Freedom stolen by a thief in the night

It’s been a bad week here in Britain for freedom of expression. For starters, Heretic TOC’s voice has been choked off by a “broadband” connection getting narrower and narrower for weeks now, finally strangling the life out of any internet availability in recent days. This follows a service “upgrade” by my ISP, which, in the Orwellian language of our times, is actually a downgrade.
No doubt it’s all a government plot, which is exactly what the press have been claiming about the new royal charter on press regulation, sealed this week (under the Great Seal of the Realm, stamped onto scarlet wax on a vellum document), although to our American friends it might sound as though King George is back on the throne, personally intervening to stop the press saying he is mad, and perhaps plotting under cover of press silence to take back the rebellious trans-Atlantic colonies.
Actually, it is not a royal plot, nor a government one, nor even a parliamentary one, even though all the major political parties support the new charter. It is a measure which in the long term has the potential to bring about not censorship but, on the contrary, a fuller range of information and opinion in the mainstream media. This is because the system of voluntary self-regulation by the press which is envisaged would provide for, amongst other important features, a right of reply for those who are traduced in the routine character assassinations carried out by press barons such as Rupert Murdoch, owner of The Sun, Fox News and much else, and Paul Dacre, editor of the hideous Daily Mail. These big guns look like rejecting such a voluntary code for the time being, but this could leave them seriously vulnerable to high court costs when defending any future cases brought against them for libel and other civil claims.
No, the real reason it is a bad week for freedom of expression here has come much more stealthily, like a thief in the night. The threat in question is a brief measure which has passed entirely under the radar so far. I am referring to the Coroners and Justice (Amendment) Bill, which you have probably not heard about even if you live in the UK. It is a Private Member’s Bill sponsored by Sir Paul Beresford, a Conservative Party MP, who has a track record of quietly sneaking nasty, freedom-slashing measures into law while his fellow legislators are shagging their secretaries or propping up the numerous bars in the Houses of Parliament. Or so it seems, judging by the lack of any hue and cry over his dark deeds. Or perhaps it is just Beresford’s tactical cunning that fools them, because he presents himself not as a thief of freedom but as – this will be no surprise – a protector of children, and of decency.
So what, then, is his latest wheeze, his new coup of legislative legerdemain? In the official summary on parliament’s website, it is “A Bill to amend section 62 of the Coroners and Justice Act 2009 so as to apply additionally to the possession of pornographic written material about children.” Yes, your suspicion is correct, this guy wants to ban possession not just of images, as per the existing section 62, but also of the written word where material about children is deemed to be pornographic – an extremely alarming development if it succeeds, and one which would be unconstitutional in the US. It could be used to censor and punish private fantasies in a personal unpublished journal, for instance, and could inhibit legitimate discussion of children’s sexuality in correspondence or on a blog like this.
Some heretics will remember the Sharpe case in Canada, where the law already restricts the written word. The case against Robin Sharpe’s writings was eventually dismissed when he argued in their defence that they had artistic merit. A professor of literature compared Sharpe’s written works to “transgressive expression” parallel to the Marquis de Sade’s 120 Days of Sodom. Under Beresford’s Bill, though, artistic merit would not be available as a defence.
The original section 62 was itself slipped into a Bill that, as the name implies, was supposed to be mostly about coroners and the courts over which they preside, and thus concerned with death, not childhood. On that occasion, in 2009, the Bill was used to outlaw possession of pornographic images of children other than photographs, which were already covered under the law against indecent images. This measure was aimed against pornographic Japanese manga and suchlike. The offence carries a three-year maximum prison sentence. There do not appear to have been any high-profile prosecutions under the Act but that does not mean it has not been used – I personally know two people who have been convicted following police raids in which their own drawings have been among the items taken along with (inevitably) any computers.
The proposed law says in order for material to be illegal it would need to be “grossly offensive, disgusting or pornographic or otherwise of an obscene character.” The same four descriptors are used in the 2009 Act with regard to images. In a BBC news item over a year ago Beresford outlined his plans, claiming the law would be tightly written to cover obscene writing of a nature “that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal”. Only “absolutely vile” material would be targeted, he said, adding by way of example that well-known novels such as Vladimir Nabokov’s Lolita – which famously explores a middle-aged man’s sexual involvement with a 12-year old girl – would not be covered.
Plenty of people, though, have professed themselves grossly offended and disgusted by Lolita. Possession of that particular work might be hard to prosecute as it has become so well established, but the works of newer writers of equal merit would be much less secure. The Crown Prosecution Service advises that “grossly offensive, disgusting or otherwise of an obscene character” are not intended to be read as three separate concepts. “Grossly offensive” and “disgusting” are examples of “an obscene character” and not alternatives to it. But is that how a jury would see it? The wording will surely suggest to them that their visceral dislike of the material is a good enough reason to say it is illegal, and that is a very dangerous notion.
Bad law or not, though, Beresford tends to get his way. His successes include a five-year possible jail penalty for those who refuse to provide a decrypting key to allow police to inspect computers suspected of holding child pornography. He was also involved in efforts to introduce a fast-track procedure for issuing warrants in cases where people on the sex offenders’ register refuse police access to their home.
Yesterday, the Bill was due to be given its Second Reading in parliament – a crucial stage which usually determines whether a Bill will become law or not. It appears to have been postponed, though. Parliament’s website is now saying it will be next week, on 8 November. British heretics should consider alerting their own MP to the need to oppose the Bill – some parliamentarians, after all, even Conservatives such as David Davis, do actually take a serious interest in preserving civil liberties and opposing excessive surveillance and censorship. Only vigilance, including ours, can stop people like Beresford from going too far.

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Cyril

“Online content filtering in EU law”:

[…] guest blog is a follow-up to Heretic TOC’s Freedom stolen by a thief in the night, earlier this month, which reported on a sneaky bid by British politician Sir Paul Beresford MP to […]

GLmike

Stephen, is there any way ppl can contact you. I posted about IPPMA UK/David Davis on BC/GC and a fer ppl had questions.

stephen6000

Yes, you can contact me at stephenjames465@yahoo.co.uk

Nick Devin

Tom, this would not be unconstitutional in the United States. The Constitutionality of obscenity laws has long been upheld in the United States. Although they are rarely applied to things like erotic fiction, they have been applied in such cases, and they are potentially applicable.

dez

the first time i ever saw someone openly admitting that they are a paedophile,was in 2008 in a documentary called im i normal,hosted by the child psychologist zelot dr tanya byron.she interviewed a linsay ashford,it was a very brief interview,giving me the impression that allot has been cut,she could not hide her emotions,hardly profetional,he made her angry when he told her,you are not in a position to make a judgment on me,i have seen many doctors and they did nothing for me.he is also on a five part interview on youtube,but i cant find the interview with tanya byron.

GLmike

I had that Am I Normal interview on my old PC, it was on the Cerius Love website. (it used to be arched). I’ve yet to find the After Dark interview with Tom, but did find a few articles, odds etc about it.

dez

i did read somewhere that you TOC shared a platform on a bbc program with
esther rantzen,in the early nineties.is there any footage of that,im sure it was a fair and balanced debate lol.

A.

It’s worth stressing just how many well-known books there are which deal with kids having sex or being sexually abused: bestselling works of popular fiction such as Jodi Picoult’s Salem Falls and The Pact; widely read novels for teenagers such as Philip Pullman’s The Butterfly Tattoo aka The White Mercedes, which contains an explicit sex scene between two seventeen-year-olds; sober memoirs speaking of the harm that is sometimes done by adult-child sex, such as Martin Moran’s The Tricky Part and Margaux Fragoso’s Tiger, Tiger. The point should be made that writing about kids and sex is very widespread and that it would be possible for such a ban to have a ludicrously, disastrously broad reach.

stephen6000

I don’t think my MP would be interested but is it worth contacting David Davis?

stephen6000

Here is a link to a letter I have sent to David Davis:
https://www.dropbox.com/s/5h5g214nqlhuxjb/David%20Davis.doc

GLmike

Stephen, could I post that you’ve agreed on a name and about David Davis (I’d give both Tom & you credit, of course). I’d also link to your letter on Dropbox?
Or would you prefer to do that yourself, on forums BC and GC etc.
… thought I’d ask beforehand.
-GLM

stephen6000

Thanks, GLmike. I’m very happy for you to announce our name at these places and to mention our attempt to enlist the help of David Davis on the written CP issue. You may also link to the letter I wrote.
Stephen

Mr Phil

While this is sinister, and thanks to willistina and Tom for bringing it to attention, it’s a little early to panic. Beresford’s successes have been in getting government bills amended, but this is merely a Ten Minute Rule bill. It is possible for these to become law, and Wikipedia states that this has happened over 60 times since 1945, but only 12 of those were since 1973, the last one over 10 years ago. As the government, with its iron grip on parliament’s timetable, has become exponentially more hyperactive with its own legislation, time for Ten Minute Rule Bills has been squeezed out. Rather than a serious attempt at law-making on this occasion, a Ten Minute Rule bill should be seen as an exercise in flag-flying (or hobby-horse-riding) and/or a publicity exercise. As a best realistic hope, the government might be persuaded take up the cause in a later government bill. That Beresford generated the BBC news item Tom mentioned is already a bigger success than most Ten Minute Rule bills achieve.
Incidentally, the BBC piece refers not to this but to an identical bill that Beresford introduced the same time last year. That passed its first and second readings unopposed but was then allocated no time to proceed further, as is usual with Ten Minute Rule bills. Basically, MPs know the bill has virtually no chance of becoming law, so at second reading they just let the proposer have 10 minutes of fame.
That is not to advise complacency, just to say don’t worry too much about not being able to do anything by 8 November. Instead, I suggest, keep an eye on the bill, at the link Tom provided, and try to be ready with some opposition in the unlikely event that it is allocated any more time. It still has its committee stage and all its House of Lords stages to go through. The Lords might be a better place than the Commons to attempt some opposition anyway, as they do not face re-election and may not be as terrified of taking on a controversial cause. Also, keep an eye out for the bill being withdrawn, as this may mean Beresford has come to an agreement with the government.
Some preliminary thoughts on how to oppose.
1. Agreed with Tom that one line of defence is that porn is a safety valve. In his BBC puff piece Beresford asserts “This written material fuels the fantasies of paedophiles which is the key factor in their offending behaviour.” This evidence-free claim certainly should be a weak point.
2. The definition of child is under 18, while the age of consent is 16. As with the drawings clause, this would ban possession of descriptions of legal acts.
3. While prosecutors might hesitate to take on Nabokov, even slightly less illustrious authors might not be immune. Linking with an earlier Heretic TOC theme, might it be worth getting in touch with the publishers of the new edition of Sandel? And perhaps through them with Stephen Fry? In addition to David Hockney. (Thanks to Kit for remembering that piece.)
4. Assurances in parliament as to how a law will be used are worthless, since they do not bind prosecutors or juries. Realistically, if this does become law, one major use, as I understand has been the case with the drawings law, is likely to be as an additional charge in indecent photos cases. The writings will then help to convict the photos and vice versa, even where the latter are merely clothed ‘indecent poses’. It will be politically difficult to make a great censorship issue on the writings when there are photos involved as well.That the additional charges will not make much/any difference as to sentence is another reason not to make waves by opposing them. So police and prosecutors will get away with stretching the law far beyond Beresford’s bland assurances. The main practical effect at first will be to enable police to confiscate and destroy the books. In this way works like Sandel, or many by Hakim Bey, will slide into prohibition.

Mr Phil

Second thought on my own comment; I certainly don’t want to dissuade anyone from writing to their MP. I may do so myself. It would be wonderful if someone does speak against on November 8. Just don’t worry too much if not.

Kit Marlowe

Thanks, Mr Phil – I have often wondered what a ‘ten-minute rule bill’ was. And now I know!
I wonder if B4U-Act might be interested in making a statement of some sort on this, if only to disabuse Mr Beresford of some of his assumptions.

stephen6000

Right now, the British version of B4U-ACT is still in the process of being born. We have agreed on a name (In Pleasanter Places, Minor Attraction UK –or IPPMA UK), we have attracted a few interested and interesting individuals and one of us has been involved in a bit of gentle activism mainly off his own bat. So I don’t think we can yet make representations under this banner, but having read Tom’s remarks about David Davis below, I’m going to have a go at arousing his concern about the issue.
[TOC adds: Good luck!]

Kit Marlowe

Like the 2009 change to the law, this sort of proposal seriously undermines a lot of the arguments about why child pornography is illegal in the first place. We are constantly told to refer to kiddy porn as “abuse images.” We are informed that such materials are records of crimes against children (which may well be true) and that the children are victimised all over again when they are watched (which certainly isn’t).
Yet legislating against drawings or literature can have no such excuse: nobody is victimised when a sexy story is written, no matter what effect the text might have on the reader. As I recall, Harriet Harman offered a feeble defence of the law in 2009 saying that real photographs could be altered to make them look like computer-generated drawings (why anyone would go to the trouble of converting a real photograph into something that looks just like a computer-generated image lay beyond Ms Harman’s powers of explanation). To his great credit, David Hockney stood up against that law change in the pages of the Guardian, identifying it as exactly the kind of ham-fisted censorship that we had become wearily accustomed to under the New Labour regime. It should come as no surprise to anyone that the Tories are eagerly going down the same road with the passive acquiescence of their coalition partners.
I hope some leading figures in politics and the arts are willing to stand up against this sinister proposal as Hockney did four years ago. The fact that I had never even heard of this proposal before today is worrying (and thank you for bringing this to my attention!). There is a certain grim irony in the fact that what is clearly intended to be a bit of populist dog-whistle politics from the utterly loathsome MP for Mole Valley seems about to pass completely under the radar of the mainstream media and the general public.

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