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December 11, 2010

Sexual content (Wikimedia:Commons) Sense

Commons:Sexual content

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Commons-emblem-query.svg     This page is a proposed Commons guideline, policy, or process.

The proposal may still be in development, under discussion, or in the process of gathering consensus for adoption. References or links to this page should not describe it as "policy".
Walnut.png This page in a nutshell: This page gives a clear definition of 'sexual content' for policy purposes, explains the impact of some existing policies on sexual content, and adds the requirement for all sexual content uploaded in the future to contain assertions of consent from all parties involved.
For the current official policies & guidelines of Wikimedia Commons, dealing with this subject, see Commons:Scope, Commons:Commons is not censored, and Commons:Nudity

Wikimedia Commons is a media repository for files that are free for anyone to use and that meet broadly defined criteria of being educational.

Sexual content is an important part of Commons, providing media resources for encyclopedia articles related to such topics as anatomy, sex, paraphilia, civil liberties, pornography, art, and history. It is a basic point of policy for both Wikimedia and the Commons community that Commons is not censored. However, Commons is not an amateur porn site, and pornographic images that contribute nothing educationally useful may be removed.

Sexual content tends to need closer attention because of the legal and privacy-related issues it raises. To ensure that such content does not violate US law or Commons policies, this policy addresses processes for handling sexual material that falls within the scope of Wikimedia Commons, and for identifying and removing material that does not. It outlines:

  • inclusion standards for sexual content;
  • directions on how to upload or delete sexual content;
  • guidance for describing, categorizing, and tagging sexual content; and
  • the general legal context for these issues.

This policy provides a background to facilitate discussions about sexual content, but is not a comprehensive legal guide for sexual media. It is targeted at Commons users, not law enforcement, content re-users, or the press. Commons does not warrant that any actions discussed here are legal or safe from liability in any particular jurisdiction.

Contents

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Definition

For the purposes of this policy, "sexual content" refers to pictorial media depicting actual or simulated sexually explicit conduct involving humans. Depictions of human sexuality include:

Where it is unclear whether an image depicts such conduct, the community will use its discretion. Except for images prominently featuring genitalia or sexual activity, mere partial or total nudity is generally not considered sexual content.

Prohibited content

The following types of sexual content are prohibited on Commons:

Content that would be illegal for Commons to host, including child pornography[3]

Manufacturing, distributing, possessing, or intentionally accessing child pornography is a very serious charge in the United States, where Wikimedia's servers and main offices are located.[4] Images of minors – even if clothed – can be found to be in violation of child pornography laws if they fail the Dost test.[5]

Any suspected instances should be quickly reported to Wikimedia (see Foundation:contact us), which can securely remove material by office actions. Normal or speedy "deletion" of material leaves it available to hundreds of users with administrative privileges, so neither is sufficient to fulfill the Foundation's legal responsibilities (though a prudent first step is the speedy deletion of images where it is clear that participants are underaged). Material found to be illegal must go through a suppression process after deletion. The National Center for Missing and Exploited Children maintains an online hotline for reports that assists exploited children.

Images that are not plainly illegal and for which there is lingering doubt can be proposed for deletion. Photographic depictions of sexually explicit conduct, where there is a legitimate concern that not all participants appear to be at least 18 years old, should be proposed for deletion per the precautionary principle. Users in the deletion discussion will gather evidence of the subject's age and conservatively evaluate whether there is a significant risk that a minor is depicted. Potentially obscene images may be discussed in terms of the Miller Test.

Content without appropriate consent

All media are subject to Commons:Photographs of identifiable people, a complex guideline that touches on issues such as defamation, personality rights, privacy rights, ridicule, unfairly obtained photos, and photos that unreasonably intrude into a subject's private or family life. In addition, all sexual content is subject to the following requirements:[6]

  • Uploaders of self-produced sexual content must make an assertion that the subjects of photographs consented to their public release. The provision of further evidence of consent is welcome (using the OTRS process) but is not normally required. Explicit assertions of consent are encouraged, but not required, for sexual content uploaded before the implementation of this policy; the community is free to determine whether there is a reason to suspect lack of consent in these cases, and may propose media for deletion on this basis.
  • There can be no presumption of consent for uploads of sexual content of somewhat unclear provenance (e.g. from a "random Flickr account"). These require positive evidence of a subject's consent.
  • The issue of a subject's consent does not arise for drawings and other non-photographic representations, unless they are direct depictions (not caricatures or fantasies) of identifiable individuals.
  • Material from reputably published sources that has passed into the public domain or is available on a free-licensed basis will generally be presumed to have dealt appropriately with respect to a subject's consent, unless there is evidence to the contrary. This would apply, for example, to illustrations from books that have passed into the public domain, or which an organization such as Suicide Girls has released under a Creative Commons license. This includes such material from websites viewed as "reliable sources" that are subject to an editorial process, such as medical or pornographic image archives run by professionals.
  • Where verification is impossible or nearly impossible, the subject's consent will generally be presumed for older unpublished photographs (before 1950), unless (1) the individual in the photo is identifiable and still alive, or (2) there is evidence that the picture was taken without consent.
  • Consent need not be specifically requested from identifiable persons when the picture was taken in a public place, if the surrounding events or actions make it apparent that the sexualized behavior was expected to be publicized or photographed and there is no reason to believe that the participants were unwillingly involved.
  • In the case of historically significant events, media may in some cases be uploaded without the consent of the people depicted. Such uploads should be discussed beforehand, unless similar files about the same event are readily available from other sources.

If you find a sexual photo of yourself posted here without your consent, you do not need to go through the usual process to propose deletion of the file: you may contact the WMF directly and request an "office action" to remove the image quickly and completely without public discussion.

Content clearly not educational or otherwise in scope

Commons has certain restrictions on content that does not contribute to the site's purpose. This is described in Commons: Project scope. See also: Commons is not your personal free webhost, Commons is not a place to advertise, and Pornographic images that contribute nothing educationally useful to our existing collection of images are deleted.

Deletion of prohibited content

Any user can nominate a Commons file for deletion. It is not necessary to sign up for an account to propose deletion of a file (though having an account will prevent your IP address from being publicly recorded in association with the discussion). Commons has two types of deletions: speedy deletions (for deletions that need no discussion) and deletion requests (where discussion is needed or preferred).

Speedy deletions

Speedy deletion is only for files where deletion is not expected to be controversial. It can be requested at COM:SD. Examples of circumstances in which speedy deletion may be warranted include the following:

  1. Obvious copyright violations. These can be marked with {{copyvio|reason}}.
  2. Content that Wikimedia is not permitted to host, if there is a valid legal reason to believe this. These can be marked with {{speedy|reason}}. As explained above, such content should be quickly reported to Wikimedia. Admins who speedily delete such files should ensure that office action is taken to prevent distribution, even to administrators. If office action is declined, the deleting admin should give notice at Commons:Undeletion requests, describing the file deleted and what is currently known about its legal status.
  3. Material obviously outside scope. This can be marked with {{speedy|reason}}. Scope policy is very general and sexual content is frequently deleted under this policy. However, several categories of sexual content detailed below are likely to fall within the project scope, and should not be speedy deleted.

Normal deletions

When the case for deletion is controversial, it should be proposed to the community through Commons:Deletion requests. This may take a week or more to come to consensus. However, deletion requests may be closed earlier if the file clearly meets the criteria for speedy deletion.

Items likely to fall within the Wikimedia Commons project scope should not be deleted without using the normal deletion process, unless they are copyright violations or illegally hosted. These include:

  1. Images of literary, artistic, political, or scientific value, or which are part of a larger work that fits those requirements.[7]
  2. Artworks, including, but not limited to, paintings, engravings, etchings, lithographs, needlework, artistic photography and film segments, and sculpture. Commons does not seek to censor the world's artistic heritage, and consensus has come down strongly in favor of continuing to host erotic and pornographic artworks, as they are an important part of the history of art.[8]
  3. Material that is realistically useful for an educational purpose. Note that an image may be realistically useful for an educational purpose even if it is unlikely to have been created for such a purpose. Some categories of material which are generally useful for an educational purpose include: diagrams, illustrations,[9] high quality images of body parts,[10] illustrations of the various styles of erotic art, and medical photographs of diseases.
  4. Other material that is or has been in use on the Commons or another Wikimedia project for educational purposes.[11]
  5. Material whose use is supported by existing consensus on a Wikimedia project.
  6. Content which is notable or whose creator is notable.

Works that fall within one or more of those categories are generally acceptable on Commons. Borderline cases should always go through the full deletion requests process.

Deletion at the subject's request

If Commons hosts a media file of you that:

  • was taken in a private, non-public context;
  • shows you wholly or partially nude and/or engaged in sexually explicit conduct; and
  • you would like removed from Commons for privacy reasons;

please contact the Wikimedia Foundation. Your communication will be confidential and will be viewed only by trusted volunteers who have identified themselves to the Wikimedia Foundation by name. For further information see Meta:OTRS.

Working with sexual content

File descriptions

Descriptions of media files and category names related to sexuality should always be written in a style oriented toward encyclopedic and educational intent. Unless there is good reason for file names or descriptions on Commons to follow an external source, they should be neutral, academic, impersonal, and without use of slang terminology. New files and categories that are in scope, but do not comply with this requirement, should be renamed on sight, and the descriptions reworded as necessary. Users who do not have permission to rename files can request a rename using the {{rename}} template.

Categories

Due to viewer sensitivity, it is important to follow the advice of Commons:Categorization, particularly regarding over-categorization. Images belong only in the narrowest applicable categories. The use of whipped cream in a sexual context should be placed in Category:Whipped cream fetishism, not Category:People eating. When a reader wouldn't expect sexual images in a category, it is best to create a new subcategory appropriate for the sexual content even if the number of images is small. For example, File:Félicien Rops - Sainte-Thérèse.png, an anti-Catholic erotic artwork of Saint Teresa of Ávila, is in Category:Caricatures of Saint Teresa of Ávila instead of the main category Category:Saint Teresa of Ávila.

Legal Issues

The United States and the state of Florida, where Wikimedia Commons' servers reside, have laws which restrict obscenity and sexual depictions of minors.[12][13]

The Child Protection and Obscenity Enforcement Act

In the United States, the Child Protection and Obscenity Enforcement Act (18 U.S.C. § 2257 & 18 U.S.C. § 2257A) requires producers of films, videos, digital images (including digitally enhanced images) which were made after November 1, 1990 and depict actual human beings engaged in sexually explicit conduct to document the age and identity of all performers shown.[14]

Wikimedia Foundation's counsel has advised that Wikimedia Commons and other projects are under no obligation to keep records on the age and identity of models shown in media depicting sexually explicit conduct.[15] However, editors who have produced such media, as well as content reusers, may have record-keeping obligations if they qualify as a primary or secondary producer under the act.[14]

Whenever possible, media with potential 2257 record-keeping requirements should be marked with the {{2257}} template to warn commercial content reusers in the United States about possible legal obligations. To facilitate such distribution, uploaders may wish to provide contact information for 2257 documentation requests in the file description. Wikimedia Commons does not request and may not accept copies of identification cards and affidavits as a matter of project scope. Editors from any country are strongly urged, for their sake and ours, not to upload sexually explicit photographs if they are not entirely confident that those shown are 18 or older.

2257 requirements apply specifically to sexual content that includes subjects of legal age. If content is of child nudity which does not qualify as sexual, then 2257 notifications are not needed. On the other hand, if child nudity is identified as sexual, then it should not be tagged with a 2257 template or amended to include 2257 information; it should be deleted and reported to the Wikimedia Foundation.

No record keeping requirements exist for illustrations or for old photographs proven to be produced before November 1, 1990. With respect to "depictions of actual sexually explicit conduct consisting of only lascivious exhibition or depictions of simulated sexually explicit conduct," 18 U.S.C. § 2257A record keeping regulations apply only to works originally produced after March 18, 2009.[16]

Wikimedia cannot offer legal advice to performers, photographers, or uploaders; producers and content reusers of any type should consult a third party to determine what records they are responsible for maintaining and for what duration.[17]

Obscenity law

Historically, the United States engaged in pervasive censorship of many types of sexual content, modified by a succession of Supreme Court cases from Jacobellis v. Ohio (1964) to Miller v. California (1973). Obscenity prosecutions of adult sexual content, sexual art, or caricatures depicting apparent minors has become rare and unpredictable; however, there has been no such modification where explicit sexual content depicting actual minors is concerned, and prohibitions against it are strictly enforced.

Because Commons is designed to be a repository of educational media, all works on Commons should pass the Miller test, a precedent which emphasizes that a work is not obscene if it does not "appeal to prurient interest" or if it has "serious literary, artistic, political or scientific value." Similarly, 18 U.S.C. § 1466A prohibits a number of types of cartoon pornography depicting minors in cases where they "lack serious literary, artistic, political, or scientific value." For these reasons, it is important to enforce scope policy as described above to ensure that our works enjoy the protection of these exceptions from obscenity law.

There is an open legal question about the community standards which are used in applying these tests, which we do not attempt to resolve here. Because of the complex, subjective nature of obscenity law, work should not be speedy deleted on the basis of perceived obscenity, or based on 18 U.S.C. § 1466A.

Notes

  1. ↑ See 18 U.S.C. § 2256, which defines "sadistic or masochistic abuse" as "sexually explicit conduct". According to the United States Department of Justice, 28 CFR Part 75: Revised Regulations for Records Relating to Visual Depictions of Sexually Explicit Conduct; Inspection of Records Relating to Depiction of Simulated Sexually Explicit Performance; Final Rule, bondage images are classified as depicting abuse, even if the parties were consensually engaged. A request was made that the Department define sadistic or masochistic abuse because "some people believe that safe and consensual bondage is not abuse, and requests that the Department distinguish between actual and simulated sadistic or masochistic abuse." The Department declined to adopt the request while commenting that "actual sexually explicit conduct depends on the content of what is being displayed, not on whether the content is subjectively considered to be abusive."
  2. ↑ Judicial precedents indicates that a depiction can constitute "lascivious exhibition of the genitals or pubic area" if, among other things: (1) The focal point is on the subject's genitalia or pubic area; (2) The setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; (3) The visual depiction suggests sexual coyness or a willingness to engage in sexual activity; (4) The visual depiction is intended or designed to elicit a sexual response in the viewer. For more detail, see C.F.R. Part 75 Small Business Compliance Guide
  3. ↑ Child pornography is defined in 18 U.S.C. § 2256 in the sections 2(B) and 8.
  4. ↑ If convicted, the felony carries a minimum sentence of five years in prison and lifetime registration as a sex offender.
  5. ↑ See 18 U.S.C. § 2256(9) for a definition of "identifiable minors"
  6. ↑ US state laws prohibit recording of sexual content without consent, as in the case of Tyler Clementi, in which two students may face up to five years in prison in New Jersey. The legal and constitutional issues for such laws are largely untested. See Rutgers student Tyler Clementi suicide case poses test for N.J. privacy law. Associated Press (2010-11-04).
  7. ↑ "Larger work", in the context of Commons, would include the file description, associated talk page(s), and other "in-use" contexts such as articles on other Wikimedia projects. See Kois v. Wisconsin for a United States Supreme Court ruling. It may also be seen more generally: the musical Hair has a nude scene; ignoring any copyright issues which might arise, images from a production of Hair would serve to document a work widely considered to have artistic value.
  8. ↑ It can be difficult for non-experts to evaluate art, and, as such, if deletion is being considered for anything artistic, the full deletion process is strongly preferred.
  9. ↑ Many illustrations have been found useful in projects, often in spite of lack of technical quality. A variety of illustrations can allow choice where photographs may be undesirable.
  10. ↑ These may be labeled, but, as we serve hundreds of languages, we will always need some unlabeled images to make new labeled diagrams.
  11. ↑ A media file that is in use on one of the other projects of the Wikimedia Foundation is automatically considered to be useful for an educational purpose. Such a file is not liable to deletion simply because it may be of poor quality: if it is in use, that is enough. Exclusive use of a file in userspace does not constitute educational purpose.
  12. ↑ 2009 Florida Obscenity Statutes
  13. ↑ Jurisdiction has not been verified by Wikimedia's legal team, and is complicated by the fact that the domain name and corporate headquarters are in San Francisco, California.
  14. ↑ a b The requirements are detailed in 18 U.S.C. § 2257 and 18 U.S.C. § 2257A record keeping requirements.
  15. ↑ Statement by Mike Godwin, Wikimedia Foundation General Counsel, from 14 May 2010
  16. ↑ C.F.R. Part 75 Small Business Compliance Guide-Frequently Asked Questions
  17. ↑ For further information, see the C.F.R. Part 75 Small Business Compliance Guide-Frequently Asked Questions and Bloggers' Legal Guide: Adult Material. Electronic Frontier Foundation (2010).

Previous proposals

These previous proposals have been proposed by the community:
  1. WikiPorn proposal - failed 2004 project proposal at Meta-Wiki
  2. A sandbox / demonstration of media filtering (April 2010)
  3. Commons:Sexual content/2009 Original COM:SEX proposal, started December 2008 with final revision January 2009. (rejected by consensus)
  4. Commons:Sexual content/April 2010 - an evolution of January 2009 proposal. (also rejected by consensus)
  5. /Deletion log a list of deletions made under Jimbo Wales' cleanup directive

See also

Retrieved from "http://commons.wikimedia.org/wiki/Commons:Sexual_content"
via commons.wikimedia.org

Sexual content (Wikimedia:Commons) Sense

http://whatgetsmehot.posterous.com/sexual-content-wikimediacommons-sense Commons:Sexual content Category (++): Commons proposed policies and guidelines | (+) From Wikimedia Commons, the free media repository Jump to: navigation, search This page is ... Dogmeat

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