[Draft] Consent in Explicit Material Distribution Act

[Iciaros]

(OOC: Hi y’all! I was looking through the archives of WA resolutions and I realised that, as far as I could tell, there was no resolution on revenge porn, so I decided to write one up on it. All feedback is appreciated!)

(Resolutions consulted while writing this:
Child Pornography Ban
The Charter of Civil Rights
Protecting Free Expression
Right to Sexual Privacy
Privacy Protection Act
Note: my understanding of the PPA is that it imposes limits on member states, rather than private citizens operating within member states, so I haven’t regarded it so far as overlapping with this proposal.
Extradition Rights
Note: An earlier version of this draft considered the possibility of ensuring cooperation between nations for extradition of accused persons, but I thought it was ultimately less important and so removed it.
Freedom of the Press
Note: Personally to me, this was one of the more troublesome resolutions to reconcile with, as Freedom of the Press could be construed as protecting a media defendant when it has released explicit material without the consent of the depicted party. The structure of this proposal, therefore, is that it obliges member nations to impose domestic laws, rather than itself being international criminal law, and therefore this proposal would (arguably) fall under the exception for “national freedom of expression laws” under Section II.

Opinions on legality and how to resolve illegalities would also be really welcome!)

RECOGNISING the ease with which explicit photographs and videos may be exchanged or distributed in the modern age;

CONCERNED that those who possess this material may release or threaten to release them, for various malicious purposes;

RESOLVING to take international action to ameliorate the harm this may cause to affected parties;

The General Assembly hereby enacts the following:

1. For the purposes of this Resolution:
   
   
   1. “Explicit material” refers to any form of realistic media depicting at least one individual with visible areas while engaged in indecent behaviour, where such areas and behaviour are generally regarded in the culture in which individual lives as being, respectively, private and indecent.
      
      
   2. “Distribution” refers to any means of disseminating material, whether through publication in any medium or private transference to one or more third parties.
2. World Assembly member nations shall criminalise the knowing distribution of explicit material, where the individuals depicted in said material have not given their consent to distribution, and the distributor has no compelling reason to believe that consent has been given.
   
   
   1. In any criminal trial concerning this distribution, it shall be presumed that the depicted individuals have not given their consent, unless the distributor can prove otherwise on a balance of probabilities.
      
      
   2. In the case of third-party distributors, or persons who distribute explicit material obtained from another distributor, they are entitled to assume that consent has been given unless they are aware of evidence to the contrary.
      
      
   3. Where individuals have entered into valid, binding contracts to produce explicit material, it shall be presumed that they have consented to the release of said explicit material.
      
      
   4. It shall be a defence to the above crime to prove that the depicted individual was engaging in the indecent behaviour depicted in the material in public.
      
      
   5. Subject to extant legislation, where a legal guardian gives consent on behalf of, or distributes explicit material of, their ward, they shall not be criminally liable under this resolution should they have reasonably and genuinely believed that their ward would not be adversely affected. Persons dealing with legal guardians are entitled to assume that the guardian has acted in good faith, unless they are aware of evidence to the contrary.
      
      
   6. This clause does not preclude the right of member nations to criminalise separate acts relating to distribution, such as the hosting of explicit materials.
3. Member nations shall also implement a process whereby depicted individuals may apply for the removal or censorship of explicit material from any medium on which it was published.
   
   
   1. Should the owner of the medium reside in a different member nation from the applicant(s), member nations shall cooperate, within reasonable bounds, to remove or censor the explicit material.
      
      
   2. This clause shall not apply when explicit material has been produced under a valid, binding contract, subject to local contract law in member nations.
      
      
   3. This clause does not preclude the right of member nations to introduce separate and additional remedies for depicted individuals, nor does it preclude a member nation’s right to impose civil liability on distributors.
4. Should the distributor(s) and the victim(s) reside in different member nations, member nations shall cooperate in investigation and the exchange of relevant evidence.
   
   
5. This resolution should not be itself read as restricting a member nation’s right to criminalise explicit material generally, nor to criminalise the distribution of material involving only the exposure of private areas without indecent acts.

EDITS:
Clarified that clause 3 may not apply in the presence of a contract, depending on local contract law.
Re-defined "explicit material" to refer to any areas regarded generally in relevant member nations as private, rather than a blanket inclusion of reproductive organs.
Added a qualification to clause 2, allowing legal guardians to act on behalf of their wards in good faith, and allowing persons dealing with guardians to assume good faith.
Added a 'realistic' requirement in the definition of explicit material to exempt material clearly not depicting a real scenario.
Added a requirement in the definition of explicit material for the depicted subject to be involved in sexually explicit behaviour.
Added a defence under clause 2 that absolves a defendant if the victim was engaging in explicit behaviour in public.
Qualified the requirement of sexually explicit behaviour in explicit material, such that it is assessed with respect to the general view of the relevant member nation.
Added an additional right under clause 5 for member nations to introduce further criminal liability at their discretion.
Edited the 'sexually explicit behaviour' requirement to refer to indecent behaviour generally, allowing a greater leeway for cultural interpretation of what would fall under this proposal.
Edited the part of the definition of explicit material pertaining to cultural relativity to refer to the culture within which the individual exists rather than the national culture, in order to accommodate multi-cultural nations.
Clarified that the standard of proof of defendants who wish to prove that consent has been given is 'on the balance of probabilities'.
Added a sub-clause under clause 2 allowing third-party distributors to assume that consent has been given unless they know otherwise.

[Kenmoria]

“Clause 3 doesn’t make much sense in the context of the prnographic industry. If I am reading it correctly, then someone, who was involved in the filming of pornographic material and indeed consented fully to that, could ask to have the video censored at any point for any reason.”

[Iciaros]

“Clause 3 doesn’t make much sense in the context of the prnographic industry. If I am reading it correctly, then someone, who was involved in the filming of pornographic material and indeed consented fully to that, could ask to have the video censored at any point for any reason.”

(OOC: Ah, thanks, I forgot to duplicate the equivalent of 2b into that. One second.)

[Wrapper]

Congratulations, you just outlawed baby bath pictures, childbirth videos, the movie Superman (1978), and the cover of Nirvana's Nevermind.

[Iciaros]

Congratulations, you just outlawed baby bath pictures, childbirth videos, the movie Superman (1978), and the cover of Nirvana's Nevermind.

(I've never seen Superman, but I think you're referring to the baby scene which I've heard about? Nonetheless, I take your point; perhaps if member states think that this is a major problem, a clause could be added exempting the distribution of explicit images of people below a certain age, like 1 or 2?)

[Araraukar]

Congratulations, you just outlawed baby bath pictures, childbirth videos, the movie Superman (1978), and the cover of Nirvana's Nevermind.

OOC: And too many Nordic films and TV shows and documentaries and newscasts to count. Not all cultures consider nudity to be pornographic.

[Saranidia]

“Clause 3 doesn’t make much sense in the context of the prnographic industry. If I am reading it correctly, then someone, who was involved in the filming of pornographic material and indeed consented fully to that, could ask to have the video censored at any point for any reason.”

"They should it's an image of them they should be able to change their mind, who cares
if the industry is negatively affected."-Foreign Minister Alexander Khan, Mufti, PHD, Former Captain of the Royal
Azadistani Army, Order of Azadistani Heroism.

[Araraukar]

"They should it's an image of them they should be able to change their mind, who cares if the industry is negatively affected."

"Have you heard of legally binding contracts? If you sign one and later change your mind, you'll have to try to re-negotiate the contract, and if the other party refuses, then tough luck."

[Saranidia]

(OOC: Hi y’all! I was looking through the archives of WA resolutions and I realised that, as far as I could tell, there was no resolution on revenge porn, so I decided to write one up on it. All feedback is appreciated! Also I realise the title is a bit long, but I'm not entirely sure how to make it shorter.)

(Resolutions consulted while writing this:
Child Pornography Ban
The Charter of Civil Rights
Protecting Free Expression
Right to Sexual Privacy
Privacy Protection Act
Note: my understanding of the PPA is that it imposes limits on member states, rather than private citizens operating within member states, so I haven’t regarded it so far as overlapping with this proposal.
Extradition Rights
Note: An earlier version of this draft considered the possibility of ensuring cooperation between nations for extradition of accused persons, but I thought it was ultimately less important and so removed it.
Freedom of the Press
Note: Personally to me, this was one of the more troublesome resolutions to reconcile with, as Freedom of the Press could be construed as protecting a media defendant when it has released explicit material without the consent of the depicted party. The structure of this proposal, therefore, is that it obliges member nations to impose domestic laws, rather than itself being international criminal law, and therefore this proposal would (arguably) fall under the exception for “national freedom of expression laws” under Section II.

Opinions on legality and how to resolve illegalities would also be really welcome!)

RECOGNISING the ease with which explicit photographs and videos may be exchanged or distributed in the modern age;

CONCERNED that those who come into possession of these photographs may release or threaten to release them, for various malicious purposes;

RESOLVING to take international action to ameliorate the harm this may cause to affected parties;

The General Assembly hereby enacts the following:

1. For the purposes of this Resolution:
   
   
   1. “Explicit material” refers to any form of media depicting at least one individual with exposed genitalia and/or other private areas, and
      
      
   2. “Distribution” refers to any means of disseminating material, whether through publication in any medium or private transference to one or more third parties.
2. World Assembly member nations shall criminalise the knowing distribution of explicit material, where the individuals depicted in said material have not given their consent to distribution, and the distributor has no compelling reason to believe that consent has been given.
   
   
   1. In any criminal trial concerning this distribution, it shall be presumed that the depicted individuals have not given their consent, unless the distributor can prove otherwise.
      
      
   2. Where individuals have entered into valid, binding contracts to produce explicit material, it shall be presumed that they have consented to the release of said explicit material.
      
      
   3. This clause does not preclude the right of member nations to criminalise separate acts relating to distribution, such as the hosting of explicit materials.
3. Member nations shall also implement a process whereby depicted individuals may apply for the removal or censorship of explicit material from any medium on which it was published.
   
   
   1. Should the owner of the medium reside in a different member nation from the applicant(s), member nations shall cooperate, within reasonable bounds, to remove or censor the explicit material.
      
      
   2. This clause shall not apply when explicit material has been produced under a valid, binding contract.
      
      
   3. This clause does not preclude the right of member nations to introduce separate and additional remedies for depicted individuals, nor does it preclude a member nation’s right to impose civil liability on distributors.
4. Should the distributor(s) and the victim(s) reside in different member nations, member nations shall cooperate in investigation and the exchange of relevant evidence.
   
   
5. This proposal should not be itself read as restricting a member nation’s right to criminalise explicit material generally.

"I dislike the presumption of guilt("it shall be presumed the depicted individuals have not given their consent unless proven otherwise") but I do think people should be able to change their mind and censor images of themselves."- Foreign Minister
Alexander Khan,Mufti,
Former Captain in the Royal Azadistani
Army, Ambassador to the World Assembly from Saranidia, PHD.

[Saranidia]

"They should it's an image of them they should be able to change their mind, who cares if the industry is negatively affected."

"Have you heard of legally binding contracts? If you sign one and later change your mind, you'll have to try to re-negotiate the contract, and if the other party refuses, then tough luck."

"But why does the state need to allow this?, in the same way in countries ruled by civilized governments a woman has the right to change her mind when she sleeps with someone. Why can't it be tough luck for the industry instead? besides it is beneath the majesty of a ruler or a judge to enforce such".

[Iciaros]

Congratulations, you just outlawed baby bath pictures, childbirth videos, the movie Superman (1978), and the cover of Nirvana's Nevermind.

OOC: And too many Nordic films and TV shows and documentaries and newscasts to count. Not all cultures consider nudity to be pornographic.

(All of babies? I guess I'm not too familiar with Nordic media. Nonetheless, this proposal is not so much about moral decency as it is about protecting people from blackmail, and I think regardless of whether nudity is regarded as pornography or not isn't necessarily indicative of whether people would be okay with having their nude bodies out there for the world to see.

But I do get your point. I'm coming up with edits now to a) create an exception for legal guardians giving consent, and b) editing the definition of explicit material to focus primarily on what would be regarded as 'private regions' in a respective culture, rather than putting a blanket inclusion on genitalia.)

"I dislike the presumption of guilt("it shall be presumed the depicted individuals have not given their consent unless proven otherwise") but I do think people should be able to change their mind and censor images of themselves."- Foreign Minister
Alexander Khan,Mufti,
Former Captain in the Royal Azadistani
Army, Ambassador to the World Assembly from Saranidia, PHD.

"Thank you for your feedback, Minister. The reason why the presumption of guilt exists is because of the impossibility of proving a negative (that an individual did not give consent) rather than the positive that they did. I understand your concern with the clause, and would appreciate if you have any suggestions to rework it that would still allow this proposal to be effective."

[Saranidia]

OOC: And too many Nordic films and TV shows and documentaries and newscasts to count. Not all cultures consider nudity to be pornographic.

(All of babies? I guess I'm not too familiar with Nordic media. Nonetheless, this proposal is not so much about moral decency as it is about protecting people from blackmail, and I think regardless of whether nudity is regarded as pornography or not isn't necessarily indicative of whether people would be okay with having their nude bodies out there for the world to see.

But I do get your point. I'm coming up with edits now to a) create an exception for legal guardians giving consent, and b) editing the definition of explicit material to focus primarily on what would be regarded as 'private regions' in a respective culture, rather than putting a blanket inclusion on genitalia.)

"I dislike the presumption of guilt("it shall be presumed the depicted individuals have not given their consent unless proven otherwise") but I do think people should be able to change their mind and censor images of themselves."- Foreign Minister
Alexander Khan,Mufti,
Former Captain in the Royal Azadistani
Army, Ambassador to the World Assembly from Saranidia, PHD.

"Thank you for your feedback, Minister. The reason why the presumption of guilt exists is because of the impossibility of proving a negative (that an individual did not give consent) rather than the positive that they did. I understand your concern with the clause, and would appreciate if you have any suggestions to rework it that would still allow this proposal to be effective."

"You can prove lack of consent if there is prescence of coercion or impossibility of consent(EG someone lacks mental capacity)."
-
Alexander Khan

[Iciaros]

"Have you heard of legally binding contracts? If you sign one and later change your mind, you'll have to try to re-negotiate the contract, and if the other party refuses, then tough luck."

"But why does the state need to allow this?, in the same way in countries ruled by civilized governments a woman has the right to change her mind when she sleeps with someone. Why can't it be tough luck for the industry instead? besides it is beneath the majesty of a ruler or a judge to enforce such".

"I appreciate your concerns here as well, Minister, and I have added a qualification to clause 3 making the exemption for legal contracts subject to local contract law, meaning that if in your nation parties to a contract are entitled to withdraw unilaterally, this clause may protect them."

"You can prove lack of consent if there is prescence of coercion or impossibility of consent(EG someone lacks mental capacity)."
-
Alexander Khan

"With regards to this, Minister, that is certainly true, and that will cover situations where evidence that consent has been given exists. To clarify, when drafting this proposal, my intent was to put the onus on the defendant to produce prima facie evidence of consent, not to prove further that this consent was given freely. Discrediting evidence put forward is the job of the opposing party. What this presumption is meant to achieve is, in a situation where no evidence that consent was ever given exists, it will be presumed that consent was not given."

[Aclion]

"Have you heard of legally binding contracts? If you sign one and later change your mind, you'll have to try to re-negotiate the contract, and if the other party refuses, then tough luck."

"But why does the state need to allow this?, in the same way in countries ruled by civilized governments a woman has the right to change her mind when she sleeps with someone. Why can't it be tough luck for the industry instead? besides it is beneath the majesty of a ruler or a judge to enforce such".

She can't change her mind after the fact and call it rape though. Not in countries ruled by civilized governments.
Also enforcing contracts is one of the basic roles of government. If your king isn't doing that, he's not a king.

"You can prove lack of consent if there is prescence of coercion or impossibility of consent(EG someone lacks mental capacity)."
-
Alexander Khan

Under this standard there's very little value in this resolution at all. It's childishly easy to avoid prosecution for violations.

[Saranidia]

"But why does the state need to allow this?, in the same way in countries ruled by civilized governments a woman has the right to change her mind when she sleeps with someone. Why can't it be tough luck for the industry instead? besides it is beneath the majesty of a ruler or a judge to enforce such".

"I appreciate your concerns here as well, Minister, and I have added a qualification to clause 3 making the exemption for legal contracts subject to local contract law, meaning that if in your nation parties to a contract are entitled to withdraw unilaterally, this clause may protect them."

"You can prove lack of consent if there is prescence of coercion or impossibility of consent(EG someone lacks mental capacity)."
-
Alexander Khan

"With regards to this, Minister, that is certainly true, and that will cover situations where evidence that consent has been given exists. To clarify, when drafting this proposal, my intent was to put the onus on the defendant to produce prima facie evidence of consent, not to prove further that this consent was given freely. Discrediting evidence put forward is the job of the opposing party. What this presumption is meant to achieve is, in a situation where no evidence that consent was ever given exists, it will be presumed that consent was not given."

"ok, on balance it would probably have my vote"-Foreign Minister Alexander Khan

[Saranidia]

"But why does the state need to allow this?, in the same way in countries ruled by civilized governments a woman has the right to change her mind when she sleeps with someone. Why can't it be tough luck for the industry instead? besides it is beneath the majesty of a ruler or a judge to enforce such".

"I appreciate your concerns here as well, Minister, and I have added a qualification to clause 3 making the exemption for legal contracts subject to local contract law, meaning that if in your nation parties to a contract are entitled to withdraw unilaterally, this clause may protect them."

"You can prove lack of consent if there is prescence of coercion or impossibility of consent(EG someone lacks mental capacity)."
-
Alexander Khan

"With regards to this, Minister, that is certainly true, and that will cover situations where evidence that consent has been given exists. To clarify, when drafting this proposal, my intent was to put the onus on the defendant to produce prima facie evidence of consent, not to prove further that this consent was given freely. Discrediting evidence put forward is the job of the opposing party. What this presumption is meant to achieve is, in a situation where no evidence that consent was ever given exists, it will be presumed that consent was not given."

"ok, on balance it would probably have my vote"-Foreign Minister Alexander Khan

[Bears Armed]

“Explicit material” refers to any form of media depicting at least one individual with exposed areas, where such areas are generally regarded in a member nation as being private,

Not "the relevant member nation", just "a member nation"? So, if one single member nation believes that all parts of the body are private -- and all of its people therefore go around in burkas & mirrorshades -- then all member nations must follow that same definition for this proposal's purposes?

[Araraukar]

All of babies? I guess I'm not too familiar with Nordic media.

OOC: No, of people of various ages. Like I said, over here nudity isn't considered pornographic, so nakedness in visual media isn't censored the same way.

is not so much about moral decency as it is about protecting people from blackmail

Then you should focus on that, not on the nudity.

focus primarily on what would be regarded as 'private regions' in a respective culture, rather than putting a blanket inclusion on genitalia.

Of course genitalia are considered private regions, but they're not considered pornographic. Unless it's something produced for pornographic purposes. Intent over content. In somewhere hysterically prudish like USA it's content over intent.

[Arasi Luvasa]

I believe there are still cultures that don't have genitalia as necessarily private though ( a few African cultures are known to have dress that show genitalia) while other species may not even have a concept of private regions (i.e. a species of sentient dogs or horses will not necessarily consider genitals a private region).

[Iciaros]

“Explicit material” refers to any form of media depicting at least one individual with exposed areas, where such areas are generally regarded in a member nation as being private,

Not "the relevant member nation", just "a member nation"? So, if one single member nation believes that all parts of the body are private -- and all of its people therefore go around in burkas & mirrorshades -- then all member nations must follow that same definition for this proposal's purposes?

(Edited, thanks!)

focus primarily on what would be regarded as 'private regions' in a respective culture, rather than putting a blanket inclusion on genitalia.

Of course genitalia are considered private regions, but they're not considered pornographic. Unless it's something produced for pornographic purposes. Intent over content. In somewhere hysterically prudish like USA it's content over intent.

I believe there are still cultures that don't have genitalia as necessarily private though ( a few African cultures are known to have dress that show genitalia) while other species may not even have a concept of private regions (i.e. a species of sentient dogs or horses will not necessarily consider genitals a private region).

(That was my concern when I was editing it (since it's very clear that humans are only one of several species in the WA, and even among humans cultures vary); hopefully the reworded definition should address that.)

is not so much about moral decency as it is about protecting people from blackmail

Then you should focus on that, not on the nudity.

(I understand what you're saying, which is why the definition now focuses on what is culturally private, to better address what might be used as 'blackmail material'; do you think that's sufficiently targeted?)

[Kenmoria]

“In clause 5, you want ‘this resolution’ rather than ‘this proposal’, since it won’t be a proposal once it is passed.”

[Iciaros]

“In clause 5, you want ‘this resolution’ rather than ‘this proposal’, since it won’t be a proposal once it is passed.”

(I... can't believe I missed that >.< Thanks!)

[WA Kitty Kops]

OOC: I'm still missing the point of why you're talking about "explicit material" if it's blackmailing you want to ban?

[Iciaros]

OOC: I'm still missing the point of why you're talking about "explicit material" if it's blackmailing you want to ban?

(Because though the motivation of this resolution is to protect people who may be blackmailed with explicit content, the manner in which this intent is manifested is through the criminalisation of the non-consensual release of explicit content.)

[Imperium Anglorum]

"Preventing Non-consensual distribution of explicit materials"
"Revenge Porn Prevention Act"
"Consent in Explicit Material Distribution Act"

Leave 'On' for the essays.