In the press conference following National Cabinet on family and domestic violence last week, the Prime Minister and Minister for Communications announced three measures aimed at addressing online pornography.
It was a disappointing and confusing response to what the PM described as “a scourge of violence against women… with once every four days, a woman losing their life at the hand of a domestic or former domestic partner.”
The response is disappointing because its approach to pornography conflates sexual violence with domestic and family violence when there is no evidence of this. Certainly, it wasn’t a conclusion reached in the 2,082 pages of the Victorian Royal Commission into Family Violence report.
The porn industry is either an engine for technology development (see Peter Nowak’s Sex, Bombs and Burgers) or at least an early adopter (see Patchen Barrs’ The Erotic Engine). Among the reasons given for why VHS wound up the dominant video tape standard over Betamax is that the companies behind the VHS standard were happy for the porn industry to adopt it, while their opposition wasn’t.
That the internet is a home for porn is, therefore, unsurprising. It is the home of huge amounts of free porn, mostly funded by advertisements for subscription porn sites or promises of illicit sexual encounters.
There is certainly community concern about the impact of some extreme pornography on the treatment of women. Writing in The Saturday Paper, the amazing Chanel Contos said, “The growing influence of pornography among young Australians, and as a possible driver of violence against women and girls – as shown in a recent study by the Queensland University of Technology – has become a central concern for many advocates.”
A QUT post in March draws a link between pornography exposure and violence, but the research on which it is based only studies the age of exposure to pornography. The article claims that “Pornography consumption is associated with a range of harmful attitudes, behaviours, and experiences, including… sexual coercion and aggression, and sexual and dating violence”. The list does not include domestic and family violence, and the references for aggression and violence cited are only for sexual violence.
A separate report by one of the authors, Professor Michael Flood, contains a table that only links pornography use to sexual violence and specifically excludes a link to intimate partner violence, family violence and homicide.
It is more disappointing because former Minister for Communications, Senator Stephen Conroy, waged a battle against libertarians over his proposed ‘internet filter’ with the libertarians actively supported by both the Greens and Liberal-National Coalition. (see Note 1 for the history of Conroy’s efforts). The eSafety Commissioner, Paul Fletcher’s only lasting gift as a Minister, was proposed as the alternative but has now become the champion of similar measures.
In brief, seventeen years after the ALP won the 2007 election, there has been very little reform.
We return then to the present and the three elements relating to pornographic content at the press conference: undertaking “long overdue” classification reforms with states and territories, piloting age assurance technologies to better protect children online and reduce their exposure to harmful content, and bringing forward the statutory review of the Online Safety Act.
The action on “long overdue classification reforms” is hardly happening at pace. After seven years of inaction by the Coalition government, they commissioned their own classification review by Neville Stevens. For reasons unknown to me, it was not released until March 2023 by the Labor government. The fact that Labor could release it tells us that the Morrison Cabinet saw nothing from this review.
However, when the report was released, the Albanese government announced there would not be a formal response to the review report. While the press conference referred to the Government undertaking a classification review in conjunction with the states and territories in the present tense, the Terms of Reference for the Statutory Review of the Online Safety Act stated:
The government will conduct a separate public consultation process in the first half of 2024 to inform the development of options for the second stage of reforms to ensure the National Classification Scheme is fit-for-purpose in the modern media environment.
The presence of two schemes and the weak connection between them originates in the Constitution (see Note 2). The government should return to the Australian Law Reform Commission’s recommendation for a single classification scheme. The weakness of the Online Safety Act is that it only deals with age controls for “adult” material; it provides none of the content warning value of the lower classifications.
The article referred to earlier observed that “some research emphasises the potential for pornography to contribute positively to young people’s sexual socialisation and experiences”. Pornography that portrays sexual relationships based on positive consent and mutual satisfaction would be far better than kids just fumbling around and basing their sexual explorations on half-understood talk with mates.
Furthermore, sixteen-year-olds are deemed old enough to consent to sex but not old enough to view videos that could help them provide a better experience for themselves and their partners. The review of the classification system should create two categories for pornography. The category of respectful consented engagements for mutual pleasure should be age-limited to 16+. The remainder should remain 18+ (though there is possibly a case for some of it being 21+ where the viewer might have formed better skills for understanding the context of the content).
The issue of age verification technologies, or age verification at all, is vexing. The control of age verification for physical media is the point of sale, a ticket to a theatre or purchase of media taken home. Once in the home, age controls are the responsibility of the adult who first acquired the material.
The analogous situation for online services is that it falls to the adult responsible for the connection and devices, not the content seller or an intermediary. There are only three operating system vendors and three primary browser vendors who should be building better functionality for user control in their products – and they happen to be just three companies: Apple, Google, and Microsoft.
However, the biggest problem with online content remains the international dimension. So much content is located offshore, and unlike broadcasting services, no warnings are available on content (though many pornography sites do ask for self-verification of age before progressing).
It isn’t impossible to envision a global content classification system for domains (at least). A classification system is a set of rules that place a content unit into a category. The categories can be country-specific. Classification for the use of a country’s codes could be provided by registered classifiers (as happens in Australia and is being extended).
It is time the approach to online pornography moved beyond treating all pornography the same and moved to trying to deal with the labelling of content with classifications to an international platform. We shouldn’t be just where we were nearly twenty years ago.
Note 1: Conroy’s efforts were doomed for two simple reasons. The first was a failure of the classification system. Conroy simply wanted to ban online content that is banned offline, but this revealed a serious discrepancy in the arrangements. Content denied classification (i.e. that cannot be shown) was designed as being restricted to violent sex acts, drug taking and instructions on self-harm. However, the highest classification level, X, was more limited than this content. This left the proposals confused as to what they sought to ban.
To address the issue, the Attorney-General referred the classification scheme to the Australian Law Reform Commission. Their report recommended that the refused classification category be renamed “Prohibited” and the definitional gap be closed. As an adviser to Conroy, I was horrified when the AG circulated an initial government response that proposed changing the name without the associated definition changes.
A positive change from the review was the creation of an R18+ category for computer games, bringing them into line with other content.
The second, of course, was the technical issue of how sites to be banned were identified and the issue of potentially incorrectly blocking legitimate sites (or, in one infamous case, blocking the whole IP address of a content site that hosted a multitude of websites, mostly having nothing to do with porn).
In the end, a compromise was reached using an internationally accredited list of commercial websites hosting child abuse material.
The government changed before any further progress could be made on the reforms. Unfortunately, the Fletcher inspired eSafety Commissioner resulted in the creation of the Online Safety Act. The Act refers to “Class 1” and “Class 2” material by reference to the Australian National Classification Scheme. Class 1 is essentially material that would be refused classification (i.e. rated RC), while Class 2 is essentially material that would be rated X18+ or R18+.
Note 2: The Commonwealth’s power to regulate broadcasting and online content has been clear since the High Court determined in 1934 that the Commonwealth’s power over “post, telephone, telegraph and other like services” extended to wireless broadcasting. Holly Raiche has detailed the other relevant cases. Equally the importation of printed material was subject to Commonwealth customs regulation, which was how Lady Chatterly’s Lover was famously banned. Otherwise, the print media and sale of recorded media fall outside of Commonwealth legislative powers.
Hence, there is a need to agree with the states and territories. Like so much of the division of powers between the states and the Commonwealth, there seems to be no logic in having different classification arrangements. What is offensive in Queensland is offensive in Western Australia; what constitutes dangerous instruction on self-harm in Tasmania is the same in New South Wales. The states and territories recognised that in agreeing to the current national classification scheme.
Rather than negotiate with states and territories on changes to the classification system, the Commonwealth could either seek their agreement to refer to the power or simply find alternative legislative grounds, primarily interstate trade and commerce. The latter can be used to argue that a publication should be freely sold under the same terms and conditions in any place in Australia.
David Havyatt is a former telco executive, former adviser to Federal Labor ministers and former advocate on behalf of energy consumers. He is a long term observer of Australian innovation policy.
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