Steering Committee on Media and Information Society

(CDMSI)
26/10/2012

2nd meeting – 27 November 2012 – 09h30 to 30 November 2012 – 17h00
(Strasbourg, Palais de l’Europe, Room 2 )

CDMSI(2012)010Rev
Item 4.2

11 October 2012

”Violent and extreme pornography” – PACE rec 1981 (2011)
Paper endorsed by the Bureau of the CDMSI

Process/decisions:

    The PACE report on Violent and extreme pornography was issued on 19 September 2011.

    The PACE recommendation on Violent and extreme pornography was adopted on 5 October 2011: “Taking into account Committee of Ministers Recommendation Rec(2001)8 on self-regulation concerning cyber content (self-regulation and user protection against illegal or harmful content on new communications and information services), the Assembly recommends that the Committee of Ministers ask the appropriate bodies of the Council of Europe to carry out a comparative study on the law and regulations applying to forms of violent and extreme pornography in member states and, on this basis, consider whether there is scope for a more harmonised approach, in particular as regards responses to the distribution of violent and extreme pornographic material on the Internet”

    The CM sent the recommendation to the CDPC and CDMSI on the particular issues at stake for possible comments (and to the European Audiovisual Observatory on a separate issue).

    In essence, the CDPC stated that the PACE recommendation covers many multi-disciplinary aspects of the issue, including several important criminal law issues notably with regard to the public’s increased accessibility (especially via the Internet) to violent and extreme pornographic material. The CDPC also referred to two of its recent Conventions: Preventing and Combating Violence against Women and Domestic Violence (CETS No. 210) and the Protection of Children against Sexual Exploitation and Sexual Abuse (CETS 201).

    The CDMC stated that the notion of violent and extreme pornography may be difficult to define in legal terms. It reminded that regulations relating to the subject should be in line with Article 10 ECHR and that freedom of expression can also extend to the right to offend, shock and disturb, and that any attempt to engage in censorship contrary to Article 10 should be resisted. The CDMC also recalled CM/Rec (2009)5 on measures to protect children against harmful content and behaviour and promote their active participation in the new information and communication environment and Recommendations R(97)19 on the portrayal of violence in electronic media and R(89)7 concerning principles on the distribution of videograms having a violent, brutal or pornographic content. Finally, the CDMSI replied in general terms that a study as recommended by PACE “could indeed provide valuable information that might suggest the way forward, while bearing in mind freedom of expression requirements”.
    On 12 April 2012, the CM adopted a reply to PACE, instructing the CDMSI to “discuss the feasibility of a comparative analysis of the laws and regulations applying to forms of violent and extreme pornography in member states and, on this basis, consider whether there is scope for a more harmonised approach, in particular as regards responses to the distribution of violent and extreme pornographic material on the Internet.”

Some Council of Europe texts relating to the issue:

    The Council of Europe Convention on preventing and combating violence against women and domestic violence (CETS No. 210), in particular, Article 17:
    “1.       Parties shall encourage the private sector, the information and communication technology sector and the media, with due respect for freedom of expression and their independence, to participate in the elaboration and implementation of policies and to set guidelines and self-regulatory standards to prevent violence against women and to enhance respect for their dignity.
    2.       Parties shall develop and promote, in co-operation with private sector actors, skills among children, parents and educators on how to deal with the information and communications environment that provides access to degrading content of a sexual or violent nature which might be harmful.”
    The Council of Europe Convention on Cybercrime (ETS No. 185) Article 9 states that “producing, offering or making available, distributing or transmitting, and procuring child pornography are criminal acts, and so is possessing this kind of material in a computer system or on a computer-data storage medium”.

    Recommendation CM/Rec(2009)5 on measures to protect children against harmful content and behaviour and to promote their active participation in the new information and communications environment, which, inter alia, acknowledges: “The risk of harm may arise from content and behaviour, such as online pornography, the degrading and stereotyped portrayal of women, the portrayal and glorification of violence and self-harm, demeaning, discriminatory or racist expressions or apologia for such conduct, solicitation (grooming), the recruitment of child victims of trafficking in human beings, bullying, stalking and other forms of harassment, which are capable of adversely affecting the physical, emotional and psychological well-being of children.”

Trends in member states (according to the PACE report)

    Child pornography, including child abuse, is illegal in all CoE member states;
    Adult pornography is legal in most European countries; the exceptions are Bulgaria, Iceland, Lithuania and Ukraine where its production and/or distribution is illegal. In Ukraine possession of adult pornography is also illegal.
    Only a few European countries deal with “violent and extreme pornography”. In the UK, since 2008 it is illegal to produce, sell and possess pornography which is considered to be grossly offensive. In Belgium, Germany the Netherlands and Norway such pornographic material is illegal to produce or to distribute but it is not illegal to possess.
    There appears to be no or limited information available on the accessibility of violent and extreme pornography, in particular on the Internet, and its impact on the viewer.

European Court of Human Rights

    It would appear that the court has dealt with some cases with links to “violent and extreme pornography” and Article 10 ECHR. Most cases are about restrictions interfering with 10 Article where the legitimate aim was to protect minors or cases concerning pedophilia (no violation when restricting for such purposes). The case, Perrin v. UK (2005) concerned the conviction and sentencing to 30 months’ imprisonment of a French national based in the UK – and operating a US-based Internet company with sexually explicit content – for publishing obscene articles on the Internet. The Court of Human Rights found that the activity was purely commercial, did not contribute to public debate or has no artistic value. The conviction had no “chilling effect” and the Court was satisfied that the criminal conviction was necessary in a democratic society in the interests of the protection of morals and/or the rights of others and that the sentence was not disproportionate. Complaint under Article 10 (freedom of expression) rejected as inadmissible.

Considerations

    The issue of “violent and extreme pornography” has a multi-disciplinary dimension as pointed out by the CDPC. To a large extent, it involves criminal law and, possibly, civil law aspects. Furthermore, the topic is related to women’s dignity and to gender equality, to aspects of the protection of children and minors etc. There are also links to existing CoE instruments and case law of the Court of Human Rights. Research covering these different aspects, would require the involvement of various CoE bodies, such as CDPC, T-CY, CDCJ (Gender Commission) etc in addition to the CDMSI.

    The CDMSI has been instructed to “discuss the feasibility of a comparative analysis of the laws and regulations applying to forms of violent and extreme pornography in member states…”. Carrying out such a broad analysis would go beyond the expertise of the CDMSI. The task therefore does not seem to be feasible for the CDMSI alone. With such a conclusion the second part of the recommendation – “and, on this basis [comparative analysis], consider whether there is scope for a more harmonised approach, in particular as regards responses to the distribution of violent and extreme pornographic material on the Internet” – cannot be dealt with at this stage.

    The CDMSI also needs to reflect on its available resources and its current work plan. From this point of view, it would appear unrealistic to begin the work suggested by PACE at this moment.

In view of the above, the Bureau takes the view that a comparative analysis of the laws and regulations applying to forms of violent and extreme pornography in member states would require a strong multidisciplinary approach, involving not only the CDMSI but also other pertinent committees and expertise of the Council of Europe. Furthermore, given the current work programme of the CDMSI and its limited resources available, it would not be feasible for the CDMSI to carry out such a task at this moment.