scottish response published
Paul Tavener, 09 Jun 2006 20:11:33
http://www.melonfarmers.co.uk/pdfs/agcssumm.doc
SnowdropExplodes, 10 Jun 2006 01:29:18
admin@ofwatch.org.uk wrote: http://www.melonfarmers.co.uk/pdfs/agcssumm.doc
This is interesting. I'll go through it again to pick out the citations from responses that weren't made public, and add those to the "summary" file. In the meantime, my thoughts are as follows:-
We're winning the numbers battle: although the huge weight of organisations in favour of the proposals tipped the balance, looking at the individuals' responses, we get a very different picture:
Around 60% said there was no need for new legislation
Just under half said they did not agree with the list (and many of those were saying that it should be restricted to bestiality and necrophilia only)
Around 67% or two thirds chose option 4 - "do nothing"
We were told that there were hundreds of individual responses to the Home Office, and if individuals responded in similar proportions there, then (barring the JLT petition) we may even have an overall majority.
On the other hand, they rejected the significance of the Rabinder Singh opinion: they cited the fact that it would be accepted as protecting the morals of the nation, but ignored that Rabinder Singh QC goes on to show that the legislation would not pass other tests that are required to be compatible with the ECHR. We know from the Home Office meetings that the Home Office take it seriously, though, so perhaps it is not such a bad sign.
Perhaps most hopeful is this summary's apparent acceptance of BDSM as a legitimate sexuality. Although they may only be reflecting the views expressed by BDSMers in their responses (which automatically carry an argument that BDSM is legitimate), that they seem to report accurately on how we see ourselves (in particular citing references to SSC more than once) is perhaps a positive sign, and a step in the right direction.
All that said, the battle is not won yet, nor even close to being won - however, I think that there is real reason to hope that victory is possible.
Ta,
SnowdropExplodes
Send instant messages to your online friends http://uk.messenger.yahoo.com
Attachment:.
message.html (text/html)
Teddy, 10 Jun 2006 02:13:55
Hi Snowdrop,
I think you've given a pretty good summary; they seem to mis-understand the issue with Rabinder Singh's opinion. He was surely implying merely that the Strasbourg courts would accept "defence of morals" as an indication that the government is acting "bona fide"; although, by most substantive criteria, the proposals are unlawful?
I also noted that the stats show only 2 organisations as having supported option 4. A cursory check I've just done shows that Ofwatch, Cyber-rights and Melon Farmers support option 4, to name but three! Might be worth chasing this up and complaining as necessary? I just get the impression that these folks at Holyrood just aren't very good at this kind of thing...
T.
Author wrote:
> admin@ofwatch.org.uk wrote: http://www.melonfarmers.co.uk/pdfs/agcssumm.doc
> This is interesting. I'll go through it again to pick out the citations from responses that weren't made public, and add those to the "summary" file. In the meantime, my thoughts are as follows:-
> We're winning the numbers battle: although the huge weight of organisations in favour of the proposals tipped the balance, looking at the individuals' responses, we get a very different picture:
> Around 60% said there was no need for new legislation
> Just under half said they did not agree with the list (and many of those were saying that it should be restricted to bestiality and necrophilia only)
> Around 67% or two thirds chose option 4 - "do nothing"
> We were told that there were hundreds of individual responses to the Home Office, and if individuals responded in similar proportions there, then (barring the JLT petition) we may even have an overall majority.
> On the other hand, they rejected the significance of the Rabinder Singh opinion: they cited the fact that it would be accepted as protecting the morals of the nation, but ignored that Rabinder Singh QC goes on to show that the legislation would not pass other tests that are required to be compatible with the ECHR. We know from the Home Office meetings that the Home Office take it seriously, though, so perhaps it is not such a bad sign.
> Perhaps most hopeful is this summary's apparent acceptance of BDSM as a legitimate sexuality. Although they may only be reflecting the views expressed by BDSMers in their responses (which automatically carry an argument that BDSM is legitimate), that they seem to report accurately on how we see ourselves (in particular citing references to SSC more than once) is perhaps a positive sign, and a step in the right direction.
> All that said, the battle is not won yet, nor even close to being won - however, I think that there is real reason to hope that victory is possible.
> Ta,
> SnowdropExplodes
> Send instant messages to your online friends http://uk.messenger.yahoo.com
*** This message has been edited by Teddy on 10 Jun 2006 02:10:16 ***
Graham Marsden, 10 Jun 2006 09:49:26
Hi there,
admin@ofwatch.org.uk wrote:
> http://www.melonfarmers.co.uk/pdfs/agcssumm.doc
Oh shit.
Well, at least know we have some idea of what we're up against and how,
even though the response makes a pretence of impartiality, I think we
can see how at least one side of this "consultation" is going to spin
things.
At least they acknowledge that a lot of people consider the consultation
to have been biased in favour of the proposals and that they felt the
inclusion of references to child porn seemed to be intended to skew the
responses, but that doesn't seem to have made much difference.
Getting to the questions, here are my comments:
In the responses to Question 1 it seems (unsurprisingly) that the Police
and Local Authorities like the idea of new laws giving them more power
and militant feminists seem to think that "all porn is bad and it causes
rape and child abuse" and that we shouldn't "legitimise mainstream
pornography" let alone the stuff referred to in the proposals.
What was good to see was that "broadcasters and media organisations
including the BBC and Channel 4, as well as Internet Service Providers
(ISPs), telecoms companies and IT infrastructure companies." expressed
their concerns about how such laws could be practicably implemented.
Also the BBFC pointed out that these laws could criminalise material
which they had already passed!
Most of the BDSM, Civil Liberties and anti-censorship responses opposed
the proposals for various different reasons including the difficulties
of implementation, the risk of the proposals being to wide reaching or
vague and the desire not to have a Nanny State tell us what we can or
cannot look at.
For me the most worrying part, however was Paragraphs 42 and 43 in
reference the opinion of Rabinder Singh QC:
* * * * *
42. There were also several comments which suggested that the proposals
would amount to an infringement of people\x{2019}s human rights to freedom of
expression and the right to a private life. These responses suggested
that in spite of including a paragraph on human rights considerations in
the consultation document (paragraph 57), this legislation would in fact
be incompatible with the European Convention on Human Rights.
43. However, Rabinder Singh QC who provided an opinion to The Spanner
Trust (228) concluded that while he considered the legislation as
proposed to give rise to real concerns as to its compatibility with an
individual\x{2019}s rights under Articles 8 and 10 of the Convention, he also
believed that as the aim of the proposed legislation would be the
protection of morals, this would be accepted as legitimate by the
domestic courts and Strasbourg courts.
* * * * *
The way this is phrased implies that Rabinder Singh thinks that, whilst
this legislation might not be compatible with Articles 8 and 10, if it
were proposed "for the protection of morals" it would be ok.
IMO this is a despicable piece of spin because they are twisting what he
said into effective approval for the legislation!
The replies to Question 2 seem to be mostly being reported or spun to
suggest that there *is* evidence that porn causes harm. There were many
more responses cited that had this opinion that those that didn't,
however I wonder how much of that was due to the loaded question.
This was also the case with the "evidence of harm" part, where it was
implied by many that those who participate in the production of such
material are "victims" who need the "protection" that these proposals
will supposedly supply.
Question 3 referred to the list of proposals of what sort of material
should be covered by the law but the responses are reported in paragraph
70 as:
"70. Those who rejected this list outright were either of the view that
the proposed measures do not go far enough or were of the view that
there should be no censorship of the internet."
I'm sure that things weren't so obviously divided as the "either/ or"
opinion this implies!
The better news was in the section "Serious Violence in a sexual context
and serious sexual violence" where in paragraph 76 it says:
"76. All those who identified with BDSM community, ISPs, IT and
Telecommunications organisations, the BBC, Channel 4, the BBFC and many
of those who responded in favour of the consultation found these
definitions to be too subjective, unclear and liable to criminalise a
much broader range of images than it appears the consultation paper
intended."
This also carried over into the "realistic depictions" section, however
I'm worried that this will just be seen as a demand for better
definition of the list, rather than outright rejection as evinced by
Paragraph 96:
"96. It should be noted that a number of those who identified with the
BDSM community also selected Option 3 or indicated that, although
accepting Option 4, they would welcome Option 3, a new free standing
offence, as long as the definitions in Question 3 were amended to ensure
that consensual BDSM imagery was not within the scope of the offence."
The responses to Question 4 "Do you believe there is any justification
for being in possession of such material?" seem to be more positive with
the only "anti" comment being "92. Many of those in favour of the
consultation did not feel that there was any justification for being in
possession of this material as they regarded it as totally abhorrent."
(so if you don't like it don't look at it! But don't tell me I can't see
it because you don't like it!)
The "penalties" in Question 7 seemed to be divided along a line from
those who thought there should be no penalties to those who considered
them to be far too weak.
My main worry is the results table at the end where, according to their
tabluation, 52% of respondants supported strengthening the law and 55%
thought there was "some pornographic material which should not be
tolerated".
The other tables are secondary to these since they only really deal with
what should be done if the law is implemented, even though actually
there appears to be a majority who "did not state" which Penalty Option
they preferred because "it should be noted that most of those who have
not stated a response to this questions had selected option 4 \x{2013} do
nothing, as the answer to the previous question. As a result these
respondents may not have felt it necessary to respond to this question."
In conclusion it seems that the Scottish Response is going to be
parlayed into "the majority think we should strengthen the law because
this material is so abhorrent that people shouldn't be allowed to see it
and that it won't violate human rights".
Ho hum :-(
Cheers,
Graham.
Paul Tavener, 10 Jun 2006 21:18:33
The responses from Ofwatch and Melonfarmers were sent to the Home Office so should appear in their lists not the Scottish list - although they were noted they were probably not counted.
Author wrote:
> I also noted that the stats show only 2 organisations as having supported option 4. A cursory check I've just done shows that Ofwatch, Cyber-rights and Melon Farmers support option 4, to name but three! Might be worth chasing this up and complaining as necessary? I just get the impression that these folks at Holyrood just aren't very good at this kind of thing...
> T.
Teddy, 11 Jun 2006 01:34:08
I'm not so sure; only 34 organisational responses were apparently received directly by the ScotExec and yet 46 of them support option 3!! The stats have clearly been messed-up/fiddled...
T.
Author wrote:
> The responses from Ofwatch and Melonfarmers were sent to the Home Office so should appear in their lists not the Scottish list - although they were noted they were probably not counted.
> Author wrote:
> > I also noted that the stats show only 2 organisations as having supported option 4. A cursory check I've just done shows that Ofwatch, Cyber-rights and Melon Farmers support option 4, to name but three! Might be worth chasing this up and complaining as necessary? I just get the impression that these folks at Holyrood just aren't very good at this kind of thing...
> > T.
SnowdropExplodes, 11 Jun 2006 01:50:57
Some further analysis of the report:
As I went through picking out responses we haven't seen yet, to include them in our own summary, I decided it might be worthwhile counting up to see how many pro or anti responses had been quoted or referenced in the report text.
The results were as follows (there may be some error in this as I did not plan this exercise carefully!):
17 "pro" responses were quoted, of which 5 were quoted more than once, one or two (I didn't check) were quoted several times. These included the MediawatchUK response, which apparently had been copied from the Home Office.
20 "anti" responses were quoted, of which 7 were quoted more than once. I do not believe any were quoted more than three times (although it is possible that the Violate response was - again, I didn't check).
Whether this is just because we made more points that had to be reported than the "other side" did, or it actually shows some indication of which way the Scottish Executive may be leaning as a result of the consultation, is open to debate.
I noted the following references to responses that presumably were submitted primarily to the Home Office, and that I believe we have not yet seen: Channel 4 (235), The British Computer Society (285), The Campaign Against Censorship (217), ISPs, IT and Telecommunications organisations, the BBC.
All of these were referenced as having concerns over practicalities of enforcing a new law, and the scope that the proposals would have beyond the stated intentions.
The other quotations from, or references to, responses not yet seen will go in a revised version of the summary document already on the Smartgroups site.
Ta,
SnowdropExplodes
Send instant messages to your online friends http://uk.messenger.yahoo.com
Attachment:.
message.html (text/html)
SnowdropExplodes, 11 Jun 2006 03:11:20
Rabinder Singh wrote (para. 9 of the opinion) "Accordingly, the very existence of the legislation would constitute an interference with Convention rights"
He picks out the following tests that articles 8 and 10 require be passed by proposed legislation, in order for it to be compatible with the Convention:
1/. "prescribed by law/in accordance with the law"
2/. "in the pursuit of a legitimate aim"
3/. "necessary in a democratic society"
The only test addressed by the Consultation paper, and the only one apparently deemed relevant by the Scottish Executive consultation report, is the second one.
Rabinder Singh clearly finds that the propsed legislation would have difficulty meeting both the other tests.
Test 1 is failed because it requires that "the legal measure is sufficiently clear and precise in meaning to allow individuals to regulate their conduct and reasonably foresee the consequences of their acts" (para. 13 of the opinion). The consultation report deals with these arguments without reference to Rabinder Singh's opinion, but only noting concern from individuals and organisations regarding the vagueness of the definitions (para. 76-78 of the report). Rabinder Singh finds that "real concerns arise about whether the proposed legislation would be sufficiently precise and foreseeable to meet the 'prescribed by law' test in the context of an individual possession offence."
Test 3 is failed because the legislation must meet a "pressing social need", which must "accord with the requirements of a democratic society, the hallmarks of which are tolerance and broadmindedness" (para. 19 of the opinion, quoting _Sunday Times v United Kingdom_ 2 EHRR 245 (para. 59)), and the measure must be proportionate to the aim pursued. Rabinder Singh notes that the measure proposed is unlikely to meet the stated aims, is not proportionate to those aims, and since no similar measure is in existence or even proposed by any other member of the Council of Europe, cannot be seen to be necessary in a democratic society. Consequently, "serious concerns arise as to whether the proposed legislation is necessary in a democratic society" (para. 22 of the opinion). Again, the consultation report seems to deal with these issues piecemeal, and only by looking at them as matters of individual opinion or organisation opinion, without reference to the legal opinion
provided.
Ta,
SnowdropExplodes
Teddysmith2@hotmail.co.uk wrote: Hi Snowdrop,
I think you've given a pretty good summary; the seem to mis-understand the issue with Rabinder Singh's opinion. He was surely implying merely that the Strasbourg courts would accept "defence of morals" as an indication that the government is acting "bona fide"; although, by most substantive criteria, the proposals are unlawful?
Send instant messages to your online friends http://uk.messenger.yahoo.com
Attachment:.
message.html (text/html)
Paul Tavener, 11 Jun 2006 09:42:08
The religious lobby are often dishonest when it comes to consultations as can be seen from this http://www.anglican-mainstream.net/?p=337 (see fourth paragraph down).
Although this was in response to a different consultation it is entirely likely that the same would apply to the extreme porn consultation - hence the suprising number of "organisations" responding to the consultation.
Author wrote:
> I'm not so sure; only 34 organisational responses were apparently received directly by the ScotExec and yet 46 of them support option 3!! The stats have clearly been messed-up/fiddled...
> T.
> Author wrote:
> > The responses from Ofwatch and Melonfarmers were sent to the Home Office so should appear in their lists not the Scottish list - although they were noted they were probably not counted.
> > Author wrote:
> > > I also noted that the stats show only 2 organisations as having supported option 4. A cursory check I've just done shows that Ofwatch, Cyber-rights and Melon Farmers support option 4, to name but three! Might be worth chasing this up and complaining as necessary? I just get the impression that these folks at Holyrood just aren't very good at this kind of thing...
> > > T.
Teddy, 12 Jun 2006 01:38:45
Another thing I notice is that widespread criticism of the false analogies between EP and child porn has been largely ignored; however, analysis of the "protect the children" arguments still get significant prominence. Para 49 suggests they might still be willing to pursue the approach to child porn as a template for new laws!
T.
Author wrote:
> http://www.melonfarmers.co.uk/pdfs/agcssumm.doc
Teddy, 20 Jun 2006 03:05:22
Hi All,
Did anyone else notice the quite explicit dig at Channel 4 that was made in this summary? Maybe their consultation response ruffled a few feathers?!
T.
Author wrote:
> http://www.melonfarmers.co.uk/pdfs/agcssumm.doc
Alan, 20 Jun 2006 22:51:25
This sort of thing reinforces my gut reaction that the whole consultation exercise was just the HO going through the motions
and that they have already made up their nasty minds about what they want to do.
I don't think that Mr Reid and his new staff will be any less predudiced than his predescesors either.
Ho Hum
Al
Author wrote:
> Another thing I notice is that widespread criticism of the false analogies between EP and child porn has been largely ignored; however, analysis of the "protect the children" arguments still get significant prominence. Para 49 suggests they might still be willing to pursue the approach to child porn as a template for new laws!
> T.
> Author wrote:
> > http://www.melonfarmers.co.uk/pdfs/agcssumm.doc