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Department of Political Science Master’s Degree in International Relations Chair of International Organization and Human Rights Platforms and Professional Performers: Legal Aspects of Pornography. Supervisor Candidate Prof. Francesco Cherubini Giulia Placido Co-Supervisor Prof. Gianfranco Pellegrino Academic year 2019-2020 Table of Contents Introduction ................................................................................... 4 §1 Research Question and Central Claims ........................................ 7 §2 Structure of the Work ................................................................... 9 CHAPTER 1 .................................................................................... 12 Pornography ................................................................................. 12 §1 Pornography and Erotica ............................................................ 17 §2 Pornography and Prostitution .................................................... 18 §3 Pornography and Obscenity ....................................................... 21 §4 Pornography and Sexual Domination ........................................ 24 §5 Pornography and Extreme Pornography .................................... 26 §6 Pornography and Vulnerability .................................................. 27 §7 A rough and ready definition of “legal, mainstream” pornography .................................................................................... 29 CHAPTER 2 .................................................................................... 30 Digital Law and Platform Regulation .............................................. 30 §1 Internet/Digital Law ................................................................... 30 §2 Large Digital Platforms .............................................................. 31 §3 Online Platforms Regulation in the EU ..................................... 34 §4 Platform Self-regulation ............................................................. 34 §5 Co-regulatory legal framework .................................................. 37 §6 Competition................................................................................ 38 §7 Privacy and Cookies .................................................................. 41 §8 Tackling illegal content online ................................................... 44 §9 The Audio-Visual Media Services Directive ............................. 47 § 10 Concluding Remarks ............................................................... 49 CHAPTER 3 .................................................................................... 50 Platform Pornography ................................................................... 50 §1 Platform pornography’s architecture ......................................... 51 §2 Regulation of Internet pornography ........................................... 53 §3 MindGeek .................................................................................. 57 §4 Pornhub ...................................................................................... 61 §5 Pornhub’s Travails ..................................................................... 64 §6 Concluding Remarks .................................................................. 66 CHAPTER 4 .................................................................................... 68 Performers and Platform Pornography .......................................... 68 §1 Performers .................................................................................. 70 §2 Health concerns and medical issues ........................................... 72 §3 More Than Consent Alone ......................................................... 75 §3.1 Nikki Benz v. Tony T, Brazzers, and MindGeek ......................... 76 2 §3.2 GirlsDoPorn ................................................................................. 79 § 4 Ethical Porn: performer-centred pornography .......................... 86 §5 Concluding remarks ................................................................... 88 Conclusions ................................................................................... 90 Bibliography .................................................................................. 95 Executive summary ..................................................................... 109 3 Introduction Every second, nearly thirty million people (“unique Internet users”) are viewing porn online, globally. Every hour, porn platforms like Pornhub, Xvideos, and YouPorn register over 1.5 million views worldwide1. The average time spent on a porn site is between fifteen and twenty minutes, while the average time spent on a non-porn site is roughly five minutes. While most websites are predominantly text and images, porn sites offer streaming video. Loading a typical website requires roughly two megabytes, totalling roughly ten megabytes over five minutes. Streaming a video for fifteen minutes requires roughly ninety megabytes. Platforms like Pornhub, Xvideos, and Youporn have roughly 350 million monthly visitors each, transferring fifty gigabytes per second (about 25.000 more than any home internet connection could take)2. All in all, porn makes up 30% of all the data transferred across the web, which is estimated to host over forty million porn websites. Pornography fuels the need for high-speed internet connections as well as ever more refined video streaming technology (and, increasingly, Virtual Reality). The revenue generated by pornography platforms is often used by their mother tech companies to develop new and innovative technologies. Regulating online pornography means regulating a third of the Internet and at least some factors and elements in its future evolution. In addition, it means regulating a most controversial human practice, which has long predated the Internet, and whose regulation has long been fraught with intense controversy and taken very different paths in different times and places. Today, some countries ban pornography outright, while most others allow it more or less liberally; some countries emphasize regulation of pornography consumption, others of its production, others yet of its distribution. The very task of attempting pornography regulation inevitably mobilizes deep value layers, social norms, and conceptual frameworks governing some of the most sensitive dimensions of human life, including sexuality, gender and gender relations, individual liberty, moral tolerability, and their complex interrelations. These are among the very lines along which cultures divide and distinguish themselves one from the other. Global 1 GOBRY, SAINT (2011). 2 ANTHONY (2012). 4 harmonization of online pornography regulation appears virtually impossible even as the web entangles all countries in shared flows of representations and data. Any difficulties that ever existed with regulating the production, distribution, and consumption of pornographic representations before the advent of the Internet have been vertiginously magnified since, with a great acceleration occurring after 2007, the year in which smartphones took the world by storm. That was also the year in which Pornhub launched. According to Pornhub’s 10-year celebration data release in 2017, a mere one per cent of viewers tuned in on a mobile device in 20073. In 2017 that number had soared to 75 per cent. To such wider accessibility has corresponded a surge in availability. In 2007, 134 hours of video were uploaded to Pornhub, compared to nearly 477.000 hours uploaded in 2016. In total, Pornhub has now more than 1.5 million hours of video available to stream4. Roughly the same is true of its main competitors. All such content is available on mobile devices at any time. Even if one restricts the question “what does the law say about pornography?” to exclusively Western contexts – those contexts in which pornography is typically allowed rather than prohibited - one can only respond with fairly general pointers about the side constraints that the law has established through the years. The legal landscape currently prevailing in western countries is one of general permissiveness towards production, distribution, and consumption of pornography, constrained by prohibitions over representations that involve children5 and non-consensual violence. Around this core legal posture are fuzzy boundaries, subject to contention in reference to what are typically called, following terminology from US jurisprudence, “contemporary community standards”6. Yet in contemporary society standards change quickly (partly due to accelerating rates of technological developments) and communities are not isolated and localized but globally connected 3 Pornhub.com/Insights2017. 4 FUSTICH (2017). 5 But see Judgement of the Supreme Court of the United States, 16th April 2002, Ashcroft v. Free Speech Coalition, protecting simulated child pornography. This accounts for the legality of the so- called barely legal pornography, a subgenre of porn that toys with the idea that its porn actresses are teenagers. 6 Judgement of the U.S. Supreme Court, 21st June 1973, Miller v. California and Judgment of the Supreme Court of the United States, 24th June 1957, Samuel Roth v. United States. 5 and shifting. And the Internet Service Providers (ISPs) that connect communities across continents are in many respects legal novelties, whose processes and operations are technically complex and ever- evolving. Pornography is a morally charged and often strongly ideologized