Help talk:Sexual content

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Looks useful. It might get more eyeballs here than at Com:Sex which is thoroughly exhausted at the moment. Ocaasi (talk) 05:20, 17 December 2010 (UTC)

I have made two minor changes in the formatting (sections- subsections) that I flagged four days ago in another place, to make the page less aggressive. All the changed text is a duplication of text already used that had passed without comment.--ClemRutter (talk) 09:56, 17 December 2010 (UTC)

Without considering the "Legal Issues" section, which I don't feel comfortable evaluating, the rest of this page seems to be a helpful and accurate summation of existing practices. Thanks! cmadler (talk) 17:29, 17 December 2010 (UTC)

More feedback

• Two recent edits have been made by an ip-editor. I am uncomfortable about anyone giving advice to others while hiding his identity.
• This is a help page, and should be written in an appropriate manner. It should be not be US specific- and talking about 1234 requirements or any other random 4 digit number is just with the fairies for Europeans- and non- first-language English speakers. Particularly as you are encouraging any Tom, Dick or Harry to do speedy deletes as a result of a requirement they vaguely understand- this is dangerous.

This needs to be copy-edited by someone who is cogniscent with the issues, and used to writing technical English simply. --ClemRutter (talk) 22:01, 12 September 2011 (UTC)

I rollbacked the edits. From what i read we (wikipedia) don't need to keep the record, so we can accept files from country where these requiments of record keeping don't exist, whitout the need to propose all of them for deletion. The precautionary principle apply only when there is a some concerns that not all the subject are 18+ .--Yoggysot (talk) 02:26, 13 September 2011 (UTC)

Thanks.

I have gone back to this section and read it and the LII definitions- and the the whole issue here is a clear as mud- except if you are a Florida resident. If you are from UK it is not clear what your obligations. I see that there are nine cases we need to define.

• Florida residents - *Other US residents - *EU and foreign residents----

each need a definition for the following activiites

• Uploading a file- *Using a file within Wikipedia -*Using a file outside Wikipedia

So Looking at the text I propose so major changes to bring the advice in line with what the law appears to be- this needs to be heavily scutinised:

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.

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.

Obscenity law applies to all images uploaded irrespective of where they are uploaded from. The test that is applied is defined by US local law.

Sexual depiction of minors

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. Child nudity that qualifies as sexual should be tagged for deletion and reported to the Wikimedia Foundation.

The United States 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. This requirement would only apply to uploads from the United States- as the law does not apply outside the United States.

• 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. 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.

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.

• 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.

The United States Child Protection and Obscenity Enforcement Act- depiction of minors

2257 requirements only 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.

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.

This is my attempt to separate out the US specific issues- can editors look this over and ammend with the view to replacing the present section. I have merely moved text- but have bolded additions-ClemRutter (talk) 21:44, 13 September 2011 (UTC)

Dost test

The Dost test (United States v. Dost 1986) has only ever been used in one US court case as part of establishing criteria for assessing photographs of girls aged 10 to 14. It appears to have not been quoted in any court case in over a decade. As it makes little sense to try to use it as a way to control what international volunteers are uploading to Commons and is poorly understood, I have trimmed this legalistic-looking mention as unnecessary and potentially confusing. See diff. --Fæ (talk) 15:55, 14 August 2021 (UTC)

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