Legal Issues Associated with the Study of Sexual Content on the Internet in Australia
Lyons, Lenore, Williams, Sophie, Ford, Michele, The Australian Feminist Law Journal
Scholarly recognition of the research potentials of the Internet has resulted in a growing interest in using computer-mediated communication to study different aspects of human sexuality. Although there is a growing literature on the ethical issues associated with Internet-based research1, little attention has been given to the legal issues associated with conducting scholarly research on Internet sexual content. This lacuna stands in contrast to the growing public debate about the legal issues associated with attempts by authorities to restrict adult access to Internet content through filtering services and age-restricted access technologies. These measures appear to be focused on three issues - controlling access to sexually explicit content in order to protect children from accessing sexually inappropriate material; restricting the production and dissemination of child pornography; and addressing national security concerns by blocking content related to the promotion of terrorism and cybercrime. In Australia, critics of laws designed to restrict Internet content focus their discussion on the dangers of censorship and the associated undermining of freedom of speech.2 But within the scholarly community there has been little concomitant interest in addressing the impact that Australian Commonwealth and State legislation related to Internet content has on academic research.
These issues have received some - albeit limited - attention internationally. In 1994, the University of Waterloo in Canada restricted access to a number of alt.sex newsgroups on the grounds that the university had been advised that it was an offence under the Canadian Criminal Code for 'anyone to publish or distribute obscene material, and the University is running a risk of prosecution if it knowingly receives and distributes obscene material'.3 In the same year, Carnegie Mellon University (CMU) in the United States also restricted computer user access to alt.sex newsgroups.4 CMU's decision to censor sexual content on usergroups accessed through the university's server was the subject of some criticism, but this critique became overshadowed by debate about the ethical issues associated with conducting research on online sexual communities.5 The CMU decision was sparked by concerns about a student project (commonly referred to as the Rimm study) which used data obtained from alt.sex newsgroups. The Rimm case led to the creation of a series of laws in the US (most of which were later overturned) which attempted to censor offensive material on the web.6
The issue of restricting academic access to sexually explicit material was raised in the US again in 1998, 1999 and 2003 when the federal courts were asked to review restrictions placed on public library access to pornographic Internet sites and state laws restricting state employees from accessing sexually explicit material on state -owned or state-leased computers. In Urofsky v. Gimore (1999), six public college and university professors in Virginia challenged state laws that restricted access to sexually explicit material on the grounds of First Amendment rights of academic freedom. They argued that they needed to access such sites because they were work-related and that 'denial of access would substantially interfere with their ability to perform their jobs'.7 Although the court initially ruled in favour of the professors, the judgement was later overruled thus raising concerns about the dilution of academic freedom.8 Academic involvement in the distribution of so-called 'obscene material' also became a matter of concern in Taiwan when in 2003 an international campaign was launched in support of Josephine Ho, a prominent sexualities researcher and activist, who was charged with 'disseminating obscenities' on the Sexuality Databank website of the Center for the Study of Sexualities, National Central University, Taipei. The charge related to the inclusion of materials on bestiality as part of the publicly-accessible website. …