Evans, Michelle --- "Censoring Internet Pornography in Australia: A call for a Civil Rights Approach to Address Pornographic Harms" [2006] UWSLawRw 4; (2006) 10(1) University of Western Sydney Law Review 75
CENSORING INTERNET PORNOGRAPHY IN AUSTRALIA:
A CALL FOR A CIVIL RIGHTS APPROACH TO ADDRESS PORNOGRAPHIC HARMS
Michelle Evans[∗]
The internet makes pornography readily available, with the majority of Australians having internet access in their homes and businesses.[1]
Whilst pornography in general contributes to women’s unequal position in society through the use of gendered hierarchies of dominance and submission[2], much internet pornography is also violent in nature with many web sites depicting rape, torture and sexual abuse in a sexual context. The internet brings these violent depictions, which encourage and promote sexual violence, into women’s homes like never before.
The amendment of the Broadcasting Services Act 1992 (Cth) in 1999 to regulate internet content[3], does little to address these harms because its focus is to protect Australians from moral harm. In other words, the Australian legislation operates to protect Australians by censoring material that may harm or corrupt the viewer’s moral fibre. Importantly, it does little to address the role pornography plays in promoting and encouraging violence against women, and does not empower women to take action against their abusers and against pornographers who promote the abuse. An approach that does directly address these harms is the civil rights ordinance formulated in the United States by feminist writer Andrea Dworkin and Law Professor Catharine A. MacKinnon which took the form of an amendment to existing sex discrimination legislation. This approach could be adopted in Australia as an amendment to the Sex Discrimination Act 1984 (Cth).
In arguing that Australia should adopt this approach, this paper will commence with an examination of the provisions of the ordinance. This analysis will illustrate how the ordinance was designed to address specific harms to women caused by pornography such as rape and sexual abuse (as opposed to the traditional approaches to regulating pornography via the criminal law of obscenity or censorship which have their basis in morality[4]). This paper will then address why Australia needs the ordinance. Firstly, Australia needs the ordinance because there is significant anecdotal and scientific evidence that pornography causes specific harm to women in the form of sexual violence. Secondly, the internet contains a proliferation of pornography that promotes this violence against women. This paper will then outline what Australia has attempted to do about internet pornography, namely the Broadcasting Services Act which focuses on protecting society from moral harm, rather than protecting women from pornography’s specific harms, such as sexual violence. In conclusion, some of the problems in adapting the ordinance to the internet will be highlighted.
MacKinnon and Dworkin’s civil rights ordinance
The civil rights ordinance originated in the United States in 1983.[5] Law Professor Catharine A. MacKinnon and feminist writer Andrea Dworkin, both well known for their strong opposition to and activism against pornography, were approached by residents of two working class areas of Minneapolis who were concerned about the prevalence of pornography in their neighbourhoods. The residents asked MacKinnon and Dworkin to help them draft a zoning ordinance which would only permit pornography to be sold in specified low income neighbourhoods.[6] MacKinnon and Dworkin persuaded the relevant Zoning and Planning Committee that this would only legitimise pornography by confining its sale to specified areas[7] and convinced them that the ordinance should adopt a sex equality (civil rights) approach instead.[8]
Consequently, the ordinance drafted by MacKinnon and Dworkin sought to deal with pornography as an issue of sex discrimination. The ordinance empowered those harmed in or by the production and distribution of pornography by allowing them to sue the makers and distributors of pornography, to obtain damages, and to obtain injunctive relief to stop pornography being sold, exhibited and distributed. As part of the legislative process, public hearings were held in the United States in which members of the public could voice their support or opposition to the proposed ordinance.[9] These hearings provided a forum for women to speak about how pornography had harmed them, often for the first time, resulting in a vital body of evidence of pornography’s specific harms. The ordinance was first enacted in Minneapolis but was vetoed by the Mayor.[10] In 1984, Indianapolis passed a similar ordinance as legislation which was later held to be an unconstitutional violation of the right to freedom of speech, protected by the First Amendment to the United States’ Constitution.[11] As a consequence, other states were unable to enact the ordinance because it would again be held unconstitutional.
As well as noting the inadequacy of zoning laws to regulate pornography, MacKinnon and Dworkin have noted the inability of the criminal law to assist women harmed by pornography. They state that when women who are used in pornography complain about rape and sexual assault, they are often not taken seriously.[12] Frequently this is because they are prostitutes, a status that makes their claims unconvincing to police.[13] Women who have been sexually assaulted during the making of pornography have also reported being too afraid to go to police who were sometimes the clients of the pornographers responsible for their abuse in the first place.[14] Women used in pornography also do not report crimes against them to police because they fear retribution from pornographers[15] (who may also be their male spouses, partners or relatives), or that they will not be believed and will be regarded as consenting to the abuse.[16] In addition, MacKinnon and Dworkin note that even if a woman reports sexual crimes against her to police, if the matter proceeds to trial, the laws of evidence may result in her past sexual history being put on trial to discredit her, something that is either a further humiliation for the woman, or that prevents her from reporting the crime in the first place.[17] Hence, the criminal law will most often be deficient to help these women. So too are schemes that seek to compensate criminal injuries which require the recognition that a crime has been committed, or at the very least, women to report their abuse to police.[18]
In addition to criminal laws being inadequate to address pornographic harms, existing sex discrimination laws, whilst being a good start, are not yet sufficient enough to completely address pornographic harms. The sexual harassment and victimisation provisions of Australia’s federal and state sex discrimination legislation have been held to apply to the display of pornography and the forcing of pornography on women in their workplaces.[19] However, the ordinance more specifically addresses pornography and its harms. Under current sex discrimination legislation, women can only sue the perpetrator of the sex discrimination, and if the sex discrimination occurs in the workplace, the employer of the perpetrator for vicarious liability.[20] However, the ordinance also allows women to sue the makers, sellers and distributors of the pornography in order to hurt the pornography industry financially. The ordinance also gives women harmed by pornography a greater range of remedies. Whilst sex discrimination laws allow women to seek damages, the ordinance allows women to seek injunctive relief to stop the specific pornography from being displayed, sold and distributed. In specifically addressing pornography as harmful, the ordinance also has a broader role in educating and potentially changing attitudes about what pornography is and does.[21]
The ordinance commences with a ‘Statement of Policy’ which states that ‘pornography is a practice of sex discrimination’.[22] This Statement of Policy details what pornography really is[23] and does. It identifies pornography as ‘a systemic practice of exploitation and subordination based on sex that differentially harms and disadvantages women.’[24] In other words, it identifies pornography as one of the factors that contributes to women’s social inequality. It also lists, in some detail, more specific physical harms caused by pornography.[25] These include physical harm such as rape and sexual abuse, as well as psychological harms such as ‘psychic assault’. This approach is a very different approach from traditional legal approaches to pornography, namely obscenity and censorship which regard the harms of pornography as being harms to society’s moral fibre. Instead, the ordinance recognises that pornography’s harms are specific harms to women in the form of sexual inequality, harassment, rape, sexual assault and discrimination.
Section 2 is the definitions section of the ordinance which emphasises the sexual subordination and dehumanisation of women as one of pornography’s central characteristics:
(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 as dehumanised 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 – included but not limited to vaginas, breasts or 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 as 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…
Section 3 specifies the ‘Causes of Action’ under the ordinance. If a woman has a cause of action under section 3, she can bring a civil action to claim relief.[26] The ordinance makes specific pornographic harms actionable as sex discrimination. MacKinnon and Dworkin made a deliberate decision to draft the ordinance from a civil rights perspective in order to take the power of enforcement away from police and prosecutors, and into the hands of women. In the words of Dworkin and MacKinnon, ‘It is time to place the power to remedy the harm in the hands of those who are hurt, rather than to enhance the power of those who have done so little with so much for so long.’[27] Under the ordinance a woman has a cause of action if she is coerced into performing in pornography, has pornography forced on her (for example in the workplace by a work colleague), is assaulted or attacked due to pornography, or if she is defamed through pornography[28]. These causes of action are for direct harm caused to an individual woman by pornography. The ordinance also makes it sex discrimination to sell, exhibit or distribute pornography.[29] This cause of action is an indirect one. That is, it allows any woman to bring a complaint against pornographers and those who profit from pornography for harm to women as a class.[30] This is a claim with respect to the subordination of women generally and in the words of Dworkin and MacKinnon, ‘It is not necessary for an individual woman to show that she has been harmed more than all other women have by pornography.’ This paper will now examine, in more detail, the specific causes of action under the ordinance.
The ordinance gives women a specific cause of action against coercion into performing in pornography. Section 3, clause 1, named ‘coercion into pornography’ provides that ‘it is sex discrimination to coerce, intimidate, or fraudulently induce…any person into performing for pornography’. Section 3, clause 1 provides that damages and injunctions for coercion can be sought against the ‘maker(s), seller(s), exhibitor(s) and/or distributor(s)’ of that pornography.
Women also testified at the civil rights hearings to their fear and humiliation of knowing that pornography made of them still exists and may be used against them.[31] Linda Marchiano[32] spoke of her humiliation and frustration at being unable to stop the sale and distribution of pornography made of her. When asked at the civil rights hearings how she felt about the fact that Deep Throat continued to be shown Ms Marchiano said, ‘virtually every time someone watches that film, they are watching me being raped.’[33] Section 5, clause 3 of the ordinance permits a person who has a cause of action under the ordinance to apply for injunctive relief. This would allow women such as Ms Marchiano to obtain an injunction to stop the pornography made of them from being sold, distributed and shown.
At the civil rights hearings, women also testified about how pornography was forced upon them in their homes as a teaching tool by their abusers, and to break down their resistance to performing certain sexual acts.[34] Women testified of being subjected to pornography in male dominated work environments.[35] Section 3, clause 2 makes it ‘sex discrimination to force pornography on a person in any place of employment, education, home or any public place.’
Women testified to the role pornography played in their abuse not only by those they knew, but by strangers.[36] Section 3, clause 3 makes it ‘sex discrimination to assault, physically attack, or injure any person in a way that is directly caused by specific pornography.’ This section allows a complaint to be made not only against the perpetrator of the assault but also against the makers, sellers and exhibitors of the pornography. This section of the ordinance is arguably the most difficult for a woman to prove because it requires proof that the pornography in question ‘directly caused’ the harm. Indeed, feminists such as Cameron and Fraser have recognised that ‘any feminist who objects to pornography is immediately challenged to demonstrate such a causal relationship’.[37] MacKinnon and Dworkin have acknowledged this stating that, ‘claims under this section would be very difficult to prove’.[38] They note, however, certain circumstances in which causation between the pornography and the assault will not be as difficult to establish – for example, when a man rapes with ‘a pornographic book in his back pocket’[39] or where a man uses pornography as a manual for abuse, forcing the woman to copy the poses and sexual acts in the pornography.[40] However, it may be difficult to prove that a specific pornographic web site was the cause of a rape if the rapist has viewed hundreds of pornographic web sites via the internet for a number of years. Indeed, pornography may be one of many factors that motivated the man to rape. In order to improve the opportunity for a victim to bring a successful cause of action under this section, it is submitted that the requirement that pornography ‘directly caused’ the harm, could be expanded to include pornography that ‘substantially caused or contributed to’ the harm.
The ordinance empowers those harmed by pornography to take action themselves and to obtain a remedy for themselves. This is something that a censorship approach, which relies on a censorship board to determine whether materials are morally harmful, (nor obscenity laws, which make the production and sale of pornography a criminal offence) cannot do. Section 5, clause 2(a) provides that if a person has a cause of action they can seek (or their estate can seek) ‘nominal, compensatory, and/or punitive damages without limitation, including for loss, pain, suffering, reduced enjoyment of life, and special damages, as well as for reasonable costs, including attorneys’ fees and costs of investigation’. In addition, section 5, clause 5 provides that if a person obtains legal relief under the ordinance they are not precluded from seeking any other form of civil or criminal relief.
As mentioned above, the ordinance was found to be an unconstitutional contravention of the First Amendment right to free speech in the United States.[41] However, Australia does not have a bill of rights under which pornographers can prosper under the guise of ‘free speech’.[42] Instead, constitutional guarantees of freedom of speech in Australia are limited to freedom of communication with respect to political and governmental matters as required by our system of representative democracy established by the Commonwealth Constitution.[43] Consequently, there are no constitutional limitations to the enactment of the ordinance in Australia.
Why does Australia need the ordinance?
Pornographic harms
MacKinnon and Dworkin drafted the ordinance as recognition of the considerable evidence to suggest that pornography is directly harmful to women. There have been many reports of perpetrators viewing violent pornography and then using it as a kind of manual for rape and sexual abuse. For example, the American case of State v Herberg[44] records a violent sexual assault and torture in which the perpetrator acted out content in several pornographic books including ‘Violent Stories of Kinky Humiliation’, ‘Violent Stories of Dominance and Submission’, ‘Bizarre Sex Crimes’, ‘Shamed Victims’ and ‘Watersports Fetish: Enemas and Golden Showers’.[45] Pacillo summarises the case as follows:
On July 17, 1981, David Herberg forced a 14-year-old girl into his car, tied her hands with his belt, and pushed her to the floor. With his knife, he cut her clothes off, then inserted the knife into her vagina, cutting her. After driving a short distance, he forced the girl to remove his clothing, stick a safety pin into the nipple of her own breast, and ask him to hit her. He then orally and anally raped the girl. He made her burn her own flesh with a cigarette, defecated and urinated in her face, and compelled her to eat the excrement and to drink her own urine from a cup. He strangled her to the point of unconsciousness, cut her body several times, then returned her to the place where he had abducted her. In reviewing Herberg’s criminal appeal, the Supreme Court of Minnesota noted that when Herberg committed these acts, he was ‘giving life to some stories he had read in various pornographic books.’ Officials seized these books from him during his arrest.[46]
As mentioned above, public hearings were held in several cities in the United States as a precursor to the enactment of MacKinnon and Dworkin’s civil rights ordinance.[47] Several women testified about being raped and sexually abused in the home and the role that pornography played in that abuse including Pat Haas, who testified she was forced to perform the acts seen in pornography by her partner:
I was forced to provide videos for him. He found one particular one very appealing. It was about sadomasochism. He spent hours watching this movie and he then started forcing me to do the things that were in this movie. One night, I spent an evening with him. I had hot wax dripped on me. A couple of weeks later, I was forced to pierce my nipples, I was forced to have sex with other people, it didn’t make any difference – men, women, groups. He had me playing watersports games, which is drinking urine. And every time I said no, he would find a way of beating me. Most of the time it was with a two inch belt. He had knives at my throat; he tried strangling me on occasion.[48]
Several women have made direct reference to pornography being used as a ‘text book’ for their abuse at the civil rights hearings such as R.M.M who testified at the Minneapolis Hearings of the role pornography played in her abuse by her husband:
He would read from the pornography like a text book. In fact, when he asked me to be bound, when he finally convinced me to do it, he read in the magazine how to tie the knots, and how to bind me in a way that I couldn’t get out. And most of the scenes that we – most of the scenes where I had to dress up or go through different fantasies – were the exact scenes he had read in the magazines.[49]
Real people are used in pornography. In the words of MacKinnon, ‘women in pornography are real women to whom something real is being done.’ [50] Women are being abused and photographed in their homes, with their abusers needing little more than a digital camera to become pornographers themselves.[51] Consequently, there is an abundance of pornography on the internet under the category of ‘amateurs’ which consists of this kind of ‘home made’ pornography. As noted by Pacillo:
…the lines between pornography consumers and pornography producers are more blurred on the Internet and there is far greater room for the domestic or amateur production of pornographic materials. Individuals produce their own pornographic websites by uploading sexually explicit images of themselves and others, set up web cams to provide live internet footage of their daily sexual lives and routinely exchange their favourite images or video clips. While printed pornographic magazines do include sections devoted to ‘readers’ wives’ and ‘amateurs’, the production and exchange described on the Internet is on a much greater scale.[52]
There has also been judicial recognition of the relationship between pornography and sexual violence. In R v Butler[53], the Canadian Supreme Court considered an appeal by a pornographic book store owner, Donald Butler, against his convictions under the Canadian Criminal Code for possessing and selling obscene material. Butler argued that the obscenity provisions of section 163 of the Canadian Criminal Code, under which he was convicted, were unconstitutional because they contravened his freedom of speech and expression guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms (‘the Charter’). However, section 2(b) of the Charter is read with section 1 and provides, ‘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.’ In finding that section 163 was a reasonable limit and therefore constitutionally valid, the Supreme Court noted that although a direct causal relationship between pornography and harm is difficult to prove, it is reasonable to assume that exposure to pornography may result in harm. The court stated:
…the available evidence strongly supports the hypothesis that substantial exposure to sexually violent materials as described here bears a causal relationship to antisocial acts of sexual violence and, for some subgroups, possibly to unlawful acts of sexual violence. Although we rely for this conclusion on significant scientific evidence, we feel it worthwhile to note the underlying logic of the conclusion. The evidence says simply that the images that people are exposed to bear a causal relationship to their behaviour. This is hardly surprising. What would be surprising would be to find otherwise, and we have not so found. We have not, of course, found that the images people are exposed to are a greater cause of sexual violence than all or even many other possible causes the investigation of which has been beyond our mandate. Nevertheless, it would be strange indeed if graphic representations of a form of behaviour, especially in a form that almost exclusively portrays such behaviour as desirable, did not have at least some effect on patterns of behaviour.[54]
There have also been numerous scientific studies regarding the relationship between pornography and violence. MacKinnon comments that it is frustrating that, ‘studies by men in laboratories to predict that viewing pornography makes men more sexually violent’ are required before the voices of women harmed by pornography will be believed.[55] The findings of studies investigating the effects of exposure to pornography have been summarised by others[56], including Einsiedel, who summarised this research as follows:
In evaluating the results for sexually violent material, it appears that exposure to such materials (1) leads to a greater acceptance of rape myths and violence against women; (2) has more pronounced effects when the victim is shown enjoying the use of force or violence; (3) is arousing for rapists and for some males in the general population; and (4) has resulted in sexual aggression against women in the laboratory.[57]
The kinds of pornography available via the internet
The following section of this paper provides an overview of pornography on the internet. Given that the internet is an international medium which allows for the constant creation, addition and deletion of new pornographic materials on a daily basis, it is difficult to precisely enumerate the exact proportion of pornography on the internet (although it is reasonable to state that pornography on the internet is abundant). It is also difficult to identify the exact proportion of internet pornography that is of a violent nature, although ‘pornography’ by definition is certainly degrading and dehumanising to women.[58] Despite the absence of specific statistics, the following studies show that pornography that is violent and involves a lack of consent is readily available via the internet to those who wish to access it.
The Carnegie Mellon Report
The Carnegie Mellon Report (‘the Report’), conducted in 1995, was the first significant study to address the nature and extent of pornography on the internet.[59] The Report found that it was difficult to ascertain the exact percentage of pornographic images on the internet.[60] The Report focused on downloading ‘all available images’ from five Usenet Newsgroups: ‘alt.binaries.pictures.erotica; alt.binaries.pictures.bestiality; alt.sex.fetish.watersports; alt.binaries.pictures.female; and alt.binaries.pictures.tasteless’ over a four month period.[61] The Report found that the percentage of pornographic material posted on the Usenet was 83.5% of the total number of posts.[62] Johnson summarised the findings of the Report as follows:
Among the study’s findings were that 83.5 per cent of the images stored on the Usenet newsgroups are pornographic, that a third of newsgroups most visited by college students are sexually explicit, that the 5 largest bulletin board systems have revenues over one million dollars per year, that their customers are nation and world –wide, that pornography is readily available to minors, and that the predominant images on computer nets are paedophilic, hebephilic, and paraphilic, including bondage, sadomasochism, urination, defecation and bestiality.[63]
Furthermore, the Report found that the most frequently downloaded pornographic material was that which was described as involving a power imbalance of men over women. It found, ‘at least some correlation between increased power imbalance between the sexes (man over woman) and increased consumption.’[64] For example, when the word ‘choke’ was used in conjunction with fellatio, the number of downloads doubled.[65] The Report also stated of the bestiality images downloaded that there was a disproportionate amount of women subjected to bestiality: ‘99.1% of the images depicted women engaged in sexual acts with animals, whereas only 0.9% depicted men engaged in sex acts with animals.’[66] The Report also found a disproportionate amount of pornography in which women were humiliated or degraded and notes, ‘the disproportion of imagery depicting women engaged in acts that would be considered degrading in most communities can be definitely established.’[67]
Critique of the Carnegie Mellon Report
The Report and its author have been criticised on many grounds. Johnson states that the study equated findings from adults’ only bulletin boards which required credit cards and proof of age with those from public networks which do not.[68] The Report was also criticised for not reporting that pornography only accounted for half of one percent of internet images and that it did not count actual down loads but opportunities to down load.[69] Rimm himself has also been criticised for being an undergraduate student when the research was undertaken and for methodological flaws in his research.[70]
In this writer’s opinion, despite any methodological flaws, the Report simply confirms what common sense already tells us (or what a simple search of the internet tells us): that a large amount of internet content is pornographic and violent and that dehumanising pornography is readily accessible to those who wish to access it. Such a conclusion can be easily confirmed by a basic ‘Google’ search which can reveal hundreds of thousands of pornographic web sites at a time.[71]
The Australia Institute Report
The proliferation of internet pornography of a violent and dehumanising nature is further confirmed by the recent report by Flood and Hamilton of The Australia Institute.[72] In 2003, Flood and Hamilton published a report on young people’s access to pornography via the internet. Specifically, Flood and Hamilton surveyed 16 and 17 year olds to examine the extent of their exposure to X-rated videos and internet pornography.[73] Their report goes into considerable detail in identifying and listing the types of pornography available via the internet[74] including bestiality, rape, torture, material premised upon a lack of consent such as photographing women without their knowledge (known as ‘upskirts’ or ‘peeping Tom’ pornography) and incest.[75]
Flood and Hamilton note that there is a prevalence of ‘sexually violent content in pornography’ which is ‘non-consenting by definition’.[76] For example, they cite Harmon & Boeringer who analysed 200 postings to ‘alt.sex.stories’ over a two week period.[77]
Harmon & Boeringer found that ‘40.8 per cent of stories had themes of non-consent (including rape and child molestation), while 24 per cent had themes of bondage and discipline and 19.4 per cent concerned pedophilic sex.’[78] In addition, Flood and Hamilton cite Bjornebekk and Evjen’s study of pornography on internet (no capitals) newsgroups. Bjornebekk and Evjen observed that these sites contained a variety of pornography showing sexual violence against women:
They include photographs of abuse of genitalia (such as the extreme widening of genitalia using bottles and tongs or the use of clips, clamps and hooks), females tied up and gagged and subjected to physical torture, people wrapped up in plastic or being strangled, child pornography, bestiality, defecation and urination and other violent acts in the sexual setting of the newsgroups (such as murder, dismemberment of bodies and mutilated and dead infants and embryos).[79]
Flood and Hamilton also identified a prevalence of web-sites which showed violence against women and which also involve a lack of consent. These included web sites focused on ‘bestiality’ which ‘offer free photographs and movies of women (and occasionally men) engaged in masturbation, oral sex or intercourse with dogs, horses, snakes and other animals.’[80] They note that , ‘participation by women in such activity is likely to have been coerced and is degrading’.[81] In addition, there is a proliferation of ‘rape-focused web sites’[82], such as those identified by Gossett and Byrne, who after analysing 31 of these sites[83], many of which claim to show ‘real’ rapes[84], described their content as follows:
…the victims are usually tied with rope or other restraints, a weapon is shown as being used, and typically the victim’s face is depicted as screaming or expressing pain. Half the rape sites describe the victims as young, using such terms as ‘young’, ‘teen’, ‘schoolgirl’, and ‘lolita’. Accompanying text accentuates the violent nature of the images depicted or available for a fee, using such language as ‘rape’, ‘torture’, ‘abuse’, ‘brutal’ and ‘pain.’[85]
Other categories of internet pornography
Another category of internet pornography not identified in Flood and Hamilton’s report is pornography made of women being penetrated by machines. For example www.fuckingmachines.com
is a web site devoted to women being penetrated by large, industrial, robotic machines.[86]
The machines have a large protruding dildo, of various colours and sizes that is used to penetrate the women in a fast, thrusting motion. There are over 20 pages of free pornography on this web site of women being ‘fucked’ by these machines.[87]
The machines have names such as, ‘the Predator’, ‘Fuck Rogers’, ‘the Tresspasser’, ‘the Intruder 2’, ‘Crystal Palace’, and ‘CycloRock’.[88]
Much of this pornography involves bondage, with women in obvious pain being tied up with ropes, chains and leather straps and even hung upside down whilst being penetrated by machines both orally and vaginally.
There is also a prevalence of internet pornography and web sites devoted to the overfeeding, and the force feeding of women by men. The men are known as ‘feeders’, ‘fat admirers’ or ‘FA’s’ and the women as ‘feedees’. The crux of the feeder/ feedee relationship is essentially an abusive one. The aim of the feeder is to reduce the woman feedee to a state of total dependence, and it is this powerlessness and dependence that they find to be sexual. Essentially, a feeder aims to increase the weight of a woman to such an extent that she cannot move unassisted, or at all, and must rely solely on the feeder to feed, wash and clothe her, often to the extent that her health is in serious danger:
…fat admirers…like their women very very large and some will go to any lengths to get them like that. As their women reach dangerously high weights, they become increasingly reliant on their FA partners – to the point where they cannot walk, stand, clean or help themselves in any way.[89]
In addition to web sites devoted to overfeeding women, there are also web sites that focus on force feeding women. One of these web sites describes the process of force feeding a woman:
Force-Feeding: The feedee is ‘abducted’ or seized, tied down and then force fed. Usually feeding pulp is used as material. The hot thing is that the feeder is the only one that can control how much the feedee has to eat and he can overfeed her deliberately (you know that you are full and then some). Feedees that like this style are usually prone to heavy feeding and hard handling and get excited at being forced to fatten up.[90]
There are also pornographic stories on these web pages about overfeeding women in a context that sexualises this abuse. In one of these stories a woman is fed a fattening drug, developed by a scientist but previously only tested on pigs. The drug immediately bloats her to four times her normal size. She dies by being suffocated in her own fat, but not before having several orgasms as her size increases.[91]
In short, it is evident that there is a proliferation of violent pornography on the internet in which women are raped, tortured, force-fed and abused for male sexual pleasure. The internet makes pornography easily accessible in the private sphere of the home, a place where women and children are often sexually and physically abused.[92]
Australia’s approach to regulating internet pornography
Australia attempts to regulate internet pornography via the Broadcasting Services Act. Schedule 5 of this Act, named ‘Online services’ was inserted in 1999, specifically to address community concerns over the ease of access to ‘illegal and offensive material online’ including pornographic material and ‘material that is illegal or highly offensive, or may be harmful to children.’[93]
Schedule 5 of the Act adopts a censorship approach to regulating internet content by establishing a complaints based system whereby members of the public can complain to the Australian Communications and Media Authority (‘ACMA’) about internet content.[94] In effect, this means that members of the public act as preliminary censors by reporting content to the ACMA that they find on the internet and consider to be offensive. The ACMA may also investigate matters on its own initiative if it thinks it desirable to do so.[95]
After receiving the complaint, the ACMA will investigate the complaint[96] to determine whether the internet content is ‘prohibited content’ or ‘potential prohibited content’.[97] If the content falls within one of these categories action will be taken by the ACMA.[98] What constitutes prohibited content and potential prohibited content is defined by reference to the film classification categories of ‘RC’, ‘X 18+’ or ‘R 18+’ which are used by the Classification Board to classify films under the Classification (Publications, Films and Computer Games) Act 1995 (Cth).[99]
‘Prohibited content’ is defined in terms of whether internet content is hosted in Australia or outside Australia.[100] In relation to internet content hosted in Australia, prohibited content is that which has been classified RC or X 18+ by the Classification Board.[101] In addition, prohibited content is also defined as content that has been classified R 18+ by the Classification Board[102] if access to the Internet content is not subject to a restricted access system. [103]
In summary, a restricted access system is one that restricts a child’s access to internet content such as an age verification mechanism. So if internet content has been classified as R 18+ but is not protected by a restricted access system, it is ‘prohibited content’. In relation to Internet content hosted outside Australia, content will be prohibited content if the Internet content has been classified RC or X 18+ by the Classification Board.[104] By way of summary, the type of material that would be ‘prohibited content’, and therefore trigger action by the ACMA is summarised on the ACMA web page:
The following categories of Internet content are prohibited:
Content which is (or would be) classified RC by the Classification Board
Such content includes:
• material containing detailed instruction in crime, violence or drug use;
• child pornography;
• bestiality;
• excessively violent or sexually violent material.
Content which is (or would be) classified X by the Classification Board
Such content contains:
• real depictions of actual sexual activity.
Content hosted in Australia which is classified R and not subject to a restricted access system which complies with criteria determined by ACMA
Content classified R is not considered suitable for minors and includes:
• material containing excessive and/or strong violence or sexual violence;
• material containing implied or simulated sexual activity;
• material that deals with issues or contains depictions which require an adult perspective. ‘[105]
The Act provides that if, during an investigation, the ACMA is satisfied that Internet content hosted in Australia is ‘prohibited content’, the ACMA must give the Internet content host[106] a written notice directing them not to host the prohibited internet content.[107] This is called a ‘final take down notice.’[108]
If, during an investigation, the ACMA is satisfied that the internet content hosted in Australia is potential prohibited content and that there is a substantial likelihood that if the Internet content were to be classified by the Classification Board it would be classified ‘RC’ or ‘X 18+’, the ACMA must give the Internet content host a written notice called an ‘interim take-down notice’.[109] This notice is to direct the internet content host not to host the Internet content until the ACMA notifies the host of the Classification Board’s classification of the internet content.[110] The ACMA must then request that the Classification Board classify the internet content.[111] After the Classification Board provides written notice to the ACMA of its classification, the ACMA must then give the internet content host a written notice setting out the classification[112] and if the internet content is prohibited content, give the internet content host a final take down notice.[113]
If a final take down notice has been issued to an internet content host in relation to internet content that is classified R 18+ by the Classification Board and which is not subject to a restricted access system, the ACMA must revoke its final take down notice if the internet content host satisfies the ACMA that they have implemented a restricted access system and as a result the content ceases to be prohibited content.[114] The ACMA must then give the internet content host a written notice stating that the final take-down notice has been revoked.[115] Non compliance with a direction from the ACMA, such as a final take down notice, is a separate offence for each day the lack of compliance continues[116], and will result in a financial penalty.[117]
If, during an investigation, the ACMA is satisfied that internet content hosted outside Australia is prohibited content or potential prohibited content, the ACMA must, if it considers the content to be of a sufficiently serious nature to warrant referral to a law enforcement agency in or outside Australia, notify the content to a member of an Australian police force.[118] In addition, the ACMA must also notify the internet service provider so they can block the prohibited content.[119] This means that unless pornography was for example, child pornography and contrary to the criminal law, little action can be taken to remove it from the internet.
At a basic level, a censorship regime that relies on complaints from members of the public is fundamentally flawed. Firstly, the internet is a vast network of information (including pornography) which is simply too voluminous for censorship to have an impact on.[120] Even if the Broadcasting Services Act has an impact on the hosting of internet pornography in Australia, there is still a vast network of pornography hosted overseas which is accessible from Australia. In fact, the Act may even encourage Australian pornographers to move internet content that would contravene the Act overseas.[121] Even if a complaint is made to an overseas law enforcement agency, little could be done unless the pornography was unlawful in that country such as child pornography. Also, if the ACMA issues a take down notice directing an internet service provider not to host specified pornography, there is nothing to stop a pornographer making the same pornography available through a different internet service provider or web page. In summary, these kind of censorship laws, premised upon protecting society from moral harm simply cannot keep up with internet technology. Dworkin states:
The standards of obscenity law don’t acknowledge the reality of the technology. They were drawn up in a society where obscenity was construed to be essentially writing and drawing; and now what we have is mass production in a way that real people are being hurt, and the consumption of real people by a real technology, and obscenity laws are not adequate to that reality.[122]
At a basic level, censorship is problematic because it has traditionally been used to censor women’s speech including legitimate forms of sexual expression and information about topics such as contraception.[123] In addition, MacKinnon and Dworkin have commented that the criminal law approach to censorship, namely obscenity, in fact makes pornography more appealing and sexy because it involves ‘rules made and transgressed for purposes of sexual arousal’.[124] In other words, by its prohibition or censorship, pornography is made more ‘sexy’ and appealing because the viewer believes they are accessing something that is forbidden.
However, the primary problem with Australia’s censorship approach is that it does little to address the real harms women suffer due to pornography because it regards pornography’s harm to be the corruption of morals instead of harm to women. MacKinnon writes:
Obscenity law is concerned with morality, specifically morals from the male point of view, meaning the standpoint of male dominance. The feminist critique of pornography is politics, specifically politics from women’s point of view meaning the standpoint of the subordination of women to men. Morality here means good and evil; politics means power and powerlessness. Obscenity is a moral idea; pornography is a political practice. Obscenity is abstract; pornography is concrete. The two concepts represent two entirely different things.[125]
Applying the ordinance to the internet
Suitability of the ordinance
There have been notable technological developments since MacKinnon and Dworkin first formulated the ordinance, specifically, the development and prolific expansion of the internet. Consequently, the significant question is whether the ordinance can adequately deal with these advances in technology. Several provisions of the ordinance remain adequate when applied to the internet. For example, the ordinance’s recognition of pornography as a practice of sex discrimination which maintains gender inequality and ‘harms and disadvantages women’ in section 1 is unchanged by technological advances such as the internet. Arguably these definitions of what pornography is and does are even more relevant because the internet facilitates the mass distribution of inequality and sexual violence like never before.
In addition, the definition of pornography in section 2 of the ordinance remains applicable. In fact, it accurately describes and defines much of the pornography available via the internet. As illustrated previously, violent and degrading material is readily accessible via the internet and is accurately described by the definition of pornography in section 2 of the ordinance.
Similarly, the causes of action in section 3 of the ordinance are equally applicable to the internet. For example, the internet allows anyone with a digital camera and internet access to become a pornographer and to post pornography on an internet web page. Consequently, section 3, clause 1, ‘coercion into pornography’ is applicable to women being coerced or forced into having pornography made of them in their own homes. Also, section 3, clause 2 ‘forcing pornography on a person’ could include pornography forced upon a person by e-mail or by being forced to view pornography via the internet. Section 3, clause 3, ‘assault or physical attack due to pornography’ is particularly relevant where the internet is concerned because the internet allows for the mass dissemination of pornography and information about how to rape, hurt and abuse women, making the risk of physical attack due to pornography a greater risk than ever before.
The internet also dramatically increases the breadth of publication of defamatory pornography. Section 3, clause 4 of the ordinance makes it ‘sex discrimination to defame any person through the unauthorized use in pornography of their proper name, image and/or recognisable personal likeness.’ The internet provides a means to defame a person on a world wide level. Therefore section 3, clause 4, ‘Defamation through pornography’ is also relevant to the internet. There are however, some jurisdictional issues that arise when the defendant is based overseas. These are discussed below.
Section 3, clause 5, ‘Trafficking in Pornography’ is also applicable to the internet as a means of producing, selling, exhibiting and distributing pornography on a world wide scale. However, a further question that must be considered is whether the scope of defendants, for example in section 3 clause 5, can extend to internet service providers who are often hosting or providing access to content created by third parties. This issue is also addressed below.
Problems with jurisdiction and enforcement
The internet is best described as a ‘borderless medium’ [126] in which information is uploaded and accessed internationally. This raises significant jurisdictional issues as to whether a cause of action under the ordinance is within the jurisdiction of the Australian courts.
Jurisdictional problems are avoided where both the victim and perpetrator are located in Australia, regardless of where the internet pornography is made or uploaded. For example, if in Australia, a work colleague forces internet pornography on another work colleague by e-mail, the victim will have a cause of action against the perpetrator under section 3, clause 2 of the ordinance. If a man views internet pornography, and as a consequence rapes a woman in Australia, the rape victim has a cause of action against the rapist under section 3, clause 3 of the ordinance. If a woman is forced to perform in pornography in Australia she can sue the maker of that pornography under section 3, clause 1, and can apply for injunctive relief under section 5, clause 3 to prevent the pornography continuing to be available via the internet, or via any other means. So if the victim is harmed by the perpetrator in Australia, the Australian courts will have jurisdiction to determine liability under the ordinance, regardless of where the internet content was uploaded.
However, the main difficulty in applying the internet to the ordinance arises when an Australian victim seeks to sue the makers, sellers or distributors of pornography who may be located overseas. In Macquarie Bank Limited & Anor v Berg [127] Simpson J of the Supreme Court of New South Wales refused to grant an injunction restraining a United States based defendant from publishing alleged defamatory material on an internet web site. Her Honour declined to grant the order on the basis that it was unenforceable against a defendant located outside the jurisdiction, and would only become enforceable if and when the defendant voluntarily entered the jurisdiction of New South Wales. Her Honour also stated that the injunction would effectively restrain the defendant from publishing the material anywhere in the world, something that would effectively superimpose New South Wales defamation law on the rest of the world.
The High Court of Australia was able to overcome these difficulties to a limited extent in the internet defamation case of Dow Jones & Company Inc v Gutnick.[128] The tort of defamation requires the publication of a statement that would injure the reputation of the plaintiff or lower the estimation of the plaintiff in the opinion of others. Consequently, the place of publication of the alleged defamatory material is where the tort occurs and where the court has jurisdiction to hear the matter. The High Court of Australia held that even though the defamatory publication was uploaded in the United States, the place of publication was the place in which the internet defamation was read, in this case, Victoria, Australia:
…Mr Gutnick has sought to confine his claim in the Supreme Court of Victoria to the damage he alleges was caused to his reputation in Victoria as a consequence of the publication that occurred in that State. The place of commission of the tort for which Mr Gutnick sues is then readily located as Victoria. That is where the damage to his reputation of which he complains is alleged to have occurred, for it is there that the publications of which he complains were comprehensible by readers. It is his reputation in that State, and only that state, which he seeks to vindicate. It follows, of course, that substantive issues arising in the action would fall to be determined according to the law of Victoria. But it also follows that Mr Gutnick’s claim was thereafter a claim for damages for a tort committed in Victoria, not a claim for damages for a tort committed outside the jurisdiction.[129]
Gutnick is certainly a useful point of reference with respect to the application of the defamation provision of the ordinance, section 3, clause 4, to the internet. Applying Gutnick, if the internet pornography that constitutes the defamation is published in Australia, the woman defamed could seek redress in the Australian courts. This cause of action is most likely to be taken by a woman who, like Gutnick, was an Australian citizen, with a reputation to protect in Australia. However, the issues of jurisdiction in Gutnick were connected to the tort of defamation itself, in which the place of ‘publication’ was where the tort occurred, and therefore where the courts had jurisdiction to decide the matter. For this reason, and given the decision in Macquarie Bank Limited & Anor v Berg, it is unlikely that the Australian courts would extend the application of Gutnick beyond the realm of internet defamation to overseas based defendants.
A further question that needs to be considered in a discussion of the application of the internet to the ordinance is whether the scope of defendants can extend to internet service providers.[130] This is because the ordinance creates a cause of action against those who exhibit and distribute pornography. There are a number of arguments that have been raised on behalf of Internet Service Providers (‘ISP’s’) as to why they should not be liable for content they provide access to or host. At a basic level, ISP’s are most often not the authors of the content they host, with the majority of internet content being created by third parties.[131]
Also, ISP’s frequently claim to have little to no knowledge of the content of what they are hosting or providing access to.[132] A further argument is that to impose liability on ISP’s would require them to inspect all of the content they host, which for some ISP’s could result in having to inspect ‘hundreds of thousands of online messages every day.’[133] In addition, once an ISP has inspected content, they may then have to exercise ‘editorial judgment’, including judgment as to whether content is lawful or not.[134]
It has been argued that this will result in ISP’s having to divert their resources away from their main purpose, which is to host internet content, and will force ISP’s to acquire new skills such as ‘the ability to review content’, resulting in administrative burdens and increased costs.[135]
These arguments are similar to those raised by pornographic book sellers in the United States in opposition to the ordinance.[136] In response to these concerns, MacKinnon has commented that regardless of where pornography is purchased from or how it is acquired, pornography is still just as harmful.[137] The internet promotes these harms internationally, and on a massive scale. ISP’s may argue that the application of liability under the ordinance would create financial hardship, but this is simply the same argument that pornographers would raise about the applicability of the ordinance to them and this is one of the central aspects of the ordinance – to have an impact on those who profit from making and distributing sexual abuse and inequality. Consequently, given the role of ISP’s in this mass distribution and given the fact that if it was not for ISP’s, pornography would not be able to be distributed via the internet at all, ISP’s should be required to take some responsibility for the content they are profiting from.
MacKinnon once commented of the Carnegie Mellon Report that, ‘the question the study poses for pornography in cyberspace is the same as pornography poses everywhere else: whether anything will be done about it.’[138] MacKinnon and Dworkin’s ordinance should be adopted in Australia because it is the most effective legal model to address the very real harms women suffer as a result of the making and distribution of pornography. The Broadcasting Services Act, which is premised upon protecting society from moral harm by censoring materials that are immoral, does not adequately address these harms. Whilst there are some difficulties in applying the ordinance to the internet due to its international expanse, unless and until it is adopted, women will remain disempowered to fight rape and sexual abuse inspired by, and occurring in the production of, pornography.
[∗] Lecturer, School of Law, Notre Dame University Australia.
[1] The latest statistics available from the Australian Bureau of Statistics Web Page only provide statistics regarding home internet usage up to 2004-2005. These statistics do, however, indicate that in each year internet access and usage, particularly in the home, is increasing. See ‘Australian Bureau of Statistics’ web page, 8146.0 – Household Use of Information Technology, Australia, 2004-05 located at http://www.abs.gov.au/Ausstats/abs@.nsf/0/acc2d18cc958bc7bca2568a9001393ae?OpenDocument
accessed 12 July 2006. This report states that in 2004-2005 56% of Australian Households had access to the internet with 97% of those using the internet for ‘personal or private purposes’. 52% of adults (over 18 years) used the internet at home making the home the most popular site of internet use, followed by 29% using the internet from work and 19% accessing it from the home of a neighbour, friend or relative.
[2] MacKinnon and Dworkin argue that pornography is a principal means of maintaining inequality in society, by sexualising women’s unequal position in society. Pornography constructs a gendered hierarchy between men and women with men at the top and women at the bottom. The hierarchy constructs men as dominant and women as inferior, with women shown to exist solely for the sexual pleasure of men. Men are active, women are passive. Men act upon, and use women for sexual pleasure. Women are shown to enjoy being used for male sexual pleasure. Women’s perceived enjoyment of their objectification and humiliation, creates the belief in the viewer of pornography that this inequality is natural and normal. See for example, MacKinnon, Catharine A., Toward a Feminist Theory of the State (Boston: Harvard University Press, 1989), 197.
[3] The Broadcasting Services Act 1992 (Cth) (‘Broadcasting Services Act’) was amended by the Broadcasting Services Amendment (Online Services) Act (Cth) 1999 inserting a new Schedule 5 named ‘Online Services’.
[4] ‘Obscenity’ has its origins in the criminal law and concerns the suppression of materials which are deemed to be indecent or obscene in accordance with prevailing community standards. ‘Censorship’ is a subset of obscenity which usually does not involve the criminal law. Censorship involves a Censorship Board categorising materials in accordance with their level of offensiveness in accordance with prevailing community standards. Both censorship and obscenity involve a judgment being made about what is acceptable for reading or viewing in accordance with community standards. Both involve the suppression of materials deemed to be harmful to both the individual and society’s moral fibre.
[5] MacKinnon, Catharine A & Dworkin, Andrea, In Harm’s Way: The Pornography Civil Rights Hearings (Boston: Harvard University Press, 1997), 4. A copy of the model ordinance can be found in Dworkin Andrea & MacKinnon, Catharine A., Pornography’s Civil Rights: A New Day for Women’s Equality (Minneapolis: Organizing Against Pornography, 1988), Appendix D.
[6] The history of the Ordinance is outlined by MacKinnon and Dworkin in MacKinnon, Catharine A & Dworkin, Andrea In Harm’s Way: The Pornography Civil Rights Hearings (Boston: Harvard University Press, 1997), 3-24.
[7] See Dworkin Andrea & MacKinnon, Catharine A., Pornography’s Civil Rights: A New Day for Women’s Equality (Minneapolis: Organizing Against Pornography, 1988), at 31 where they note: ‘Zoning Laws move some of the harms of pornography from one district to another, but do nothing to address them.’
[8] Ibid.
[9] The full transcript of each of the hearings which were held in Minneapolis, Indianapolis, Los Angeles and Massachusetts, is contained in MacKinnon, Catharine A & Dworkin, Andrea, In Harm’s Way: The Pornography Civil Rights Hearings (Boston: Harvard University Press, 1997).
[10] MacKinnon, Catharine A & Dworkin, Andrea In Harm’s Way: The Pornography Civil Rights Hearings (Boston: Harvard University Press, 1997),17.
[11] Ibid. See also American Booksellers Association v Hudnut 771 F 2d 323 (7th Cir. 1985).
[12] Dworkin Andrea & MacKinnon, Catharine A., Pornography’s Civil Rights: A New Day for Women’s Equality (Minneapolis: Organizing Against Pornography, 1988), 31-32.
[13] Dworkin Andrea & MacKinnon, Catharine A., Pornography’s Civil Rights: A New Day for Women’s Equality (Minneapolis: Organizing Against Pornography, 1988), 32.
[14] See for example Giobbe, Evelina, ‘Surviving Commercial Sexual Exploitation’ in Russell, Diana E.H. (ed), Making Violence Sexy: Feminist Views on Pornography (New York: Teachers College Press, 1993, 39 where she stated, ‘Others wonder why I didn’t turn to the police. As a matter of fact, I didn’t have to walk into our local precinct to speak to the police. They were at our apartment every week for their payoff – me.’
[15] Linda Marchiano, famous for the pornographic film, Deep Throat, was held captive by her husband and pimp, Chuck Traynor who prostituted her and forced her to perform in pornography against her will. Traynor threatened to kill Ms Marchiano and her family if she left him. She tried unsuccessfully to escape twice and suffered a brutal beating and sexual punishment as retribution. For women such as Ms Marchiano, going to the police is not an option. Ms Marchiano was never able to obtain any legal redress for what happened to her. See the testimony of Linda Marchiano at the Minneapolis Hearings quoted in MacKinnon, Catharine A. & Dworkin, Andrea, In Harm’s Way: The Pornography Civil Rights Hearings (Boston: Harvard University Press, 1997), 60-65. Ms Marchiano details her abuse at the hands of Traynor and the pornography industry in Lovelace, Linda, Ordeal (New Jersey: Citadel Press, 1980).
[16] See for example, Lovelace, Linda, Ordeal (New Jersey: Citadel Press, 1980) at 62, where Ms Marchiano states, ‘So many people say in Deep Throat, I have a smile on my face, and I look as though I am really enjoying myself. No one ever asked me how those bruises got on my body.’
[17] Dworkin, Andrea and MacKinnon, Catharine A., Pornography and Civil Rights: A New Day for Women’s Equality (Minneapolis: Organizing Against Pornography, 1988), 28.
[18] See for example the Criminal Injuries Compensation Act 2003 (WA). Section 9 permits a victim to make a claim for compensation for injury or loss resulting from an offence being committed, despite no person being charged with the offence. This means that the Assessor must be satisfied that an offence has actually been committed which could be difficult for a woman who does not want to report the offence to police and/or a woman who is a prostitute or who has been harmed in the production of pornography. These women are less likely to be believed. Also, the Act permits a woman to make a claim against the State, rather than the offender, although the State can request that the offender reimburses the State with the whole or part of the amount awarded: section 49.
See Jurevic, Linda, ‘Between a Rock and a Hard Place: Women Victims of Domestic Violence and the Western Australian Criminal Injuries Compensation Act’ (July 1996) 3(2) Murdoch University Electronic Journal of Law at http://www.murdoch.edu.au/elaw/issues/v3n2/jurevic.html
accessed 30 July 2006. Jurevic argues that certain sections of the Act may inhibit or prevent women who are victims of domestic violence from seeking compensation. For example, the Act provides that an Assessor must not award compensation if the victim did not fully co-operate in the identification, apprehension or prosecution of the person who committed the offence (section 38); if the award of compensation is likely to benefit the offender (section 36); or if the victim was injured whilst engaging in criminal conduct (section 39). As pornography is often made of women as part of abuse in the home, a woman may not wish to fully co-operate with identifying her abuser for fear of retribution. An assessor is also likely to deny a payment on the ground that the payment may benefit her abuser who the victim will often live with. If the woman is a prostitute, the Assessor may deny her claim if he or she regards the pornography as being made as part of the offence of prostitution. Equivalent legislation exists in the other states and territories in Australia: Victims of Crime Assistance Act 1996 (Vic); Victims Support and Rehabilitation Act 1996 (NSW); Victims of Crime Act 2001 (SA); Criminal Offence Victims Act 1995 (Qld); Victims of Crime Compensation Act 1994 (Tas); Victims of Crime (Financial Assistance) Act 1983 (ACT); Crimes (Victims Assistance) Act (NT).>
[19] See for example Horne & Anor v Press Clough Joint Venture & Anor (1994) EOC 92-556; Thompson v Courier Newspaper Pty Ltd [2005] NSWADT 49; (2005) EOC 93-382; Wilkinson v Buchan & Abre Pty Ltd (2003) EOC 93-290.
[20] See for example, Horne & Anor v Press Clough Joint Venture & Anor (1994) EOC 92-591 where an employer was held to be vicariously liable for sex discrimination and victimisation by its employees against two female employees. In this case, the female employees were subjected to the prolific display of pornography in a male dominated workplace. The women’s employer and trade union refused to take any action against the male employees or to remove the pornography.
[21] For a detailed analysis of Australia’s existing sex discrimination legislation and of how the ordinance can better address the harms of pornography, see Evans, Michelle, ‘Pornography and Australia’s sex-discrimination legislation: A call for a more effective approach to the regulation of sexual inequality’ (2006) University of Notre Dame Law Review (to be published in December 2006).
[22] Ordinance, above n 5, section 1, clause 1.
[23] Testimony of Jaye Morra at the Massachusetts Hearings quoted in MacKinnon, Catharine A. & Dworkin, Andrea, In Harm’s Way: The Pornography Civil Rights Hearings (Boston: Harvard University Press, 1997), 414. Jaye Morra used the phrase, ‘what pornography really is’ in her testimony at the hearing.
[24] Ordinance, above n 5, section 1, clause 2
[25] Ibid.
[26] Ordinance, above n 5, section 5, clause 1.
[27] Dworkin, Andrea and MacKinnon, Catharine A., Pornography and Civil Rights: A New Day for Women’s Equality (Minneapolis: Organizing Against Pornography, 1988), 54.
[28] See Ordinance, above n 5, section 3.
[29] Ibid.
[30] Dworkin, Andrea and MacKinnon, Catharine A., Pornography and Civil Rights: A New Day for Women’s Equality (Minneapolis: Organizing Against Pornography, 1988), 45.
[31] See the testimony of Pat Haas at the Massachusetts Hearings quoted in MacKinnon, Catharine A & Dworkin, Andrea In Harm’s Way: The Pornography Civil Rights Hearings (Boston: Harvard University Press, 1997), 371 where she states: ‘There are videos of me out there somewhere. There are polaroids that supposedly were destroyed. I don’t know. I was told by police that if these things come to surface, I can face criminal prosecution for things I had no control over.’
[32] Linda Marchiano is famous for her performance in the pornographic film Deep Throat. Linda was forced into pornography by her husband and pimp, Chuck Traynor. Linda’s describes her ordeal in her book, Lovelace, Linda, Ordeal (New Jersey: Citadel Press, 1980). See also Steinem, Gloria, ‘The Real Linda Lovelace’ in Russell, Diana E.H. (ed), Making Violence Sexy: Feminist Views on Pornography (New York: Teachers College Press, 1993).
[33] Testimony of Linda Marchiano at the Minneapolis Hearings quoted in MacKinnon, Catharine A., & Dworkin, Andrea, In Harm’s Way: The Pornography Civil Rights Hearings (Boston: Harvard University Press, 1987), 65.
[34] Testimony of LB quoted in MacKinnon, Catharine A & Dworkin, Andrea In Harm’s Way: The Pornography Civil Rights Hearings (Boston: Harvard University Press, 1997), 381: ‘He wanted me to watch how the various women in the video performed oral sex on the men. And then he insisted that I do the same with him while he continued to watch that movie. If I didn’t go down on him far enough or hard enough, he would put his hands on my head and push it up and down, sometimes so hard that I thought I would faint. If I gagged or choked, he would pull me up by the hair, throw me back on the floor, hit and kick me and verbally abuse me, calling me ‘worthless,’ ‘useless,’ and ‘a waste of his time.’ Then he would make me watch that video again, perform oral sex, and threaten to ‘break my jaw if I stopped.’ See also Brady, Katherine, ‘Testimony on Pornography and Incest’ in Russell, Diana E.H. (ed), Making Violence Sexy: Feminist Views on Pornography (New York: Teachers College Press, 1993), 43-44.
[35] Testimony of Ms B at the Minneapolis Hearings quoted in MacKinnon, Catharine A & Dworkin, Andrea In Harm’s Way: The Pornography Civil Rights Hearings (Boston: Harvard University Press, 1997), 121-122. Ms B testified that whilst training to become a plumber she was subjected to extensive displays of pornography on the walls of her predominantly male workplace. When she took down the pornography, it was quickly replaced and she was ostracised from her male co-workers. In the Western Australian case of Horne & Anor v Press Clough Joint Venture & Anor (1994) EOC 92-556 two women, working in a male dominated work place were subjected to prolific and violent pornography in their workplace, which was held by the Equal Opportunity Tribunal of Western Australia to constitute sex discrimination and victimisation in the workplace.
[36] See for example the testimony of Ms M at the Minneapolis Hearings quoted in MacKinnon, Catharine A & Dworkin, Andrea In Harm’s Way: The Pornography Civil Rights Hearings (Boston: Harvard University Press, 1997), 102-103; Testimony of Carole LaFavour at the Minneapolis Hearings quoted in MacKinnon, Catharine A & Dworkin, Andrea In Harm’s Way: The Pornography Civil Rights Hearings (Boston: Harvard University Press, 1997), 148.
[37] Cameron, Deborah & Frazer, Elizabeth, ‘On the Question of Pornography and Sexual Violence: Moving Beyond Cause and Effect’ in Itzin, Catherine (ed) Pornography: Women, Violence and Civil Liberties A Radical New View (Oxford: Oxford University Press, 1992), 361.
[38] Dworkin, Andrea and MacKinnon, Catharine A., Pornography and Civil Rights: A New Day for Women’s Equality (Minneapolis: Organizing Against Pornography, 1988), 51.
[39] Id, 50.
[40] Ibid.
[41] American Booksellers Association v Hadnut 771 F.2d 323 (7th Cir. 1985) discussed in MacKinnon, Catharine A. & Dworkin, Andrea In Harm’s Way: The Pornography Civil Rights Hearings (Boston: Harvard University Press, 1997), 462 – 482.
[42] MacKinnon has written extensively on why pornography should not be protected as ‘free speech’. See for example, Dworkin, Andrea and MacKinnon, Catharine A., Pornography and Civil Rights: A New Day for Women’s Equality (Minneapolis: Organizing Against Pornography, 1988), 21-22; MacKinnon, Catharine A, Only Words (Cambridge: Harvard University Press, 1993); MacKinnon, Catharine A., Sex Equality (New York: Foundation Press, 2001), 1562-1580; MacKinnon, Catharine A., Women’s Lives Men’s Laws (Massachusetts: The Belknap Press of Harvard University Press, 2005), 322-326.
[43] Nationwide News Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106.
[44] State v Herberg 324 N.W.2d 346, 347 (Minn. 1982) discussed in Pacillo, Edith L. ‘Note: Getting a Feminist Foot in the Courtroom Door: Media Liability for Personal Injury Caused by Pornography’ (1994) 28 Suffolk U. L. Rev. 123, 123.
[45] Pacillo, Edith L. ‘Note: Getting a Feminist Foot in the Courtroom Door: Media Liability for Personal Injury Caused by Pornography’ (1994) 28 Suffolk U. L. Rev. 123, fn1.
[46] Id, 123.
[47] The transcripts of the civil rights hearings, held in Minneapolis, Indianapolis, Los Angeles and Massachusetts, are contained in MacKinnon, Catharine A & Dworkin, Andrea In Harm’s Way: The Pornography Civil Rights Hearings (Boston: Harvard University Press, 1997)
[48] Testimony of Pat Haas at the Massachusetts Hearings quoted in MacKinnon, Catharine A & Dworkin, Andrea In Harm’s Way: The Pornography Civil Rights Hearings (Boston: Harvard University Press, 1997), 370.
[49] Testimony of RMM at the Minneapolis Hearings quoted in MacKinnon, Catharine A & Dworkin, Andrea In Harm’s Way: The Pornography Civil Rights Hearings (Boston: Harvard University Press, 1997), 113-114. See also Giobbe, Evelina, ‘Surviving Commercial Sexual Exploitation’ in Russell, Diana E.H. (ed), Making Violence Sexy: Feminist Views on Pornography (New York: Teachers College Press, 1993), 37 where she stated at 39: ‘My last pimp was a pornographer and the most brutal of all. He owned about three women or girls at any given time. Every night he’d run stag films after which he’d choose one of us for sex. The sex always duplicated the pornography. He used it to teach us to service him. He made pornography of all of us. He also made tape recordings of us having sex with him and of our screams and pleas when he beat us, often threatening us with death. Later he would use these recordings to humiliate us by playing them for his friends in our presence, for his own sexual arousal and to terrorize us or other women he brought home.’
[50]MacKinnon, Catharine A., Toward a Feminist Theory of the State (Boston: Harvard University Press, 1989), 199-190.
[51] Testimony of Lierre Keith at the Massachusetts Hearings quoted in MacKinnon, Catharine A. & Dworkin, Andrea, In Harm’s Way: The Pornography Civil Rights Hearings (Boston: Harvard University Press, 1987), 399: ‘My brother started sexually abusing me when I was 4 or 5 and pornography was a part of the abuse. To be specific, he would describe a certain pose that he had seen in Playboy or Penthouse, and he’d make me do it. Often he would compare my body to the pictures in a very detailed and graphic and humiliating way. He also became obsessed with a feature they have in Hustler. He told me it was called The Beaver Hunt, and men could send in photographs of their wives and their girlfriends…He thought that this was the greatest thing, that he could be a pornographer too, so he made me pose for The Beaver Hunt and took pictures.’
[52] Flood, Michael and Hamilton, Clive, Youth and Pornography in Australia: Evidence on the Extent of Exposure and Likely Effects, Discussion Paper 52 (Canberra: The Australia Institute, 2003), 30.
[53] R v Butler (1992) 1 SCR 452
[54] Attorney General’s Commission on Pornography Final Report (U.S., 1986), vol 1, page 326 (‘Meese Commission Report’) quoted in Butler, page 502 (Sopinka J).
[55] Ibid.
[56] See for example Russell, Diana E H., Against Pornography: The Evidence of Harm (Berkeley; Russell Publications, 1993) and Einsiedel, Edna F., ‘The Experimental Research Evidence: Effects of Pornography on the ‘Average Individual’ in Itzin, Catherine (ed) Pornography: Women, Violence and Civil Liberties A Radical New View (Oxford: Oxford University Press, 1992). Kendall, Christopher, N., Gay Male Pornography: An Issue of Sex Discrimination (Canada: UBC Press, 2004), 7-8.
[57] Einsiedel, Edna F., ‘The Experimental Research Evidence: Effects of Pornography on the ‘Average Individual’ in Itzin, Catherine (ed) Pornography: Women, Violence and Civil Liberties A Radical New View (Oxford: Oxford University Press, 1992), 265-266.
[58] Ordinance, above n 5, section 2, clause 1.
[59] Rimm, Marty, ‘Marketing Pornography on the Information Superhighway: A Survey of 917,410 Images, Descriptions, Short Stories, and Animations Downloaded 8.5 Million Times by Consumers in Over 2000 Cities in Forty Countries, Provinces and Territories’ [1995] 83 The Georgetown Law Journal 1849 (‘the Carnegie Mellon Report’).
[60] Id, 1868.
[61] Id, 1853 and 1867.
[62] Id, 1867.
[63] Johnson, Peter, ‘Pornography Drives Technology: Why Not to Censor the Internet’ (1996) 49 Fed. Comm. L.J 217, 224-225 .
[64] Rimm, Marty, ‘Marketing Pornography on the Information Superhighway: A Survey of 917,410 Images, Descriptions, Short Stories, and Animations Downloaded 8.5 Million Times by Consumers in Over 2000 Cities in Forty Countries, Provinces and Territories’ [1995] 83 The Georgetown Law Journal, 1898 – 1899; MacKinnon, Catharine A, ‘Vindication and Resistance: A Response to the Carnegie Mellon Study of Pornography in Cyberspace’ [1995] 83 The Georgetown Law Journal, 1959, 1963.
[65] Rimm, Marty, ‘Marketing Pornography on the Information Superhighway: A Survey of 917,410 Images, Descriptions, Short Stories, and Animations Downloaded 8.5 Million Times by Consumers in Over 2000 Cities in Forty Countries, Provinces and Territories’ [1995] 83 The Georgetown Law Journal, 1899.
[66] Id, 1901.
[67] Id, 1899.
[68] Johnson, Peter, ‘Pornography Drives Technology: Why Not to Censor the Internet’ (1996) 49 Fed. Comm. L.J 217, 225.
[69] Ibid.
[70] Sutter, Gavin, ‘’Nothing New Under the Sun’: Old Fears and New Media’, (2000) 8 IJL&IT 338. Sutter (in section 2.1) details some of Rimm’s methodological flaws including that Rimm’s Report was not published in a peer refereed journal. The most significant methodological flaw outlined by Sutter is that the results were taken from a study of adult subscriber only bulletin boards and not the internet as a whole, whereas the results were represented as being applicable to the internet as a whole. See also Faucette, Jeffrey E, ‘Note: The Freedom of Speech at Risk in Cyberspace: Obscenity Doctrine and a Frightened University’s Censorship of Sex on the Internet’ (1995) 44 Duke L.J 1155 for a discussion of how Rimm’s Report instigated Carnegie Mellon University to ban access to certain newsgroups which contained ‘sexually explicit images’.
[71] For example, a ‘Google’ search of ‘women and fucking machines’ conducted on 19 July 2006 revealed 7,490,000 hits in 0.24 seconds. This type of pornography is discussed below. ‘Google’ is located at www.google.com.au
.
[72] Flood, Michael and Hamilton, Clive, Youth and Pornography in Australia: Evidence on the Extent of Exposure and Likely Effects, Discussion Paper 52 (Canberra: The Australia Institute, 2003). See also Flood, Michael and Hamilton, Clive, Regulating Youth Access to Pornography, Discussion Paper 53 (Canberra: The Australia Institute, 2003).
[73] Flood, Michael and Hamilton, Clive, Youth and Pornography in Australia: Evidence on the Extent of Exposure and Likely Effects, Discussion Paper 52 (Canberra: The Australia Institute, 2003), v.
[74] Flood, Michael and Hamilton, Clive, Youth and Pornography in Australia: Evidence on the Extent of Exposure and Likely Effects, Discussion Paper 52 (Canberra: The Australia Institute, 2003), Table 6, 27-29.
[75] Flood, Michael and Hamilton, Clive, Youth and Pornography in Australia: Evidence on the Extent of Exposure and Likely Effects, Discussion Paper 52 (Canberra: The Australia Institute, 2003), ix.
[76] Id, 30.
[77] Harmon, D. and Boeringer, S. B., ‘A Content Analysis of Internet-Accessible Written Pornographic Depictions’ (1997) 3(1) Electronic Journal of Sociology http://www.sociology.org/content/vol003.001/boeringer.html
cited in Flood, Michael and Hamilton, Clive, Youth and Pornography in Australia: Evidence on the extent of exposure and likely effects, Discussion Paper 52 (Canberra: The Australia Institute, 2003), 31.
[78] Ibid.
[79] Bjornebekk, R. and Evjen, T.A. ‘Violent Pornography on the Internet: A study of Accessibility and Prevalence’ in von Feilitzen, Cecilia, and Ulla Carlsson (eds) Children in the New Media Landscape: Games, Pornography, Perceptions (Sweden: UNESCO International Clearing House on Children and Violence on the Screen, 2001), 185-206 quoted in Flood, Michael and Hamilton, Clive, Youth and Pornography in Australia: Evidence on the Extent of Exposure and Likely Effects, Discussion Paper 52 (Canberra: The Australia Institute, 2003), 32.
[80] Flood, Michael and Hamilton, Clive, Youth and Pornography in Australia: Evidence on the Extent of Exposure and Likely Effects, Discussion Paper 52 (Canberra: The Australia Institute, 2003), 33.
[81] Ibid.
[82] Flood, Michael and Hamilton, Clive, Youth and Pornography in Australia: Evidence on the Extent of Exposure and Likely Effects, Discussion Paper 52 (Canberra: The Australia Institute, 2003), 32.
[83] Gossett, J.L. and Byrne, S ‘‘Click here’: A Content Analysis of Internet Rape Sites’ (2002) 16(5) October Gender & Society, 689-709 quoted in Flood, Michael and Hamilton, Clive, Youth and Pornography in Australia: Evidence on the Extent of Exposure and Likely Effects, Discussion Paper 52 (Canberra: The Australia Institute, 2003), 32.
[84] Id, 32.
[85] Id, 33. This web site also contained pornography of a gang rape.
accessed 12 July 2005.
[87] These 20 pages of pornography are located at www.fuckingmachines.com/updates/full1.php
accessed 12 July 2005.
[88] The web page features details of 45 different ‘fucking machines’ and a link to a separate web page where these machines can be purchased at www.fuckingmachines.com/meetthemachines/
accessed 12 July 2005.
[89] ‘Fat fantasy or sexual abuse’ located at http://channel4.com/health/microsites/0-9/4health/food/ove_feeders.html
accessed 11 July 2005.
[90] ‘Introduction to Feeding’ located at http://rubensfeeder.tripod.com/intro/newbie_intro_e.html
accessed 11 July 2005.
[91] This story is located at http://go.to/fatten
accessed 11 July 2005.
[92] Note that I do not intend to focus on child pornography as this has received much academic attention elsewhere and is beyond the focus of this paper.
[93] Senator Richard Alston, Revised Explanatory Memorandum, Broadcasting Services Amendment (Online Services) Bill 1999, at http://scaleplus.law.gov.au/html/ems/0/1999/0/0642404224.htm
accessed 26/8/05. The Revised Explanatory Memorandum takes into account the amendments made by the Senate to the original Bill.
[94] Broadcasting Services Act, Schedule 5, clause 22(1).
[95] Broadcasting Services Act, Schedule 5, clause 27(1).
[96] Broadcasting Services Act, Schedule 5, clause 26(1).
[97] Broadcasting Services Act, Schedule 5, clause 30(1) and (2).
[98] Broadcasting Services Act, Schedule 5, clause 30.
[99] Broadcasting Services Act, Schedule 5, clause 10 and 11.
[100] Broadcasting Services Act, Schedule 5, clause 10.
[101] Broadcasting Services Act, Schedule 5, clause 10(1)(a).
[102] Broadcasting Services Act, Schedule 5, clause 10(1)(b)(i).
[103] Broadcasting Services Act, Schedule 5, clause 10(1)(b)(ii) A ‘restricted access system’ is defined in clause 4(1) somewhat ambiguously as follows: ‘The ACMA may, by written instrument, declare that a specified access- control system is a restricted access system in relation to Internet content for the purposes of this Schedule. A declaration under this sub-clause has effect accordingly.’ On its web page, the ACMA defines a ‘restricted access system’ as follows: ‘Restricted access systems are adult verification devices that allow only people who are 18 years or older to access adult material on the Internet. Restricted access systems protect children from exposure to material that may be unsuitable for them.’ (ACMA web page, ‘Adult verification systems (restricted access)’ located at http://www.acma.gov.au/ACMAINTER.1900860:STANDARD:1627293714:pc=PC_90158
accessed 18 July 2006) .
[104] Broadcasting Services Act, Schedule 5, clause 10(2).
[105]ACMA web page ‘Internet content complaints’ located at http://www.acma.gov.au/ACMAINTER.1900860:STANDARD:1627293714:pc=PC_90103
accessed 18 July 2006.
[106] ‘Internet content host’ is defined by clause 3 of Schedule 5 as ‘a person who hosts Internet content in Australia, or who proposes to host Internet content in Australia.’
[107] Broadcasting Services Act, Schedule 5, clause 30(1).
[108] A ‘final take down notice’ is defined in clause 3 of Schedule 5 of the Broadcasting Services Act as ‘a notice under subclause 30(1) or paragraph 30(4)(b) of this Schedule.’
[109] ‘Interim take down notice’ is defined in clause 3 of Schedule 5 of the Broadcasting Services Act as a notice under subparagraph 30(2)(a)(i) of this Schedule.’
[110] Broadcasting Services Act, Schedule 5, clause 30(2)(a)(i)
[111] Broadcasting Services Act, Schedule 5, clause 30(2)(a)(ii).
[112] Broadcasting Services Act, Schedule 5, clause 30(4)(a).
[113] Broadcasting Services Act, Schedule 5, clause 30(4)(b).
[114] Broadcasting Services Act, Schedule 5, clause 32(1).
[115] Broadcasting Services Act, Schedule 5, clause 32(2).
[116] Broadcasting Services Act, Schedule 5, clause 82 and 86.
[117] Broadcasting Services Act, Schedule 5, clause 83(4). A ‘penalty unit’ is defined in section 4AA of the Crimes Act as follows: ‘penalty unit means $110.’
[118] Broadcasting Services Act, Schedule 5, clause 40(1)(a)(i). Alternately, if there is an arrangement between the ACMA and the chief of an Australian police force under which the ACMA can notify another person or body, the ACMA can notify that other person or body (Schedule 5, clause 40(1)(a)(ii)).
[119] Broadcasting Services Act, Schedule 5, clause 40(1)(c) .
[120] See Butler, Annabel, ‘Regulation of Content of On-Line Information Services – Can Technology Itself Solve the Problem it has created?’ (1996) University of New South Wales Law Journal 19(2), 193 at 209 where she states: ‘The sheer volume of internet material, its transient nature and the rapidity of transmission make inspection of content almost impossible. The internet has doubled in size every nine months for the last ten years and currently has over 50 million participants. The quantity of information that passes through the internet every day cannot be visually scanned. Each day, over a million web pages appear, disappear or are subject to change.’
[121] Chen, Peter, ‘Pornography, Protection, Prevarication: The Politics of Internet Censorship’ (2000) University of New South Wales Law Journal, 23(1), 221 at 222. See also Clark, Steven Siegloff, ‘The Broadcasting Services and Online Services Act 1992 (Cth)’ (1999) Flinders Journal of Law Reform, 3(2) 299 at 308.
[122] Ibid.
[123] See generally Burstyn, Varda (ed) Women Against Censorship (Vancouver: Douglas & McIntyre, 1985).
[124] MacKinnon, Catharine A, ‘Not a Moral Issue’ in Cornell, Drucilla (ed) Feminism and Pornography (New York: Oxford University Press, 2000), 184-185.
[125] MacKinnon, Catharine A, ‘Not a Moral Issue’ in Cornell, Drucilla (ed) Feminism and Pornography (New York: Oxford University Press, 2000), 170; See also MacKinnon, Catharine A, Toward a Feminist Theory of the State (Cambridge: Harvard University Press, 1989), 196.
[126] Garnett, Richard, ‘Regulating Foreign-Based Internet Content: A Jurisdictional Perspective’ [2000] UNSWLawJl 15; (2000) 23(1) University of New South Wales Law Journal, 227 at 227.
[127] Macquarie Bank Limited & Anor v Berg [1999] NSWSC 526 (2 June 1999). For a discussion of this case with respect to problems with enforcement and the internet, see Garnett, Richard, ‘Regulating Foreign-Based Internet Content: A Jurisdictional Perspective’ [2000] UNSWLawJl 15; (2000) 23(1) University of New South Wales Law Journal, 227 at 229.
[128] Dow Jones & Company Inc v Gutnick (2000) 210 CLR 575 (‘Gutnick’).
[129] Gutnick, page 608, per Gleeson CJ, McHugh, Gummow and Hayne JJ. Gaudron, Kirby and Callinan JJ were also in the majority, however gave separate judgments.
[130] The issue of ISP liability for hosting third party content is a complex and contentious one. It is not the purpose of this paper to definitively resolve this issue, but rather to highlight some of the difficulties that must be addressed in applying the ordinance to the internet.
[131] Coroneous, Peter, ‘Internet Content Control in Australia: Attempting the Impossible?’ (2000) 6 University of New South Wales Law Journal, ‘Austlii’ web page at http://www.austlii.edu.au//cgi-bin/disp.pl/au/journals/UNSWLJ/2000/6.html?query=‘internet%20content%20control%20in%20australia%20attempting%20the%20impossible
‘ accessed at 12 July 2006.
[132] Ibid.
[133] Hamilton, Robert W, ‘1998 Symposium: Constitutional Issues Involving Use of the Internet: Liability for Third-Party Content on the Internet’ 8 Seton Hall Const. L.J. Summer 1998, 733 at 739.
[134] Ibid. See also Argy, Philip, ‘Internet Content Regulation: An Australian Computer Society Perspective’ (2000) 3 University of New South Wales Law Journal, ‘Austlii’ web page at http://www.austlii.edu.au//cgi-bin/disp.pl/au/journals/UNSWLJ/2000/3.html?query=internet%content20regulation
accessed at 12 July 2006.
[135] Scott, Brendan, ‘Silver Bullets and Golden Egged Geese: A Cold Look at Internet Censorship’ 23(1) UNSW Law Journal 215, 217.
[136] See for example the testimony of Jane Strauss at the Minneapolis Hearings in MacKinnon, Catharine A. & Dworkin, Andrea, In Harm’s Way: The Pornography Civil Rights Hearings (Boston: Harvard University Press, 1997) at 77.
[137] MacKinnon, Catharine A. & Dworkin, Andrea, In Harm’s Way: The Pornography Civil Rights Hearings (Boston: Harvard University Press, 1997) at 79.
[138] MacKinnon, Catharine A, ‘Vindication and Resistance: A Response to the Carnegie Mellon Study of Pornography in Cyberspace’ [1995] 83 The Georgetown Law Journal, 1959, 1967.