Latest Letter to my MP
Graham Marsden, 18 Sep 2006 10:12:10
Hi there,
Here's the latest letter to my MP. He seemed to be of the opinion that
criminalisation of possession would be feasible and have an effect.
Hopefully I've convinced him otherwise now :-)
* * * * *
> Thanks for your further email. We are in some agreement and indeed
> some disagreement.
And thanks again for your reply. It is good to know that, unlike some
other Members of Parliament, you are at least willing to discuss and
address these issues.
Other campaigners I know of have written to their MPs and not even got
an acknowledgement of their comments, let alone a reasoned response!
I apologise for the length of this e-mail, however there are a lot of
facts regarding this issue which I think you would like to be aware of.
Firstly what is interesting is to note, following the initial news
articles (most of which seemed to lazily crib each other and present
this matter as if the law was already a fait accompli) the type of
responses from the general public and journalists in online forums and
newspaper letters pages regarding these proposed laws see, for instance:
http://www.bbc.co.uk/blogs/theeditors/2006/08/all_sides_of_the_story.html
http://news.scotsman.com/uk.cfm?id=1284332006
http://www.guardian.co.uk/commentisfree/story/0,,1863998,00.html
And in the Times :-)
http://www.timesonline.co.uk/article/0,,59-2338800,00.html
And even the Daily Mail...!
http://www.backlash-uk.org.uk/utley.html
> The alternative way of looking at this from your argument at it is to
> turn it around and say before the internet we were in the position
> that material that was beyond R-18 rating was essentially not
> available and "illegal" because it was illegal to distribute [...]
I'm sorry, but I believe this statement is, at the least, inaccurate.
Firstly, a minor point, before the internet it was possible and legal to
sell "extreme" material until the passage of the Video Recordings Act
1984 requiring almost all videos to be classified by the BBFC.
Secondly, however, after the VRA's introduction and, indeed, even today,
you can go to continental Europe and obtain material that is "beyond
R-18" (or, at least, what was classed as R-18 at that time) and it is
not a criminal offence to possess it in this country unless "intent to
distribute" could be shown or it is child porn.
Following on from that, much of what is going to be banned under these
new laws is still legal in many part of Europe and will continue to be
sold and distributed there.
> So although the law hasn't changed in fact technology has overtaken it
> because possession is not an offence and the UK has no jurisdiction
> over websites hosted abroad. And we have the anomaly that effectively
> the same material is de facto illegal in a physical form but legal in
> a totally electronic form. So it is illegal to put certain things on a
> video tape but the same images can go through the internet without
> sanction.
Whilst the material may be "de facto illegal" in that it cannot be
distributed, to the best of my knowledge it is not necessarily "de jure
illegal".
As I understand it, if material is to be "made illegal in this country"
under the provisions of the OPA, it requires a successful prosecution in
a Court of Law in which a Jury determines that the material *is* in
breach of the OPA.
I'm not aware of any cases where "violent pornography" has actually been
successfully prosecuted in this way, as such, the status of its
"illegality" seems to be somewhat questionable as the illegal act is
only to "publish it for material gain".
So the question becomes what do you do next?
Do you take the "Canute" option and try to turn back the tide or do you
look at articles like "The effects of Pornography: An International
Perspective. Milton Diamond, Ph.D." which concludes:
"The concern that countries allowing pornography and liberal
anti-obscenity laws would show increased sex crime rates due to modeling
or that children or adolescents in particular would be negatively
vulnerable to and receptive to such models or that society would be
otherwise adversely effected is not supported by evidence. It is
certainly clear from the data reviewed, and the new data and analysis
presented, that a massive increase in available pornography in Japan,
the United States and elsewhere has been correlated with a dramatic
decrease in sexual crimes and most so among youngsters as perpetrators
or victims."
http://www.hawaii.edu/PCSS/online_artcls/pornography/prngrphy_ovrvw.html
There are many other articles which demonstrate the lack of any link
between pornoraphy and violence and even when the Thatcher government
attempted to demonstrate the "harm" of pornography, the committee failed
to do so, with the result that the report was quietly buried!
See these excerpts from the Williams Report:
Of course there have been articles which have "proven" a link, however
their methodologies and conclusions have often been strongly criticised
by peer review for faulty techniques or stretching the data to draw
conclusions that are simply not supported by reasonable analysis.
> Today if someone wants to distribute such material they only need set
> up a website based outside the UK. So in fact we have the case that
> distributors of physical video cassettes, photographs, magazines or
> indeed on websites that are hosted within the UK have to comply with
> the obscene publications act while those on the internet (outside the
> UK) do not.
I agree this is ludicrous, but I think the remedy is to relax the laws
in this country, not by trying to ban internet content because that
simply cannot work (see below).
> Now actually the Government has said that possession of material that
> goes beyond R-18 material will be legal but it will draw the line at
> some point.
>
> I cannot therefore accept your view that this is taking the law into
> an area that it has not gone into before.
I am not aware of any previous situation where the simple possession of
an image (excluding child porn or state secrets) could result in you
being sent to jail. Are there any that you know of?
They also claim that this will close a "loophole" in the OPA, but in the
words of Frank Fisher in the Guardian "The Obscene Publications Act
contains nothing outlawing such material in those terms, merely
outlawing all materials that "corrupt" - and as any lawyer knows, juries
have disagreed on what that constitutes for decades. No, this isn't a
loophole, this creates a whole new category of carefully defined
criminality".
> The problem is that with the advent of the internet and indeed
> literally over the last few years broadband, the only way to stop
> previously censored material is to make its possession illegal.
I'm sorry, but, as I mentioned above, this is completely unfeasible.
The possession of child pornography is illegal and, unlike the proposals
against "violent pornography", there is massive international
co-operation between governments, police forces, ISPs and so on to
prevent its distribution.
Yet, despite that, it still gets distributed and people still possess it
even though it is highly illegal.
What hope is there for the UK to try to block material that many do not
even *consider* illegal? If we were to tell our European partners that
they should stop selling this material because we don't like it, they
would probably laugh in our faces and say "what is your problem? If you
don't like it, don't look at it!"
Now consider the case of Graham Coutts. Had the images he viewed been
illegal, would that have stopped him possessing them? I don't think so.,
for instance, what if he had Photoshopped "normal" images to include
nooses just as he had drawn nooses on photographs?
The proposals from the Home Office claim they will make exceptions for
legitimate films and TV dramas, but what if he had made screen captures
of only the images he was interested in and put them in a folder on his
computer called "sexy dead babes"? Are the images, taken in isolation,
going to be illegal where the original content was not?
Even had he possessed these images, how would he have been detected and
prosecuted? The only ways I can think are:
1) He, like Paul Gadd/ Gary Glitter, allows someone else to see his
computer and, in their subjective opinion, they think he has "violent porn".
2) He is arrested for another crime and, in searching for evidence of
that, the Police examine his computer and discover what they consider to
be "violent porn".
3) There is a situation like Operation Ore whereby people who have,
allegedly viewed certain sites, are arrested. (Of course there have been
many complaints about Operation Ore because entirely innocent people,
who have visited only entirely legal sites, were caught up and accused
of child porn offences simply because they had used the same payment
gateway system, resulting in several suicides.)
None of these, however, are going to have a real or credible effect on
anyone who really wants to view this material and will not stop them
downloading it or possessing it.
The Government proposals also claim it will only be "realistic
depictions", yet it is already possible to create photo-realistic,
entirely virtual, images on a home computer, see for instance:
http://www.deviantart.com/deviation/26905706/
Now imagine the artist of that picture had added a noose around the
"model's" neck. It would be very difficult, if not impossible, to
distinguish between a real photograph and an image that exists nowhere
but in a computer's memory.
As such, these proposed laws will be virtually unenforceable.
Consider also recent events in the news:
A 15 year old shot with a gun that was, most probably, illegal to possess.
A man arrested for having a houseful of guns.
If we can't stop people having (and using!) firearms by making it a
crime to possess them, what chance is there for a law involving a
subjective opinion on pornography?
> There are a number of viewpoints that you can take. The first is that
> there should be absolutely no limits and as I say this is not a
> viewpoint that I take. I have to say I am a little confused as to
> whether this is your opinion or not. As you say "It is not that I
> necessarily consider that "all adult pornography however extreme
> should be legal"" If you do think that you have to make possession of
> some pornography beyond some limits illegal.
To take a very extreme example, were "snuff movies" to exist (instead of
being an urban myth), even if the participants were consenting, I would
consider such material should be illegal since to make it would require
an illegal act. So, yes, there is a limit there, but any such issues
would have to be determined on a case-by-case basis, rather than some
sweeping "moral principle".
On this matter, when the Consultation responses were released we had
Martin Salter MP claiming on Radio 5 that "With images now available in
cyberspace, from sites often hosted in Mexico, Florida, Guatemala,
featuring sometimes at the more extreme end of the market snuff movies
where people from impoverished backgrounds are raped, tortured, murdered
on camera and the images then put out there for private profit and for
extreme sexual gratification."
Now unless Mr Salter is privy to information that the rest of us are
unaware of, he is simply repeating a myth which has been debunked time
and again that so-called "snuff movies" actually exist, despite thirty
or more years of investigation into the subject.
See http://www.snopes.com/horrors/madmen/snuff.htm
If a Member of Parliament is going to make claims like this, he should
verify his facts before doing so. Unfortunately it seems he did not.
A side note here: Under the proposals, it would be illegal to possess an
image or video of consenting adults engaged in consensual sexual
behaviour, but *not* illegal to have a video of Iraqi hostage takers
actually committing a murder by beheading a victim with a knife!
> The second is to make possession of any material that goes beyond
> current R-18 material illegal. That is whatever is illegal to
> DISTRIBUTE at the moment should be illegal to POSSESS. Again this is
> not a view that I take as I accept there is a difference between
> possession of material and its distribution.
I'm glad to hear it. However these proposals seek to criminalise
possession simply based on someone's subjective viewpoint.
This brings up another interesting fact. I have, of course, been
following the debate on various online forums and newspaper letters
pages and one thing is becoming increasingly clear: The argument has
effectively become polarised into two camps.
The first is the one where people say "I may or may not like this
material, I may or may not choose to look at it, but I do not want
someone to be made a criminal for looking at images of consenting adults".
The second is comprised of those who have a basic anti-porn agenda and
are simply jumping on the bandwagon of this issue as a way of advancing
their cause.
As such, this has gone way beyond the original remit of the plans to
simply outlaw "violent pornography".
> Perhaps most important, the person possessing it has to take a view
> whether or not what he possess is illegal and obviously there are
> going to borderline cases. There is a strong case therefore to put
> forward that most of what people possess today or are likely to
> possess in the future should be legal.
I agree. For instance I would like to see a much greater relaxation of
"Obscene Publications" laws since it is impossible for legitimate
suppliers of BDSM gear in the UK to sell videos of the gear in use!
> Secondly it should be as clear as possible what is legal and what is
> not legal and this is easier if the line is put back.
I agree. But where that line is drawn should not be determined by "I
don't like this, so you can't see it".
> Obviously also distribution is a more "active" act if you like than
> possessing it and mostly people are making money from the distribution
> and making of it which is obviously not the case for possession -
> although if nobody wanted it, nobody would make it.
A good point. And since people are making it, clearly some people do
want it. And if the participants consent and do not suffer death or
permanent injury, why should it not be made?
> As I said to before, I think there is still a serious question of how
> "accidental" possession of it is treated.
The proposals claim that there would be exceptions in such cases,
however it is easy to demonstrate how someone can accidentally get such
material on their computer without knowing and it is much more difficult
to show that it was an accident.
This would, of course, also reverse the usual burden of proof
requirement and the presumption of innocence, ie the defendant would
have to demonstrate that they *didn't* search out the material and I'm
sure you wouldn't want that any more than I would.
> I also accept that someone could be prosecuted and found not guilty
> but the very act of prosecution might mean that his family life
> suffered or he lost his job etc. and all for not doing anything wrong.
> In general this is not a reason for not having laws.
I agree that this is not a reason for not having laws, but the laws that
exist and the rights that exist must protect everyone equally.
> On human rights laws - in theory, the Government should only bring
> forward laws that are compatible with it and I believe from memory
> there is some pre-scrutiny by a committee of MPs to do this - however
> ultimately and I accept it is clumsy and long drawn mechanism
> resorting to them is the only mechanism that people have against
> over-authoritarian laws
I understand that there is a group of MPs called the Joint Committee on
Human Rights which is supposed to vet proposed laws like this and I
believe that members of that Committee have been lobbied by individuals
from the Backlash campaign.
> I do, I have to say to a small degree concede your point that there is
> a difference in this than in other freedom of speech issues.
Thank you.
> And as it is not possible to control pornography any more by
> controlling its distribution because of technology, it has to done via
> possession.
However, as I have pointed out, this is simply not feasible.
> Overall the Liberal Democrats come with a strong basis in favour of
> free speech. However, in some circumstances free speech is curtailed.
And I agree that, in the cases you have mentioned, it should, because it
can be demonstrated to cause harm to others. That is not the case,
however, with "extreme pornography", even the Home Office admitted this
in their consultation!
> there is I would argue difference between the promulgation of
> political ideas and beliefs and pornography in which, there are not
> normally really great political ideas.
Yes, there is a difference, however I think you would agree that is not
an argument *for* censorship!
> And some people will be supporting this on general moral grounds and
> what they see as the degradation of particularly women.
As you know, I run a business making bondage gear. I know people, male
and female, who participate in the production of adult material.
And what they will tell you is that they *not* being "degraded". They
know what they are doing, they are happy to do it, they are not
psychologically damaged individuals (any more than any other member of
society) and they probably consider it offensive and insulting when
someone tells them that they need "protecting".
Incidentally, the reason that I have taken a while to reply to your
latest e-mail is that I've been preparing a new catalogue which has, of
course, involved doing photoshoots of consenting models (female and
male) in bondage gear.
But while I was doing those photoshoots, running through my mind was the
thought that, in future, I might have to be mentally looking over my
shoulder and thinking "will someone be able to claim in the future that
this photo constitutes 'violent pornography'?"
> And partly laws are framed, rightly or wrongly within the moral
> customs and compass of that era's society.
In this case, I have to say that this is "wrongly".
When the United States mooted the prohibition of alcohol, there were few
opposing voices because of the "moral climate" of the time, where those
who spoke out could find themselves ostracised by society.
Subsequently many people went and drank at the local Speakeasy.
Now we have moved on and alcohol is acceptable, but the "moral climate"
says that much pornography is "wrong" and there are few who will stand
up and speak out in favour of it, even though many look at it.
This, again, doesn't mean that people actually object to it, but they
don't want to stick their heads over the parapet for fear of "what the
neighbours will think".
> As I said before, I do have concerns that I believe that some
> depiction of extreme acts should be controlled. And to control it, it
> has to be done through possession rather than distribution because of
> technology.
And as I have pointed out, and I hope you now appreciate, such control
is an illusion and will be impossible to enforce.
> my Lib Dem colleagues I would think will be looking very, very
> carefully at the legislation. The most crucial thing will be the
> definition.
Having seen a little more of the proposals, it seems that they are
intending to bring in a test of firstly "is it pornography".
This, to me, suggests that, as I mentioned above, the anti-pornography
brigade have hijacked this issue and would bring about the farcical
situation whereby you could have two virtually identical images, one
legal, the other illegal, based solely on the amount of clothing the
model was wearing!
> Accidental possession needs to be addressed. It's compatibility with
> human rights legislation needs to be looked at. Although obviously
> ignorance of the law is not a defence, if possession is to be made
> illegal then people need to be able to tell what side something comes
> down on of that line. The artistic and journalistic defences need to
> be explained and indeed people need to be able to know when that is a
> defence so they again can tell whether it is legal. It should not lead
> or lead to the least possible self-censorship or people avoiding
> material because it MIGHT be illegal. And it needs to be explained how
> it will be implemented in practice and we have both expressed
> our concerns about prosecution. This is quite a long list of concerns
> and the Government needs to address these, if I or I suspect quite a
> large number of my Lib Dem colleagues are to be happy with the bill.
> Obviously the opposition parties and the third party in particular
> have limited opportunity to amend and alter bills and I think it's
> probably fair to say we wouldn't start from here but obviously we now
> need to react to what the Government is bringing forward.
I agree entirely with these comments and I hope that you will make them
to other members of your party and, indeed of other parties, some of
whom appear to be of the misguided opinion that this law will actually
be feasible or have any effect other than the criminalising of innocent
people.
In closing I commend this article to you by Frank Fisher in the Guardian
http://commentisfree.guardian.co.uk/frank_fisher/2006/08/see_no_evil.html
where he not only points out the ludicrous fallacies of the proposals,
but also demonstrates that Vernon Coaker of the Home Office seemingly
lied on national radio by claiming falsely that "that most people who
responded to the government consultation on this issue were in favour of
a ban".
If this, along with the repetition of Urban Myths by Martin Salter is
going to be the way the Government responds to people's concerns and
objections to these proposals, then they need to be taken to task most
strongly.
Once again my thanks for your time and interest in this subject.
* * * * *
Cheers,
Graham.