Online Pornography in Australia: Lessons from the First Amendment
29 Pages Posted: 22 Sep 2015
Date Written: 2001
The conflict between freedom of speech and pornography has produced some strange bedfellows. The current US approach to online pornography may be less than ideal, and should not necessarily be followed in Australia. However, it is clear that if Australia is to reach a defensible position on online pornography it must give further thought to issues of free speech and harm. The reasons for protecting speech -- based on ideals of democracy, autonomy and equality -- apply equally in Australia, despite the lack of an equivalent to the First Amendment. The importance of this freedom must be compared to the lack of evidence of a direct causal relationship between pornography and physical, emotional and social harm. More importantly, even if such a relationship could be established, banning pornography is unlikely to remove, and may well intensify, any harms it presently causes. Criminal conduct associated with pornography would be better dealt with under laws directed specifically at the conduct rather than by censorship.
The Online Services Act imposes a struct regime limiting access by adults and children alike to material considered offensive by a group of moral conservatives. This approach conflicts with the rights of individuals to determine what is appropriate for them and their children to see. Further, in the context of the Internet, there is even less reason to attempt to regulate pornography than in other media. The nature of the Internet means that, at least at present, it is extremely difficult to stop people accessing material they wish to see. The likely impact of the legislation is therefore to move pornographic material offshore without preventing it being accessed from Australia. While it may fail in its goal of riddling Australians of online pornography, it is still a step in the wrong direction. The Internet offers a uniquely open forum which should be embraced and nurtured rather than strangled, as the Online Services Act seeks to do.
Keywords: pornography, First Amendment, Internet, Online Services Act, Australia
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