roles of men and women. Rather than mere harmless fantasy, pornography is a sexual reality -- an agent for the construction of those denied male privilege as that of inferior, worthless, and best suited for sexual slavery. The end result is an identity-discourse that results in a male-as-dominant over female-as-subordinate politic - a politic that translates into "cultural-sadism" or an ideology which encourages sexual violence by presenting it as appropriate behaviour.[97] By normalising male sexual violence, pornography creates the normative gender identity of men as powerful and women as powerless. Male dominance is thereby legitimised. The result is a system of inequality through which degradation and harm are sexualized, romanticised and ultimately normalized.

75. Any attempt to regulate pornography that fails to see pornographic harm for what it is -- an issue of sex discrimination resulting in social inequality -- will ultimately prove futile. The Australian Parliament has enacted legislation which it claims can tackle the harms that result from the distribution of online pornography. Unfortunately, given that this legislation is aimed solely at controlling the public's access to materials deemed obscene, offensive, indecent and morally repugnant, it is clear that it will most definitely fail to address the harms that must be addressed. Void of any equality analysis, and relying solely on the personal views of those least harmed by pornography to determine harm, the government's new Act may well prove to be as socially short-sighted and regressive as its critics claim while proving as ineffective as those who most need a protection fear it will be.

76. The MacKinnon-Dworkin Ordinances have not been adopted in any Australian jurisdiction. Throughout Australia, pornography remains an issue of indecency and immorality. The Supreme Court of Canada's decision in R v. Butler offers hope for those who believe and who know that pornography is much more than an issue of impure thoughts. The Ordinances take this approach to its logical conclusion. Naturally, there will those who argue that an approach of this sort is ill suited to Internet regulation. I have yet to be convinced that this is the case. The advent of electronic communications will, of course, change how pornography is distributed. It will not, however, change the nature of the harms that result from this distribution - other than to make them more pervasive. As MacKinnon concludes:

    Each new technology raises anew the question of legal approaches. Cyberspace makes vivid, if it was not already, the inefficacy of current obscenity law, which coexists with this exploding market in human abuse, as it has with every other means of sexual trafficking. Just as the harms pornography does are no different online than anywhere else, the legal approach taken to them need be no different. It need only be effective. Computer networks present a newly democratic, yet newly elite, mass form of pornography becoming less elite by the minute, just as pornography always has. In whatever form pornography exists, its harms remain harms to the equality of women, so it is through addressing these harms that pornography can be confronted. Civil rights legislation designed to remedy pornography's harms at their point of impact is well suited to this task.

    Computer technology does pose newly complex issues of anonymity and privacy. Unidentified speech has always presented dangers of harassment and reputational destruction but never before on this scale. Privacy has always been fragile, but never before has it been possible to find out what a person is reading while they are reading it. Technical problems of proving liability and measuring damages also exist, although now that the pornographers are figuring out how to get paid for pornography in cyberspace, many of these problems will be solved, as the transactions will leave a trace. Once a legal approach through actual harms is taken, accountability for pornography on computer networks poses no new conceptual problems, only practical problems of delivery. The legal problem is, women hurt by pornography have no rights against it anywhere. If circulating pornography in this new, still legitimate, forum reframes the same old abuse to alter that impunity, this new technology will be the first to be revolutionary.[98]

77. By making freedom from pornographic harm a human right, a right that takes precedence over any perceived right to unlimited speech, the Ordinance puts into practice the conceptual shift towards equality outlined in Butler. It also addresses the inadequacies and biases inherent in those procedures presently designed to prevent pornographic harm - procedures which are susceptible to abuse and inconsistent application and which do very little to address the real harms of pornography identified by those most harmed by it. The Australian Parliament has declared that it intends to take the issue of pornography seriously. It has yet to prove itself capable of doing so. By allowing those harmed by pornography to tackle it as an abuse of human rights, however, the government will do much to ensure that it does.

    Notes

* BA(Hons), LLB (Queen. s), LLM (Michigan), Senior Lecturer in Law, Research Fellow, Asia Pacific Intellectual Property Law Institute, Murdoch University, Perth, Western Australia.  The author wishes to thank Associate Professor Fiona Macmillan, Copyright Director at the Asia Pacific Intellectual Property Law Institute for her assistance throughout the writing of this paper.  Thank you also to Mr Bruce Leishman, student in law, for his invaluable research assistance.

[1] Quoted in Philip Elmer-Dewitt, "On a Screen Near You: Cyberporn", Time Magazine, 10 July 1995 48 at 53.

[2] See generally, Philip Elmer-Dewitt, supra note 1 at 48; Marty Rimm, "Marketing Pornography on the Information Superhighway" (1995) 83 Georgetown Law Journal 1849; Jeffrey Gentleman, "Porn Again Stars Pump Billions Into Limp Film Business", The West Australian, 14 September 1999 at 44; Robert Kirwin and Nicole Mankeltow, "Sex Online", Australian Net Guide, March 1996 at 29.

[3] Elmer-Dewitt, supra. note 1 at 50.

[4] Second Reading Speech, Broadcasting Services Amendment (Online Services) Bill 1999, at wysiwyg://www.dcita.gov.au. See also, Senator Richard Alston, Explanatory Memorandum, available from Senate Table Office, Canberra and "Principles for a regulatory Framework for Online Services in the Broadcasting Services Amendment Act 1992 at http://www.dca.gov.au/policy/framework.html.

[5]  See generally, Niranjan Arasaratnam, "Internet Censorship: See No Evil, Speak No Evil, Hear No Evil" (1999) 18(2) Communications Law Bulletin 1; Brendan Scott, "The Dawn of a New Dark Age: Censorship and Amendments to the Broadcasting Services Act" , at wysiwyg://69/http://www.gtlaw.com.au/pubs/newdarkage.html; Mike Van Niererk, "Free Speech May Be Online Casualty of Anti-Porn Laws" , The West Australian, 22 August 1995 at 16; Alan Kohler, "Governing Desire: How Pornography on the Internet became Captive to Politics", The Financial Review, 8 May 1999 at 23; Elizabeth Feitzkhah, "Policing the Wild Net. , Time Magazine, 21 June 1999 at 52; Action Alert, "Australia Needs Your Help" at  http://www.efa.org.au/Campaigns/slert99.html; Kaaren Koomen, "Illegal and Harmful Content on the Internet: Some Issues and Options" (1998) 35 Computers and Law 1; Kimberley Corner, "Censorship A Burning Issue", The Sunday Times, 21 April 1996; David Watts, "Oh What a Tangled Net We Weave", The West Australian, 8 May 1999 at 31; Kirsty Needham, "Net Bill and Investor Turn-Off", Sydney Morning Herald, 7 June 1999 at 36; Anon, "Censors Take Us Back to the 60's" , Advertiser, 4 June 1999 at 18; Anne Summers, "Opinion: Now Anything But Liberal", Sydney Morning Herald, 3 June 1999 at 17; Shaun Anhgony, "MPs Speak Out on Web Censorship" , West Australian, 2 June 1999 at 12; Dan Tebbutt, "Censor and Be Damned", Australian, 1 June 1999 at 53; Jenny Sinclair, "Dismay Over Net Freedom Curb" , Age (Melbourne), 1 June 1999 at 2; Sandy Plunkett, "Internet Censorship: The Joke's On Us" , Sydney Morning Herald, 31 May 1999 at 40; Anon, "Net Bill: A Modern Day Book Burning," Sydney Morning Herald, 31 May 1999 at 18; Anon, "Protest Against Government. s Draconian Censorship", The Illawarra Mercury, 28 May 1999 at 15

[6] Catharine A MacKinnon Feminism Unmodified (Boston: Harvard University Press, 1987) at 148. See also, Andrea Dworkin and Catharine MacKinnon, "Memorandum to the Minneapolis City Council", 28 December, 1983, as cited in Hilary Charlesworth "Pornography as Sex Discrimination" (1983) 63(8) Law Institute Journal 736.

[7] See generally, Nadine Strossen, Defending Pornography: Free Speech, Sex, and the Right for Women's Rights (New York: Scribner, 1995) and Nan Hunter, "Brief Amici Curiae of Feminist Anti-Censorship Task Force", (1988) 21 Michigan Journal of Law Reform 69.

[8] This is an argument most frequently articulated by lesbian and gay male activists and tends, at times, to blur with the above argument that pornography should be seen as protected speech. For an analysis of this argument and how best to reconcile it with feminist anti-pornography efforts, see my discussion at notes 71 to 73.

[9] By which I mean only that I will not attempt to respond to the claims of those who reject the claim that pornography is a source of considerable individual and systemic harm. I will outline why I believe pornography is an issue of inequality, rather than an issue of immorality, but do so only for the purpose of convincing the Commonwealth Parliament that the morality-based approach it has chosen is inappropriate and ineffective. For an excellent analysis and critique of many of the claims made by pro-pornographers and those who refute the approach we offer, see: J Hoff, "Why Is There No History of Pornography" pp17-46 in S. Gubar and J Hoff (eds) The Dilemma of Violent Pornography: For Adult users Only (Indiana: Indiana University Press, 1989); H.E. Longino "Pornography, Oppression, and Freedom: A Closer Look" at 40-54 in L. Lederer (ed), Take Back the Night: Women on Pornography (New York: William Morrow & Co., 1980); A. Dworkin "Pornography Happens To Women" at 181-190 in L. Lederer and R. Delgado (eds) The Price We Pay: The case Against Racist Speech, Hate Propaganda, And Pornography (New York: Hill and Wang, 1995); J. Stoltenberg "Pornography and Freedom at 65-77 in D. Russell (ed), Making Violence Sexy: Feminist Views On Pornography (New York: Teachers College Press, 1993).

[10] See at notes 41 and 42.

[11] This is a task which has been undertaken elsewhere. See, for example, Graham Greenleaf, "Law in Cyberspace" (1996) 70 Australian Law Journal 33; Peter Toohey, "The Net Given a New Nanny", The Bulletin, December 5, 1995 at 39; Victoria Laurie, "Moral Guardians on the March", The Bulletin, December 19, 1995 at 82; Brendan Scott, "A Layman's Guide to Internet Censorship in Australia" at wysiwyg://http://www.gllaw.com.au/pubs/sobershock.html

[12] See generally, Arasaratnam, supra. note 5 at 1; CSIRO, Technical Aspects of Blocking Internet Content, (1999); Philip McCrea, Bob Smart and Mark Andrews, "Blocking Content on the Internet: A Technical Perspective" (1998); Gordan Hughes, "Regulation of the Internet", (1996) Law Institute Journal 23; Shaun Anthony, "Crackdown on Net Porn Will Fail, Senators Told" The West Australian, 4 May 1999 at 27; David Watts, "Move to Curb Internet Fails to Understand the Medium. , The West Australian, 1 June 1999 at 12; David Iliffe, "Net Porn Bill is Useless," The Illawarra Mercury, 31 May 1999 at 17; Garry Barker, "Net Porn Law Too Weak: Experts", The Age, 28 May 1999 at 8.

[13] With respect to the claim that some representations of sexuality can be empowering and liberatory (hence, non-harmful) see my analysis of the need for positive images of same-sex sexual images at notes 78 to 84 and the work of the authors noted therein. Note also my analysis of the recent Canadian case of Little Sisters Art and Book Emporium (at note 84) and the potential for abuse and discriminatory application of obscenity-type legislation like that adopted by the Australian government.

[14] [1992] 1 SCR 452 (SCC) (hereafter Butler).

[15] See Andrea Dworkin and Catharine A MacKinnon, Pornography and Civil Rights: A New Day for Women's Equality, (Minneapolis: Organising Against Pornography, 1988).

[16] PA Kaeser, Her Majesty's Feast: Gender, Power, Speech and Equality (Unpublished LLM Thesis, York University, 1989) at 10. A detailed account of the history of the Minneapolis ordinances is provided in Paul Best and Ann Vandenberg, "Politics, Feminism and the Constitution: The Anti-Pornography Movement in Minneapolis" (1987) 39 Stanford Law Review 607.

[17] 771 F. 2d 323 (7th Cir 1985).

[18] For a critique of the Court's conclusion that pornography is protected speech, see John Stoltenberg, "Confronting Pornography as a Civil-Rights Issue" in Refusing To Be A Man (New York: Meridian, 1990) and Cass Sunstein, "Pornography and the First Amendment" (1986) Duke L.J 589. See also Catharine A MacKinnon, Only Words (Boston: Harvard University Press, 1994).

[19] An analysis of these efforts and resulting legislation is offered by Anne Scahill, "Can Hate Speech Be Free Speech?", (1994) 4 Australasian Gay and Lesbian Law Journal 1 and Ryan Takach, "Gay and Lesbian Inequality: The Anti-Vilification Measures", (1994) 4 Australasian Gay and Lesbian Law Journal 30; Anthony Henderson, "An Analysis of NSW Attorney General's Anti-Anti-Discrimination (Amendment) Bill 1993", (1993) 3 Australasian Gay and Lesbian Law Journal; Ron Castan, "Targets of Race Hate Entitled to Redress", The Australian, 15 November 1994, 17.

[20] Cited in Catherine Itzin and Corinne Sweet, "Women's Experience of Pornography: UK Magazine Survey Evidence", in C. Itzin (ed) Pornography: Women, Violence and Civil Liberties (Oxford: Oxford University Press, 1992) at 230-232.

[21] RSC 1985, c. C-46.

[22] Butler was charged with 173 counts of illegal possession: three counts of selling obscene material contrary to s 163(2)(a) of the Code, 41 counts of possessing obscene material for the purpose of distribution contrary to s 163(1)(a) of the Code, 128 counts of possessing obscene material for the purpose of sale contrary to s 163(2)(a) of the Code and one count of exposing obscene material to public view contrary to s 163(2)(a) of the Code. At trial, Butler was convicted on eight counts relating to eight films. He was acquitted on all other counts ((1989), 50 C.C.C. (3d) 97). The Manitoba Court of Appeal allowed the appeal and entered convictions with respect to all counts ((1990), 60 CCC (3d) 219).

[23] Section 2(b) of the Canadian Charter of Rights and Freedoms (the Charter) reads: "Everyone has the following fundamental freedoms: (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media communication".

[24] Although the protections enunciated in the Charter are expressed widely, the actual scope of these protections is determined by the Charter's first clause which requires the Courts to recognise limits on the rights provided in it. Section 1 states: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. For the most part, section 1 has been applied in a constrained and reasoned manner. This result has been produced by the Supreme Court of Canada's decision in R v Oakes, [1986] 2 SCR 103 -- a case in which the Court devised the judicial test according to which section 1 should be applied in order to determine if proven Charter violations are demonstrably justified. (For an analysis of the Court's reasoning see L. Weinrib, "The Supreme Court of Canada and Section One of the Charter", (1988) 10 Supreme Court L.R. 469). In Oakes, Dickson C.J.C. set out the structure of a s. 1 analysis as follows: first, the objective of the legislation held to violate a Charter provision must be of sufficient importance to do so and must relate to concerns which are pressing and substantial in a free and democratic society. Once the legislation passes these requirements, it is then scrutinised to determine (1) whether the measures adopted and which infringe the right in question are rationally connected to the objective in question; (2) whether the measures employed impair as little as possible the right or freedom; and, (3) whether the deleterious effects of the measures held to violate an alleged right are proportional to its objective or purpose. (As outlined in V. Ramraj, "Keegstra, Butler and Positive Liberty: A Glimmer of Hope for the Faithful", (1993) 51 University of Toronto Faculty of Law Review 304).

[25] See generally, Sheila Noonan, "Harm Revisited: R v Butler", (1992) 4:1 Constitutional Forum 12; Debra McAllister, "Butler: A Triumph for Equality Rights" (1992-92) 2 National Journal of Constitutional Law 118; Richard Cameron, "R v Butler: A New Approach to Obscenity Law or Return to Morality Play?", (1993) 35 Criminal Law Quarterly 77; Ian Hunter, "R v Butler: Feminism Trumps Morality" (1993) 35 Criminal Law Quarterly 147; Richard Moon, "The Limits of the Supreme Court's Feminist Re-Interpretation of Section 163", (1993) 25 Ottawa Law Review 361.

[26] Canada, House of Commons Standing Committee on Justice and Legal Affairs, Report on Pornography, Issue No. 18 (March 22, 1978).

[27] Butler at 493.

[28] An excellent compilation of these findings is found in Catherine Itzin, Pornography: Women, Violence and Civil Liberties (London: Oxford University Press, 1992). See also Factum of the Intervener Women's Legal Education and Action Fund in R v Butler, File No. 22191 (hereafter, the LEAF Factum). Copies of the LEAF Factum are available from the LEAF National Office, 415 Young Street, Suite 1800, Toronto, Ontario, Canada M5B 2B7. All relevant studies, together with analysis of victim testimony, are also listed in the Attorney General's Commission on Pornography, Final Report (Washington: July 1986).

[29] See for example, E. Donnerstein, "Pornography: Its Effect on Violence Against Women, in Malamuth and Donnerstein (eds), Pornography and Sexual Aggression (New York: Academic Press, 1984); D Zillman, Connections Between Sex and Aggression (Hillsdale, New Jersey: Lawrence Erlbaum, 1984); J. Check, The Effects of Violent and Nonviolent Pornography (Ottawa: Canadian Department of Justice, 1985); Donnerstein and Berkowitz (1983), J. Check and T.H. Guloin, "Reported Proclivity for Coercive Sex Following Repeated Exposure to Sexually Violent Pornography, Nonviolent Pornography and Erotica" in Zillmann and Bryant (eds) Pornography: Research Advances and Policy Considerations (Hillside, NJ: Erlbaum, 1989); Diana Russel "Pornography and Rape: A Causal Model" (1988) 9(1) Political Psychology 41.

[30] See D. Zillmann and J.B. Weaver; "Pornography and Men's Sexual Callousness Towards Women" in Zillmann and Bryant (1989); Diana Russel, Sexual Exploitation: Rape, Child Sexual Abuse, and Workplace Harassment (Beverley Hills, Calif: Sage, 1984).

[31] See Catharine MacKinnon and Andrea Dworkin, In Harm's Way: The Pornography Civil Rights Hearings (Boston: Harvard University Press).

[32] See, Susan Cole, Pornography and the Sex Crisis (Toronto: Amanita Press, 1989.

[33] See, Catherine Itzin and Corinne Sweet, "Women's Experience of Pornography: UK Magazine Survey Evidence" in Itzin, supra. note 28 at 222.

[34] See generally, "Proof, Who Needs Proof", XS: A Supplement to Xtra! Magazine, November 1992 at 3 and Nadine Strossen, Defending Pornography, supra. note 7. I find these arguments somewhat misleading and query why, legally and socially, pornography is always signalled out as a special case in need of a standard of proof that would seem ridiculous in many other circumstance. As Diana Russel notes ("Nadine Strossen: the Pornography Industry's Wet Dream", On the Issues, Summer 1995 at 32) within the context of Nadine Strossen's request for more evidence:

Many people share Strossen's opinion that men who consume porn but who have never raped a woman disprove the theory that porn can cause rape. This is comparable to arguing that because some cigarette smokers don't die of lung cancer, there cannot be a causal relationship between smoking and lung cancer. Only members of the tobacco industry and some seriously addicted smokers consider this a valid augment today. Although the scientific evidence that porn can cause rape is at least as strong as the evidence that smoking can cause lung cancer, many people are so ideologically committed to the view that porn is harmless that they find a multitude of excuses to disregard it. Strossen and the ACLU's strategy seems to be to ignore information, arguments and theories that they find too difficult to tackle, no matter how much dishonesty and misrepresentation it takes.

[35] [1990] 3 SCR 697. The case of R v Keegstra concerned the interpretation and application of sections 318 and 319 of the Canadian Criminal Code. These provisions make it an indictable offence to communicate statements which wilfully promote hatred against any identifiable group. In Keegstra, the Canadian Supreme Court held that although the provisions do infringe on the right to free expression, the infringement is nonetheless justified because of the threat to equality posed to target groups and to society at large from speech aimed at undermining equality. Specifically, the Court held (at 777) that:

Hate propaganda seriously threatens both the enthusiasm with which the value of equality is accepted and acted upon by society and the connection of target group members to their community....Hatred...is a most extreme emotion that belies reason; an emotion that if exercised against members of an identifiable group implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation.

[36] Ibid. at 746.

[37] McLachlin J. (dissenting at 857) best summarises this conclusion when noting in Keegstra that:

To view hate propaganda as "victimless" in the absence of any proof that it moved listeners to hatred is to discount the wrenching impact it may have on members of the target group themselves....Moreover, it is simply not possible to assess with any precision the effects that expression of a particular message will have on all those who are ultimately exposed to it.

Dickson CJC agrees and notes (at 846) that this lack of precision does not discount the concerns of those who claim to be harmed by it, particularly if these concerns are expressed within the context of undeniable systemic inequality and daily discrimination against minority persons:

The message of the expressive activity covered by s. 319(2) is that members of identifiable groups are not to be given equal standing in society, and are not human beings equally deserving of concern, respect and consideration. The harms caused by this message run directly counter to the values central to a free and democratic society, and in restricting the promotion of hatred Parliament is therefore seeking to bolster the notion of mutual respect necessary in a nation which venerates the equality of all persons.

[38] As noted in Mark Hussey, "Book Review: Defending Pornography -- Free Speech, Sex and the Fight for Women's Rights" On the Issues, Summer 1995 at 48.

[39] Butler at 509.

[40] Ibid at 496.

[41] Note for example the experiences of Linda Marchiano (Lovelace), who was physically and psychologically abused during the production of the movie "Deepthroat". Marchiano has described in graphic detail how, during the production of this film, she was pimped, beaten, and forced at gun point to partake in sexual activities with animals and men who, prior to and during filming, subjected her to considerable physical abuse. See Linda Marchiano, Ordeal (New Jersey: Citadel Press, 1980). Marchiano's experiences are neither unusual nor unique. As Susan Cole notes, "to the women who are in the pictures, it is real sex; it happened to them. To the women who are forced by consumers to look at the pornography, or forced to imitate the sex in the pictures, it becomes sex in their real lives." (S. Cole, "Book Review: Women Against Censorship" (1985) 1 CJWL 226 at 228.). Many women also testified to experiences similar to those of Marchiano at the public hearings held by the Minneapolis City Council when it first considered adopting the Dworkin-MacKinnon Civil Rights Ordinances (See Pornography and Sexual Violence: Evidence of the Links -- the Public Hearings on Ordinances to Add Pornography as Discrimination Against Women by the Committee on Government Operations, City Council, Minneapolis (London: Everywoman, 1988)). On the potential for harm during the production of gay male pornography see C Kendall, "Real Dominant, Real Fun: Gay Male Pornography and the Pursuit of Masculinity" (1993) 57 Saskatchewan Law Review 21.

[42] As MacKinnon and Dworkin (Pornography and Civil Rights, supra. note 15 at 47 and 48) note with respect to some of the testimony documented at the Minneapolis hearings:

Researchers and clinicians documented what women know from life; pornography increases attitudes and behaviours of aggression and other discrimination by men against women. Women testified that pornography was used to break their self-esteem, to train them to sexual submission, to season them to forced sex, to intimidate them out of job opportunities, to blackmail them into prostitution and keep them there, to terrorize and humiliate them into sexual compliance, and to silence their dissent. They told how it takes coercion to make pornography, how pornography is forced on women and children in ways that give them no choice about viewing the pornography or performing the sex. They told how pornography stimulates and condones rape, battery, sexual harassment, sexual abuse of children, and forced prostitution. We learned from the testimony that the more pornography men see, the more abusive and violent they want it to be; the more abusive and violent it becomes, the more they enjoy it, the more abusive and violent they become, and the less harm they see in it. In other words, pornography's consumers become unable to see its harm because they are enjoying it sexually. Men often think that they use pornography but do not do these things. But the evidence makes it clear that pornography makes it impossible for them to tell when sex is forced, that women are human, and that rape is rape. Evidence of a direct correlation between the rate of reported rape and consumption figures of major men's-entertainment magazines supports this. Pornography makes men hostile and aggressive toward women, and it makes women silent. Anyone who does not believe this should speak out against pornography in public some time.

[43] Canadian obscenity law originally developed within the context of preventing moral corruption through exposure to sexually explicit materials. An overlapping but broader purpose was to prevent offence to public sensibilities. Underlying assumptions informing these views were and are that women's naked bodies are indecent, sexual displays are immodest, unchaste and impure, homosexuality is repulsive and sex outside of traditional marriage or in other than traditional configurations is a sin. (As outlined in the LEAF Factum, supra. note 20 at 3). In 1959, a significant step was taken to move beyond morality. At that time, the law was amended to define obscenity as "crime, horror, cruelty and violence" combined with sex, as well as the undue exploitation of sex. Unfortunately, the way in which this law was interpreted was such that "undue exploitation of sex" depended upon sexual explicitness alone - not the actual harms resulting from sexual explicitness. See eg, R v Odean Theatres Ltd et al (1974), 16 CCC (2d) (Man CA) at 197; R v Kleppe (1977), 35 CCC (2d) 168 (Ont Prov Ct); R v Gray (1981), 65 CCC (2) 353 (Ont HC) at 355. As LEAF explains, some Courts assiduously and deliberately avoided identifying harm of any kind. Notwithstanding the accumulating evidence of harm, the Courts still took the approach of criminalising "dirt for dirt's sake": See eg, R v Coles Co Ltd, [1965] 2 CCC 304 (Ont CA) at 322-23; R v Prairie Schooner News Ltd (1970), 1 CCC (2d) 252 (Man CA). (LEAF Factum at 3 and 4.).

[44] Butler at 492.

[45] Ibid. at 495.

[46] (1984), 14 CCC (3d) 230 (Man QB) at 239.

[47] Butler at 479.

[48] Accepting that the harm imposed by speech which undermines equality is fundamentally a threat to society's interests in the equality of all persons, the Court explains (at page 485) that s. 163 can now justifiably be applied with the following test in mind. Specifically, materials can be seized when they violate those equality values outlined by the Court as fundamental. These values will be violated when the materials constitute the undue exploitation of sex. In determining whether the exploitation is "undue", the Court explains that pornography can be usefully divided into three categories: 1) explicit sex with violence; 2) explicit sex without violence but which subjects people to treatment that is degrading or dehumanising; and 3) explicit sex without violence that is neither degrading nor dehumanising. The Court then explains that in making the determination of what amounts to the undue exploitation of sex with respect to these three categories, the portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex. Explicit sex which is degrading or dehumanising will be undue if the risk of harm (to inequality) is substantial. Finally, explicit sex that is not violent and neither degrading nor dehumanising will not qualify as the undue exploitation of sex unless children are used to produce it.

[49] An argument brilliantly articulated by Mari Matsuda in "Public Response to Racist Speech: Considering the Victim's Story" (1989) Michigan Law Review 2320. See also J.C Love, "Tort Actions for Hate Speech and the First Amendment: Reconceptualizing the Competing Interests" (1992) 2 Law and Sexuality 29.

[50] An overview of the law of obscenity regulation in Australia can be found in Stella Rozanski, "Obscenity: Common Law and the Abuse of Women" (1991) 13 Adel LR 163. See also Alison Carroll; "A History of Moral Censorship and the Visual Arts in Australia" in The Australian Centre for Contemporary Arts, Moral Censorship and the Visual Arts (Melbourne, 1989).

[51] L.R. 3 QB 360 (1868). The reasoning in Hicklin has been expressly adopted in Australian cases on the regulation of obscenity. See, for example, Ex p Collins (1889) 9 LR (NSW) 497 and Crow v Graham [1968] HCA 6; (1968) 121 CLR 375. In Crow, the Court held (at 395) that in determining whether material is obscene, the Courts should assess whether the material "by reason of the extent to which and the manner in which it deals with sexual matters, transgress[es] the generally accepted boundaries of decency" (as outlined in Regina Graycar and Jenny Morgan, The Hidden Gender of Law (Annandale: The Federation Press, 1992) at 373).

[52] Senate Select Committee on Information Technologies, Broadcasting Services Amendment (Online Services) Bill 1999 (Canberra: Commonwealth of Australia, 1999).

[53] Ibid. at para. 1.1

[54] Ibid. at para. 2.2.

[55] Ibid. at para. 2.4.

[56] Ibid. at para. 2.6.

[57] Ibid. at para. 2.7.

[58] Ibid. at para. 2.9.

[59] Irene Graham, "Blinded by Smoke: The Hidden Agenda of the Online Services Bill 1999", at http://rene.efa.org.au/liberty/blinded.html. Section 12 of the Broadcasting Services Amendment (Online Services) Act states that Internet content is to be classified "in a corresponding way" to films. As Graham notes, there is little reason to believe that the expression "corresponding way" will not be interpreted to mean "same as".

[60] Senate Report at para. 2.10.

[61] Ibid. at para. 2.13.

[62] Ibid. at para. 2.14.

[63] Ibid. at para. 2.15

[64] Ibid. at para. 2.20.

[65] Ibid. at para. 2.37.

[66] Susan Cole (Power Surge: Sex, Violence and Pornography (Toronto: Second Story Press, 1995) at 101. It is worth noting that, while the Guidelines do call for the regulation of materials which are "demeaning", this requirement does not appear in the actual Code or in any of the classification terminology used throughout the rest of the legislation. It is difficult to see how the use of the word can have any real significance, at least in so far as systemic gender equality is concerned, given the rest of the Act's preoccupation with moral upkeep.

[67] An analysis in this regard is offered by Caroline Forell, "Reasonable Woman Standard of Care" (1992) 11 University of Tasmania Law Review 1 who argues:

Take a look at the examples of the reasonable man/person standard. In the United States the example given is the man who mows the lawn in his shirtsleeves and who takes the magazines at home; in England it is the man who rides the Clapham omnibus. And I've heard tell the Aussie translation of this is 'the man who rides the Bondi tram.' These symbols of the reasonable person explicitly set up middle class male values as the source of the objective neutral standard. They define reasonableness as what a member of that particular class and gender might think.

[68] Andrea Dworkin, "Pornography is a Civil Rights Issue for Women", (1988) 21 Michigan Journal of Law Reform 46 at 51 and 54.

[69] As argued by Catharine A MacKinnon in Only Words (Cambridge: Harvard University Press, 1993) at 87-89. MacKinnon's conclusion is supported by the reasoning articulated in the 1986 U.S. case of Rabidue v Osceola 584 F. Sup 419, 433 (District Court, Michigan) in which the Court concludes:

For better or worse, modern America features open displays of written and pictorial erotica. Shopping centers, candy stores and prime time television regularly display pictures of naked bodies and erotic real or simulated sex acts. Living in this milieu, the average American should not be legally offended by sexually explicit posters.

[70] Catharine MacKinnon, Toward A Feminist Theory of the State (Cambridge: Harvard University Press, 1989) at 199.

[71] Jerald Moldenhaur, as quoted in Censorship Bulletin (Toronto: Glad Day Bookshop and the Glad Day Censorship Fund, 1986) at 13.

[72] See, in particular, Carl Stychin "Exploring the Limits: Feminism and the Legal Regulation of Gay Male Pornography", (1992) 16 Vermont Law Review 857; John Burger, One Handed Histories: The Eroto-Politics of Gay Male Video Pornography (New York: Harrington park Press, 1995).

[73] Christopher Kendall, "Gay Male Pornography: An Issue of Sex Discrimination" (1995) 5 Australian Feminist Law Review 81 at 83. See also John Stoltenberg, "Gays and the Pornography Movement: Having the Hots for Sex Discrimination" in Kimmel (ed), Men Confront Pornography (New York: Crown Publishers) 248; John Stoltenberg, Refusing to Be a Man (Meridian Books: New York, 1990); Irene Reti, Unleashing Feminism: Critiquing Lesbian Sadomasochism in the Gay Nineties (Santa Cruz, CA: HerBooks, 1993) and Sheila Jeffreys, "Eroticizing Women's Subordination" in D Leidholt and J Raymond, The Sexual Liberals and the Attack on Feminism (New York: Teachers College Press, 1990)).

[74] On the links between homophobia and sex discrimination see Marc Fajer, "Can Two Real Men Eat Quiche Together?: Storytelling, Gender Role Stereotypes and Legal protection for Lesbians and gay Men", (1992) 46 U Miami LR 511; A Koppelman, "The Miscegenation Analogy: Sodomy Law as Sex Discrimination", (1988) 98 Yale LJ 145; C Kendall, "Homophobia as an Issue of Sex Discrimination: Lesbian and Gay Equality and the Systemic Effects of Forced Invisibility", (1996) 3 E Law - Murdoch University Electronic Journal of Law 1.

[75] Victoria Laurie, "Moral Guardians on the March" in The Bulletin Arts, December 19, 1995 at 83.

[76] Ibid.

[77] See, for example, the work of Patricia Morrisroe, Mapplethorpe (New York: Random House, 1995) who notes Mapplethorpe's obsession with the sexual use of African American men and his preference for presenting stereotypical images of black male sexuality in his work. On the use and effect of racism in pornography see, Aminatta Forna, "Pornography and Racism: Sexualizing Oppression and Inciting Hatred" in Catherine Itzin (ed), Pornography: Women Violence and Civil Liberties (Oxford: Oxford University Press, 1992); Frank Browning, The Culture of Desire: Paradox and Perversity in Gay Lives Today (New York: Crown Publishers, 1993) at 193-203 and Kobena Mercer "Race, Sexual Politics and Black Masculinity: A Dossier" in Rowena Chapman (ed), Male Order: Unwrapping Masculinity (London: Lawrence and Wisehart, 1988).

[78] See Alan Brotherton, "Protect Me From What I Want". (1999) 12(6) National AIDS Bulletin 4. This has certainly been the case in those jurisdictions where lesbian and gay materials continue to be seized on the basis of moral harm, as opposed to any real understanding of the actual threat to equality caused by those materials which sexualise inequality. This point is analyzed in more detail in Christopher Kendall, "Gay Male Pornography After Little Sisters Book and Art Emporium: A Call for Gay Male Cooperation in the Struggle for Sex Equality" (1997) 12(1) Wisconsin Women's Law Journal 21.

[79] Anon, "Queensland Government Bans Ad Campaign" (1996) 7(4) HIV/AIDS Legal Link 13.

[80] Ibid.

[81] As reported in The Courier Mail, March 2 and 7 1998. Summarised in (1998) 9(2) HIV/AIDS Link 3-4.

[82] (1996) 131 DLR 4th 486 (SCC). In Little Sisters, a case concerning the seizure of lesbian and gay male pornography by Canada Customs, the Court held that Canada Customs procedures regrading the seizure of pornography are arbitrary and discriminate against lesbians and gay men. The Court also held that Canada Customs had failed to effectively implement the equality-based approach outlined by the Supreme Court of Canada in Butler. In addition the Court recognized that, applying the test in Butler, it is clear that some lesbian and gay male pornography can be held to violate widely accepted equality principles.

[83] Ibid. at 557.

[84] Ibid. at 558.

[85] A fact which the Court in Little Sisters readily notes at page 558. Having reviewed the equality-based test outlined in Butler, the Court accepted that "pornography for homosexual audiences may cause the kinds of changes in attitudes, emotions and behaviours" that are deemed "harmful to society."

[86] See, for example, Censorship Act 1996, Western Australia, s. 19(4).

[87] Dworkin and MacKinnon, Pornography and Civil Rights, supra. note 15 at 43.

[88] Id. at 46.

[89] See, for example, John Stoltenberg, "Confronting Pornography as a Civil-Rights Issue" in Refusing to be a Man: Essays on Sex and Justice (New York: Meridian Press, 1990); Marian Leslie Klausner "Redefining Pornography as Sex Discrimination: an Innovative Civil Rights Approach" (1984-85) New England Law Review 721; J Scutt, "Incorporating the Dworkin/MacKinnon Approach Into Australian Law" (1991) Inkwel 5; Anon, "Pornography: Freedom v Censorship?" in (1991) Communications Law Bulletin 14; Mary Horniblow, "Power Undressing" in (1993) Polemic 17; Chilla Bulbeck, "Words Can Never Hurt Me?" (1990) 15(2) Legal Services Bulletin 79; Andrea Dworkin, "Pornography is a Civil Rights Issue for Women" (1988) 21 Michigan Journal of Law Reform 55; and Catharine MacKinnon, Pornography and Civil Rights, supra. note 12.

[90] Dworkin and MacKinnon, Pornography and Civil Rights, supra. note 15 at 101.

[91] Procedures set up by the ordinance provide for complaints in respect of the defined discriminatory practices set out in it to be followed by investigation and conciliation. Unresolved complaints can proceed to a public hearing at which an order to cease and desist can be made along with the payment of damages to the complainant. Throughout Australia, this procedure is best suited as an amendment to the various Equal Opportunity Acts as these Acts already forbid sexual harassment and discrimination on the basis of sex and all of which attempt to address complaints of sex discrimination by way of investigation and tribunal-type hearings.

[92] For an excellent analysis of how one might implement the Ordinances in other Australian jurisdictions, see Jocelynne Scutt, "Incorporating The Dworkin/MacKinnon Approach Into Australian Law (1991) 5 Inkwel 3. See also, Hillary Charlesworth, "Pornography as Sex Discrimination" (August 1989) Law Institute Journal 736; Beth Gaze, "Pornography and Freedom of Speech: An American Feminist Approach" (June 1986) Legal Services Bulletin 123.

[93] As MacKinnon and Dworkin explain (Pornography and Civil Rights, supra. note 15 at 43-44), the first victims of pornography are those used to make it:

Girls are enticed into posing for the photographer next door, confused at their feelings of uncomfortableness, shame, and affirmation. He makes them feel beautiful, with his approval, admiration, solicitude, presents, molestation. Fathers sell pictures of sex acts with their own children to international pornography rings. Aspiring actresses and models are fraudulently induced into posing for nude or seminude shots, told the genitals will not show or it will be a silhouette or they will not be recognised-until they see themselves fully exposed and fully identified in Penthouse. Or they are told it will be their ticket to the top, only to find that most legitimate avenues are then closed to them because they appeared nude, so it is their ticket to the bottom. Until women are socially equal to men, it will be impossible to know whether any women are in pornography freely. And until women can bring an effective action for coercion into pornography, and get the product of their abuse off the market, it will be impossible even to begin to know how many of them are coerced.

[94] As MacKinnon and Dworkin again note (at pages 45, 46 ,48 and 49):

The trafficking provision makes it possible for any woman to bring a complaint against pornographers for subordinating women. It is not necessary for an individual woman to show that she has been harmed more than all other women have by pornography. It is definitely necessary for her to prove that the materials meet the definition of pornography, for which it is necessary to prove that they do the harm of subordinating women.

Although the social position of men, children, and transsexuals is not absolutely defined by pornography in the way women's is, they are often used in pornography in ways similar to the ways women are used. The Ordinance makes it possible for them to sue. The Ordinance also permits civil suits against the use of children in pornography. Specific subgroups of men, particularly gay men and Black men, would also have strong potential cases. For both, their civil status is made lower by their sexualization in pornography and in society. For both, one can see a direct relation between their use in pornography and their low social status. Gay men are often used literally in the same ways women are in pornography; their status being lowered to that of a woman is part of the sex. Abuse of gay men is also eroticized in pornography, promoting self-hatred of an oppressed group as its pleasure and identity.

[95] See supra. at note 15.

[96] As MacKinnon and Dworkin explain (at 50 and 51): The debate over the relationship between pornography and violence against women has been haunted by a spectre of absurdity; the man who rapes with a pornographic book in his back pocket. As it turns out, these spectres are real. The assault section of the Ordinance does not resolve the debate on the connection between pornography and rape. It does make it possible for an individual woman to sue a man who rapes her with a pornographic book in his back pocket and its maker, distributor and seller too. It gives her a chance to try to prove that there is a direct causal relationship between an act of violence against her and the specific piece if pornography. Under this provision, no one could sue pornographers for the general contribution pornography makes to a rape culture, a culture that equates sex with death. Specific pornographers could, however, be sued in an attempt to prove the causal contribution of specific pornography to the specific physical injury.

[97] Susan M Easton, The Problem of Pornography: Regulation and the Right to Free Speech (Routledge: London, 1994) at 25.

[98] Catharine A MacKinnon, "Vindication and Resistance: A Response to the Carnegie Mellon Study of Pornography in Cyberspace", (1995) 83 Georgetown Law Journal 1959 at 1966-1967.