Freedom v Harm - What happens when pornography and human rights collide?

Charles Ho Wang Mak and Temitope Omotola Odusanya on the challenge of balancing the right to freedom of expression with concerns over exploitation, degradation and violence.

Pornography and human rights are nuanced, highly debated topics that incite dialogues among academics, activists and policymakers. Discussions seek to strike a balance between the right to freedom of expression and access to information and the concerns related to exploitation, degradation and harm associated with the production and consumption of pornography. In Scotland, the Criminal Justice and Licensing (Scotland) Act 2010 specifically includes images of rape within its definition of extreme pornography, reflecting a commitment to addressing cultural harm and gender-based violence

Since the advent of globalisation and the commercialisation of the internet, human sexuality through pornography has become highly lucrative for sex industries. However, the effects and contiguity of this issue which borders on privacy and the home environment are worrisome. Prima facie, pornography questionably has resulted in advanced methods of sexual addiction as well as gender and human rights inferences. In Scotland, the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 has made significant strides in combating ‘revenge porn’ by criminalising the non-consensual sharing of intimate images, reflecting a strong legal response to technology-facilitated abuse.

There is no universally acceptable definition of pornography as it is defined based on diverse perspectives. In addition, the moral undertone attached to pornography further makes it elusive and limits a standardised definition. However, what is distinguished as more conventional with pornography is that it is viewed in secrecy. For the purpose of our discussion, pornography is the display of sexually stimulating behaviour, the exposure of sexually appealing body parts and or graphical contents. Such prurient acts as intending to promote erotic activities. On the other hand, human rights are universal in nature as they are accorded to all persons irrespective of the nature of their diversity. Conversely, although the consumption of pornography is mostly in seclusion, the intended and unintended consequences are deeply rooted in families, marriages, corporations and societies.

The complexity of the convergence between pornography and human rights extends beyond definitions. For instance, there seem to be no real ethical, punitive measures or social structures to adequately correlate the divergence of pornography and human rights. The widespread availability of pornography illuminates more prominently the systemic discrimination against certain sections of the population. More so, the exposure leaves children even more vulnerable and marginalised.

Article 19 of the International Covenant on Civil and Political Rights (ICCPR) encompasses freedom of expression in seeking, receiving and disseminating information and ideas of all types, irrespective of geographical boundaries. Nevertheless, this principle is limiting as the ICCPR also permits specific restrictions on this right, providing they are legally defined and necessary to protect the rights and reputations of others, national security, public order, or public health and morality. Opposing unrestricted access to pornography centres around the possible harm it may inflict on individuals involved in its production and its consumers. This viewpoint is anchored in the liability principle, stating that the sole justification for curtailing individual liberties is to avert damage to others.

Advocates of porn postulate that most pornographic material is produced and consumed consensually and that regulatory measures could be employed to counter specific instances of harm and exploitation. Regardless, women and children often bear the brunt of exploitation and maltreatment in pornographic production. This mistreatment can take diverse forms, including forced participation, hazardous working conditions and financial dependency. Furthermore, most pornographic content objectifies and demeans women, often presenting them as submissive and passive, while men are typically portrayed as dominant and assertive. Pornographic consumption has been associated with undesirable societal impacts, such as gender disparities, rape, normalising gender-based violence, discrimination, intensifying objectification and reinforcing gender stereotypes.

Women and children are often caught in the crossfire of pornographic production, distribution and exploitation. This breeds the question, what is the extent of  their rights especially in the context of porn and male dominance? Is pornography a human right or a violation of human rights? Pornography in certain circumstances, albeit with subtle hints, explicitly explores the use of violence, and in graphic detail. It therefore suffices to assert that, consciously or unconsciously, pornography sponsors components of violence exhibited to women and children. Women are visualised as sexual objects deserving of torture and humiliation, and are consequently being degraded.

By virtue of social construct, women are sidelined sexual objects essential for procreation and preserved only for family affairs and or management. These ‘second-class citizens’ are to portray only secondary activities in society and at the imperative of their counterparts. The social role theory further corroborates the continuous disparities among the sexes, evident in the societal distribution of roles and responsibilities. These issues are at the heart of the relationship between pornography and human rights, as it echoes unequal power and rights. For the human right to become and truly do right, there must be a levelled playing field and unequivocal balance of rights among all segments in the society.

From a human rights viewpoint, consent is a crucial determinant of the legitimacy of pornographic content. When all parties of appropriate ages consent freely, the production and consumption of pornography can be perceived as a legitimate exercise of the right to freedom of expression. However, when consent is absent, forced or otherwise compromised, the human rights of the individuals concerned are infringed upon.

To harmonise the right to freedom of expression with the concerns about harm and exploitation, it is imperative to establish an exhaustive regulatory structure for the pornography industry. Such a framework should include provisions ensuring the protection of performers’ rights, including explicit consent requirements, health and wellbeing (eg regular check-ups), safe working environments, adequate compensation and access to support services – especially one that shields against harassment and exploitation. Since no one is above the law, everyone involved in the production of pornography must be treated fairly, without prejudice and with utmost respect, regardless of gender.

Beyond policy implementations and regulation, education is a critical mechanism in addressing the adverse societal outcomes of pornography consumption. Comprehensive sex education programmes can equip individuals with essential thinking skills, enable recognition of harmful gender stereotypes and foster a healthy comprehension of consent and sexual relationships. In Scotland, organisations like Rape Crisis Scotland play a crucial role in promoting awareness and education about the harmful effects of pornography, highlighting the need for sex education programmes that emphasise consent and healthy relationships.

Finally, the crossroads of pornography and human rights is a complex and multifaceted challenge requiring thoughtful deliberation and dialogue. Adopting a balanced approach that respects the right to freedom of expression and protects competing values, while addressing concerns related to harm and exploitation, can pave the way for a more inclusive and rights-oriented environment.

Written by Charles Ho Wang Mak (Lecturer in Law, School of Law and Social Sciences, Robert Gordon University and Research Associate, University of Oxford) and Temitope Omotola Odusanya (Assistant Professor in Law and LLM Programme Lead at Robert Gordon University)