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.
This has been the case ever since paedophiles started to use the Internet for circulating pornographic materials related to children.(17) Paedophilia can be seen as a minority sexual group, with its own form of expression explicitly involving fantasies and imaginings about sex with children.
A recent European Commission Communication Paper stated that each country may reach its own conclusion in defining the borderline between what is permissible and not permissible.(10) The multi-layered governance system should be a mixture of national and international legislation, and self-imposed regulation by the ISPs and on-line users.
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.
"Law and the Internet" (ISBN 1-901362-30-2) can be ordered direct from Richard Hart Publishing at a cost of 25.00 per copy, plus 3.00 postage and packing for the first copy and 1.00 for any subsequent copies.