Introduction
Children are money-spinners.
Throughout history, the talents of children and their images have been a commercial boon for those who have had the opportunity to harness and sell these commodities. Even in mainstream society today, the market is flooded with images of children, films featuring children and other commercial enterprises featuring the talents, bodies and faces of children. While often concerned voices have been raised to question the moral and ethical correctness of this commercialization of youth, society has always chosen to disregard these concerns and the profit motive, as it so often does, has proven a stronger factor in determining acceptability.
The hysteria in recent years over amaros, however, has brought the issue once again to the forefront of public debate. While legislation in most Western countries has made the production and sale of ‘blatantly sexual’ images illegal, there is considerable uncertainty over the definition of blatantly sexual. On the one hand, some have attempted to label even artistic nudes of young children as ‘child pornography’, whilst on the other hand, a significant industry has arisen on the Internet of so-called ‘pre-teen models’, where, for a price, members can view galleries of scantily-clad young children. Many of these sites have risen to notoriety because of the indefatigable efforts of certain interest groups, although law enforcement has made little move to limit them.
It appears, then, that what society is willing to accept has very little to do with the underlying ethical issues of producing and distributing such images, and more to do with the profit motive and the current political climate. Here we attempt to address these ethical issues in an attempt to determine what should and should not be acceptable, and what regulation and safeguards are necessary to ensure that children are not exploited or abused in the process.
Types of ‘Questionable’ Images
Ever since it has been possible to mass-produce images, there have been ample examples of child images used commercially. Picture postcards from the late nineteenth and early twentieth centuries feature children both clothed and unclothed. Now, with the advent of the Internet and digital photography, the proliferation of child images has accelerated rapidly, and it is now possible without any trouble to locate and obtain these images. There are four primary classes of commercially available images which are currently found to be ‘objectionable’ by various segments of society:
- Artistic photographs of nude or scantily clad children;
- Non-nude images of teens and pre-teens on so-called ‘modeling’ sites;
- Nude images of teens and pre-teens on so-called ‘lolita’ sites;
- Explicit images of children engaged in sexual activity.
While many, if not most, people do not have a fundamental objection to the first category of images, most people object to the last category. The trouble is, however, that the definitions used to classify these categories of images are themselves highly subjective, and societal attitudes are in a constant state of flux, making it nearly impossible to determine what is unobjectionable. Images perfectly acceptable today may have been considered vulgar or obscene twenty years ago; paradoxically, some other images which would have been considered totally acceptable within a certain context twenty years ago can now be cause for prosecution. Furthermore, the concept of ‘art’ is so abstract as to be virtually indefinable. In fact, there are images in all four of the categories we have listed which somebody could claim are ‘artistic’.
Some have attempted to solve this problem by stating that the acceptability of an image is based not upon the content of the images, but upon the purpose for which the image was either produced or possessed. This, however, creates even greater problems than trying to determine whether the content of an image is acceptable or not. It is nearly impossible to classify the purpose of an image, as its purpose may vary from person to person. While certain images might be used by a medical professional for educational purposes, the same image could be appreciated by somebody else for aesthetic reasons, and considered by yet another person to be sensual or erotic. Furthermore, the question of proving intent for the possession of images is immensely troublesome. Legislation is a poor arbiter of moral behavior, for, as we have seen, morality cannot be successfully defined and is in a state of constant flux. This leaves it open to abuse by over-zealous prosecutors, and to the establishment of precedents which become irrelevant and even ridiculous as society and its attitudes change.
The Real Issues
The trouble with current legislation governing such images is that it attempts to define morality in a rapidly shifting environment whilst failing to address the fundamental issue. Rather than a question of morality, the issue of the production, sale and distribution of child images is one of ownership, consent and rights. Since few people will challenge that the person who is photographed is the undisputed owner of his or her body, we need to pay especially close attention to the issues of consent and rights. All too often, financial benefit is gained from the sale of images by those distributing the images, whilst the producers and/or subjects of the images are either compensated poorly or not at all for their participation. Alternatively, subjects are unaware that they are being photographed at all, or are aware and even willing to be photographed, yet are unaware that the images will be used commercially. Therefore, legislation needs to be focused on ensuring consent for one’s likeness to be used commercially, and ensuring that any profits derived from the distribution and sale of images are fairly shared between all of the parties involved. Additionally, whilst it is impossible to totally eliminate copyright infringement, there needs to be a strong legislative and enforcement regime to battle the commercial abuse of copyrighted images.
Consent
In the age of the Internet, the issue of consent is much more complex than simple agreement to allow oneself to be photographed. It is now important for any potential photographic subject to understand that modern technology now allows nearly unlimited duplication and distribution of an image. Furthermore, the subject needs to be fully aware that the longevity of any given image is infinite, and that once published, it is virtually impossible to eradicate an image totally from existence.
In the case of images of minors, it is important therefore, that they understand the ramifications of their likeness being available widely around the world in order for them to be able to provide their informed consent. If the minor involved is able to accept this possibility, then the decision to provide consent boils down to a determination of whether the he or she is willing to accept virtual immortality. This decision is greatly dependent on the potential model’s personal feelings about his or her body, as well as the feelings of the society in which he or she lives. If the model appreciates his or her inherent beauty and lives in a society which does not treat nudity as shameful, this should not be a problem. Only in more prudish societies would such images be probable to cause embarrassment or subject the model to ridicule.
Images which are blatantly sexual are an exception to this rule, but only in degree, not in matter of substance. If the images are blatantly sexual, then the model needs to take special care in considering whether he or she wishes to have such images widely proliferated. For the purpose of this argument, we will define blatantly sexual as images which either focus exclusively on the genitalia of the subject, depict auto-erotic activity, or erotic activity with other participants. Here the issue is not simply a matter of whether one consents to his or her image being spread, but whether or net he or she wishes to have acts, which many consider to be intensely personal, available for viewing by the public.
Compensation
Considering the immense profitability of child images, it is necessary also to ensure that the models themselves are properly compensated for their participation. All too often, distributors enjoy the lion’s share of profits in many creative industries, whilst the active participants, in this case, the photographers and the models, receive an inadequate share of profits for their efforts.
In order to ensure that minors receive proper compensation, they need to be correctly represented by people competent to correctly understand and inform them of the real possible value of the enterprise in which they intend to involve themselves. Modeling contracts also need to clearly set out which distribution channels will be used, as well as the end user prices which will be charged, so that models and their agents will be able to properly appraise whether the share of the projected profits is fair and adequate.
While it is probably impossible to fully eradicate copyright infringement and the derivation of additional profits from illegally obtained and used images, it is necessary to create legislative protections for models that will punish those who profit from infringement to a degree that serves to deter and discourage such activity. It is important to apply culpability to all parties along the supply chain in such a way that makes it desirable for each party which can profit from the trade to make a maximum effort to ensure that the images being used are being obtained and used legally, and that any suppliers have the rights to supply the images being used.
It is important to recognize that there will always be jurisdictions in the world which will choose to ignore proper protections and where the rule of law will not be strong and open to corruption and abuse. However, by leading the way in instituting a regulatory regime oriented towards protecting the rights of all parties in the supply regime rather than simply protecting the profits of distributors, reputable nations and suppliers have the opportunity to lead by example, as well as creating a premium level of content for those who are concerned about the well-being of the models who appear in the content they wish to view. Whilst ethical behavior cannot be totally enforced or legislated, there is good reason to believe that financial disincentives to unethical behavior as well as public pressure to ensure proper behavior over time are effective at bringing about changes in the way that the industry organizes itself.
Exploitation
In spite of the best intentions of the primarily rich consumers and the nations where they live, it is virtually impossible to ensure that no exploitation takes place. Despite the efforts of these people and their governments, as long as there are regions of the world where laws are not enforced and where massive economic imbalances exist, there will be instances in which some people who are either enlisted into this trade without providing their consent, or whose consent is dictated by gross financial necessity. While such manipulation and coercion is reprehensible, its mere existence is not just cause to prohibit the trade everywhere. At the same time, it is important to take as much action as is possible to reduce the financial incentives of those involved, and to prosecute their agents and affiliates who remain in jurisdictions where this is possible.
At the same time, however, it is important to recognize the cultural differences between nations and to be sensitive to them. That is, it is unfair to expect one sovereign state to adopt the cultural mores of another, while it is fair to expect that participants in the creation of images in poor countries realize a fair portion of the profits generated by their images being marketed and sold in rich countries. While this is contrary to the prevailing practice and to the basic premises of free market economics, it is necessary to maintain a higher ethical standard in an industry which has earned a poor reputation because of a history of exploitation and abuse. Abuses will always remain, especially in the ‘borderless’ world of the Internet, but by forcing mainstream distributors to become accountable for the content they provide, many of these abuses and distortions can be eliminated.
In order for such a system, however, to work effectively, there must be a change in perceptions towards the industry. If the image industry remains stigmatized and the possession of such images remains a criminal offense, the distributors of such content will continue to remain on the fringes of society. If, however, society recognizes the fundamental rights of people to consent to participate in the creation of such images and to view and possess these images, major steps can be taken to redress the wrongs committed by the industry in the past. Once legitimized and regulated, the major providers of such content will be able to use their market power in the rich countries to attract a sizable market share and deny unscrupulous producers the hitherto unlimited profits they have enjoyed. This is because the reputable purveyors will be able to commit resources to providing a higher quality of content than those who do not, as many of the models who worked for them in the past will be able to work for much better rates for more respectable operations.
Conclusion
Hopefully, as societal attitudes change, the production, distribution and sale of child images will be de-criminalized. As with many other prohibitions, this one simply has not worked, as neither supply nor demand has been tempered by its criminalization. Society needs to understand that there is nothing inherently wrong with such images so long as the models involved are able to give their informed consent to the production of the images and there are guarantees in place which ensure that the models are properly compensated. Indeed, many of these people will be able to participate in the production of something in which they can remain proud for a long time to come. The time of being ashamed of one’s body needs to come to a close, and the right to view and appreciate that beauty needs to be affirmed and upheld. |