Section 1(1) of the 1959 Act provides that an article shall be deemed to be obscene if its effect or the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.(14) Under Section 2(1) of the Obscene Publications Act ( OPA), it is an offence to publish an obscene article or to have an obscene article for publication for gain.
Section 1(3) of the 1959 Act makes it clear that the articles contemplated were such items as computer disks; however most of the pornography on the Internet is now transferred electronically from one computer to another using telephone lines and modems rather than via any tangible medium such as discs.
Reidenberg states that: The Internet is a complex, anarchic, and multi-national environment where old concepts of regulation, reliant as they are upon tangibility in time and space, may not be easily applicable or enforceable.
According to Walker, social regulation within modern society has developed within physical bounds of time and space, but the development of cyberspace distanciates its inhabitants from local controls and the physical confines of nationality, sovereignty and governmentality leading to new possibilities in relationships and interaction.(8) The idea of governance without government may be the best approach for the development of the Internet.
But if such mechanisms of international governance and re-regulation are to be initiated then the role of nation states is pivotal.(9) There appears to be no single solution to the regulation of illegal and harmful content on the Internet because, for example, the exact definition of offences such as child pornography varies from one country to another and also what is considered harmful will depend upon cultural differences.
This left a possible lacuna in section 1(3), OPA 1959, but this has now been plugged by CJPOA 1994 ,which amended the meaning of "publication" in that section, so that electronic transmission of pornographic material is now clearly covered by the 1994 Act.
When A sends B pornographic pictures attached to an e-mail, this electronic transmission will be a publication covered by the Act.(15) Section 1(2) of OPA 1964 makes it an offence to have an obscene article in ownership, possession or control with a view to publishing it for gain.
Both attempts were criticised and the US Supreme Court struck down the CDA in June 1997.
There is no settled definition of pornography, either in the United Kingdom itself, or in the multi-national environment of the Internet, where cultural, moral and legal variations all around the world make it difficult to define pornographic content in a way acceptable to all.These range from pictures and short animated movies, to sound files and stories.Most of this kind of pornographic content is available through World Wide Web ( WWW) pages; but sometimes they are also distributed through an older communication process, Usenet newsgroups.These issues are different in nature and should not be confused.It is the submission of this paper that any regulatory action intended to protect a certain group of people, such as children, should not take the form of an unconditional prohibition of using the Internet to distribute certain content where that is freely available to adults in other media.Following the amendments made by CJPOA 1994, this would even apply when A simply makes the data available to be transferred or downloaded electronically, by providing a password to B, so that B can access the materials and copy them.(16) The main concern of legislators and parents in relation to Internet content is child pornography, rather than other forms of pornographic content.