Commons:Sexual content: Difference between revisions

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:* The issue of subject's consent does not arise for drawings and other non-photographic representations (unless they are of identifiable individuals).
:* The issue of subject's consent does not arise for drawings and other non-photographic representations (unless they are 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 issues of the subject's consent unless there is evidence to the contrary. This would apply, for example, to illustrations from a medical textbook or a sex manual that has passed into the public domain, or to images that an organization such as Suicide Girls has released under a Creative Commons license.
:* 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 issues of the subject's consent unless there is evidence to the contrary. This would apply, for example, to illustrations from a medical textbook or a sex manual that has passed into the public domain, or to images that an organization such as Suicide Girls has released under a Creative Commons license.
:* Because of near-impossibility of verification, the subject's consent will generally be presumed for older photographs (before 1950), unless either (1) the individual in the photo is identifiable and is still alive or (2) there is concrete evidence that the picture was taken without consent.
:* Because of near-impossibility of verification, the subject's consent will generally be presumed for older unpublished photographs (before 1950), unless either (1) the individual in the photo is identifiable and is still alive or (2) there is concrete evidence that the picture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, the surrounding events or actions make it apparent that the sexualised behavior was expected to be publicized or photographed and there is no reason to believe that the participants are unwillingly going along with the actions.
:* Consent need not be specifically requested from identifiable persons when the picture was taken in a public place, the surrounding events or actions make it apparent that the sexualised behavior was expected to be publicized or photographed and there is no reason to believe that the participants are unwillingly going along with the actions.
:* In the case of historically significant events, media may in some cases be uploaded without the consent of the persons depicted. Such uploads should be discussed beforehand, unless similar files about the same event are readily available from other sources.
:* In the case of historically significant events, media may in some cases be uploaded without the consent of the persons depicted. Such uploads should be discussed beforehand, unless similar files about the same event are readily available from other sources.

Revision as of 19:07, 5 October 2010

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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".

Shortcut: [[:]]

For the current official policies & guidelines of Wikimedia Commons, dealing with this subject, see Commons:Scope, Commons:Commons is not censored, and Commons:Nudity

The purpose of the Wikimedia Commons project (see Commons:Scope) is to serve as a media repository for image, sound, and video files which are free for anyone to use (either public domain, or available under an open-source license) and that meet broadly-defined criteria of being educational. These files are available for use by other Wikimedia projects, and also by the online community as a whole.

Sexual content is an important part of this repository; for example, providing media resources for encyclopedia articles related to anatomy, sex, paraphilia, law, politics, civil liberties, pornography, art, history, the Internet, etc. For these reasons, among others, it is a basic point of policy for both Wikimedia and the Commons' community that Commons is not censored.

However, Commons' educational mission is defined in COM:SCOPE, and some files are simply not significantly useful for any educational purpose. The purpose of this proposed guideline is to define how Wikimedia Commons should exclude those materials inappropriate for the project, while retaining what is potentially useful for educational purposes.

Also, as a practical matter, Commons' main servers are located in the state of Florida, in the United States, and are therefore subject to U.S. (and Florida state) law.

Purpose

The broad purposes of this policy are as follows:

  • To delineate the inclusion standards for sexual content on Commons, and provide any special directions on how to upload and/or delete sexual content;
  • To address how sexual content is described, categorized, and tagged;
  • To provide limited background to facilitate discussions about sexual content.

This policy is not intended to be a comprehensive legal guide for sexual media, and is targeted primarily at Commons users, not law enforcement, content reusers, or the press.

Definition

By "sexual content" we are generally referring to media depicting actual or simulated sexually explicit conduct involving at least one human (images of animals mating are generally educational and are not subject to consent or age restrictions). Depictions of human sexuality include:

  • Media depicting human sexual acts including:
  • Media depicting sadistic or masochistic abuse[1]
  • Media prominently featuring the pubic area or genitalia[2]

Where it is not clear if an image does depict such conduct, and therefore if it is sexual content, the community will use its discretion. Except for images prominently featuring genitalia or sexual activity, mere partial or total nudity are generally not considered sexual content.

Prohibited content

The following types of sexual content are prohibited on Commons:

  • Content which would be illegal for Commons to host, such as child pornography[3]
As the majority of the servers for Commons are in the United States (Florida), U.S. federal and Florida state law apply.[4] Historically, the United States engaged in a 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). By sporadic application of the First Amendment obscenity prosecution for adult sexual content or for sexual artwork depicting apparent minors has become rare and unpredictable (see below), but explicit sexual content depicting actual minors has not been protected by the courts and its prohibition is strictly enforced.
Manufacturing, distributing, possessing, or intentionally accessing child pornography is a very serious charge in the United States.[5] Images of identifiable minors (even if clothed) can be found to be in violation of child pornography laws if they fail the Dost test.[6] Any suspected instances should be quickly reported to Wikimedia (see Foundation:contact us). The National Center for Missing and Exploited Children maintains an online hotline for reports that may assist exploited children.
The established method for dealing with illegal content on all Wikimedia projects is to contact the WMF, which can securely remove material by office actions. Normal or speedy "deletion" of material leaves it available to at least hundreds of users with administrative privileges, so it is not truly sufficient to fulfill the Foundation's legal responsibilities (though speedy deletion of images where it's clear that participants are underage is a prudent first step). As such, material found to be illegal must go through a suppression process after deletion.
Images that are not plainly illegal but for which there is some 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 of age should be proposed for deletion per our 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 (see below).
  • Consent Issues
All media is subject to Commons:Photographs of identifiable people, a complex guideline which touches on issues such as defamation, personality rights, privacy rights, ridicule, unfairly obtained photos, and photos which unreasonably intrude into the subject's private or family life. In addition, sexual content is subject to the following requirements;
  • Future uploaders of their own photographs that fall under the heading of sexual content are expected to make a positive assertion that the subjects of the photos consented to the photograph and to its public release. Provision of further evidence of consent is welcome (using the usual COM:OTRS process) but is not normally required.
  • 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 subjects' consent.
  • The issue of subject's consent does not arise for drawings and other non-photographic representations (unless they are 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 issues of the subject's consent unless there is evidence to the contrary. This would apply, for example, to illustrations from a medical textbook or a sex manual that has passed into the public domain, or to images that an organization such as Suicide Girls has released under a Creative Commons license.
  • Because of near-impossibility of verification, the subject's consent will generally be presumed for older unpublished photographs (before 1950), unless either (1) the individual in the photo is identifiable and is still alive or (2) there is concrete 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, the surrounding events or actions make it apparent that the sexualised behavior was expected to be publicized or photographed and there is no reason to believe that the participants are unwillingly going along with the actions.
  • In the case of historically significant events, media may in some cases be uploaded without the consent of the persons depicted. Such uploads should be discussed beforehand, unless similar files about the same event are readily available from other sources.
  • Explicit assertions of content are usually missing from files uploaded before this policy. This shall not in itself be a reason to delete them, but the community will discuss whether or not content can be assumed in individual cases.
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 media: 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
See also Commons is not your personal free webhost and Commons is not a place to advertise. These policies apply equally to sexual and non-sexual content. Pornographic images that do not contribute anything educationally useful to our existing collection of images are deleted (see COM:PORN).

Deletions of content prohibited on Commons

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 do not need discussion) and deletion requests (where discussion is needed or prefered "to be sure").

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:

Obvious copyright violations can be marked with {{Copyvio|reason}}.

Illegal to host

If there is a valid legal reason to believe that Wikimedia is not permitted to host the content, it can be marked with {{speedy|reason}}. As explained above, such content should be quickly reported to Wikimedia. Admins who speedily delete such files should see 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.

Obviously outside of scope

Material obviously outside of scope can be marked with {{speedy|reason}}.

Scope policy is very general and sexual content is frequently deleted under this policy; however, for certain categories of sexual content, any scope concerns should be discussed in a deletion discussion and the media should not be speedy deleted. These include the following:

  1. The images are either of literary, artistic, political, or scientific value, or are part of a larger work that fits those requirements.[7]
  2. The material is an artwork, 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 favour of continuing to host erotic and pornographic artworks, as they are an important part of the history of art.[8]
  3. The material 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. The material is or has been in use on the Commons or another Wikimedia project for educational purposes.[11]
  5. The material is supported by existing consensus on a Wikimedia project.
  6. The specific content or the content's creator is notable.

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

Normal deletions

Otherwise the case for deletion should be proposed to the community through COM:DELREQ (which 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 deletions (example copyvio or it would be illegal to host).

Deletion at the subject's request

If Commons hosts a media file of you

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

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

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.

Kategorien

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.

Child Protection and Obscenity Enforcement Act information

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.[12] 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.[13] 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.[12] No record keeping requirements should 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.[14]

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.[15]

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.

Obscenity law

The United States and the state of Florida, where Wikimedia Commons' servers reside, have laws which restrict obscenity.[16] 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 it has "serious literary, artistic, political or scientific value" (SLAPS). 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. ↑ 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.
  5. ↑ If convicted, offender will be sentenced with a felony with a minimum of five years in prison and a lifetime registration as a sex offender.
  6. ↑ See 18 U.S.C. § 2256(9) for a definition of "identifiable minors"
  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 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 labelled, but, as we serve hundreds of languages, we will always need some unlabelled 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 considered automatically 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. ↑ a b The requirements are detailed in 18 U.S.C. § 2257 and 18 U.S.C. § 2257A record keeping requirements.
  13. ↑ Statement by Mike Godwin, Wikimedia Foundation General Counsel, from 14 May 2010
  14. ↑ C.F.R. Part 75 Small Business Compliance Guide-Frequently Asked Questions
  15. ↑ 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).
  16. ↑ 2009 Florida Obscenity Statutes

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
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