Saturday, November 14, 2009

Sex Work and the Internet

The issue of sex work ads on the Internet has received of a lot of media attention ever since the crackdown on Craigslist. There is increasing concern that sex workers and website hosts could face legal problems if they advertise sexual services online.

Given the current state of the law in Canada, it is hard say whether sex workers could face criminal charges for advertising on the Internet. There are two Criminal Code sections that could apply to certain types of online advertising.

For example, advertising prostitution services on the Internet may violate the communication law. As stated above, this section of the Criminal Code makes it illegal for anyone who is in a public place, a place open to the public, or a place in public view, from ‘communicating, or attempting to communicate, to any person in any manner, for the purpose of prostitution.’ A ‘public place’ is defined as anywhere the public has access. To our knowledge, no one in Canada has ever been charged with communicating for the purpose of prostitution as a result of advertising sexual services on the Internet. However, sex workers should be aware of this possibility.

It is also possible that a person could be charged with procuring if he/she was using the Internet to recruit sex workers to work for him/her, or if he/she was advertising sexual services of his/her employees.

Sex workers who are engaged in webcam work or the internet adult entertainment industry should also be aware of the laws relating to obscenity. Section 163 of the Criminal Code sets out the obscenity law. It says that it is against the law to make, print, publish, distribute, circulate, or possess for the purpose of publication, distribution or circulation any obscene written matter, picture, model, phonograph record or other thing.

It is also an offence to give an “immoral, indecent or obscene” theatrical performance. The central question is what does the law consider to be “obscene”? Section 163(8) of the Criminal Code says that “any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.”

The Courts have attempted to differentiate between pornography that is not harmful to society (and is legal) and pornography that is harmful (and thus illegal). The Courts have said that they will look at a range of factors including the content and the method of publication and then will determine what is “undue” exploitation (illegal) by considering community standards.

The community standards test looks at what Canadians would not tolerate being exposed to themselves and what they would not tolerate other Canadian being exposed to. The test is a flexible one because community standards are ever changing.

Unfortunately the law does not provide a clear set of guidelines as to what is and what is not legal in the online adult industry. Anyone concerned about creating content that may not meet the community standard test of what is acceptable pornographic material should get legal advice.

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