Indecent proposals

The latest attempt by the UK authorities to regulate internet pornography is a proposed ‘new offence of simple possession of extreme pornographic material which is graphic and sexually explicit and which contains serious violence towards women and men’ (1).

As Brendan O’Neill argues elsewhere on spiked, this proposal is not a response to a surge in concern about violent pornography – the main justification given for it is an isolated murder that occurred two years ago. Rather, the proposal is a desperate attempt to assert some moral authority, at a time when sexual explicitness has become commonplace (see Kneejerking off over violent porn). This proposal is consistent with other recent developments in regulation and law, which have unfortunate consequences for our freedoms.

For all the appalling and depraved content available on the internet, it’s important to keep in mind that this is just a communications medium. Ideas are exchanged, in the form of words, sounds and images, and that is all. But the distinction between ideas and actions has been progressively blurred of late, especially where the internet is concerned. Tenuous and anecdotal connections between internet content and criminal acts are often invoked. Looking at a representation of violence is often treated as though it were tantamount to committing a violent act.

The consultation document in which the government outlines its new proposal suggests that violent pornography depicts acts of criminal violence: ‘We believe from the observations of the police and others who investigate it, that the material may often cause serious physical and other harm to those involved in making it; in some cases the participants are clearly the victims of criminal offences.’ (2) However, these claims are anything but clear – we are asked to take the unspecified ‘observations of the police and others’ on trust.

The document goes on to cast doubt upon the very notion that people might consent to be involved in the production of such pornography, referring to ‘those who participate in the creation of sexual material containing violence, cruelty or degradation, who may be the victims of crime in the making of the material, whether or not they notionally or genuinely consent to taking part’ (3). ‘Notional consent’ is a weasel term, expressing the patronising assumptions of those in authority.

The true reason for the authorities seeking to confuse violent images with violent actions is expressed in the following passage from the consultation document: ‘We intend to capture those scenes which appear to be real and are convincing, but which may be acted. This follows the precedent of the child pornography legislation and is in part necessary to avoid the need to prove the activity actually took place, as this would be an insuperable hurdle for the prosecution.’ (4) There’s the rub. In the absence of any evidence that actual criminal violence is involved in the production or consumption of internet pornography, those who wish to ban it propose to change the law, so that no such evidence is necessary.

This is part of a pattern. Each successive piece of UK legislation that has criminalised the possession and distribution of child pornography – the Protection of Children Act 1978, the Criminal Justice Act 1988, the Criminal Justice and Public Order Act 1994, and the Sexual Offences Act 2003 – has broadened the definition of the crime, so that evidence of child abuse is no longer necessary in order for someone to be prosecuted (5). Looking at an indecent image of a child – or even looking at a ‘pseudo-photo’ (doctored image) – is now a crime in and of itself. As I have argued previously on spiked, such developments represent the real emergence of what George Orwell, in his fictional dystopia 1984, called ‘thoughtcrime’ (6). The proposal to ban violent pornography simply extends this tendency into yet another ill-defined domain.

The consolation document also points towards a link between images and acts of violence, though there is little evidence to support this. The authors finally admit that ‘we are unable… to draw any definite conclusions based on research as to the likely long term impact of this kind of material on individuals generally, or on those who may already be predisposed to violent or aberrant sexual behaviour’ (7). Chris Evans, founder of Internet Freedom, points out that ’60 years of research into media effects shows no conclusive evidence that violent images cause violent acts’ (8).

Once we enter the world of thoughtcrime, and there is no longer any strict burden of proof upon prosecutors, the authorities enjoy considerable latitude to define criminality on a case-by-case basis. After all, whether or not something crosses the boundary into being pornographic or violent is in the eye of the beholder.

Home Office minister Paul Goggins and Scottish Executive minister Cathy Jamieson, the politicians spearheading the proposal to outlaw ‘extreme’ pornography, say that ‘by “extreme” we mean material which is violent and abusive, featuring activities which are illegal in themselves and where, in some cases, participants may have been the victims of criminal offences’ (9). This definition is subjective and speculative – not ideal qualities for legislation that might land an individual in prison for several years. How can anyone establish whether ‘participants may have been the victims of criminal offences’, simply from an image?

A good lesson in the practical consequences of prosecuting individuals for accessing internet pornography, while disregarding the intractable problems of definition and proof, is the recent UK investigation Operation Ore. Operation Ore involved prosecuting individuals who had used their credit card details to access the website of the American company Landslide Productions, which had supposedly advertised and provided access to child pornography. The sheer number of individuals suspected and accused, as part of Operation Ore and its US progenitor Operation Avalanche, led to commentators questioning whether the police and the courts had anywhere near sufficient resources to tackle child pornography. At one stage, an amnesty whereby the public could hand over its child porn was mooted as the only feasible solution (10).

Computer forensic expert and investigative journalist Duncan Campbell, who acted as an expert witness for several Operation Ore defendants who were subsequently acquitted, has examined the bungled investigation, which has led to at least 33 of the accused to date committing suicide.

In fact, the Landslide Productions website offered an automated payment system for all manner of adult websites. There was no way of telling, from the credit card details that were seized, precisely what type of pornography – if any – the accused had accessed. Campbell notes the irony that the only reason for the existence of the credit card data used in Operation Ore was the use of adult verification systems, whose purpose is to prevent children from accessing pornography.

According to Campbell, even the buttons and links on the Landslide Productions website, that were alleged to have invited the user to access child pornography, were either pop-ups and advertisements outside of the control of the website administrators, or they simply never existed. The authorities cited incriminating data found on suspects’ computers, but Campbell argued successfully in court that such data may have derived from pop-ups or other circumstances outside of users’ control.

Campbell points to ‘systematic injustice’ in Operation Ore, arguing that ‘many people and their families…are the victims of a combination of technical naivety and fear, fed by a media circus’. He warns that ‘the stage may be set for a twenty-first century witch-hunt’ (11). The proposed new criminal offence of possessing violent pornography will only encourage such witch hunts, inviting ever more spurious prosecutions and convictions, while doing away with the need to prove that a criminal act was committed.

(1) On the possession of extreme pornographic material (.pdf 173 KB), Home Office, 31 August 2005, p5

(2) On the possession of extreme pornographic material (.pdf 173 KB), Home Office, 31 August 2005, p9

(3) On the possession of extreme pornographic material (.pdf 173 KB), Home Office, 31 August 2005, p11

(4) On the possession of extreme pornographic material (.pdf 173 KB), Home Office, 31 August 2005, p11

(5) See the Protection of Children Act 1978, sections 1, 7; the Criminal Justice Act 1988, sections 160-161; the Sexual Offences Act 2003, section 45; the Criminal Justice and Public Order Act 1994, section 84

(6) See Why we need free speech online, by Sandy Starr

(7) On the possession of extreme pornographic material (.pdf 173 KB), Home Office, 31 August 2005, p10

(8) Ban on violent net porn planned, BBC News, 30 August 2005

(9) On the possession of extreme pornographic material (.pdf 173 KB), Home Office, 31 August 2005, p1

(10) See Netting paedophiles, by Sandy Starr

(11) Operation Ore exposed, Duncan Campbell, PC Pro, 1 July 2005