simon chester is the research partner and a member of the KNOWlaw Group of the Toronto law firm of McMillan Binch. This article was prepared with the assistance of malcolm j. andrade.

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the Cybersex Generation is here and now – Playboy and Penthouse are as available in cyberspace as they are at the corner variety store. Film, video and adult pay television services are currently the major vehicles for showcasing adult entertainment. However, the Internet is burgeoning as a source of sex-related materials through its home pages and newsgroups.

There is little, if any, control over who supplies the material on the Net, and who is allowed to view it. Not surprisingly, when sex is part of the attraction, censorship advocates are never too far from sight. Since only a small proportion of the vast information on the Net is in the form of pornography, one must usually go hunting for it.

This column explores the issue of obscenity in cyberspace; our next column will look at the censorship debate.

Playboy’s home page is one of the most popular and provocative sites on the Web. Non-members can access full-color nude spreads or ‘teasers’ from the home pages of adult magazines, which also contain information on how to become members. Some of the sites provide text as well for those members of the surfing literati who are more interested in reading the articles.

The home pages for Playboy and other similar magazines are not likely to be deemed obscene, at least according to Canada’s legal standard which covers forms of explicit, degrading and violent sex.

Adult entertainment home pages contain mild ‘warnings’ to alert users to the mature content found at these sites. Realistically, it is doubtful whether sugar-coated warnings will prevent curious minors from viewing adult materials on the Net – if anything, they will only spark their curiosity.

Usenet newsgroups represent the primary forum for pornography exchange and sex chat on the Net. Newsgroups such as alt.sex. fetish.tickling and alt.sex.bestiality, as their names suggest, cater to virtually all tastes and preferences. People can engage in sexual dialogue and view explicit pictures in newsgroups which cover everything from simple erotica to s&m and kiddie porn.

Amateur porn purveyors are also prepared to offer hard-core materials which are easily downloaded and reproduced in clear and vivid images.

The sexual exploitation of children is often a major issue for those who advocate some form of censorship on the Internet. At one level, the fear is that children must not be able to access pornographic materials on the Net because they are not mature enough to understand or handle being confronted with graphic sexual images and dialogue.

An even greater concern is the existence of various newsgroups on the Usenet which contain stories and pictures depicting children engaged in sexual acts.

Last month, a Mississauga man was sentenced for creating and distributing child pornography on a computer bulletin board after he used his computer software to transform catalogue photos of scantily clad children into pictures of them engaged in sexual acts with adults and other children. Meanwhile, in Guelph, the antipornography unit of the Ontario Provincial Police recently executed a search warrant on a computer bulletin board for the first time, seizing alleged child pornography and charging two men.

Canada’s child pornography law makes it a crime to possess such material on the basis that it involves the abuse of children, but there are other countries which do not have similar prohibition.

Net users can mask their identities to avoid detection in cyberspace, making it very difficult to track a user who has taken deliberate steps not to be found.

Anonymous ‘remailers’ have also emerged which act as intermediaries converting Usenet and e-mail traffic by first removing all signs of the sender’s identity and address before directing the message to the intended destination.

However, last February, in a rare move, Finnish authorities forced a remailer to surrender a user’s true identity after the police obtained a search-and-seize warrant following complaints from the Church of Scientology about questionable actions of the anonymous user.

Pornographic materials can be routed from a computer in Winnipeg to a computer in New York to another computer somewhere in Europe where they may reside without offending any of the existing laws of the land. It is doubtful that foreign authorities would devote much energy to cracking down on an alleged offence involving obscenity or child pornography under Canadian law, if there is not also a breach of a law in their own jurisdiction.

Since there is no international agreement on the regulation of the Net, it is far from clear what cultural standards and legal definitions should be applied to determine whether certain materials are obscene.

Last July, a California couple was convicted for transmitting obscene material through their bulletin board system, on the basis of Tennessee’s local ‘community standards,’ after explicit pictures were downloaded by authorities in Tennessee.

If this case is any indication of how courts around the world will proceed, it is unlikely that cyberspace itself will be viewed as a separate ‘community’ with its own obscenity standards.

While entertainment enterprises are always keeping a sharp eye out for new and creative opportunities to make their sites more popular, they need to be aware that permitting users to post material to their sites might result in serious legal consequences. In particular, if a user posts obscene material to an interactive site, it is not yet clear whether the site’s owner will be held liable for its contents, notwithstanding that it exercises little or no direct control over it.

(this article contains general comments only. It is not intended to be exhaustive and should not be considered as advice on any particular situation.)