Harms Arising Through Pornography’s Circulation | Publications

Harms Arising Through Pornography’s Circulation

Harms Arising Through Pornography’s Circulation

Next, we deal with the second major category of pornography’s harms: harms in circulation. Commercial pornography involves selling and circulating the produced materials. In this sense, harms of production closely combine with harms of circulation. But it is possible to distinguish between them. For example, in the case of harms described in the category of harms arising in the production process of commercial pornography, when a victim is coerced to appear in pornography by force or fraud, or when they are filmed with a spy camera, these crimes by themselves represent a severe violation of human rights.

On top of that, when the materials produced by these crimes are sold or disseminated in public, this represents an additional and grave violation of human rights. And, even if the materials are photographed or filmed with a person’s agreement, their non-consensual distribution or dissemination constitutes distinct and serious harm. Thus, it is necessary to distinguish them, even while, in real life, the production and circulation harms of pornography are often inseparable.

These “circulation harms” can be further broken down into three subcategories.

a. Harm that victims additionally suffer when commercial or non-commercial materials arising from various harms of pornography (such as coerced appearance or spy cam filming) are circulated or disseminated.

b. Harm that victims suffer when materials, including footage or photographs of a naked victim or sex acts, even if they had consented to their filming, are non-consensually distributed or disseminated.

c. Harm that victims suffer when facial photos or caricatures are used to produce fake sexual photos or caricatures and are published or distributed in magazines, newspapers, or the Internet (deepfakes). This can include publication with a victim’s identified name, and use of aspects of their career in a sexual and sexually demeaning context.

In the case of pornography’s harms, different from other sexual harms, the recording of the harm remains in a physical or digital form. Therefore, human rights violations in the production of pornography cause an additional violation when the harms become recorded materials that are distributed or disseminated. Today, in the era of computerization and the Internet, you can infinitely copy the digitalized materials with a simple process, and easily distribute them worldwide. Considering that footage in which victims are sexually abused, raped, or tortured, or materials that are produced through spy-cam filming, are eternally exposed to countless people, this harm might exceed even harms of production.

The earlier mentioned victim Midori wrote in her diary that:

[e]ven when the court case is over, many problems will remain. Once something is picked up in the Google search engine, or released to a video hosting site, it tends to stay on the internet forever. You can’t forget about it even if you want to. This will be a problem I have to deal with forever. I’ll never know when, where and who will find out about the videos. The idea of having to live with this burden is difficult to accept (Bengoshi dot.com News, December 2018).

Many of the harms in relation to which victims consult with PAPS involve this type. PAPS members must therefore negotiate with Internet service providers and request pornography companies stop selling DVDs. They also contact hosting websites to delete them. This is an arduous task, and companies do not necessarily respond to requests.

Furthermore, when these materials are edited and distributed as commercial pornography, an additional harm results: harm in which they are accepted by the public as produced through voluntary consent rather than through coercion. On the front cover of DVD boxes and in Internet thumbnails, photographs showing victims smiling may be used or even spliced into the footage. But these scenes might be shot before full-fledged shooting begins or despite a victim’s trauma. But consumers buying the DVDs will believe they were produced with the consent of the victim.

Further harm of pornography’s circulation occurs in the case of intimate partners who, even if one of them has agreed to film sexual photographs or movies, distribute or disseminate materials without permission. Alternatively, harms can arise in cases where a third party obtains them one way or another and distributes them without permission. The phrase revenge pornography has come to represent this typical pattern of harm in which a man, often out of revenge for a relationship ending, distributes (or uploads to the Internet, or hands to the media) his ex-lover’s sexual photographs or movies which were shot when dating her.

The murder of a high school girl in Tokyo in 2013 drew public attention to this problem. An offender aged in his 20s, out of revenge for having the relationship ended by the girl he was dating, uploaded her sexual photographs and movies in large volume to the Internet and eventually sneaked into her house to stab her to death with a knife. This incident led to the enactment of a law banning the distribution of private sexual pictures and footage of others without consent (the law is commonly known as the revenge porn law). Although this law initially had the purpose of clamping down on revenge pornography, it can be and already has been adapted to cases in which private sexual pictures or footage are distributed without permission because this law on its face places a ban on the non-consensual distribution of all private sexual graphics, including ones of spy-cam filming. The law has already been applied in one instance in which a man secretly filmed 300 people using a unisex toilet in inner-city Tokyo over a one-year period. He uploaded the footage to a spy-cam footage website and earned roughly a quarter of a million dollars. After being arrested for spy-cam filming under Japan’s public nuisance regulations in October 2018, he was re-arrested for the uploaded footage under the provisions of Japan’s revenge pornography law. He was re-arrested for spy-cam crimes again in July 2019 after having received a suspended sentence for the original crimes (Higashi Supo Web, 2018).

Further harm of pornography’s circulation arises when a victim initially agreed to both filming and pornography distribution and sales (as in the case of commercial pornography), but, after that, over time, came to feel disgusted about the continuing distribution or sales of the materials, even as the materials continued to be distributed or sold. Even when someone participates in the filming of commercial pornography by choice and then also agreed to sales, they can then have a change of mind or change of situation, such as the beginning of a new relationship, or mainstream job, birth of a child, a reaction to pornography coming to light among family members or friends, or feelings of remorse about the footage. However, if they yield profit, production companies and distributing agencies usually continue to sell the materials in disregard of the wishes of victims.

Under current contracting practices in Japan’s pornography industry, performers’ copyright and publicity rights are handed over to production companies. So, in addition to the videos in which someone has directly agreed to perform, it is common that footage is repeatedly re-edited and re-commodified as different videos, such as in the case of specialty compilations. Alternatively, the footage can be unilaterally bought by overseas websites like Caribbeancom.com or Pornhub. The footage is then broadcast from these sites, and sometimes without the original blurring of genitals, as required in the case of pornography produced in Japan (Bengoshi dot.com News, August 2019). As a result, the harm of the original filming continues into perpetuity.

After problems of coerced pornography filming came to light in Japan, the pornography industry established an organization called AV Human Rights Ethics Organization in 2016. It announced the organization would act upon requests from victims for the discontinued sale and Internet distribution of pornography produced more than five years prior. While this measure represents a small improvement in current conditions, not all pornography production companies are part of the AV Human Rights Ethics Organization. The requirement that five years must have elapsed since production is excessively long. Also, the organization cannot act to take down materials distributed via overseas-hosted websites. Effectively, the problems the organization was established to address continue, as before.

A third harm arising from pornography’s circulation is equivalent to defamation through pornography in the MacKinnon-Dworkin classification. Today this harm has become an explosive epidemic as the Internet spreads to every corner of the developed world, and synthesizing technologies for images becomes highly developed. Famous women tend to be its targets. For example, in the case of a court decision recorded in July 2016, famous Japanese actresses such as Haruka Ayase and Satomi Ishihara filed an action for damages suffered by the publication of their fake photos, which involved composite facial photos overlaid onto elaborately drawn images of their naked bodies in an entertainment magazine. They won the case (Bengoshi dot.com.News, July 2016). Such pornography collages target celebrities and female politicians and activist women to demean and silence them. Rapid technological progress is being made not just in filming but also in cinematic editing, which now means celebrity faces can be superimposed onto sex scene footage as if the person had been filmed. This is called deepfake pornography, which is becoming a problem internationally.

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