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Due Diligence Obligation of a State to Children Harmed by Porn

The Australian government has a duty of care towards protecting its children from pornography harm and should immediately introduce a system to stop children accessing adult material on their phones, iPads and computers.

This is the main recommendation Andrea Tokaji puts forward in 'DUE DILIGENCE OBLIGATION OF A STATE TO CHILDREN HARMED BY PORN: A CRITICAL APPRAISAL'. Writing from a legal human rights perspective, Tokaji argues that the State’s due diligence obligation towards its children, as well as its obligations to prevent them harm under the United Nations’ Convention on the Rights of the Child, means that it must move quickly to protect them from the now well evidenced harms of pornography consumption.

Tokaji summarises the growing body of evidence detailing pornography harm to our young people, including negative effects on children’s attitudes and beliefs towards women and sex, increased sexual aggression, and the increased risk of the development of sexually dysfunctional attitudes and behaviours. Particular attention is drawn to the rapidly growing number of children sexually abusing other children after being influenced by viewing pornography. The author believes there is some evidence schools are sweeping these incidents under the carpet for fear of damage to their reputations and that these assaults are being normalised as part of childhood sexual exploration. She suggests that restorative justice processes are a potential way forward here, where the child perpetrator can be shown that their behaviour is not acceptable to society, the harm done acknowledged and a plan put in place to lessen the likelihood of the perpetrator acting out again.

Tokaji believes that the law has not caught up with the fact that many children are now not only being able to access harmful pornography on their own electronic devices, but are living in households with people who are large scale pornography users. While there are existing legislative provisions against ‘exposure to indecent materials’, these have usually been used within the context of cases regarding sexual grooming. Tokaji feels it is now time to widen that provision to acknowledge the damage from casual pornography viewing within the home.

She argues that the State has an obligation of due diligence under international law to protect children from all harm and to ensure any future harm is prevented. She outlines precedents from overseas whereby single countries have been found complicit in human rights abuses perpetuated by out-of-country parties, in these cases in the field of domestic abuse. The argument that she puts forward is that the current regulatory framework applied to pornographic material originating from outside Australia is inadequate, and leaves the majority of Australian children exposed to harmful material.

Because Australia is a signatory to the United Nations’ Convention on the Rights of the Child, it has a due diligence responsibility to protect children from non-State or out-of-country parties perpetrating harm against them. To facilitate this, Tokaji advocates the adoption of a nation-wide opt-out clean feed ISP (internet service provider) standard, whereby ISPs are required to provide an internet service that excludes adult-only content. This includes content available on home computers, tablets, smartphones and other devices that have the potential to host harmful material that can be viewed by children. The United Kingdom introduced a system last year whereby the clean feed is the default option for ISPs, providing a pre-filtered service to block pornography and other harmful sites. Access to adult material is dependant on strict age verification.

“ If we don’t do something fast, we will have a generation of young people who are deeply affected and traumatised by their exposure not only to harmful images online but victims also to experiencing these abuses first hand… Let us do all we can to protect our most innocent.” (p226)


Read the full article here

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  • A world where children can grow up without being psychologically harmed by accessing graphic, violent pornography online
  • Prevention of children’s access, given that porn is linked to increased risks of STIs and other harmful physical and relational outcomes
  • Higher standards for ISPs, tech and porn companies to implement technology-related child protection buffers to block harmful pornographic content
  • Adults, including the Australian Government, to exercise due diligence to protect children

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