Help:Sexual content

This help file is derived from a rejected draft of Commons:Sexual content,[1] from which policy suggestions have been removed. Though it is intended to provide information about Commons policies, it is not itself a Commons policy, guideline or process. This help file 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. For the current official policies & guidelines of Wikimedia Commons, dealing with this subject, see Commons:Nudity and Commons:Scope (particularly the section Commons:Commons is not censored).

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. This help file outlines:

• a definition of 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.

Definition

Child Protection and Obscenity Enforcement Act warning This work, which was made after November 1, 1990 and depicts one or more actual human beings engaged in sexually explicit conduct—including but not limited to "lascivious exhibition of the genitals or pubic area of any person" (USC 18 § 2256)—has record-keeping requirements in the United States under the Child Protection and Obscenity Enforcement Act (18 U.S.C. 2257). Any content reuser in the United States who "publishes, reproduces, or reissues" this work and also qualifies as a "secondary producer" under this Act must document the age and identity of all performers depicted, or face penalties of up to five years in prison per infraction. Wikimedia Commons is not obligated to keep these records and is not responsible for failure to acquire records by content reusers. The scope and constitutionality of this law are very unclear - see meta:Legal/Age Record Requirement for further information. This notice is only a warning, and the absence of this notice should not be interpreted as indicating an absence of any legal obligations. Notes: This tag should not be used for mere nudity. Sexually explicit images of minors should be reported to legal-reportswikimedia.org.

The definition of "sexual content" used here refers to pictorial media depicting actual or simulated sexually explicit conduct involving humans. Depictions of human sexuality include:

• vaginal, anal, and oral intercourse;
• non-penetrative sex, including masturbation;
• certain paraphilias such as urolagnia and coprophilia;
• sadistic or masochistic abuse;
• prominent depictions of the pubic area or genitalia.

Prohibited content

The following types of sexual content are prohibited on Commons:

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

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. For the purposes of US law, child pornography is defined in 18 U.S.C. § 2256 in the sections 2(B) and 8.

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. 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 may 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.

• It may be a good idea, but is not presently required, for uploaders of self-produced sexual content to 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.

• 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.

• As detailed in COM:IDENT, 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.

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 without public discussion.

Content clearly not educational or otherwise in scope

Commons is not a web host for 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 Commons is not an amateur porn site.

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 and only for a restricted set of reasons. It can be requested at COM:SD. The permitted reasons are:

• Has previously been deleted under Commons deletion guidelines.
• Licensed only under a non-free license (like fair use, noncommercial or permission-only) or it is a clear copyright violation.
• Was uploaded with the intent to be used solely for purposes of vandalism, personal attacks, and/or spamming.

These can be marked with {{speedy|reason}}.

Note that out of scope or illegality other than clear copyright violations are not reasons for speedy deletion.

Normal deletions

When the case for deletion is controversial or does not fit the reasons above, 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.

Some examples of items that usually are in scope and should not normally be proposed for deletion. Erotic or sexual nature of an image is not a reason for it not to be in scope.

1. Images of literary, artistic, political, or scientific value, or which are part of a larger work that fits those requirements.
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.
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, high quality images of body parts, 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.
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.

Working with sexual content

File descriptions

Although not codified in policy or guidelines, 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.

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.

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.

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. 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.

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.

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.

Previous proposals

These previous proposals have been proposed by the community:

1. WikiPorn proposal - failed 2004 project proposal at Meta-Wiki
2. 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. Commons:Sexual content/Deletion log a list of deletions made under Jimbo Wales' cleanup directive
6. Commons talk:Sexual content/Archive 4#Poll for promotion to policy
7. Commons talk:Sexual content/Archive 5#Second poll for promotion to policy (December 2010) -

See also

Category:Child Protection and Obscenity Enforcement Act warning

• Meta:2010 Wikimedia Study of Controversial Content - specifically “Controversial” Images within WMF Projects