Monday, January 26, 2009 

Bad law day.

Not just one, but two incredibly bad laws came into effect today - the reclassification of cannabis to Class B, which will inevitably result in more otherwise completely harmless individuals being prosecuted and potentially having their lives ruined just because they smoke one weed rather than another, and the criminalisation of "extreme pornography", which will inevitably result in more otherwise completely harmless individuals being prosecuted and potentially having their lives ruined just because they get turned on by things that others might find repulsive or sickening despite no harm being done to anyone in the making of said arousing images or video.

Next on Labour's agenda is naturally making the buying of sex from someone "controlled" for someone else's gain equivalent in the eyes of the law to rape. To suggest this might be a slow process building up to an even more unpleasant final reckoning might not be any longer being paranoid.

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Tuesday, December 09, 2008 

Wikipaedia part 2.

Almost as quickly as it was imposed, the blocking of the Wikipedia entry on the Scorpions' Virgin Killer album has been lifted. Don't imagine however that this is because the Internet Watch Foundation has suddenly decided that the image after all isn't indecent, or that regarding the context of it, it's ridiculous to now declare 32 years after its original release that it is. Their statement again says it all:

Following representations from Wikipedia, IWF invoked its Appeals Procedure and has given careful consideration to the issues involved in this case. The procedure is now complete and has confirmed that the image in question is potentially in breach of the Protection of Children Act 1978. However, the IWF Board has today (9 December 2008) considered these findings and the contextual issues involved in this specific case and, in light of the length of time the image has existed and its wide availability, the decision has been taken to remove this webpage from our list.
Any further reported instances of this image which are hosted abroad, will not be added to the list. Any further reported instances of this image which are hosted in the UK will be assessed in line with IWF procedures.
IWF’s overriding objective is to minimise the availability of indecent images of children on the internet, however, on this occasion our efforts have had the opposite effect. We regret the unintended consequences for Wikipedia and its users. Wikipedia have been informed of the outcome of this procedure and IWF Board’s subsequent decision.

In other words, the only mistake the IWF is owning up to is that they overreached themselves in blocking a site that was always likely to stand up to them. While admitting that they flagrantly failed to consider the contextual and extenuating circumstances surrounding the image, they make quite clear that if the image was hosted on a server in the UK that they reserve the right to demand that it either be taken down, and/or blocked. It is, after all, in their view, in breach of the Protection of Children Act 1978. That the "child" didn't object at the time and still doesn't object today is irrelevant, as is the context of the image when it isn't hosted on a encyclopaedic or shopping website.

The entire case highlights the secretive and undemocratic nature of the way the IWF operates. If, rather than Wikipedia, they had simply blocked a page on a Scorpions fan site, no one would probably have been any the wiser, and even if it had been noticed, seems unlikely to have spread beyond the tech based sites. It's only because they overreached themselves and completely failed to think through the consequences of blocking a site of the size of Wikipedia that they have come so unstuck.

It also highlights the disparity between the increasing tenor of our laws and those of our peers abroad. Once the ban on "extreme pornography" comes in, our own smut purveyors which dabble in such material will be essentially out of a job, unable to know what is and isn't illegal without running up obscene legal costs. Similarly, the same reason why there isn't much of a porn industry in this country is because of the draconian and ridiculous laws on, if you'll excuse the expression, "hard" copy distribution of the finished product. The only place you can legally buy a hardcore DVD from is a council sanctioned sex shop, again usually for an obscene price. This doesn't stop mail-order or internet companies from existing, but essentially they are breaking the law by operating in such a way. There is however no such ban on you importing hardcore material from abroad, although customs can still be sniffy about the more extreme material - meaning that our overseas cousins have a monopoly on the market. Some will think there's nothing wrong with that, as after all, pornography is without doubt exploitative, but it still seems ludicrous in this day and age.

The entire episode has also shown the haphazard way in the which the IWF was founded, and its rather curious legal position. As noted by Richard Jones in the comments on the previous post, the IWF or rather its predecessor, SafetyNet, came about primarily as an invention of ISPs to avoid direct government censorship, which our ever prurient media and police were advocating once it became public knowledge the delights that the internet could offer, with the Met threatening to raid an ISP over the contents of 132 newsgroups which it considered the ISP to be personally publishing by carrying. As laudatory as this was, this also means that there is no specific legislation concerning the IWF's legal status. Agreements between the government and the ISPs themselves effectively govern its entire being and what is and isn't censored. Jimmy Wales, the founder of Wikipedia, has said that his first intention was to send in the lawyers - until they informed him that because the IWF isn't a statutory body it isn't even clear that they can be sued. That is remarkable in itself.

Moreover, the IWF has just more or less admitted that there is very little it can do about large foreign opponents complaining and attempting to get around the bans which it might well impose, come the 26th of January. They'll have no problems banning "extreme pornography" from UK servers, but considering very little of it exists as it is in this country, Longhurst's win might well turn out to be a pyrrhic victory. If the IWF shows the same level of intellect in blocking the likes of "Necrobabes" or other such sites as it has Wikipedia, it might well find itself being shown up as ineffective as well as unaccountable. That the IWF's blocks can easily be circumvented using anonymiser websites or open proxy servers should be irrelevant.

Again, it's worth stating that this is not primarily about child pornography, or "child sexual abuse images", as the IWF term them. No one has any real problem with what are clearly abusive images of children being either censored or removed from the internet, as images or video above the "level 2" scale are, with images at the "level 1" scale being very carefully considered before they are similarly removed. It's with the IWF's extending mandate and their apparent inability to exercise what appears to good common sense. After all, shouldn't a court establish what is and isn't material which incites racial hatred before they block it, especially when the IWF has no solid legal basis? You can argue that this is what it is doing in the Darryn Walker case, but should any fictional textual material now be considered to be potentially obscene in the first place? The IWF's whole existence is based on a compromise, one that we ought to be careful before we challenge, considering the potential to make things a whole lot worse rather than better, but shouldn't there at least be legislation put forward which sets up the organisation as a separate independent legal body, like the BBFC, which can be challenged and held to something approaching account, and so the organisation's current set-up can be discussed in parliament? By bringing itself into disrepute over something so apparently inconsequential, a whole hornet's nest has been opened up.

Related:
Wardman Wire - Privatised censorship
Frank Fisher - A nasty sting in the censors' tail

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Monday, December 08, 2008 

Wikipaedia.

Another erotic album cover pose?

It occasionally takes a decision made ultimately by an underling to expose the stupidity that often underlies some of the laws which govern us - and the moronic, for it can only be described as moronic, decision by someone simply doing their job at the Internet Watch Foundation that an album cover by an otherwise almost forgotten metal band from the 70s amounts to child pornography, although of the very lowest level, resulting in the blocking of the editing of Wikipedia for sections of the UK deserves to be one of those.

The Internet Watch Foundation's main work is blocking images of "child sexual abuse images" (according to them, terms such as child pornography "are not acceptable", as apparently the "use of such language acts to legitimise images which are not pornography, rather, they are permanent records of children being sexually abused", which suggests they don't just want to censor images but words also) which for the most part, with the exception more than ably illustrated today, is uncontroversial. Less well-known however is that they also block material which incites "racial hatred", although again how much of it they actually do block is impossible to know, but also material which potentially breaches the Obscene Publications Act. The OPA, notoriously, defines an obscene publication as something which is liable to both "deprave and corrupt", something wholly subjective and which juries, notably during the 1980s, could not decide upon when the "video nasties" were prosecuted. Some found some of the films brought before them to be obscene; others decided that the exact same films were in fact, not obscene. Most recently this remit resulted in the prosecution of Darryn Walker, author of a short story depicting the kidnap, rape and murder of the pop group Girls Aloud, apparently first reported to them and passed by them onto the police. His trial is upcoming.

That decision was one of the first to alert us to the vagaries of an apparently unaccountable organisation which still deigns fiction to be liable to bring out the inner Daily Mail reader in us all, but the blocking of the "Virgin Killer" cover is far more instructive of what might be yet to come. According to the IWF, the Virgin Killer cover amounts to level 1 indecent image of a child, as defined by the Sexual Offences Act 2003. Level 1 images depict "erotic posing with no sexual activity". Whilst all the successive levels involve actual sexual activity of one variety or another, level 1 is, like the OPA definition, utterly subjective. Is the girl in the image posing erotically? Quite possibly. Even if she is however, surely the extenuating circumstances surrounding the image should have been taken into consideration. Not only is the image over 30 years old, been available on the high street without causing any real high profile attention, but a tiny amount of background reading from the controversy that had arisen over it would have shown that the girl depicted was someone related to those behind the cover design, that she had posed willingly at the time and has no objections to it now still being used. That the image is not just available on Wikipedia, but also on Amazon (or at least was) and a dozen other places via a Google search, ought to have suggested that this should be a special case.

Instead what we have is an organisation which thinks that using a sledgehammer to crack a nut is both a good idea, and one which is only concerned by doing things entirely by the rules as set out before them. Image is, according to their thinking, obscene, therefore it must be blocked. As it isn't hosted in this country and therefore the ISP responsible cannot be ordered (surely asked politely? Ed.) to take it down, proxy servers and fake 404 pages are set-up to do the job. No thought is given to how this might affect what is after all a rather larger endeavour than a Scorpions album cover repository. The statement from the organisation doesn't even begin to delve into how the decision was came to be made in detail: instead, all they've done is added the URL to the list "provided to ISPs and other companies in the online sector to protect their customers from inadvertent exposure to a potentially illegal indecent image of a child". Protect is the key word; that's after all what they're doing. It doesn't matter that no one would ever be prosecuted over a single image, especially one in such wide circulation; the general public but most of all their customers needs to be saved from potential "inadvertent exposure".

Where after all does all of this end? As others have already pointed out, children have throughout art history been depicted naked, perhaps, it deserves to be pointed out, in more innocent, less hysterical times. Recently the London Underground briefly banned the image of a nude Venus lest anyone be sexually aroused by the advert for an exhibition. If someone for instance posted images of their children online in a photo album (not advisable by any yardstick), and one of these was reported by the same apparent busybody that reported this one to the IWF, and was decided by one of their employees to involve an "erotic pose", would that find itself being blocked too? If "Klara and Edda Belly Dancing" was reported to the IWF, would they demure from the police decision not to prosecute after it was seized from an exhibition and potentially suggest that it also involved erotic posing?

The real concern here though is not over idiotic individual decisions, but rather that from the end of January next year the IWF will also have the power to block "extreme pornography", the kind recently outlawed after parliament abjectly failed to prevent the campaign by Liz Longhurst reaching its ultimate conclusion. This will potentially lead to the blocking of any pornographic material, which is again subjective, which portrays the threatening of a person's life or which results or is likely to result in serious injury to a person's anus, breasts or genitalia, to say nothing of the ban it also places on apparent necrophilia or bestiality. The Heresiarch noted at the time of the Brand-Ross frenzy that the fragrant Georgina Baillie had appeared in material which could well find itself falling foul of the law and which the Daily Mail had republished. To suggest that the law in this case is nonsensical is perhaps to be too kind; the contradictions and lunacy of banning out and out pornographic material featuring necrophilia, for example, when "art" films such as Visitor Q, which features a man killing and then having sex with the corpse of his victim (although that's not by any means an adequate explanation of what goes on and it is a rather excellent film by the consistently outrageous Takashi Miike), Kissed and Love Me Deadly are considered fine to be seen by those over 18, despite the fact that what one man deems culture another deems beating off material have to literally (or ought to be) be seen to be believed. Who has any confidence whatsoever in the IWF making sensible decisions based on the current performance?

It would be nice to imagine that it ends there. But it doesn't. There are plans to ban drawn material which depicts "abuse" or sex between child and adult, which sounds fair enough, but which is likely to be used not just to ban "lolicon", as such anime-type material is known, but hentai and other anime where the age of those involved is not so obvious. Having therefore made those predisposed to sadomasochistic material potentially breach the law to otherwise further their perfectly legal personal habits, the government seems to wish to criminalise those that enjoy the likes of La Blue Girl (already admittedly banned or heavily cut when submitted to the BBFC) or other fantastical hentai as well. Along with the plans to prosecute those who have sex with prostitutes "controlled by others" with rape, with ignorance not being an excuse, you'd similarly be excused for imagining that the government was determined to diminish sexual freedom as a whole by stealth, all so that one-off campaigners and tabloid newspapers can sleep secure in their beds knowing that perverts aren't masturbating and potentially incubating deviant thoughts which they will subsequently carry out on others. Although whether someone will ever successfully create a tentacle monster remains to be seen.

If this sounds like a slippery slope argument, suggesting that child pornography isn't so bad really honest, then it isn't. It does however come down to whether you think that the likes of the Scorpion album cover is an image of abuse, as the IWF does. If you don't, then you have reason to be concerned not just that an organisation like the IWF which claims to be self-regulating has such a potentially chilling control over the internet in this country, but also that the government seems convinced that far less exploitative imagery must also be banned for all our sakes. Then we won't just that IWF to blame and attack, but ourselves also.

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