Real porn and pseudo porn: the regulatory road

Pornography regulation is an area that has always courted controversy and academic debate. States have responded to pornography in different ways, ranging from absolute prohibition to partial regulation. While regulation of traditional pornography was principally based on morality and prevailing societal values, some post-Internet legislative measures have centred on the detrimental or harmful effects of pornography as the primary cause for censorship and regulation. New forms of technology facilitated new forms of expression, and it did not take too long for pornographers to realise the potential of the Internet, which now plays host to vastly differing types of pornography, from ‘normal’ adult porn to content that includes children, violence, torture and animals. Not all content involves real actors; some being merely realistic depictions produced using digital technology, such as morphing, while some are just cartoons. However, recent legislative initiatives increasingly blur the distinction between what is real and mere acting, or, in some cases, even works of art, albeit that which may be perceived as being in bad taste or repulsive. It is the perceived harm to society that is held out as the rationale for regulation, but this single classification on the basis of harm has generated substantial discussion among legal experts and academics. This paper examines the legality of regulating simulated child pornography and adult extreme pornography with a possession offence, and sheds light on the questionable wisdom of certain state initiatives that sometimes impose constraints on protected civil and fundamental rights. To find a balance between what is acceptable and what should be censored speech is a delicate act in this context, but recent legislative trends represent a worrying deviation from the traditional regulatory approach to pornography. The paper will highlight a number of specific trends in the process and will seek to argue that over-zealous legislation is no panacea to the problem and other alternatives need to be explored.