At least one group of experts is asking why proposed online porn regulation lacks natural justice, damages sexual expression and promotes risky technology.
Regulating the content most people describe as ‘pornography’, the Draft Consolidated Industry Codes of Practice for the Online Industry (Class 1C and Class 2 Material) (the Codes) consultation closed last week. They have broad implications for online content, including sexuality education, sex work advertising, adult retail (e.g. sex toys), harm reduction information and sexual health promotion.
Must the Codes retain natural justice?
The Online Safety Act covers all forms of internet technology, including search engines, apps and app stores, social media services, messaging platforms, and websites. The eSafety Commissioner has extensive enforcement powers, significant funding, and was described recently by Minister for Women Katy Gallagher as the most well-resourced internet regulator in the world. This, plus the Codes, has potential to normalise a climate of censorship for online sexual expression, the shadow banning of sex workers and removal of harm reduction information.
To counteract chilling, submitters argue the Codes must contain obligations for tech services to provide equally weighted transparent appeals processes that comply with procedural fairness expectations already understood in Australian law.
Neutral language needed to avoid regulatory ‘debate’.
Regretfully, the Codes propose two new terms to the regulatory lexicon; ‘high impact pornography’ and ‘seriously harmful material’. But these new terms serve no practical function. No ‘impact test’ exists for content rated X18+ and higher within the existing Classifications Scheme. The words ‘seriously harmful material’ have no legislated or regulated meaning. The terms are not used in the Act, by public servants, academics, sex workers, sexual health practitioners, adult content producers or for any current online regulation in practice in so-called Australia. There exists no agreed definitions of what these terms might mean in the Australian market.
Debates about the meaning of words in the Codes, what is or is not ‘impactful’ or ‘harmful’ would distract from practical application of the regulations. Was the addition of new terms an innocent drafting error, or is it beneficial for some parties to blur the distinction between what requires regulation and what does not? If permitted, this loose language could and will undermine the entire regulatory project.
Could the Codes destroy adult sexual expression?
The Online Safety Act significantly expands limitations on what internet users can post online, monetise and/or consume without also releasing one’s identity to the platform and third party companies, or having to take the activity off-shore to circumvent regulation.
As most sexual content (for both educational and entertainment purposes) now exists online, the role of the Classification Board appears superseded, making the eSafety Commissioner the de-facto moderator of all adult content produced and consumed in unceded Australia.
The Commissioner has a partisan position on adult content, stating the majority is ‘mainstream’ associated with ‘attitudes and behaviours which can contribute to gender-based violence’, and may be responsible for ‘normalising depictions of sexual violence and degrading sexual scripts about women.’ These claims are not reflected however in a recent Australian-based academic review of international pornography research.
Both globally and in Australia, academic research is moving towards a model of ‘digital sexual literacy’ which recognises that it is important for young people and adults to learn both how to safely engage with sexual representations online, including education around pornography; and also to be able to represent themselves as sexual beings in appropriate ways.
Submitters argue that the Codes should contain principles recognising the right of adults to access adult material in online spaces, the right for young people to participate in online spaces without being exposed to harmful content, and the right for people of all ages to participate in online spaces without being exposed to unsolicited offensive material. However the urgent need to assert such basic expectations at this stage of the drafting is making many in the sexual health, sex work and harm reduction sectors very worried.
Untried and risky technology is bad for everyone
Photo identification matching online, digital identity wallets and third-party age assurance mechanisms all require collection and storage of significant identity documents or biometrics. They pose unreasonable privacy risks, especially considering the technology is expensive and flawed in ways that could not justify implementation.
The two other main methods being mooted are just as expensive, risky and unproven. Facial age estimation tech is not sufficiently reliable to determine whether or not a person is over the age of 18, and credit card checks merely ‘assure’ access to credit card information and does not prove anything else. The current lack of feasibility of age assurance mechanisms is well-understood by submitters, industry, tech service providers, sex workers, educators, schools and likely anyone reading this article. Given the current flux state of this technology, it seems prudent the Codes should remove their impossible laundry wish-list and keep the ideas high level. Surely ‘appropriate’ age assurance mechanisms cannot be determined until completion of the pilot and the finalisation of the Children’s Privacy Code by the Office of the Australian Information Commissioner
The submitters raising these points and more are Scarlet Alliance, Australian Sex Workers Association, the New Zealand Sex Workers Collective, Digital Rights Watch, Bloom-Ed, Assembly Four, Eros Association, Australian Injecting and Illicit Drug Users League, NSW Council for Civil Liberties, The Woodhull Freedom Foundation, Dr Kath Albury, Dr Alan McKee, and Giselle Woodley of Edith Cowan University. The Codes will make their debut in parliament in early 2025 before being considered in full by a committee of the Senate.
Elena Jeffreys
Elena Jeffreys, Phd, sex worker, Policy and Advocacy Manager at Scarlet Alliance.
Contributions to Pearls and Irritations
Your contribution will fund quality independent comment and analysis in Pearls and Irritations
Contribute
