Sunday, 25 January 2009

Backlash and The Sexual Big Brother

On Monday 26 January 2009, yup, that's tomorrow, the Extreme Pornography legislation comes into effect.

This means that, from tomorrow, it will be illegal for anyone in England and Wales to possess an "extreme" image, even if the activity itself is legal.

So, here are the relevant parts for us bloggers. Taken from the Criminal Justice and Immigration Act of 2008.

Part 5

Criminal law

Pornography etc.

63 Possession of extreme pornographic images

(1) It is an offence for a person to be in possession of an extreme pornographic image.

(2) An “extreme pornographic image” is an image which is both—
(a) pornographic, and
(b) an extreme image.

(3) An image is “pornographic” if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.

(4) Where (as found in the person’s possession) an image forms part of a series of images, the question whether the image is of such a nature as is mentioned in subsection (3) is to be determined by reference to—
(a) the image itself, and
(b) (if the series of images is such as to be capable of providing a context for the image) the context in which it occurs in the series of images.

(5) So, for example, where—
(a) an image forms an integral part of a narrative constituted by a series of images, and
(b) having regard to those images as a whole, they are not of such a nature that they must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal,
the image may, by virtue of being part of that narrative, be found not to be pornographic, even though it might have been found to be pornographic if taken by itself.

(6) An “extreme image” is an image which—
(a) falls within subsection (7), and
(b) is grossly offensive, disgusting or otherwise of an obscene character.

(7) An image falls within this subsection if it portrays, in an explicit and realistic way, any of the following—
(a) an act which threatens a person’s life,
(b) an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals,
(c) an act which involves sexual interference with a human corpse, or
(d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive),
and a reasonable person looking at the image would think that any such person or animal was real.

(8) In this section “image” means—
(a) a moving or still image (produced by any means); or
(b) data (stored by any means) which is capable of conversion into an image within paragraph (a).

(9) In this section references to a part of the body include references to a part surgically constructed (in particular through gender reassignment surgery).

(10) Proceedings for an offence under this section may not be instituted—
(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions; or
(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.

66 Defence: participation in consensual acts

(1) This section applies where—
(a) a person (“D”) is charged with an offence under section 63, and
(b) the offence relates to an image that portrays an act or acts within paragraphs (a) to (c) (but none within paragraph (d)) of subsection (7) of that section.

(2) It is a defence for D to prove—
(a) that D directly participated in the act or any of the acts portrayed, and
(b) that the act or acts did not involve the infliction of any non-consensual harm on any person, and
(c) if the image portrays an act within section 63(7)(c), that what is portrayed as a human corpse was not in fact a corpse.

(3) For the purposes of this section harm inflicted on a person is “non-consensual” harm if—
(a) the harm is of such a nature that the person cannot, in law, consent to it being inflicted on himself or herself; or
(b) where the person can, in law, consent to it being so inflicted, the person does not in fact consent to it being so inflicted.

Let's make it quite clear here that I am totally in favour of anything that protects animals or, indeed, corpses from sexually related involvement. Just as with children, these groups have no ability to consent and, therefore, it is degrading and unacceptable for them to be a part of any such activity.

However, where these rules are to be applied to human beings, I do have a bit of a problem. I can see the reasoning behind wanting such a law if it protects those who get involved without realising the implications of what is about to happen and put themselves at risk. But this Act is not actually outlawing the activity, but, rather, possessing images of it. When this type of sexual congress occurs between consenting adults and then is viewed by other consenting adults, why should Government have a say in whether it is right or wrong? Restriction of this nature starts to smack of Big Brother and should remind us that homosexuality was once also against the Law.

What is the purpose here? Is it to stop people from dying or being seriously injured as a result of such acts going wrong or is it to stop other people looking at pictures or videos and being encouraged to try such actions for themselves? Surely, seeing someone badly injured, or worse, as a result of a sexual proclivity is more likely to make any prospective protagonists more careful?

Furthermore, amidst the talk of remotely accessing people's hard drives, how can having such a picture but not distributing it be committing an offence? If the content is of a consensual act between adults and was taken for their own private memories...?

Which brings us on to who decides what constitutes something that is 'grossly offensive, disgusting or otherwise of an obscene character'?

I find the concept of having someone poop on me quite revolting so I choose not to look at images depicting it, but I'm not about to stop people who like it from enjoying themselves. Is posting scat pictures on the web going to become illegal? I'm sure that ingesting faeces must have the possibility of life-threatening consequences.

Obviously, there is a limit to my liberal attitudes when it comes to being seriously physically harmed as part of anyone's sexual gratification but does our Government really feel it needs to protect people from themselves in quite such an intimate area? As with all games that involve a partner, there has to be an element of trust or you don't make a good team. However, again, my interpretation of the Law is that it's not the act itself that is being policed but the photographing of it.

Some people might have found the image that I posted last year of the results of having my bottom spanked with a crop comprising metal balls quite disgusting. Whilst others may have become sexually aroused by the sight. Does this mean that any possible prosecution would rest on the two points of whether someone in law enforcement deems the image offensive and whether I posted the image with the intent to provoke sexual arousal? Or could I use the defences that my life was never threatened, my anus and genitals not at risk due to the protection of my pert derriere and that I was actively and consensually involved in what occurred? Well, until the last couple of strokes anyway. I was going to ask if being spanked with a crop is legal but, of course, that doesn't matter. It is the possession of the photograph showing the act that is the offence. However, this particular picture shows the implement and the effects, not the spanking itself so does that mean it is exempt?

It's all very confusing.

Backlash, a consortium of a number of sex-positive interest groups, has put together an info-packed website, which I encourage you to visit for advice on future blog content, as well as to support their campaign against the Act itself.

In the meantime, I have thought about pulling the the image in question... But, since possession seems to be the key here, even having such a picture on my hard drive could be considered illegal so deletion would be the only option.

I really do hate being censored.


Helga Hansen said...

I am so totally against this legislation too, and wonder just how much more silliness will come about from it. I wrote about this ages ago, but must confess I had forgotten that D-Day was finally arriving!!

Guess that means I'll be meeting you in Cell Block H, eh? ;^) Hoorah! That means I get to meet Ruf when he comes to visit, and you get to meet my darling SO too! :D

Helga Hansen said...

Oh darn... just forgot that there was a chance they'd be in the clink too... those prisons are going to be interesting places to be...

Ro said...

I was going to post on this subject tomorrow (and probably will still do so, so horrified am I with this particular piece of legislation).

I hate any legislation that seeks to censor us on such subjective grounds. This is worse in that there is such little belief that it will have any impact on the exploitative behaviour that it's meant to stop.

So, we have just over 12 hours to check all our media for dubious images (don't forget that Internet cache) and to remove images from our blogs that might fall foul of the legislation. Oh, and henceforth, remember to wipe your cache whenever - however accidentally - you come across a page showing dubious images.

Still, at least the defences against charges under the Act have now been improved in that you are allowed to possess naughty images of yourself. Remember to make sure that your partner in any such acts is also in every single shot (even in part) so that he/she can have a copy too!

Absurd. Utterly absurd. The fight, as you point out, goes on ...

Lady in red said...

Damn I had forgotten about this.

that means getting rid of all the pictures I recently posted on my naughty blog. plus trawling through all the hundreds of posts on my old blogs that are still active. I doubt I will have time to go to work

Carnalis said...

I keep thinking of the vast amount of public taxes which would be needed to police this legislation, yet, even if these images are deleted from blogs/hard drives (squirreled away in secret places), what public good would this expense provide? I would prefer to see an effort made towards greater protection towards the truly vulnerable.

Osbasso said...

I totally and completely offer my hard drive to store and archive your images...

I can't believe that such legislation actually passed. I'm not sure that it would make it that far over here. It certainly wouldn't survive any court challenges here.

I'm interested to see where this leads...

TROLL said...

I guess the Government decided the UK didn't have enough useless bureacracies built around badly-written laws.

As to who decides what is prosecutable...

Maybe they'll transfer someone over from "The Ministry of Silly Walks".

Dana said...

Which brings us on to who decides what constitutes something that is 'grossly offensive, disgusting or otherwise of an obscene character'?

Os sent me here today (I confess, I'm usually just a Thursday visitor), after reading my post on having a public WiFi signal monitored, and the police called, when someone monitoring the web usage deemed the content I was viewing as "obscene"

This legislation is terrifying - really. The fact that the activity can be legal, yet having the image is illegal, oozes of morality policing. I have no doubt the US will soon enough be following in your footsteps!

Brian said...

What is a pornographic image? Pretty much every advert in the media. Mr Hicks.

Morpheus said...

There are so many posts on this subject - I've counted eight this morning - and so much indignation. Newsflash, guys! You're way too late! This legislation went through parliament a couple of years ago. The time to do something about it was then. Did any of you lobby your MP at the time, or write to any peers (some of whom put up a valiant defence against this)? Or do you imagine somehow that a mass blog post will somehow make it all go away?

Be clear about this: those in power don't care what you think of their shiny new bill. They work on the principle of "Something must be done, this is something, let's do it", and then bask in the favourable editorials in the Daily Mail (you may recall that this bill came about in part due to frantic lobbying by the mother of a woman murdered by someone supposedly encouraged by violent Internet porn). It's all done and dusted - they're as likely to listen to a bunch of whiny bloggers now as a bus driver is to listen to a group of people standing at a bus stop half a mile behind him, moaning that they've missed his bus. The world's moved on.

So the question is, now that you all have seemingly had your consciousness raised on issues of privacy, what are you going to do next? Well, might I make two suggestions:

1. The time to fight a bill that threatens your privacy is before it's been debated and passed. Right now, the biggest threat is something called "information sharing". Up until now, if the government collects data on you for one purpose - ie, tax - they can't share that information amongst other departments for different purposes. The Coroners and Justice Bill contains some inoccuous clauses at the end which will lift these restrictions. So, for example, if the police decide to trawl your hard disk for all those images you're so jumpy about, and record that fact, it could become known to officials at your local authority's education department, and passed to the head of your child's school. And you won't know about it.

If that thought worries you, now is the time to tell your MP, especially if you're in a marginal where he might be fearful for his seat. Do it now, not years down the line when you're effected by what's being proposed.

2. Go to No2ID, and if you don't like the advance of the database state as laid out there, join. It may seem that most of the important battle have been lost, but there are plenty more to come, and public support is waning for the National Identity Register (which is at the heart of the threat to privacy). The more people recognise the problem and get involved, the more likely it will be that this will have the same outcome as the poll tax.

Sheep are slaughtered no matter how much they bleat, you know. If you want soemthing to change, then writing a blog post that'll be forgotten in a week should be just the start.

Ro said...

Yes, Morpheus, I did make a fuss before the bill was passed into law, and I did write to my MP (and European representative for that matter).

I agree with the suggestions re: privacy legislation in general and it's important, in my view, that we fight this kind of creeping surveillance as much as possible - for me, it's not so much a matter of what the legislation will be used for today as what it might one day be used for.

But it's also worth continuing to fight these provisions in The Criminal Justice and Immigration Act. It is possible for dodgy legislation to be repealed, even if it doesn't happen often - I could point, for instance, at Section 28 of the Local Government Act of 1988.

It took 15 years to get that fully repealed but it shows it's possible. The one guarantee is that if we all just sigh and say "The world's moved on", the legislation is not going to be repealed.

So, yes, campaign on other fronts by all means but if this is important to anyone, they should campaign against this at the same time. Better late than never!

Morpheus said...
This comment has been removed by the author.
Morpheus said...

Ro: Section 28 was repealed by an incoming government that, in opposition, had always pledged themselves against the measure. Do you see any of the current opposition squaring up against this legislation? "Cameron in favour of sick porn" is not a headline I think they'd relish, somehow.

We can huff and puff about this as much as we like, but it won't change anything. I have a close family member who recognised this as soon as the act was given royal assent, figured out her business could fall foul of it and didn't wait until now before closing it down. Frankly, there are much more important and overarching issues to spend time and effort getting all worked up over (although I do recognise the need to have something, anything, to blog about).

Fat Controller said...

This is a sloppily drafted law, bought by a government that is failing on so many other fronts so as to be seen to be 'doing something', egged on by the gutter press, in as a predictable kneejerk reaction to what was undoubtedly an awful crime, but one committed by a mentally disturbed person. This law will have no effect on that type of person but it is outrageous that this will cause difficulties for so many normal (yes, normal!) decent people who have no wish to place themselves outside the law, no matter how badly framed that law is. I would have thought that our legislators would have learned from the famous trials of the past- Lady C., OZ, Gay News etc that you tamper with freedom of expression at your peril. The only ones rubbing thir hands with glee right now will be the lawyers, looking forward to long drawn-out lucrative trials to establish new precedents.

It makes me almost glad I'm not living in the UK!

Luka said...

I have read numerous posts on this topic today (and written my own take on it, to boot) and I think that, regardless of timing, it is always stimulating to raise awareness of these issues.

Writing blog posts on the subject may not change the world, or even the law, but at least it generates more interesting and worthwhile discussion than endless introspective sex-with-my-lover-god-they're-so-great posts, vibrator reviews, memes, or blogger appeals for cash.

As "something, anything, to blog about" goes, this is one of the better topics. More power to your typing fingers, Cake.

Riff Dog said...

Wow! I had never heard of this. This sounds like a nightmare ahead for the courts.

Morpheus said...

I'm sure we're all grateful to Luka for her list of what we should and should not be blogging about.