A blog on why norms matter online

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I'm a Post-Doc Fellow at the Cluster of Excellence "Normative Orders" of the University of Frankfurt and lecturer at the Institute of International Law of the University of Graz, Austria. I've studied international law in Graz, Geneva and at Harvard Law School. I enjoy thinking and writing about Internet Governance and discussing and shaping the future of the Internet

Thursday, August 16, 2012

As "f-bombs" and "sexting" are included in the Merriam-Webster, taboo words are still used as pretexts to online censorship (part 1)

The BBC and the Huffington Post report that the Merriam-Webster's Collegiate Dictionary has added a  number of interesting words to is latest printed edition, thus signifiying their entry into common usage.

These include "F-Bombs" and "sexting", both of which are already included in the online version of America's equivalent to the German Duden or the British English's Oxford English Dictionary.

Sexting is defined by Merriam-Webster's online edition as the "the sending of sexually explicit messages or images by cell phone", and "f-bomb" as "the word fuck —used metaphorically as a euphemism".

To celebrate their inclusion by Merriam-Webster I would like to point readers to two articles on the two words that highlight both their disruptive potential in disource ("f-bombs") and life ("sexting") and take issue with some commonly held preconceptions on both topics.

I'll deal with "sexting" today and with the "f-bomb" tomorrow.


I have done some research on sexting for a 2010 paper at Harvard Law School that I later published in juridikum, a Austrian journal of legal critique as Matthias C. Kettemann, Taking Sexting Seriously: Should Europe Start Prosecuting "Sexters"?, juridikum 2010, 402 



In the article I compared strict US approaches to prosecuting teenage sexters with the European laisser-"sexter" approach to regulation. (At that time, there were practically no cases in Europe). I argued for a dignity-based approach to prosecuting texting that would exclude prosectutions of the active sexter, as had happeneds in some US jurisdictions. 

I argued that 
A dignitarian approach to prosecuting sexting also allows us to escape the problematic victim/no-victim dichotomy that poses a conceptual hurdle for addressing sexting cases within the parameters of the Supreme Court jurisprudence. Sexting has victims, but these victims are often - under current prosecutorial scenarios - the perpetrators, the (co-)producers and possessors of images depicting the sexual exploitation of children. Analyzing sexting in light of human dignity will allow us to substantiate my approach. (409)
I suggested that 
[l]egislators in the US should consider changing existing legislation which can be read as allowing for, and has been used in, the prosecution of sexters. Some of these changes, including the modification of criminal laws and the downgrading of sexting offense to misdemeanors, the use of affirmative defenses, and educational approaches, are already under way. A dignitarian approach, however, has not been undertaken by any state. This is unsurprising as the explicit recourse to human dignity is not instinct to the American legislative tradition. It could, however, serve as a source of inspiration and legitimation for the protection of teenagers from sexual (self-)exploitation.
[F]ollowing a "paternalistic instinct" in regulating what children can do with modern technological devices should not be frowned upon per se. The Latin roots of "paternalistic" simply mean "father"; in some circumstances the legislator needs to assume such a role. Though discredited in some areas of legislation, legislative action based on the precept to protect society’s weakest members from self-objectification through self-exploitation (thus from society’s pressures and from themselves) can be considered a legitimate exercise of the legislator. Similarly, American prosecutors should carefully consider whether bringing a case against teenagers involved in sexting does not run the danger of re-victimizing them further, especially in light of the long-term consequences of convictions for sex crimes. Europe’s legislators in general, and Austria’s and Germany’s in particular, need to consider adapting existing legislation against the sexual exploitation of children online to the challenges of information and communication technologies.
In particular, I would suggest the inclusion of a sub-section to § 207a of the Austrian Criminal Code and § 184c of the German Criminal Code that both criminalize acquiring and possessing pornographic depictions of minors. This sub-section could read: "Anyone who transmits an image containing [a pornographic depiction of a minor above the age of 14 as defined in the German and Austrian legislation] shall be punished by [a prison sentence not exceeding sentences imposed for acquisition of comparable images] if this violates the dignity of the person or persons depicted."
This formulation targets primarily the person who sends or re-sends an image that they have taken in circumstances violating the human dignity of the person depicted or received and who would otherwise be protected by per-se-bars to prosecution under existing legislation. While not immunizing from penal sanction the person depicted who sends a sext, the threshold is much higher, as the dignity of the person depicted needs to be more forcefully protected against third parties than against themselves. In all but a few extreme cases, the formulation thus avoids victimization through law and allows teenagers to express their sexuality by transmitting pictures of themselves without the fear of prosecution. By allowing for the prosecution of all senders "down the line", the formulation also protects the person depicted and serves as a strong disincentive for mass sexting and especially the potentially harmful resexting. By limiting the criminalization to acts of transmission and not of possession, the inadvertent recipient of a (mass) sext remains outside of the scope of penal sanctions.
In keeping with the strong European commitment to protecting children who are exceedingly active in online environments (from others and from themselves), Austrian and German prosecutors could then - sensibly and after careful consideration of the state’s duty to protect human dignity - consider bringing cases against sexters in scenarios with coercive elements."
I finally concluded 
"As information and communication technologies develop, new means of violation of one’s dignity and the dignity of others emerge. Pre-existing taboos are impacted by changing mores and human dignity is constantly in danger. In times when technologies impact laws, it is important to turn back to the basics. And there is no more basic, more fundamental, and yes: nobler responsibility for laws than to protect the dignity of the human being."
Readers interested in the influence of ICTs on the sexual behaviour of young people, can consult this recent study: Moreno MA, Whitehill JM. New Media, Old Risks: Toward an Understanding of the Relationships Between Online and Offline Health Behavior. Arch Pediatr Adolesc Med. Published online July 02, 2012. doi:10.1001/archpediatrics.2012.1320.

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