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Harvey [31036. Posted 15-Mar-2017 Wed 03:02] View Near Messages
UK law doesn`t talk about "child pornography" or "images of child abuse". The images which fall foul of the PCA and CJA are those which are; a) indecent and b) of a child under 18. Only a jury, looking at the images concerned, can decide whether those criteria are met.
Harvey [31034. Posted 13-Mar-2017 Mon 17:38] View Near Messages
Section 1 of the Protection of Children Act relates to the making/taking of indecent photographs of children and distribution.
Section 160 of the Criminal Justice Act 1988 relates to the possession of indecent images of children.
There is a specific defence against the charge of possession where the defendant can show he did not request the image to be sent to him and that he did not keep it for an unreasonable time.
Otherwise it is a defence for the defendant to show that he had not seen the images and had no reason to suspect they were indecent.
If "watching" involves downloading or streaming images from the internet, that will be construed as "making" the images under s.1 PCA.
The questions of whether a particular image is "indecent" and "of a child" are for a jury to decide, but sentencing guidelines include nudity and non-nude "erotic" posing as instances of the lowest level of indecent image.
Harvey [30852. Posted 6-Dec-2015 Sun 15:14] View Near Messages
"Why do I have a problem believing that the above is really about recouping tax?"
I`m sure that is all that this is about.
Earlier in the year HMRC made a similar anouncement, that they were targetting people running businesses using ebay, airbnb, paypal, Gumtree, etc. and avoiding taxes. http://www.telegraph.co.uk/finance/personalfinance/household-bills/11632478/HMRC-targets-Etsy-eBay-and-Gumtree-sellers-but-when-is-your-hobby-taxable.html
I don`t think they are going after online escort agencies because they are escort agencies, but because they are online.
BTW, I don`t post often mowadays, but I do check in from time to time. You will know my specific interest is in challenging legislation which criminalises harmless activities of minorities and it`s been a bit quiet on that front lately.
Harvey [30813. Posted 22-Oct-2015 Thu 07:18] View Near Messages
re: Destroying Art,
It is normal, in cases where people are convicted in cases involving images, that along with any sentence, the court rules that the images, or more usually, the media on which the images are stored, is destroyed.
So what Judge Roscoe has done, is not particularly controversial... provided that the images would actually be illegal for someone to possess.
Hence it is quite important to know which law has been enaged and whether the images do actually fulfil the requirements.
For the paintings, which were derived from photographs, the fact they were so derived does not make them pseudo-photographs. A pseudo-photograph is, specifically, an image which is not a photograph, but appears to be one. Therefore, the paintings should not have been destroyed if they were merely "indecent". They could be destroyed if they fell within the definition of the Cartoon Porn Act and be pornographic and grossly offensive, disgusting or otherwise of an obscene character.
Given the amount of time we spent discussing exactly what those words could mean, it`s probably worthwhile checking whether they have actually been adhered to by Judge Roscoe.
Harvey [30810. Posted 19-Oct-2015 Mon 10:16] View Near Messages
Re: Destroying Art.
I have been unable to find out what law was used in the destruction of Ovenden`s artwork.
Mention of the word "indecent" in press reports and articles suggest it was the PCA 1978, but that would only apply to the photographs or pseudo-photographs.
For the work which was neither a photograph or an image which appeared to be a photograph, the only available law would be the "Cartoon Porn Act".
Even the OPA does not prohibit obscene material to exist or be in someone`s possession, so I can`t see how that would apply.
Harvey [30482. Posted 5-Nov-2014 Wed 06:34] View Near Messages
as for consultaion; no avenues for challenge as the consultation did allow all views to be put.
as for OPA; There were 3 options; to extent the existing OPA offence to inlude possession, to create a new offence within the OPA or to create a new stand alone offence (the fourth option was to do nothing) The choice of a stand alone offence was made because government said that would be the best and have least regulatory impact.
as for the review; it would be done by MoJ. The main objective would be to chack whether the regulatory impact was in line with expectations.
Harvey [30477. Posted 4-Nov-2014 Tue 05:32] View Near Messages
There was a consultation on the government`s prposals and a Regulatory Impact Assesment.
Both emphaised the minimal nature, in cost, in added workload for the police and courts and interference with legit activities. This was all based on the notion that what would be made criminal to possess was, broadly, no more that what was already illegal to publish under the OPA. It was that analysis which led to the estimate of 30 or so cases per year.
The fact of over a thousand cases per year is evidence that the estimate was wrong and therefore the regulatory impact is far greater than was proposed.
Part of the implementation was to establish a process of review of how the law was working in practice. Where is that review and what is the assessment of how the law is working?
Harvey [30475. Posted 3-Nov-2014 Mon 10:13] View Near Messages
"The law effectively bans many times more than it sets out to do."
And I think this is the angle which could be explored. Not in relation to whether the law is incompatible with the ECHR, but that the process of enacting it was faulty.
Harvey [30473. Posted 3-Nov-2014 Mon 03:37] View Near Messages
"Thus the law effectively bans what it is known to ban AND what it casts into uncertainty"
"The disproportion between the categories of "certain illegal" and "uncertain" does thus also translate into a disproportionate impact on the passive right to free expression under ECHR."
No. As you just said, both categories of image are effectively banned. From the HR standpoint it doesn`t matter whether possession of a particular image is certainly illegal or not. All that matters is that it is not certainly legal. The question then is: Is prohibiting the possession of such an image necessary and proportionate?
"The two proportionalities thus relate to each other."
I can`t see how.
Harvey [30471. Posted 1-Nov-2014 Sat 18:45] View Near Messages
Well, the extent of the uncertainty may be important. I`m just suggesting that its not relevant.
What is releveant is whether, because of the uncertainty, a convention right is being infringed.
Proportionality in respect of the ECHR relates to the effect of the infringement on an individual`s rights versus the need to protect others. Whether one is disproportionate versus the other. You need to be careful of veering towards seeing proportionality in terms of the numbers of people which could be affected or the numbers of images which could cause someone to be affected.
Harvey [30469. Posted 1-Nov-2014 Sat 17:40] View Near Messages
It`s no trouble, honestly. In fact, answering you helps me understand things myself.
You asked what I thought about the attempts Backlash/Jackman appear to be making to get the DPA re-evaluated. I`ve simply tried to explain what I think might be the legal avenues open to them.
There is a case to be made that uncertainty about what is illegal means that what is certainly legal unneccesarily interferes with convention rights. I don`t actually thing you need to count or otherwise compare the quantity of legal images versus those which are uncertain. So forget about how to do that. What you need to show is that the uncertainty means you have to avoid possessing some images which cannot be justified on the basis of being necessary and proportional with regard to the aim of the law.
Harvey [30466. Posted 1-Nov-2014 Sat 06:13] View Near Messages
In respect of your two questions.
1) Are the justifications for state interference adequate?
The test is whether the consequential restrictions on the rights conferred by articles 8 and 10 are both necessary and proportionate.
I would argue that they are not neccessary. The reason being that the mere possession of an image is not harmful. Others would argue that looking at images of certain acts or depictions of acts desensitizes a person to the harm caused by actually committing such acts and thereby makes them more likely to commit those acts.
2) Is it clear what is illegal to privately possess?
As I have been discussing with phontom as regards legal clarity, that is actually the wrong question. The proper question is whether it is clear what is legal to possess. I would say it is.
If you accept that with respect to articles 8 and 10, it`s necessary to prohibit the possession of *some* images, you could argue that although it is clear what is legal to possess, the uncertainty about what is illegal to possess is unneccesarily restrictive regarding the possession of *other* images.
That`s basically my understanding of the HRA approach to s.63, CJIA and all the other laws in relation to mere possession of an image.
Harvey [30464. Posted 1-Nov-2014 Sat 03:51] View Near Messages
OK. Let`s deal with the caveat, which is about the extent of the area of uncertainty.
I`m not sure how relevant it is to talk about numbers of images. It suggests that there is a finite number of images and that the extent of the three classses of image labelled `legal`, `illegal` and `uncertain` can be quantified by counting the numbers of images falling into each class.
Apart from that, you haven`t even demonstrated that the number of images labelled `uncertain` is larger than the number labelled `legal`. I think if you sat down and thought about it, you`d realise that thare are an infinite number of images. Not only that, but there are an infinite number of images in each class, so counting them doesn`t give a meaningful measure of the extent of each class.
There may be a way of measuring the extent of the area of uncertainty in relation to s.63, but I don`t think counting images is tha way to do it.
You ask what this means: "... It does not require that there is certainty in respect of every particular image, rather that the bounds of uncertainty are defined so that any particular image can be put into one of the three classes..."
I was just trying to use a different form of words to say that legal certainty allows for the fact that any particular image can be put into the class labelled `uncertain`. Something which I now think we agree about, as you gave examples of three images and you`ve put them into each of the three classes. You have used the definition of "extreme" in s.63 to define the bounds of uncertainty and you could do the same for any particular image I gave you.
Your caveat was about the extent of uncertainty, which I don`t think you can measure in the way you`ve suggested. But however it`s measured, as long as s.63 is written so that the bounds are defined, it satisfies the requirement of legal certainty.
Harvey [30461. Posted 31-Oct-2014 Fri 04:15] View Near Messages
I can see why you are struggling.
You point out, quite reasonably, that there is uncertainty about which images are caught by s.63. It`s not a controversial statement. You could make similar statements about the uncertainty of what degree of force is "reasonable" in the context of self-defence or which acts are "dangerous" in the context of causing death by dangerous driving. Actually, I think you would be hard pressed to find an example of a law where there was no uncertainty.
Now you would say, and have said, that because there is uncertainty, the law is unworkable. That if you cannot be sure whether some specific aspect of driving is dangerous, the only way of staying on the right side of the RTA, is to not drive at all. That blatantly misses an important point, which is that there may be some aspects of driving which you can be certain are not dangerous.
So, the first mistake you may make is one of extrapolation. You may say that because there is some uncertainty, there can be no certainty. That because there is uncertainty about whether particular images are caught by s.63, there can be no certainty that any image will not be caught by it. That`s just a logic fail. And it remains a logic fail even where you consider sub-sets of images such as piercing or bondage or role play, or whatever.
So, if we can get past that potential mistake and agree that on the grey scales of "dangerous", "reasonable" and "extreme", any particular event, act or image can always be put into one of three classes, namely; those which certainly fail to pass the threshold, those which certainly pass the threshold, and those about which there is uncertainty.
What legal certainty requires is that laws must be written so that this is the case. It does not require that there is certainty in respect of every particular image, rather that the bounds of uncertainty are defined so that any particular image can be put into one of the three classes.
The bounds of uncertainty would not be defined if s.63 had been written so as to include possession of images prior to its enactment. Being retro-active would fail the test of legal certainty. Similarly if the definition of "excluded image" in s.64 was dependent on a BBFC certification granted *after* the image was possessed, that too would fail the test of legal certainty.
Do not confuse "legal certainty" with any other kind of certainty. If you do, you will end up seeing every law as unworkable, because it employs grey scale concepts such as "reasonable", "dangerous", etc.
So, before we go any further, do you think s.63 passes the test of "legal certainty"?
Harvey [30459. Posted 30-Oct-2014 Thu 10:19] View Near Messages
"Surely the key is that we, for all the time we`ve spent over the years on this subject, cannot know an illegal image from a legal one."
No. In respect of whether the law is clear enough, the key is whether we can decide that a particular image is not "pornographic" and "extreme", or is an "excluded image" and therefore, legal to possess.
It is specifically *not* about whether, apart from those images, there are some other images about which there is a degree of uncertainty. Those may or may not be illegal to possess, but you can regulate your conduct to stay the right side of the law by not possessing them.
Quite separately from legal certainty, there is the question of whether the degree of uncertainty about whether a particular image can be possessed, infringes convention rights. But you have to engage it on that basis. It`s not enough to say: `We don`t know for certain whether or not we can posssess some images.`, which you have done. You have to be able to show that the lack of certainty neccessarily leads to s.63 being incompatible with a convention right, which you haven`t.
That`s my understanding of the difference between the principle of legal certainty on the one hand and uncertainty about particular images on the other. If you want to, you can convolute the two, but you won`t be making any kind of legal sense, IMO.
Harvey [30456. Posted 29-Oct-2014 Wed 19:12] View Near Messages
"In that regard it is indeed easy to stay on the right side of the law."
Well, that is all that is necessary for the clarity which legal certainty requires.
As you have said yourself, you can stay the lawful side of s.63 by not possessing anything which is pornographic. In saying that, what you are actually contesting is not that the DPA is unclear, but that because of the uncertainty about what is "extreme", it is unneccesarily restrictive.
Harvey [30454. Posted 29-Oct-2014 Wed 09:37] View Near Messages
"To tell these people, simply to stay away from it, not because it is illegal, but because it could potentially be found to be, seems unreasonable."
Unreasonable, certainly. The entire effect of the law is unreasonable, because mere possession of an image causes no harm.
But the issue raised was one of legal certainty.
Harvey [30452. Posted 29-Oct-2014 Wed 03:31] View Near Messages
"I still think it is pretty impossible when confronted with any controversial picture to decide whether it would fall within this offence or not."
Nevertheless, you can recognise which images are "controversial", so you can stay the right side of the law by not possessing them. i.e. the law is clear enough that you can regulate your behaviour thereby.
The "chilling effect" would become an issue if the definition of "extreme" was so vague that, in order to stay the right side of the law, the consequent inabiliy to possess such "controversial" images interfered with the right to a private life or right to free expression. Given the margin of appreciation which the ECtHR allows, I think challenging s.63, on the basis that it is incompatible with Article 8 or 10, wouldn`t succeed.
If you agree that the law, as it stands, is clear enough, the need for the DPP to give further guidance falls away.
What remains is the fact of 5,500 cases going before the courts. One interpretation of that is that *even if* s.63 is clear and is not imcompatible with the ECHR, the definition of "extreme" has caught far more than the images (30 cases per year) which the government intended. So I think you could get a court to at least consider that the *process* (of converting their intention into a workable law) was faulty to the point where it is unjust and therefore, unlawful.
JR is the means by which a process can be challenged, but the application to JR has to be made withn 3 months. Clearly an application made now to JR the process of enacting s.63 would be rejected as it happened in 2008, so you need to find a backdoor way of doing it. I am guessing that`s what Backlash/Jackman are up to.
Harvey [30449. Posted 28-Oct-2014 Tue 15:27] View Near Messages
"So to your mind, points 1. 2. and 3. work in conjunction with each other, addressing the same issue; the impact assessment and the evident discrepancy with reality."
Not really. IMO points 1 and 2 would be easily dismissed as grounds for making a declaration of incompatibility. The law is clear enough to be able to stay on the right side of. There is no need for the DPP to provide any additional guidance.
Point 3 - that s.63 is a disproportionate measure - stands a chance of being accepted.
The question is how do you get a court to consider it. You could try to go through the HRA route to have a declaration of incompatility. Or you could go the JR route to have the *process* of legislation ruled unlawful.
Harvey [30446. Posted 28-Oct-2014 Tue 05:54] View Near Messages
Maybe some misunderstandings.
I`m not convinced the HR approach will deliver anything.
There is a legal principle, quite separate from any specific right, that a law must provide those subject to it with the ability to regulate their behaviour thereby. It doesn`t follow that a law relating to images must be definintive in relation to any specifc image. Consequently there is a "chilling effect" where in order to regulate his behaviour, a person makes sure he doesn`t possess images that may be found to be extreme, rather than being able to know definitively which ones are and which ones aren`t. In extremis this would mean not possessing any images at all. If the law was so vague that it prevented a law abiding person possessing any images at all, it would invite a challenge on the basis that it infringed the rights to privacy or self expression. So the question is whether s.63 is so vague that to avoid being caught by it, a person`s human rights are infringed.
In the absence of any specific guidance from the DPP, the test for bringing charges are twofold; that there is sufficient evidence for a realistic prospect of gaining a conviction and that a prosecution would be in the public interest. If someone thinks that`s insufficient they need to say why.
It`s the last point where I think there is mileage and it`s nothing to do with HR. It`s that the offence is disproportionate to the aim of the legislation. You are right that in the context of the HRA and ECHR there is the concept of certain rights being limited where necessary and proportionate but that`s not what is meant by disproportionate in this context.
The govt carried out a *Regulatory* Impact Assessment, where they defined the behaviour they wanted to address and concluded that this would result in 30 or so cases a year coming before the courts. That there have been many hundreds - up to a thousand a year - suggests that s.63 is catching much more than the behaviour the government intended.
But as I say, it`s two edged, it could equally be said that the behaviour the government intended to address was far more prevelent than they imagined.
Asking for an HR Impact Assessment may just be a lever to get at the scope of s.63. The trick with a JR is eliciting a decision about which the legality can be questioned. The government`s acceptence of the original Impact Assessment cannot be JR`d. Application for JR must be made within 3 months.
The HR approach would only deliver if it resulted in a declaration of incompatibility and I think that is unlikely, for the reasons given above.
Harvey [30444. Posted 27-Oct-2014 Mon 17:00] View Near Messages
I think the angle that Backlash and Myles Jackman are taking is that the impact assesment was faulty and they are hoping to take that to a JR. A finding of that kind would be similar to a finding that pre-legislation consulation had been faulty or inadequate. It would not necessarily mean that ministers or back bench promoters of the law had been at fault, far less that they had behaved unlawfully. But it may mean that the DPA had to be reviewed and a new impact assesment carried out.
The impact assessment is two edged, so even if Backlash get as far as a JR/review care would need to be taken. One interpretation of a larger than anticipated number of cases being prosecuted is that the problem of extreme porn is far *worse* than previously thought so the need for a law is *even more pressing* than originally envisaged. If you doubt me, just wait for the DM headlines of loony High Court judges/ECHR scuppering the extreme porn law, allowing thousands of deviants to run around, with the police powerless to act.
Harvey [30440. Posted 27-Oct-2014 Mon 09:01] View Near Messages
Regular readers of this forum will know that CPS turning up in court and offering no evidence is something I`ve ben banging on about for quite some time.
Whether it`s a tactic, or just a sign of incompetence, it has been on the increase and there is apparently no sanction to be taken to stop the CPS from continuing to do this.
There is a distinction as far as the Criminal Justice system is concerned between a case where charges are withdrawn, as in the case of the NotMuslim OAP, and one where the CPS offer no evidence at trial.
Harvey [30438. Posted 27-Oct-2014 Mon 07:31] View Near Messages
"Widespread ignorance of the law very evident."
We musn`t forget thet Tiger Porn Man faced two charges. The one in relation to the Tiger Porn was dropped by the CPS, but he still faced trial on the second which was an alleged depiction of a life threatening act. As advised by his legal advisers, he pleaded guilty to that charge and would have been convcted had he not contacted Backlash, and Myles Jackman got involved, advising him to change his plea to not guilty. Having done that the CPS, surprise, offered no evidence and he was acquitted.
The CPS dropping a charge as soon as they realise there is no evidence is one thing. Persisting with a prosecution all the way to trial and then offering no evidence is far, far worse.
As for the Daily Mail and the rank hypocrisy of flogging the tragic victim angle, as cash generating click-bait. No mention in the article that the Mail was a prominent campaigner and supporter of Liz Longhurst and instrumental in bringing in the wretched law. FFS.
Harvey [30436. Posted 27-Oct-2014 Mon 05:45] View Near Messages
Tiger Porn Man- A lawyer writes.
Harvey [30410. Posted 24-Oct-2014 Fri 07:58] View Near Messages
But we were shouting from the rooftops at the time, that whatever was being claimed the new law(s) would catch, the offences were being defined in such a way that they would catch people who only had cartoons and drawings.
For that reason the laws were bad then, and they`re bad now, but they were pretty clear. An informed lawyer shouldn`t need to wait until a conviction is handed down before telling people they should burn all their Anime.
In truth, the police aren`t going to spend time and effort searching out collectors of Japanese comics. But if you become of interest to them for any other reason and they have a weak or non-existent case, dangerous cartoons is something they can use against you to make sure they get a result.
Harvey [30408. Posted 21-Oct-2014 Tue 15:53] View Near Messages
You surely don`t need the "Wow".
It`s no surprise to me that there has been a conviction for posession of prohibited images. We said at the time that thiswas aimed directly at catching anime and manga, rather than "closing the loophole" whereby images of acual childreen were being rendered as drawings.
And so it has proved. The first sucessful prosecution is for posession of Anime cartooons.
The comments from Angelus, miss the point. Firstly he`s referring to the wrong Act. This was not a prosecution under the DPA (otherwise know as Section 63 of the Criminal Justice and Immigration Act 2008). This was Section 62 of the Coroners and Justice Act 2009.
Now, whatever was claimed at the time - that this was about catching those who possessed images which would be caught by the OPA if published - that was NOT what was actually enacted. For s.62 says a "prohibited image" is one which is "pornographic", focuses on a (imaginary) child`s genitals or anal region, and is; "grossly offensive" or "disgusting" or "otherwise of an obscene character". It is very clear, that it will catch the merely disgusting (whatever that means) and not the criminally obscene.
If there`s a time to argue about what the scope of the law should be it`s before it`s enacted, rather than after the first prosecution.
Harvey [30405. Posted 21-Oct-2014 Tue 12:21] View Near Messages
The 50,000 figure is a bit ingenuous.
It`s an esitmate of how many people accessed indecent images last year. I`ve no idea how the esitmate was arrived at, but let`s be clear that these are not 50,000 known individuals.
What the cop is actually having to excuse is that he doesn`t have the resources to investigate the much smaller number of named suspects which the NCA are aware of. In recent weeks it came to light that two individuals who have been convicted of more serious offences, were suspected of having accessed indecent images as a result of being on the Operation Spade list, but were never investigated. Spade was the investigation by Toronto police of a company called AZOV which had been selling `naturist` videos as streamed downloads and DVDs by mail order.
The problem with Operation Spade is that it produced a lot of names (thousands) in up to 50 countries, but yet again, not all the names had been buying material which could be classified as indecent images of children.
There was a big fuss when it emerged that one on the list was a German MP, who had had his home raided by police, when he had only purchased legal material.
Thee was a similar fuss, but on a bigger scale in the US where a nude (i.e. non-sexual) image of a child is legal to possess. The cops had riaded purchasers of the `naturist` videos, but then found actual pornographic, sexual images with which they obtained prosecutions. Big debate about whether the search was illegal, as it was based on the purchase of legal material, and therefore whether material found in the search should be ruled inadmissible as evidence. It wssn`t and there have been a huge numer of convictions.
Any way back to the UK cop. He needs to explain the embarassment as to how a couple of paedos have apparently slipped through his net. His explanation is that there are so many suspects, he can`t investigate them all. He must prioritize. Which is true, as there are hundreds of names on his list and no way of separating the paedos from the rest. But not the 50,000 which is the figure he`s got the press to run with. Which is the art of spin.
Harvey [30402. Posted 20-Oct-2014 Mon 03:54] View Near Messages
I tend to agree that the state should not be involving itself in matters which are essentially private.
Perhaps where we differ is in the definition of what is and isn`t private.
My view is that if you commit murder or rape or child abuse or slavery or theft, even if it is within your own home, it cannot be considered as an essentially private matter as it affects another person.
The exception for marital rape was never because the state saw it as a private, rather than a public transaction, but becaue it clung to the idea that marriage gave a husband specific rights in respect of his wife.
Harvey [30399. Posted 18-Oct-2014 Sat 14:28] View Near Messages
It`s interesting that rape within marriage is something which you think the state shouldn`t be be involving itself with.
Harvey [30395. Posted 17-Oct-2014 Fri 02:12] View Near Messages
I wasn`t aware of the arguments in Switzerland. In England and Wales, the effective exception that allowed marital rape was retained because it was seen as an indivisible part of marital rights.
Rape as defined in UK law is difficult to prosecute, full stop. This is because often the burden is on a prosecutor to prove a lack of consent and proving a negative or non-existence is inherently difficult. But I don`t see why it is made more difficult if the rape is by a husband of a wife.
Other legal codes define rape differently on the basis of a presence of additional factors such as force, threat, co-ercion, etc, rather than an absence of consent. That does make the prosecutors job easier, but it may mean that when defined this way, a marital rape becomes more difficult to prove than an equivalent rape which occurs outside marriage. It`s possible that in Switzerland the legal code is/was such that it was actually more difficult to prosecute marital rape. I haven`t checked what the Swiss legal code is/was. I do know that the German legal code, which does define rape in terms of force or threat, makes no distinction between marital and non-marital rape.
Harvey [30391. Posted 16-Oct-2014 Thu 14:10] View Near Messages
At the risk of taking this discussion too far away from freedom of speech/censorship, I don`t see why marital rape should be seen as more difficult to prosecute than rape outside of marriage.
I can see the point about not making a law to counter something which is impossible to prosecute. But in the case of rape within marriage, the law based on cultural and religious ideas about the position of a wife in a marriage existed as recently as 1991 in England and Wales*. If you believe rape in marriage is wrong, even if it was difficult to prosecute (and I don`t actually accept that is/was the case) that is no excuse for retaining legislation to specifically excuse it.
*It was held in common law that marriage gave the husband conjugal rights over his wife. Though judge made, common law conjugal rights meant that consent was implied. It was judges who made the law based on marital rights, not the difficulty of prosecuting marital rape. It was the Law Lords which redefined the extent of marital rights.
Harvey [30389. Posted 16-Oct-2014 Thu 09:18] View Near Messages
the only thing I would disagree about, is your choice of rape within marriage as an example of a law too far, based on the difficulty of prosecution.
Actually there were long standing cukltural and religious ideas about the satus of a wife within a marriage and the lack of a law against rape reflected that probably more than a percieved difficulty in enforcing it.
Otherwise what you say is right.
I don`t actually expect the prosecutors to act completely honourably or even more honourably than a defendant. What I do expect is that when they are seen to be acting in breach their own rules, they are held to account. Laying charges and then offering no evidence should be dealt with as a contempt of court.
Harvey [30387. Posted 15-Oct-2014 Wed 14:35] View Near Messages
some fair points.
If there is a problem, it`s where the government see making a new law as the cheap and easy way to be seen to be "doing something".
But unless you want to do away with criminal offences entirely, there will always be cases of prosecutions which don`t result in convictions. They are only "unsuccessful" when they fail to convict a person who is guilty. When an innocent person is acquitted, it should bee seen as the trial process working properly, but as you say the damage is done.
I too find it odd that cor is able to see the emotional damage to a person who is tried under the DPA, even going as far as to say their lives are ruined, but unable to see that the same kind of emotional damage can be inflicted in other ways. When that damage is inflicted intentionally, it probably does fall into the same category as intending to inflict a physical injury, and we do expect the criminal law to address that.
I just think you need to take great care about when and how you extend the criminal law. Even where you do identify some genuine mischief which is criminal in nature, if you find yourself having to make tortuous definitions and exceptions, and exceptions to the exceptions, you have probably not identified the real nature of the mischief you are trying to legislate against.
Harvey [30385. Posted 15-Oct-2014 Wed 11:22] View Near Messages
I understand your points, but I think I`ve made mine as clearly as I can, so I won`t repeat myself.
Obviously, in your case, if the intention was to cause distress, it would be caught by what is being proposed. OTOH, if the law was in place the a person would have to think carefully about what they were making public and they would do so in the knowledge they they would be comitting an offence i.e. their choice, frely made. It would be entirely up to you to decide whether the distress you suffered warranted making a complaint.
As for the CPS, it is their job to prosecute as forcefully as they can where there is evidence. It`s also entirely right that a defendant makes just as forceful a defence and statement of mitigation. It`s the judge who we rely on to act imprtially. Yes, you are right that there have been prosecutions under the DPA. Some have resulted in convictions but there have been acquittals and convictions quashed on appeal, as well, but damaged lives in the process. The big difference with the DPA is that at no stage is the prosecution required to show that the defendant caused or intended to cause any harm at all.
Good grief! The government tying itself in knots, struggling to define what is and isn`t a sexual image.
If an image is private, nobody should have the right to publish it without consent. If it`s published with the intent of causing harm, either that`s a crime (as I believe) or it isn`t. It shouldn`t depend on whether the image meets some cooked up definition as to whether it is sexual or not, ffs!
Some time ago there was a tragic accident where children were killed and some of the press obtained and published private photographs of the children involved. That caused distress, and as private photos, the press had no right to do what they did, yet this isn`t the right kind of distress, apparently.
Why are governments totally obsessed by sex?
Harvey [30381. Posted 14-Oct-2014 Tue 04:23] View Near Messages
"we shouldn`t make invoking emotion illegal just because emotion can lead some people to do stupid things."
But that`s not what`s being proposed.
I`m nowhere near to suggesting that "invoking emotion" should be made a criminal offence. I`m looking only at criminalizing an act carried out with the intention of causing harm.
"What would you tell the parents of a girl who killed herself after her boyfriend broke up with her calling her fat.... "
It would depend crucially on what the boyfriend inteded. For example, if he knew that his girlfriend was clinically depressed because she thought she was fat, then he`d be aware that the comment would actually be harmful, rather than merely insulting. If that was the case, I`d tell the parents that the boyfriend bore some of the responsibility for their daughter`s death. I`d be interested to know what the coroner said at the inquest.
The penalties range from a fine to a maximum 2 yrs and bearng in mind the offence would have to cover cases where many images were published over a period of months or years, you`d probably be looking at a fine for a single incident of posting something private on your Facebook page.
Would the incident where your pictures were posted online be covered by the proposed offence?
What was the nature of the "distress" you suffered? Could you prove to a court that you had suffered "distress"?
My suggestion is that the offence should only made out where the posting is malicious, i.e. inteded to cause harm. Was that the case when it happened to you or was the intention just to `hurt` your feelings?
Harvey [30377. Posted 13-Oct-2014 Mon 15:02] View Near Messages
I`m not being sarcastic.
Yes, there is a difference between arson or an acid attack and hurt feelings. But there is also a difference between the publication of private images on your Facebook page and calling someone fat or stupid.
The latter may cause hurt feelings, the former is intended to cause harm.
You clearly don`t see a difference.
Otherwise you wouldn`t suggest that the civil courts can deal with emotional harm, while only physical harm should require criminal prosecution.
Quite apart from that, we have a basic right to privacy and a private life and while I don`t suggest that all breaches of privacy are criminal acts, those that are malicious (i.e. intend to cause harm) really should be.
How would you like to advise the parents of a teenager who killed himself when what he thought were private images of himself were posted on a social media site? Should he have saved up all the money from his Saturday job and sued? Or maybe just pulled himself together and got over it?
Harvey [30375. Posted 13-Oct-2014 Mon 13:41] View Near Messages
Blackmail and manslaughter?
What about assault?
I suppose if someone throws acid in the face of an ex-lover, or sets fire to their house (both examples of actual cases) we do have laws to prosecute it. Posting a private letter, or a photo with the intention causing harm, though?
But of course it`s only emotional harm - just feelings and no big deal then? Because it`s not the same as physical harm it shouldn`t be an offence?
Harvey [30372. Posted 13-Oct-2014 Mon 11:24] View Near Messages
"You`ve just undermined the entire civil court system"
No. I`ve just pointed out that in the civil court the onry redress is by monetarizing "damage" and extracting payment. There are situations where it`s a suitable means of settlement, but civil litigation isn`t the solution to every kind of damage.
If it was just about hurting people`s feelings, I`d say the law should stand well aside. But "revenge porn" (or making other private things public) can go way beyond simply hurting someone`s feelings.
One person trying to harm another is EXACTLY the kind of thing which the criminal law is designed to confront. You may think that as it`s emotional rather than physical harm, creating a criminal offence is being "overzealous", but I disagree. The intention is to harm, as you have said, and for some people, the "distress" can lead them to take their own lives.
Harvey [30370. Posted 13-Oct-2014 Mon 07:39] View Near Messages
It`s not really a problem of access to civil courts. The state could (if it had enough money) provide legal aid for litigants, but what about the costs of the loser? What if a respondent hasn`t got any money? There is nothing to be gained by taking them to court, even if you win damages.
In suggesting a criminal offence, I would put the bar fairly high, only catching that which was malicious, that is; done with intent to cause harm. I wouldn`t restrict it to pornographic images, as just as much harm can be done if other personal, private images or information, such as a private diary, are published.
"So if today they have photos of some backbencher shagging a goat..." they are committing an offence. DPA
I have to ask;
1/ Why only sexual images? If the test is whether it causes distress, can`t other private images be as bad, if published?
2/ Why the need to show distress was caused? Surely if the intention was to cause distress, than the act of publishing is just as wrong?
3/ Why 2(c)? Surely if distress is caused when an image is published, further distress could caused by its re-publication. If the (re-)publisher reasonably believes that no distress would be caused by re-publication, he can rely on 2(b) and be found not guilty.
2(c) looks like it`s only there to allow the press, broadcasters, etc, to (re-)publish images from social media, etc EVEN IF they reasonably believe it will cause distress.
I would rewrite (1):
(1) It shall be an offence for a person to publish a private image of another identifiable person without their consent with the intention of causing distress to the person who is the subject of the image.
scratch the proposed 2(b) and 2(c) and replace them with:
2(b) can show an overriding public interest that the image be published.
Harvey [30363. Posted 10-Oct-2014 Fri 06:37] View Near Messages
Re Avenging Revenge
CPS is just suggesting that so called revenge porn could be prosecuted with existing laws on the sending of malicious/offensive communications rather than either needing any new law or resorting to using or revamping the OPA. Quite apart from which, an image which is merely indecent wouldn`t fall within the scope of the OPA.
I think the point is that the CPS are saying that by using the Communications Act, it is the message which is the relevant factor and that the act of publishing a picture of a former partner can be threatening, humiliating and menacing to that person, whether or not the image itself would be construed as indecent or obscene.
I`m not so sure that the CPS is on the right track, though. The aim of the Communications Act is to protect people from receiving threatening or menacing letters, emails, etc. The point of revenge porn is that publishing an image without permission of the subject of that image, harms the subject of the image, rather than the recipient(s) of the message.
But.. we shouldn`t be looking at yet another new law based on whether an image is pornographic or not. For me, "revenge porn" is just a special case of breach of privacy. It happens to feature images which may be pornographic, but the harm done is in the making public of something which is personal and private, with intent to threaten or humiliate. At the moment all we can do is make a civil claim for damages, but that`s really only an option for those of us who are wealthy enough to go to court. We really need a new criminal offence to prosecute the malicious publication of private information/data/images.
Harvey [30273. Posted 3-Aug-2014 Sun 13:23] View Near Messages
~The prosecutors ought to be ashamed of themselves.~
They have no shame. It`s simply about the number of successful prosecutions they can rack up. They are aided considerably if a lack of legal representation means defendants just crumple under the pressure and plead guilty.
I don`t really care about the motives of the politicians. What I care about is the damage they create alomg the way.
Harvey [30271. Posted 3-Aug-2014 Sun 08:22] View Near Messages
"They were very insistent on this."
So what? Virtually all the politicians who were involved in getting the DPA onto the books are now merely footnotes in history.
Whatever was said - the claims, the assurances, the impact assessments - are all utterly meaningless. The ONLY thing that matters is the law as enacted and the way it`s interpreted by the courts.
On the other had you seem to have forgotten the considerable debate over the EXACT wording of section 63 and the struggle to restrict its application. I can`t think of another reason why you would say; "Now we both understand that bestiality is deemed illegal under the DPA."
Remember that to be an "extreme pornographic image" it must satisfy several subjective tests.
First, it must be "pornographic". i.e. "of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal."
Next, it must be "extreme" in that it is "grossly offensive, disgusting or otherwise of an obscene character" AND "portrays, in an explicit and realistic way... a person performing an act of intercourse or oral sex with an animal"
Of course prosecutors will say that the images in question passed all of these tests, but would a jury agree? Pleading guilty means a jury never has the chance to consider any of these tests OR the specific defence in the DPA where images are sent to a person without prior request. Of course the law says they must not be kept for an unreasonable time, but I think there would be a decent case to make that these defendants hadn`t kept them. "Keeping" something has to be an act of commission rather than (as the prosecution would prefer) an act of ommission. It seems they were stored on their phones completely automatically by the Whatsapp application. Could the prosecution show that the defendants had "kept" these images? Also there is case law in respect of images in that to be possessed, they must be under the control of the defendant. Again was this the case here? The prosecution has to show that it was.
At the very least these defendants should have had access to competent legal advice and they probably should have asked the proecution to actually prove all the relevant facts, by pleading NG.
Harvey [30269. Posted 2-Aug-2014 Sat 21:23] View Near Messages
There is a defence to the s.63 offence in a case where a person is sent an image without requesting it.
BUT... for that defence to apply, the person must not keep the image for an unreasonable time.
These poor saps didn`t even realise that it is an offence to possess the images they`d been sent. One said he had deleted them from the phone app which had been used to send them to him, but didn`t realise they`d been stored elsewhere on the same phone.
This is exactly the kind of situation we predicted would happen once the new offence got established. People who have no interest in "extreme porn" being hoovered up when their computers (or in this case, phones) are examined for completely unrelated reasons.
Most worryingly, neither defendant was represented at trial. Had they had any competent legal advice before meekly pleading guilty? They may think that by doing so and recieving a conditional discharge, they have been dealt with leniently, but that conviction will resurface in the future and thzey will be flagged up as sexual deviants, long after the circumstances and the sentence have been forgotten.
Whatever those files were, if they are being circulated to the unsuspecting by apps on smartphones, these will not be the only two people to have recieved them and they won`t be the only files in circulation, either.
http://courtnewsuk.co.uk reports the case also:
"TICEHURST: FRIENDS CAUGHT WITH EXTREME ANIMAL PORN
CANVEY ISLAND; ROMFORD Two friends who kept `truly disgusting` sex videos involving horses, dogs and pigs on their mobile phones escaped punishment today (FRI). Gary Ticehurst, 28, and Mark Kelly, 25, were caught with the extreme pornography after being stopped by police at Fenchurch Street Station in central London. They included a man pumping air into his disfigured genitals, a man having sex with an amputee and a woman having sex with a horse. Prosecutor Thomas Coke-Smyth told the Old Bailey: `There is no evidence to suggest the defendants were in any way involved in distributing these images."
I suppose despite this being reported in the DM, Liz Longhurst was unavailable for comment.
Harvey [30244. Posted 26-Jul-2014 Sat 13:02] View Near Messages
I would pretty much agree with where you draw the line as to what should and shouldn`t be restricted speech.
If we can wrap slander/libel inside the general guise of defamation then there`s a justification for restricting such speech. So no real problem with civil actions for damages. The problem with defamation law as it stands is that the sheer cost of defending oneself against an action for defamation can (still) be seen as a covert mechanism for censorship for people who are wealthy enough to use the law. I would actually favour the creation of a criminal offence where defamation is wilful or malicious so that the state takes responsibility of prosecuting cases.
I`m not so sure that a merely possessing a photograph of anything should be prohibited, but I would agree that creating, distributing or publishing pornographic (rather than simply indecent) images of children should be a criminal offence.
The Public Order Act has already been amended to allow the use of insulting, rather than threatening words.
Harvey [30236. Posted 26-Jul-2014 Sat 01:30] View Near Messages
phantom, MF Dave,
I think part of the problem is using the term "free speech" as if there is a universal, unqualified right to say or publish and that any restriction is a denial of that right.
Unless you belive there should be an unqualifed right to free expression, where do you draw the line between what is a violation and what is legitimate restriction?
It`s fairly obvious that the maintream media in the UK will draw the line broadly where UK law does, so you will see China, etc reported critically when their citizens are denied the right to say or publish something which would be legal in the UK.
So it`s not so much that they exhibit double standards in their reporting as much as that they use the wrong standard (the letter of the UK law) to define what is and isn`t a "violation of the right to free speech".
Then of course we have the Daily Mail...
Harvey [30231. Posted 25-Jul-2014 Fri 02:08] View Near Messages
"The charges were later dropped"
Well, there weren`t any charges to drop. Weston was informed that the police weren`t taking any further action regarding his failing to comply with a dispersal order under "Labour`s blasphemy law". That might be because of the freedom of expression clause containined in the 2006 Act, but that would be the Racial and Religious Hated Act 2006? It`s much more likely because the police didn`t exectute the section 27 dispersal order properly - it should be given in writing and that it wasn`t relevant to Weston`s behaviour. The s.27 order is provision of the Violent Crime and Disorder Act 2006 and gives police the powers of dispersal to deal with alcohol related crime or disorder. i.e. nothing to to with preaching racial or religious hatred even if that is what Weston was thought to be doing.
He says he was instead de-arrested and then re-arrested at the police station on suspicion of having committed a racially aggravated offence under section 4 of the Public Order Act.
The Public Order Act 1986 is a Tory law. Sections 4, 4A and 5 being the `go to` offences for any behaviour in public which the police feel like putting a stop to. http://www.legislation.gov.uk/ukpga/1986/64/section/4
If Weston`s account is correct, he was NOT arrested or re-arrested on suspicion of racial or religious harrasment, which is what the DM article claims. It`s true that anyone convicted of a s.4 offence which is motivated by racial or religious hatred stands to be given a more severe sentence, but the s.4 offence is Tory legislation. In the Tory law, you can be convicted for using "threatening, abusive or insulting words or behaviour". There is no exception providing for free expression, but that`s Tory laws for you.
The Racial and Religious Hatred Act 2006 intoduced new offences of stiring up racial and religious hatred by amending the Public Order Act. If that was what Weston was being accused of he`d be charged with an offence under s.18. If he had been, you could justifiably claim that this was a use of Labour`s blasphemy law, but he wasn`t, so you can`t. However much the Daily Mail, and hangers-on would like to think it so. The DM article is so misrepresentative of the actiual facts of the case, you`d have to think the misrepresentation was deliberate, rather than just ignorance.
A better summary of the facts of this incident are:
1) Police misuse and then misapply the powers of a section 27 dispersal order.
2) Police arrest and detain a person for not complying with the order.
3) Police realise their mistake and use the catch-all provisions of s.4 of the Public Order Act to justify arresting said person.
All very nasty, especially when said person is a candidate in an election, but absolutely nothing to do with the Racial and Religious Hatred Act 2006, however hard the DM tries to shoe-horn it into the story.
Harvey [30221. Posted 23-Jul-2014 Wed 08:29] View Near Messages
The public announcement regarding Operation Notarise (660 paedos arrested) did have an interesting timing, though I wouldn`t read too much into that.
I would advise reading the NCA`s press release rather than the interpretaions of it which a lot of the press have made. http://www.nationalcrimeagency.gov.uk/news/news-listings/411-uk-wide-operation-snares-660-suspected-paedophiles Some points to make.
The announcement that 400+ children have been "safeguarded" almost certainly means that the the suspects with children living at home have been required to live away from their own homes while on bail. The insinuation is that the children involved have been taken into care as a result of suspected abuse. It was the same when Ore burst on the scene. Similar claims of links between consumers of images and abuse of children, but no actual evidence.
The operation was almost certainly a centrally co-ordinated monitoring of target files on peer to peer networks. Nothing terribly hi-tech about it. Just quite a reseouce heavy process as software would be required to hoover up accesses to files of interest and the mass of IP addrersses traced to narrow down the UK ISPs and through them trace individuals. the result will have been a list of names which will have beed disseminated to each local police force to go and investigate the couple of dozen names on their patch. From there, pretty simmilar to the Ore routine, the early morning raid, search, siezure of computers an interview and then a long, long wait on bail while computers are analysed.
My guess is that "the list" will turn up a sizeable number of suspects who are found to be in possession of incdecent images. It will also throw up many false positives, where no indencent images are found, because montoring peer to peer sites and tracing people through IP addresses is not an exact science.
Harvey [30203. Posted 8-Jul-2014 Tue 09:33] View Near Messages
"Not sure I quite follow. Could you elaborate?"
The mischief - the harm, if you like, is that a person`s private data has been published without their permission, causing them distress and potentially worse. Unless it falls within the scope of the DPA - That`s the Data Protection Act :) which is unlikely if this is data controlled by a private individual, the only thing to do would be to take out a civil claim for damages against whoever published it. Again if this is a private individual with no powers to get a search warrant etc, it would be very hard to get proof.
So, I`m rather in favour of a criminal offence of misusing private data. But the offence should be just that and include all private data, including private medical and financial information, not just data which comprises a pornographic image.
Broadened out, you could see the press enthusiasm for such a law evaporate like morning dew.
Harvey [30198. Posted 7-Jul-2014 Mon 05:46] View Near Messages
"So as such there would already be a legal angle from which to prosecute those who do this."
Problem is that the "legal angle" would be a civil action in respect of privacy.
The police would not get involved unless there was evidence of a crime being committed, so it would even be doubtful whether a private individual could determine who had posted the images, so know who to take action against.
It`s being suggested a new law could deal with `revenge porn`, but really it should deal with malicious use of private data. If we see a Bill which uses definitions of `pornographic` and `image`, it will be heading in completely the wrong direction, IMO.
Thing is: if it`s a law which makes malicious or unjustified use of private data a crime, the Mirror/Mail/Sun and co. would scream blue murder that the press was being gagged. It would be entertaining to see them object to what would by then be described as a `revenge porn` law, though ;-)
Harvey [30023. Posted 16-Apr-2014 Wed 18:26] View Near Messages
"A bizarre occurrence of censorship"
Are you sure it`s a censorship issue? It could be a question of copyright.
Whatever it is, I can confirm that the YouTube version which is not available in the UK, is available in Germany though. Could be different interpretations of `fair use` apply? Would be interesting to know what Salkeld says.
Harvey [30018. Posted 14-Apr-2014 Mon 16:32] View Near Messages
"How will we know whether it ever worked or not?"
Not relevant. By the time a judgement can be made (on whatever theoretical basis) Cameron will not have a hand on the tiller.
"Or are you merely intending to hail it a success, no matter what?"
The `success` is getting the law change he wants and the Daily Mail leader column he needs. That is what he will be able to crow about.
You see, I watched `Yes, Prime Minister` too. So I do know how this works.
Defining a target or outcome by which the success or failure of their policy can be judged! Ye gods, man, you`ll be expecting them to keep their election promises next. What kind of crazy world do you live in?
Harvey [30016. Posted 14-Apr-2014 Mon 09:35] View Near Messages
MF Dave 
The same argument has been made for some time now; that if there was a causal link between the availability of porn and the rate of sexual and/or violent crime, the data would show it by now.
There still remains the argument that by being available to children, porn has the capacity to change their sexual attitudes in ways that needn`t result in crimes being committed, but are nevertheless detrimental to children`s development. Broadly along the same line of argument which says that u18s should not be allowed to purchase alcohol or tobacco.
So while, I have no hesitation in saying that the claim that porn causes rape is baseless, I remain to be convinced that the availability of porn to children is not a problem requiring a solution.
Harvey [30003. Posted 31-Mar-2014 Mon 16:55] View Near Messages
I wasn`t pulling you up. Just expanding on your point about the circular argument - The only way we can protect our rights is by throwing them away when necessary or when they apply to people who are not one of "us".
I know Raab is actually a very clever lawyer - which is why I`m not prepared to forgive him his amendment. He knows very well that the HRA doesn`t prevent the UK from deporting people on the grounds of article 8.
He`s very welcome to join the human race at any time. Doesn`t mean he has to agree with my views, just that he should be honest when promoting his own.
Harvey [30001. Posted 31-Mar-2014 Mon 03:42] View Near Messages
OK, I`ll bite.
You ask; "How many criminals have gone on to offend again after they served their time for one offense?" and of course the answer is that a significant number of criminals re-offend after serving their sentence. And though they are overwhelmingly not murderers or rapists, they are also overwhelmingly not foreign nationals, either. The truth is, there are plenty of home grown criminals which our CJ system fails to protect "us" from. Of course it`s a nice distraction to point to "foreigners" as though if they were all removed, everything in the CJ world would be sweetness and light and further to point to the HRA and Article 8 in particular as the reason for the dangerous foreigners being able to "live among us".
So... Cite the cases where; A) the authorities tried and failed to deport someone because of the application of Article 8 and B) that person went on to commit a violent, sexual or other serious offence.
If it has happened - many times - it shouldn`t be difficult to produce a list.
"Largely this deportation malarky seems to be a circular argument, wailing at the moon about `what if they rape again???`
But really the issue just seem to circulate around the two individuals, Abu Hamza and Abu Qatada, and not this or that unknown foreign national."
Circular or not, it`s a dishonest argument.
Abu Hamza did take his case (one of extradition to the USA, not deportation) to the ECtHR and the extradition was delayed until the court was satisfied he would not be tortured or subjected to inhumane treatment (Article 3, not Article 8) But he was extradited. If the UK stood by its stated opposition to torture and inhumane treatment it would have sought assurances from the USA itself, rather than having to be forced to by the ECtHR.
Abu Qatada`s case was about deportation, as that was the legal process, though he was wanted to stand trial in Jordan. Again he took his case to the ECtHR and again his deportation was delayed until the UK government got the assurances from Jordan that he wouldn`t be tried using evidence obtained by torture (Article 6). He was deported once the UK had done what it should have done originally rather than simply ship someone off to an unknown fate while paying lip service to the "highest standards/beacon of fairness/defender of freedom" precipice it so tenuously clings to.
Even if there was a good argument, supported by actual cases, that adhering to Article 8 has resulted in dangerous foreign criminals being able to "live among us", we should still be ultra wary of the calls for tampering with Article 8, because we are all very familiar with the process - Create a precedent, then discover the "loopholes`.
So, first the UK would write it`s own law, amending the HRA and requiring the UK courts not to consider Article 8 in respect of deportation cases. I wager it would not be long after freeworld had finished dancing in the street before the first loophole would be recognised, a conflict with the ECHR cited and the UK would derrogate further, extend the non-application of the HRA beyond deportation to all kinds of other legal processes and eventually leave the ECHR entirely.
Yes, it`s annoying for Home Secretaries not to be able to deport just whoever they want, whenever they want and for whatever reason they want, by having to comply with the ECHR. Sometimes the individuals they want to deport are those which most people would agree shouldn`t be allowed to remain in the UK. But the fact is, in those cases where there is a good reason to deport someone, the ECHR is no bar to doing so.
Dominic Raab MP has been vocal on the evils of Article 8 and it was his amendment which sought to remove any Article 8 considerations from deportation cases.
He argues as though the UK is continually being thwarted in the deportation of dangerous foreigners because of Article 8, but the only case he ever cites is that of Akinshipe, a Nigerian convicted of the rape of a 13 year old.
So some facts about the Akinshipe case.
Firstly, Akinshipe`s deportation wasn`t blocked as a result of article 8 being considered in the UK. He lost his appeals to the UK tribunals and took his case to Strasbourg, where he won. So it isn`t even an example of the UK courts being hamstrung by the HRA that Raab suggests. Raab should at least be honest and say that because he thinks the ECtHR shouldn`t be able to block deportations, the UK should leave the ECHR.
Secondly, though it was the case that Akinshipe was convicted of raping a 13yr old, he was 15yrs old himself and therefore a juvenile at the time (and a child himself, in the eyes of the law). By all accounts (and the case he put to the court in Strasbourg wasn`t challenged in this regard) he has rehabilitated, has the support of his mother and sisters who live in the UK, he has gone to college, obtained A-levels, studied for a degree with the intention of getting a good job and has committed no other crime since he was released. Yet he is painted as a predatory paedo, rapist and a danger to the public.
You only have to Google to find numerous cases where despite appealing on the grounds of Article 8, foreign nationals have been deported, so it`s nothing resembling the block to deportation that Raab claims. The right to a family life is certainly not an unqualified one, but the government has to show that to deprive someone of that right is necessary and proportionate in the circumstances. Strasbourg ruled that in Akinshipe`s case, all the facts suggested that deporting him was neither necessary, given his rehabilitation, nor proportionate, given his family ties to the UK where he has been since the age of 13 and lack of any such close ties to Nigeria.
Having looked at the facts, I tend to agree with the Strasbourg court. Surely if a young offender can be rehabilitated, it`s something to be pleased about and to be encouraged, rather than rewarded with a deportation order and removal to another country? Raab would disagree. He would say that in order to satisfy the xenophobic tendency, the only facts that matter are that Akinshipe is foreign and has committed a offence, that no regard should be given to anything else. It`s having to actually make the case that deportation is necessary and proportionate which Raab finds so disgusting and unacceptable.
Harvey [29995. Posted 25-Mar-2014 Tue 07:56] View Near Messages
"legislation designed to supposedly protect against persecution being invoked successfully to allow very dangerous criminals to live among us"
The effect of Article 8 is constantly represented in this way by its opponents. Those opponents would prefer there were no human rights considerations at all.
The fact is; violent crimes are committed by UK citizens as well as foreign nationals, so you have to ask why those UK citizens are deemed "safe to live among us" once they`ve served their sentence, and it`s only the foreign nationals who are dangerous and need to be deported.*
Another fact is; it`s not just foreign nationals convicted of violent or sexual offences who are liable to be deported. The authorities use deportation or the threat of deportation as an additional non-judicial form of punishment and clearly the interpolation of rights such as Article 8 annoy them intensely when it means they can`t always deport who they like, whenever they like, for whatever reason they like.
The argument against Article 8 is routinely presented as one of public safety. If you took the time to look into individual cases, you`d find it hardly ever is.
[* Not for much longer - Schemes to give the Secretary of State the power to rescind the UK citizenship of those born outside the UK are just around the corner. Human rights or no human rights.]
Harvey [29969. Posted 14-Mar-2014 Fri 05:22] View Near Messages
"Three teachers have been arrested on suspicious of possessing extreme pornographic material at two Birmingham schools.
The men, aged 32, 36, and 37, were arrested at addresses in Birmingham and Wolverhampton following an investigation that began in April last year."
No suggestion that this involves images of children.
Arrested in March 2014 following an investigation which began in April 2013 - which makes these arrests puzzling. Are the police really undertaking year long investigations into the possession of "extreme" porn? Or was this an investigation into something else entirely and the police have made the arrests to somehow justify spending all that time chasing whatever it was?
I hope they are getting decent legal advice.
Harvey [29929. Posted 27-Feb-2014 Thu 19:09] View Near Messages
"And does anyone believe the organized, vicious, genuinely abusive practices towards the vulnerable will be addressed at all by criminalizing all sex purchasers with a fine, and subsequently a line in the local free paper? "
That hasn`t been the case in Sweden. Groups who try to monitor the health and welfare of sex workers there (well Göteborg was the city I saw studied) say that women sex workers have been pushed into even more vulnerable situations. Punters demanding sex w/o a condom, operating on street rather than in hotels or flats.
The reason the Nordic model can be deemed a success in Sweden is that the headline numbers of sex workers and even more pronounced, the number of foreign sex workers has apparently reduced. But of course simply reducing numbers wasn`t the intended objective. It was reducing exploitation, and providing pathways out of prostitution. On those criteria, not a great success.
I think Honeyball recognises this, which is why the legalisation model isn`t dismissed out of hand and while being recommended the Nordic model comes not just as a Swede style law, but with a whole host of other bolt-on requirements.
Harvey [29928. Posted 27-Feb-2014 Thu 18:49] View Near Messages
"I`m sorry Braintree, but I cannot concur."
Whether you concur or not, is neither here nor there, phantom.
braintree votes `not guilty`.
Harvey [29919. Posted 27-Feb-2014 Thu 01:33] View Near Messages
As campaigners go, Honeyball seems to be low on the strident moralising scale. I can actually agree with quite a lot of her report. I don`t think it`s clear cut that the Nordic model is a success, though - it depends how you measure "success" - but to be fair while the report says this is their preferred approach it`s not hectoring towards those who have followed a different route. The main aims seem to be reducing vulnerable women`s reliance on prostitution, their exploitation, their physical and psychological health and providing routes out of the profession. The really tough stance is on criminalising the exploitation of young women, under 21yrs.
Just my own take on it, but seems to me the buzzword is "trafficking".
Whatever the disagreements on crminalising the transaction, everyone seems to see trafficking as the big problem, so if there is any EU-wide action it will probably be addressing that.
Typical story in the German news of measures taken in Saarland on the border with France. A big new brothel is planned to open in Saarbrueken to coincide with the imposition of the new French law. Understandably the state government is fearful of what will happen. They have reacted by bringing in new zoning rules for street prostitution and the introduction of a regulation making the use of condoms mandatory for paid for sex, following the local law in Bavaria. Not the slightest suggestion that they will follow France down the path of criminalization. But clearly with such a patchwork of different national laws, trafficking, or workers simply relocating to the new hotspots will cause problems.
http://www.spiegel.de/panorama/gesellschaft/prostitution-saarland-verbietet-kaeuflichen-sex-ohne-kondom-a-955655.html (In German)
Compare and contrast with the Mail`s coverage of the same story.
Harvey [29916. Posted 26-Feb-2014 Wed 19:40] View Near Messages
"To my mind, if you make an accusation, you better have an argument."
I agree with that. Which is why it makes me angry that so many cases (way more in number than the few which result in a retrial) are dismissed out of hand. With either the prosecution offering no evidence or the judge ordering there is no case to answer.
Where we differ is on the terms of who gets to decide whether there is an argument or not. You say just 1 juror can veto the verdict of the other 11.
To be fair to you, you don`t claim this would represent justice, but because the CPS has the audacity to make accusations you think they should have no right to be making.
Again, I agree regarding the CPS, but whereas I would put a judicial check valve of an evidence test into the process *before* anyone could even be *charged*, you would throw the random rogue juror into the mix. Not because you know that 1 juror will come to the right decision when the 11 others are wrong, but just because it would make the process of getting someone convicted more difficult.
Why not just roll dice?
"K for Kalumniator"
Cool! But have you thought this through?
Before he could be branded, the wicked accuser has to be found guilty of making an accusation in bad faith. And would it not be the case in Phantomworld that just one of the jurors in his trial could cast the vote which would secure his acquittal?
Harvey [29912. Posted 26-Feb-2014 Wed 16:58] View Near Messages
"That`s if a retrial would convict."
No. Simply if occasionally, a retrial might convict. A point which you later concede, yourself.
"But essentially the CPS has failed to make a case. Whatever the perspective, it cannot be argued any other way."
Of course it can. The defendant has failed to convince the jury that there is reasonable doubt.
"Was every jury corrupt up to the 1960s? As in, what actually was the urgent reason for this change?"
No. But you could equally see the change in 1970, to allow majority verdicts, as making it easier for a *defendant* to be *acquitted* on a majority verdict as opposed to requiring a majority. It`s a change which makes it easier to get either result, not just a guilty one. I think the need for the change was not to tilt the balance one way or the other but to reduce the necessity for retrials. Personally I would prefer to have retained majority verdicts, but I`d have to accept the consequence, which would be of more people such as Travis having to endure a second trial.
It`s when you adopt the plan you suggests where it takes 12 votes out of 12 to convict, but only 1 vote out of 12 to acquit, that you`d have fundamentally unjust system. Juries would no longer have to agree and the abilty of any one of the 12 to have the power of acquittal would change the nature of trials.
There`s nothing wrong with the principle of a jury trail and the requirement for a jury to be sure of guilt beyond reasonable doubt before convicting a defendant.
Harvey [29909. Posted 26-Feb-2014 Wed 16:17] View Near Messages
Lots of words here: http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A7-2014-0071&language=EN&mode=XML
Behind the headlines, what was voted on and approved was a clutch of statements, requests and opinions. It by no means obliges anyone to create domestic legislation. Neither is it the basis for any new EU laws.
It probably aids people in those countries like the UK, where attitudes to prostitution are such that there would be some support for a so-called Nordic model. Countries like Germany and the Netherlands will be able to point to other aspects of the report and go their separate way. It`s a significant turn of the screw but of the machine which will eventually have two separate and competing models of prostitution, both of which the report acknowledges, though it clearly favours one.
Harvey [29906. Posted 26-Feb-2014 Wed 10:31] View Near Messages
There are two separate, but connected issues here.
Firstly, the basis on which a jury reaches a verdict. I`m quite happy to accept that there should be a unanimous verdict rather than at best a 10-2 majority. But requiring 12 people to agree rather than just 10 of them, as is currently the case, would mean it would be MORE DIFICULT to prove guilt.
Secondly, the consequence of having a "hung" jury - one unable to come to a unanimous verdict, or a 10-2 majority verdict. If the defendant was to be acquitted, rather than have a retrial, as is now the case, it would be MORE DIFFICULT to prove guilt.
There is no symantic inversion, as you put it. What was done previously to make it less difficult, doesn`t change the fact that both your suggestions taken either separately, or together would make it more difficult.
I`m glad you see the point that the consequence of your suggestion would be to hand each juror the individual power to acquit a defendant, something which now takes at least 10 jurors (and if it`s unanimity you want, 12) to agree on.
Perhaps you are hopeful that every juror would always use their new found power for good?
I`m pretty much in agreement with you regarding the arbitrary and only vaguely accountable decision making by the CPS. My suggestion of introducing a barrier to their unfettered right to request a retrial wouldn`t deal with the bigger problem which is their unfettered right to decide who and when and on what basis to prosecute anybody they like.
The problem isn`t the small minority of cases where a jury is "hung" but with the much larger number of no hope cases which the CPS proceeds with. I get particularly angry when they decide to prosecute but then at the day of the trial, offer no evidence or judges throwing cases out of court because their evidence is so thin or their understanding of the law so hopeless.
To fix that problem, I would introduce a judicial process to determine whether there was a prima facie prosecution case *before* any charges were made. I think if that had been done in some of the cases you describe, they would never have proceeded at all.
Harvey [29904. Posted 26-Feb-2014 Wed 07:24] View Near Messages
In the trial of Vincent Tabak of the murder of Joanna Yeates, the jury could only decide on a majority verdict and found him guilty by 10-2.
Now... you could argue that he should not have been found guilty except by a unanimous verdict. There are pros and cons, but let`s accept that Tabak should not have been found guilty in that trial. We`d still have to decide what to do in such a "hung" situation.
Under the present rules the prosecution have the option to ask for a retrial. Under your suggested rules, the defendant would be acquitted.
You say that would be a good thing, but the situation you would have created would be one where just one juror has the absolute power of acquittal in his hands. I`m saying you can`t ignore the effect that would have on the perception of, and trust in, the CJ system.
I agree with what you say about the principle of `innocent unless and until proven guilty`. I don`t think you uphold that principle simply by making it more difficult to prove guilt.
What I do think is that it would be useful if the CPS knew how badly hung the jury was. At the moment I think the trial judge might be told by the jury themselves, when they report that they cannot agree even on the basis of a 10-2 majority, but he`s not allowed to disclose whether they are at 9-3 one way, 9-3 the other, or anywhere in between. The CPS knowing "the score" may influence their choice in not prolonging a process where there was no realistic prospect of achieving a conviction.
You might even choose to establish this on a statutory basis by saying that the option of a retrial should only apply if the jury in the first trial had an unqualified majority in favour of conviction. The danger would be in making "the score" public, as you would be moving away from the sacred principle of guilty vs innocent and establishing the basis for how guilty or innocent someone was.
Harvey [29902. Posted 26-Feb-2014 Wed 02:14] View Near Messages
"Well, I don`t agree that removing the unanimity was ever a good idea."
There are arguments both ways and of course it is not automatically the case that a majority verdict will be accepted.
"unanimity on guilt clearly got in the way of the `greater priority`"
But it cuts both ways. Prior to 1974 it was also required that there was unanimity to find a defendant not guilty.
"a `can`t agree` should be a not guilty by default"
I don`t think I`m being too literal. The benefit of requiring unanimity or at the very least a qualified majority to come to *either* a guilty *or* a not guilty verdict is that the case is decided positively and that`s greatly to the benefit of a defendant who is acquitted. He can point to the fact that he has been found definitively "not guilty", rather than merely not being found guilty.
It might seem superficially attractive to say; "unless the jury can agree you are guilty, you`re free to go", but I suspect it would just lead to even more people distrusting the system of justice and considering anyone acquitted as being "probably guilty", rather than definitively "not guilty". It would not really help someone in Travis` position to be acquitted, when the press and public could point to the fact that 11 out of 12 jurors could have thought him guilty and he only "got off" because 1 juror couldn`t agree, which is what your suggestion would imply. Or would we then have speculation of whether "the score" was 9-3 or 1-11?
"My view remains that retrying Travis is a bitter injustice."
Any injustice occurs because of the CPS`s decision whether to have a retrial, not the inability of the jury to find a definitive verdict. It`s really no different from any injustice which arises from their decision to prosecute in the first place and I think there are questions about whether their decisions are always taken objectively on the basis of evidence or whether they are playing to public opinion. Equally there will be cases where a decision not to prosecute will be seen as unjust from the point of view of the alleged victims, which is exactly the situation we have with Savile where he was investigated but never charged with anything.
If Travis and others are now being prosecuted simply because of the failure to prosecute Savile, it`s certainly unfair on him, but no more or less fair than it is on anyone who is prosecuted simply to satisfy public opinion, rather than the needs for justice.
Harvey [29897. Posted 24-Feb-2014 Mon 23:28] View Near Messages
The allegations against Harman and Hewitt aren`t new, but when they`ve been made in the past they haven`t had the Daily Mail in a full on rant.
Harman found herself obliged to say something, yesterday. All that will do is guarantee her place on the Mail`s front page for a few more days.
Harvey [29895. Posted 24-Feb-2014 Mon 21:57] View Near Messages
"Surely the fact that the jury `couldn`t reach a decision` means that they could not find him guilty, which should mean he is innocent by default.
Sadly it seems, that such is not the way English law works anymore these days."
It never has worked that way. The jury must agree on one of two verdicts; guilty or not guilty. Actually, it used to be the case that the jury had to agree unanimously. Nowadays they can agree by a majority of 10-2, if the judge allows it. It has never been the case that a jury`s inability to reach a verdict resulted in an acquittal.
What it is right to say, is that the jury not having reached a verdict, Travis remains innocent of the charges against him. The prosecution need not request a retrial, but in this case, for some reason (Savile) they have decided they must.
"The jury were unable to decide whether he was guilty or not so by default that clarifies there is not enough evidence to prove beyond reasonable doubt that he is guilty so the charges should be dropped."
The jury had to decide by a majority of at least 10-2. So all we can deduce is that at least 3 but not more than 9 jurors thought the evidence proved Travis guilty beyond reasonable doubt. That would leave as many as 9, but not less than 3, who thought there was at least reasonable doubt.
What does your logic say? That if 9 out of 12 jurors are sure he`s guilty, and only 3 are unsure, he should be acquitted?
If so, why accept a majority 10-2 to convict a murderer? After all, 2 jurors could not be sure. Does the doubt in their minds negate the certainty in the minds of the other 10?
Harvey [29882. Posted 17-Feb-2014 Mon 12:34] View Near Messages
In the JessicaPressley case, the key quote is; "ATVOD said that JessicaPressley.com and PleasuringHerself.com both operated from the U.K" Therefore the company involved, JP Media, came under UK jurisdiction.
Is the webite you`re referring to run by a company or individual who is in the UK, or does business in the UK? If so, I an well imagine they would be wary of making hardcore images freely available within the UK even if their servers were outside the UK. A redirect of UK clients` browsers, is one way of doing it. He/they could also provide some kind of adults only subscription.
On the other hand, if the company wasn`t registered or doing business in the UK and the servers were outside the UK as well, it`s hard to see how any court order could be enforced, so bothering about whether folks in the UK could access your site might not be a significant consideration.
Lady Howe`s Bill envisaged that Ofcom could do exactly what ATVOD did in the JP Media case, but on a rather wider remit. It ignores the fact that most of the internet isn`t owned or operated by people or companies within UK jurisdiction, so while Ofcom could spend ages categorizing websites and could complain and cajole, they couldn`t rely on court orders or criminal prosecutions to enforce anything. The best they could do is have some CleanFeed style URL blocking list, but that list would be huge and simply maintaining and deploying it would be a mammoth task.
If you want to view the site, get a proxy connection. Plenty of very reliable very fast VPN proxy connections available which can make the interweb think you are in Houston or San Francisco or Hamburg, or wherever...
Harvey [29880. Posted 16-Feb-2014 Sun 19:56] View Near Messages
"Our law applies to all countries now."
I think you`ll find that where other countries` laws cover publication/distribution, etc they work in the same was UK laws do. So Suadi law could consider an article written and hosted on a server in France to be blasphemy under their laws. If the author visited Saudi, they`d be liable to be prosecuted. German law regarding holocaust denial, similarly.
Libel tourism is a separate issue, really. It`s a consequence of the "no win, no fee" arrangements, which made using UK libel law so attractive to foreigners. In the case you put forward, the complainant would still have to show that they had been defamed in the UK, rather than simply that the article had been published here as a consequence of being available on the internet. Also, damages would probably be limited to the damage caused to to their reputation in the UK.
ATVOD might say that what is available on foreign servers is covered by their remit if it can be viewed in the UK. On the other hand, they have no powers to act outside the UK to prevent that on demand content being available. This is why Lady Howe`s Bill, was so utterly stupid. Apart from being vague as to what constituted "adult content" or how having "filtered" it, children could be prevented from viewing such stuff, there was no suggestion as to how any content could be controlled, worldwide. It was supposing Ofcom would be the enforcer of the availability of "adult content", rather than ATVOD, though.
Harvey [29873. Posted 14-Feb-2014 Fri 11:01] View Near Messages
What does that mean?
Does it mean it is an offence to possess?
To produce? To distribute?
To talk about....?
This is all presupposing we understand what "HARDCORE" means.
Harvey [29836. Posted 27-Jan-2014 Mon 07:09] View Near Messages
Lady Howe is just one member of the House. She doesn`t get to make a new law all on her own.
I agree it`s not democratic to have unelected peers voting on laws. On the other hand it was unelected peers who succeeded in (slightly) watering down the Dangerous Pictures Act by forcing the government to make changes to it.
Harvey [29802. Posted 28-Dec-2013 Sat 18:50] View Near Messages
sergio Re: peddlers of porn 
According to the British Crime Survey http://www.ons.gov.uk/ons/dcp171778_298904.pdf incidents of domestic violence fell from 1.2 million in 1993 to 308,000 in 2011/2. A fall of 74% during the period in which internet porn has grown from a few photos on newsgroups to terabytes of hi-def videos available for streaming on demand.
Harvey [29799. Posted 28-Dec-2013 Sat 04:10] View Near Messages
"Scanning text is a ridiculous way to block websites. It wouldn`t be hard to make a list of 1000 key porn sites and just block those."
Are you assuming that an ISP level filter actually is an honest attempt to protect children from viewing porn?
Because nobody who sits down and thinks about it for 5 minutes believes it can actually work (i.e. protect children). The campaigners have claimed ISP level, opt out filters as a great victory. But they are already working on the next stage of their campaign which will roll out as soon as filtering is shown to be a dismal failure. http://services.parliament.uk/bills/2012-13/onlinesafety.html
Harvey [29765. Posted 30-Nov-2013 Sat 20:33] View Near Messages
You can go quietly mad trying to deconstruct the law.
Not just the DPA, but swathes of what is written leaves room for interpretation. "Likely" and "serious" are words which appear regularly, but so does "reasonable". Unreasonable behaviour, reasonable force - what are these things? Even the basis on which you find guilt - beyond reasonable doubt.
Other words in the DPA, which aren`t further defined in terms of other words, such as "disgusting", "obscene", "offensive" can be questioned too. And at what point does something which is merely offensive become "grossly offensive".
The point is that ultimately it`s not up to the CPS to decide those things, but a jury made up of a cross section of ordinary people using their own everyday understanding of the meaning of the law.
Harvey [29763. Posted 30-Nov-2013 Sat 08:05] View Near Messages
In the CPS guidance, their interpretation of "likely" is that there is a likelihood of serious injury, which is more than just a risk. I would read "likelihood" as meaning "more likely than not".
Another `catch all` is that word; serious. There is no definition of which injuries are serious and which aren`t.
Overriding those definitions in the CPS guidance, is the notion that it will generally not be in the public interest to prosecute a "serious injury" case unless there are aggravating factors, e.g. exploitation of those depicted in the image(s).
But that`s just guidance. It didn`t stop them prosecuting Simon Walsh.
Harvey [29754. Posted 25-Nov-2013 Mon 06:37] View Near Messages
I really don`t have a problem with feminism. As long as there are places where women have fewer rights than men, it`s not a sham to campaign for equality.
McGlynn and co have a particular problem with porn, which has nothing to do with feminism and everything to do with fighting their twin demons of sexual arousal and sexual expression.
Harvey [29751. Posted 24-Nov-2013 Sun 19:02] View Near Messages
"But the feminist academics of this world are not of that capacity."
Harvey [29749. Posted 24-Nov-2013 Sun 16:58] View Near Messages
No, phantom it`s not my argument.
Professor Clare McGlynn of Durham University, an expert in this area of law (6), said:
“The extreme pornography legislation is in urgent need of reform. The current law excludes the vast majority of pornographic images of rape. This is not a simplistic argument about rape pornography causing rape. It is undeniable that the proliferation and tolerance of such images and the messages they convey contributes to a cultural climate where sexual violence is condoned.
- See more at: http://www.endviolenceagainstwomen.org.uk/news/102/call-on-the-pm-to-ban-rape-porn-100-sign-letter
keywords: rape, pornographic, undeniable, cultural climate
I think McGlynn & co reluctantly accept that the "proliferation and tolerance of such images" (and by the way, these are images of *depictions of* rape) hasn`t actually led to an increase in the incidence of sexual violence. Therefore they aren`t suggesting that their proposed change in the law will reduce the incidence of rape or sexual violence. No, the public good they want to achieve is; changing the "cultural climate where sexual violence is condoned".
There are problems with that argument (when the word `undeniable` is used, there usually are)
Is it even established that there is a "cultural climate where sexual violence is condoned"? What I see is a culture where acts of actual sexual violence are condemned on all sides. And rightly so.
So where are the examples of people who condone sexual violence? Even where they exist, are they really representative of our `culture`?
Where they do exist, are the people who condone sexual violence the same people who look at "rape porn"?
If they are, would they cease to condone sexual violence if possession of such images was made an offence?
And finally, even if that is our culture, and even if those people are representative of it, and even if that`s because they look at "rape porn", and even if they would cease to condone sexual violence if the law was changed, it would not actually reduce sexual violence at all. The academics themselves admit that an argument for that simplistic causal relationship can`t be made.
For that reason and for a group which calls itself "End Violence Against Women", it seems an odd choice of campaign.
Harvey [29747. Posted 24-Nov-2013 Sun 12:50] View Near Messages
There may be some backwaters where people still believe that homosexuality and paedophilia are diseases which can be prevented and/or cured.
Images, though are still thought to have amazing and dangerous powers. It`s odd that this is the case for "rape porn", though, because despite the massive growth of available rape porn imagery, the incidence of rape has not increased. In the USA the number of allegations of rape or attempted rape was 109,000 in 1992. After 10 years of exponential internet growth and absent of any law prohibiting the depiction of rape on the internet, by 2002 the number of allegations of rape or attempted rape had fallen to 95,136.
The academics promoting a ban on "rape porn" don`t claim that by watching it you will become a rapist - there is just no evidence to support that notion - but that its existence normalizes the behaviour which it depicts. A society which accepts the visual depiction of rape is one which accepts actual rape - goes the argument.
Harvey [29745. Posted 24-Nov-2013 Sun 05:29] View Near Messages
Of course it`s the exception to the exception for classified works which reveals the real motive behind the DPA.
If you were to cut a section from your classified copy of `Baise Moi`, possession of that would be an offence, if;
"it is of such a nature that it must reasonably be assumed to have been extracted (whether with or without other images) solely or principally for the purpose of sexual arousal."
This provides the answer to your question about what makes an otherwise harmless image harmful. It`s nothing to do with the welfare of the actors, or even its ability to deprave or corrupt others, but what is in the mind of the person who creates it and specifically whether their intention is sexual arousal.
But, we can argue for ever about the absurdity of specific definitions. My view is that once you have crossed the line of criminalising the mere possession of any particular image, it is trivially easy to find another image which represents "a loophole" in the law as it stands.
This year`s "loophole" is depictions of rape, which if it follows the template of the Scottish law, would cover depictions of non-consenual penetrative sex. Once "rape porn" is banned next year, or whenever it is, you can expect the campaign will begin to close the "glaring loophole" in the law by criminalising the possession of depictions of non-penetrative sexual touching (sexual assault). And so it goes, seemingly inexorably.
Harvey [29743. Posted 24-Nov-2013 Sun 00:49] View Near Messages
"His arguments are absurd in the extreme:"
Absurd or not, there will be a change to "close the loophole" in the DPA. We`ll expect the same kind of vocal opposition from special interests that we had to the DPA itself, but when it comes to the vote, little opposition in Parliament. The problem is that while a few people will argue the case for their own particular kink, nobody will argue that the principle - that merely possessing an image of a depiction of an act is equivalent to carrying out the act itself - is flawed.
You will not be going to jail for possessing `Baise Moi`. If it`s a classified work, it will be an excluded image, for the purposes of the DPA.
Harvey [29741. Posted 23-Nov-2013 Sat 16:34] View Near Messages
Don`t think you`ve missed anything. There`s nothing in any Bill currently going through Parliament which would create the offence of possession of (depictions of) rape porn. I can`t see which law the protestors are referring to, or where they have got the date of Jan 2014 from.
Apart from Cameron announcing his intention to do something, all I can find is a briefing paper dated 12th September 2013: www.parliament.uk/briefing-papers/sn05078.pdf That refers to a question asked in the Commons, to which the Government answered that it would introduce legislation when time allows.
That question asked in the House of Commons in September.
Harvey [29734. Posted 20-Nov-2013 Wed 19:43] View Near Messages
Are you a policeman? You are obviously intelligent enough to be one.
So... enlighten us all. What should Labour have done to get rid of extreme pron and pedalos?
As for the Germans, what have they done?
Take as much time as you like...
Harvey [29730. Posted 19-Nov-2013 Tue 21:58] View Near Messages
re: `Google can now magically remove images from the web servers.`
I think this may be of interest.
Contains a whiff of the same hype as the DM/UK Govt, but it does at least explain what Google and Microsoft are up to. Real people have to search the internet looking for content. They make decisions about what is and isn`t child pornography.
The article says if it is identified as CP, the image is removed. Of course it means to say it and the URLs with which it is associated are removed from the search results. The image itself remains accessible to anyone who can find it.
Harvey [29729. Posted 19-Nov-2013 Tue 20:35] View Near Messages
And then it came.
Like a painful, blinding flash of light...
The UK should leave the EU because when we do, all the paedos and terrorists will leave the UK!!!
Fucking obvious, when you think about it. Thanks, ftmsafc.
Harvey [29726. Posted 19-Nov-2013 Tue 09:45] View Near Messages
phantom  If that fall flat prosecute them instead for breech of some `hate crime` for something they said in an email, on a forum, or in a chat room, etc...
I think you`ll find that the civil police are perfectly capable of doing that on their own.
What GCHQ could bring to the table, is the ability to venture beyond emails and chatrooms and into what the press and politicians have called the "dark net".
Harvey [29724. Posted 19-Nov-2013 Tue 01:00] View Near Messages
GCHQ have been involved in domestic and international policing for years. Certainly since the days of ESCHELON and very likely prior to that.
The consequence of the Snowden leaks is that GCHQ look like a proto-Stasi. (Though with capabilities that the Stasi could only dream of) We are told that we need to allow people to spy on us to keep us safe. Anyone who dissents is obviously just standing up for paedophiles and terrorists.
Cameron`s statement satisfies the dual requirements of legitimising GCHQ`s activities while making the government look tough on paedophiles.
Sir James Gamble (oh, no knighthood?) says that what has been announced by Google and Microsoft will make little actual difference to the way images of children are accessed on the internet. He would rather have more action on the policing front. But what he wants are "coordinators and trainers" to support an army of volunteers who would scour the web, searching for nastiness. In support of this idea, he points to how successful groups like Letzgo Hunting have been in making the paedo`s squirm. It`s clear what his intentions are.
John Carr and Jim Gamble interviewed on BBC R4 on Mon 18/11. http://www.bbc.co.uk/programmes/b03hng14 (interview starts at 1:09:50)
Harvey [29721. Posted 18-Nov-2013 Mon 12:19] View Near Messages
`Google can now magically remove images from the web servers.`
That`s not what they actually mean. My guess is that they intend to build a table of hash values for the images which are deemed to be "images of child abuse`. Then if the same image file turns up in a search elsewhere it can easily be flagged up.
It is conceivable that some search results could be considered to point to images of child abuse, simply from their context or from text contained on the site/webpage. But creating a hash value for a particular image file would require that file to be downloaded. Downloading images of child abuse is, of course, illegal in the UK and many other places. In UK law there is a defence for such "making" of images where it is related to the detection and investigation of crime. Expecting Google* et al to be policemen, will they be giving evidence at trials?
*[Other search tools are available]
Harvey [29711. Posted 15-Nov-2013 Fri 17:05] View Near Messages
 I suppose someone can define what `lascivious display` means?
The `Dost` test.
Harvey [29709. Posted 15-Nov-2013 Fri 09:51] View Near Messages
 sergio, have you been living under a rock for the last 20 years?
In the US, UK and many other jurisdictions, posed images of naked children will contravene the law. The US law describes such images as child pornography by virtue of the lascivious display of genitals. The UK law describes them as "indecent" and while "indecent" isn`t defined further, sentencing guidelines suggest this can simply be "erotic posing", whether naked or not.
There is a long tradition of people making images and videos of naked children for the purpose of sexual stimulation and referring to them as "nudist" or "naturist". But I don`t think anyone`s been able to play that card for many years. The types of videos described in the affidavit against Ensley are not just of incidental nudity, but of posed images or of children interacting in a way which is sexually stimulating for someone attracted to children. According to the affidavit, Ensley admits this. He also admits to making his own videos of children`s genitals by hiding small video cameras on WC cubicles used by children. He admits to doing this over several years. He will be going to jail for a long time, and effectively his life is over, if and when he is released.
What I find amazing is that someone thought that Canada would be a great place to set up a company specialising in these kind of videos. Surely they cannot have believed that the so-called naturist videos would be free from the attention of law enforcement?
Anyway it has taken 3 years for the Canadian authorities to get to the point where they can announce the big bust. Of course it is all done with the usual fanfare of self-congratulation, the numbers of suspects, descriptions of the depravity of the images, the hundreds of children saved from abuse and so on. Parts of that might even be true. But apart from the showboat, from what I can see of the investigation itself, it looks competent.
The police have acquired their own copies of the videos, so know what they contain. By raiding and closing down the company in Canada they got access to the customer list, complete with ordering information for specific videos. They have passed that to law enforcement outside Canada and if the case of Ensley is typical the US authorities have proceeded properly by first getting a search warrant and only after discovering the videos in the suspects possession, have they charged him.
Of course many of the videos themselves will still exist and be out there somewhere on the internet, so you are probably right to say: Beware!
Harvey [29694. Posted 3-Nov-2013 Sun 17:52] View Near Messages
Whether it is possession or making, the law refers to an indecent photograph or pseudo photograph *of a child*.
It is for a jury to decide whether the image is a) indecent and b) of a child. They do this by looking at he image itself and also any other evidence associated with it.
With an actual photograph, one would hope that a jury, faced with evidence that the subject of the photograph was actually not under 18 at the time it was taken, would decide that the image was not *of a child*.
The defendant in this case was lucky to be able to trace USC 2257 records pertaining to the images concerned.
I do dispute that the case reveals the CPS to be institutionally homophobic, though. Faced with images from a site featuring straight porn they would behave in exactly the same way. It would be up to the defendant to prove that the images were *not* of a child, otherwise the jury would be left to make up their own minds based on the images themselves. The prosecution would dredge up someone who claimed to be an expert to suggest to the jury that "twink" websites offered images of u18`s just as they are liable to get an expert to tell a jury the same about "lolita" or "schoolgirl" websites.
Plenty of websites may state that the images they feature are all of persons 18 or over at the time the photographs or videos were made. But that statement alone, or a notice saying `USC 2257 compliant` or some such, would not be likely to get the charges dropped. You`d need to get to the actual records which USC 2257 requires to be kept and be prepared to have the record keeper give evidence.
Harvey [29651. Posted 26-Sep-2013 Thu 00:53] View Near Messages
On the chat-room story, I don`t discount the reports of teenagers being targeted, just that it`s better to see it as only one aspect of the phenomenon. The motives seem to run from the straight forward deception and demand for cash to the predatory and vindictive. Victims can be adults as well as children and there are various methods used. In one case, a (male) perpetrator in California targeted 200+ women. He got access to his victims not by luring them to chat-rooms but by hacking their social network accounts. He used that to extort web cam performances from his "slaves" as he called them. Many cases of sexpolitation appear to be teenagers exploiting their peers.
The CEOP press release http://ceop.police.uk/Media-Centre/Press-releases/2013/Children-treated-like-slaves-to-perform-sexual-acts-/ which all the national papers and tv seem to have reproduced almost verbatim, suggests there is a specific problem of international gangs of paedophiles targeting children, but I suspect a more widespread phenomenon is being given a particular spin to serve CEOP`s purpose. We know the details of the California cases only because they came to court.
Harvey [29636. Posted 22-Sep-2013 Sun 04:54] View Near Messages
Re; the chat room story. Elsewhere, it was reported that the non-identification of the non-European country was for legal reasons. As there is a trial coming up, that could just be the case.
Adult men are the main targets of the blackmailers. http://internetlawexpert.co.uk/2011/08/21/warning-blackmail-and-extortion-of-men-in-internet-chat-rooms-latest-update/
It`s the cash rather than sexual gratification that they`re after, so I don`t believe the extortion gangs target children specifically. Obviously if children or teenagers are pretending to be adults and respond to the bait, they`ll be reeled in too.
If it exists at all, there`s a very fine line between this kind of blackmail and extortion and the activities of the online vigilantes like Letzgo Hunting http://www.bbc.co.uk/news/magazine-24143991
Harvey [29577. Posted 21-Aug-2013 Wed 04:56] View Near Messages
The Baader Meinhof Complex has an opening scene with naked girls (u16) playing on a beach.
BBFC passed it, uncut at 18.
Harvey [29540. Posted 15-Aug-2013 Thu 04:38] View Near Messages
the point was made in the discussion, that search engines like Google don`t just provide results based on your query, but on your previous search history and other details which Google has collected about you.
Search results are also dependent on what Google is paid by companies who want to get their products and services placed higher in the list.
So your search experience might be quite different from Ms Pattersons.
I suppose I`m left wondering why, if she is so perturbed about inadvertently finding porn on the internet, she doesn`t use one of the wonder filters to protect herself from it. Of course it`s because she likes to go to Google and type "porn"just to see what`s out there...
Unusually for the BBC, this was a pretty good discussion. Though Paxman did seem uncomfortable dealing with the subject.
Harvey [29496. Posted 5-Aug-2013 Mon 13:41] View Near Messages
John Carr and facts are rarely found in close proximity.
It was his ridiculous scaremongering which led directly to Operation Ore becoming an out of control witch-hunt.
Now he`s trying to suggest that because a domain is registered in the UK, its content is hosted within the UK`s jusrisdiction.
The thing is, John Carr knows how the internet works, but he`s made a careeer out of exploiting the fact that the powerful and power hungry people he tries to influence, don`t.
Harvey [29490. Posted 2-Aug-2013 Fri 08:22] View Near Messages
"What on earth would be the point"
A government explains:
We want to ensure that the living room remains a safe space for children.
But increasingly, set-top boxes and TVs connected to the internet enable programmes and films to be viewed on-demand, to fit viewing around our own schedules. These can fall outside of regulatory frameworks. People tend to consider connected TVs to be a TV-like experience and expect to be more protected than they are from content accessed through PCs and laptops. Yet, the technology means that it is easy to flick between regulated and unregulated spaces. Since this is not always clear, this increases the risk of people inadvertently accessing content that may be offensive, inappropriate, or harmful to children."
So that goes some way to explaining why R18 should be behind an adult access control on connected TV.
It doesn`t really explain why that which wouldn`t be given an R18 has to be banned completely, when the same content, from the same provider could be streamed to a PC, tablet or console.
Unless ISP level filtering is enabled in which case it should not be accessible from any device, of course.
They haven`t thought it through. Just knee-jerking from the government.
Harvey [29488. Posted 2-Aug-2013 Fri 07:03] View Near Messages
I found this.
"We will legislate to ensure that material that would be rated R18 by the British Board of Film Classification is put behind access controls on regulated services and we will ban outright content on regulated services that is illegal even in licensed sex shops. We will also close a loophole in the Criminal Justice and Immigration Act 2008, so that it is a criminal offence to possess extreme pornography that depicts rape."
So, a bit more detail.
First; "would be rated R18" implies some kind of codification of acceptable content rather than integration of BBFC certification. Secondly, it appears to relate only to "regulated" VOD on connected TV.
It may well be that Cameron was overselling the proposal on "online" streaming video in his speech.
Harvey [29486. Posted 2-Aug-2013 Fri 03:35] View Near Messages
Re: streaming. I think the only point is to be seen to be doing something. Having something to announce.
Only a small proportion of streaming video on the Internet would be covered by the law change (i.e it`s hosted or supplied in the UK) No doubt there will be a number of specialist websites who will be forced to comply, close down or move abroad. I`m suspicious that simply moving the hosting of the video offshore might not escape the VRA requirement if the business itself was located in the UK.
Harvey [29483. Posted 1-Aug-2013 Thu 22:14] View Near Messages
re: streaming. Presumaby the intention will be to amend the Video Recordings Act, so that it covers works which can be streamed over the Internet as well as video tapes and CD/DVDs? It would follow that such streamed video would need to be classified by the BBFC.
The VRA applies to works offered for sale or hire. If you make your own DVD and don`t offer it for sale or hire, or supply in he course of a businesss, it doesn`t fall under the VRA, so presumably your own streamed video wouldn`t either.
The VRA originally applied to video tapes. It had to be amended to cover work on CD/DVD. You can see how a further amendment would cover streamed video distributed over the Internet.
Like the VRA it would only be enforceable where the streamed content or originates or the business suppling it is within the UK.
Those are just my guesses as to what Cameron`s speech was referring to. We`ll have to see if/when a Bill emerges in Parliament.
Harvey [29475. Posted 1-Aug-2013 Thu 09:42] View Near Messages
Well the relevant part of his speech was:
QUOTE "And we’re going to do something else to make sure that the same rules apply online as they do offline. There are examples of extreme pornography that are so bad you can’t even buy this material in a licensed sex shop, and today I can announce we’ll be legislating so that videos streamed online in the UK are subject to the same rules as those sold in shops. Put simply: what you can’t get in a shop, you shouldn’t be able to get online." UNQUOTE
It could be he slipped up and he was just referring to regulated, on-demand TV, (ATVOD) but if so it was a hell of a slip-up.
Harvey [29473. Posted 1-Aug-2013 Thu 09:21] View Near Messages
the announcement in Cameron`s speech was that "video streamed online" would be subject to the VRA restrictions.
From that I read that it would include everything streamed on the Internet, not TV (ATVOD). So yes, the porntubes.
Good luck on enforcing that, but the desire to amend the law is there and no doubt ISPs will again be expected to deal with the consequences of whatever law comes out of the sausage machine.
Would have been nice to have been trying to pin the PM and his advisor Claire Perry down on what exactly they intended, but all the attention has been on the ISP filter, which, IMO is the least troublesome of the package of loophole closing which was announced.
Harvey [29471. Posted 1-Aug-2013 Thu 09:00] View Near Messages
You`re right about the creeping. We are told we are having a new law which will "close the loophole" which means depictions of rape are not included in the DPA. Of course that was because the DPA was supposed to only outlaw possession of that which it was illegal to publish under the OPA. I remember the discussions where we all pointed out that the DPA went further than that and that in the same way that indecent photographs of under 16s has morphed to under 18s, through pseudo-photographs to drawings and cartoons, the DPA will gradually be used to extend the definition of "extreme".
After depictions of rape what will the next loophole be? Extreme violence, maybe? Showing a depiction which is life threatening isn`t outlawed unless it is also "pornographic". How long before that glaring "loophole" needs to be closed?
The truth is; we`ve already failed to stop this. Now it`s just a question of how soon it will be before everything "inappropriate" is corralled into the definition of "extreme".
Then there is the demand that search providers block certain search terms. To my mind that has far more Orwellian connotations than an opt-in/out of filtering. Because you will have no choice but to have your search terms blocked.
Also, drowned out by the reaction to the ISP filter, is the plan to make streamed internet video subject to the same VRA restrictions as videos sold in licensed sex shops. Again, this will not be an opt-in/out question.
All of the above are likely to have cross-party support, and IMO, all are much more of a threat to the freedom to explore the internet than the ISP filter.
Harvey [29470. Posted 1-Aug-2013 Thu 08:34] View Near Messages
"Do you want to view hardcore pornography, Sir?" will get a wildly different response from "Would you like unrestricted Internet access?"
Because they are wildly different questions. Not everyone wants to access hardcore pornography. Even those who DO want to access other adult related content.
ISPs must retain records of internet access from which they can already work out which of their customers accounts are being used to watch hardcore porn. So why have they not built their porn register and leaked it, or sold it to the highest bidding tabloid or passed it to social services or the family courts? The police and several other agencies can simply go and access it for the purposes of preventing or detecting crime. In this context, why is answering an ISP`s porn opt-out question so devastating?
Mobile phone providers already ask subscribers to opt-in to adult content and have done for years. How many instances have there been of their "porn register" being used for any of the purposes you suggest?
None I can think of, so I don`t think it amounts to censorship. But it is a flawed policy. It won`t help parents. It might make some complacent if they opt-in and trust it to protect their children. Nobody claims that blocking adult content will deal with the things most parents worry about their children doing on the internet, which as you say is becoming subject to bullying, intimidation and sexual exploitation by their peers or predators.
Harvey [29467. Posted 1-Aug-2013 Thu 06:44] View Near Messages
"I don`t understand why he should stop that."
Point is that she doesn`t think it`s harrassment (and therefore something which twitter should be taking action on).
Her opinion - that he shouldn`t tweet about MP`s cleavage - is because he`s supposed to be a serious journalist. But having expressed her opinion, leaves it up to others to judge how serious he is from the tweets he twitters.
So he`s allowed to have an opinion on tits...
...and so is she. Seems fairy nuff.
Harvey [29464. Posted 1-Aug-2013 Thu 05:38] View Near Messages
I don`t see an ISP level filter as a threat of censorship as long as it is an option. Whether opt-in or opt-out has been made a totem on both sides of the argument. Campaigners for the filter say only opt-out will protect children who are being put in the way of harm. Campaigners for a free Internet say only opt-in preserves it.
What`s proposed is that there will be a choice which will have to be made and a question will be asked, that isn`t necessarily at the moment. I don`t object to being asked that question. Whether or not there is, by default, a tick present in the relevant box(es) is not a matter of great principle for me. Though I would agree that if the subscriber was not asked to choose, having the filters on by default (by stealth?) would be unacceptable.
Censorship only becomes an issue where things are removed from the Internet at the behest of the state or my access to them is blocked by providers using filters which the state mandates I cannot choose to disable.
Harvey [29461. Posted 1-Aug-2013 Thu 03:32] View Near Messages
35,000 is a decent number.
I appreciate the sentiment behind the petition, but I haven`t signed because I don`t agree with the analysis. I`m not sure what a bad parent will do, when faced with an opt out filter. Maybe they will just enable it as the petitioner describes. Maybe they will just disable it, who knows?
The better question would be to ask what a responsible parent is supposed to do? Accept the default filter? What if a responsible parent wants or needs to access adult related content themselves, but prevent their children from doing so. How does that parent use the ISP level filtering to responsibly protect their children? Non parents can just opt out. Of course, they do have the option to move to an ISP which doesn`t kow-tow to the government line and thereby avoid the opt-in/out issue all together.
However... my main reason for not signing is that I want to keep my powder dry. There are bigger threats just over the horizon. We all know that ISP level filtering on URLs will neither protect children or tackle illegal content. So it will not be long before the same campaigners are back wanting more stringent measures of the kind which the Select Committee have already demanded? Namely; that the ISPs actually remove "inappropriate" content under a "mandatory code of conduct" drawn up by the government.
When that happens, any objectors will be described as the "usual suspects". It will be pointed out that there were objections to the limited "opt out" filtering, and that children are still at risk from pornographers, minorities are at risk from "extremists" and we are all at risk from "terrorists".
For while an opt out "adult content" filter at ISP level is neither helpful to parents or likely to protect children, it is a mere shadow of the state control which would exist if mandatory codes and the blocking without any opt-out and/or removal of "inappropriate" content is implemented. There seems to be cross-party agreement on the direction of travel. It is not fanciful to imagine a gradual squeezing of the ISPs down the route of a "mandatory code" because the threat of legislation is very real.
Harvey [29459. Posted 1-Aug-2013 Thu 02:11] View Near Messages
"If noticing cleavage is harrassment, what is showing cleavage?"
Harrassment? Did you see the discussion on Newsnight? The person who linked tit tweets to harassment was Toby Young.
Actually Stella Creasey had said that nobody was suggesting that there should be a ban on making comments about MPs tits, but that she hoped Young would stop doing it, himself.
This prompts Young to respond; "I committed the sin of noticing it [the cleavage] and apparently this constitutes harassment in some people`s views."
But nobody else had actually said or inferred that commenting on an MPs cleavage was "harrassment" of the kind the MP was referring to and about which she had asked twitter to take action. She was actually talking about something more serious; threats of rape and death threats.
I`m on Creasey`s side on this one. There is a serious issue when rape threats are made in a public space like twitter, by people who can hide their identity. I`m sure Creasey is aware that the the recent threats to her come from trolls who will almost certainly have no intention of carrying them out. But how do you distinguish those trolls from the occasional psychopath who does?
Toby Young did have a sensible point to make - In the context of twitter, who decides what is "harrassment"? But he rather ruined it by suggesting that his own ill advised comments about an MP`s tits were being put in that category.
Bizarrely, someone using the Scottish Police official twitter account then sent a tweet suggesting that Young had made "a tit of it", himself on Newsnight. A silly comment, but Young thought this was not simply "harrassment", but "abuse".
Toby Young would find it easier to make the serious point about freedom of expression on twitter, if he didn`t make such hyperbolic accusations about other people`s silly tweets.
Harvey [29451. Posted 30-Jul-2013 Tue 08:49] View Near Messages
The report the Wail is referring to http://www.publications.parliament.uk/pa/cm201314/cmselect/cmhaff/70/70.pdf does concentrate on general e-crime/cyber crime issues rather than access to porn, but the statement about ISPs and "inappropriate" content is there at para 104, in bold face type.
"104. We are deeply concerned that it is still too easy for people to access inappropriate online content, particularly indecent images of children, terrorism incitement and sites informing people how to commit online crime. There is no excuse for complacency. We urge those responsible to take stronger action to remove such content. We reiterate our recommendation that the Government should draw up a mandatory code of conduct with internet companies to remove material which breaches acceptable behavioural standards."
The language is interesting. The MPs are concerned about the ease of accessing "inappropriate" content, which breaches "acceptable standards of behaviour". They want the government to draw up a "mandatory code of conduct" which will require ISPs to remove (presumably if they host it) or block access to (if they don`t?) anything which can be squeezed into this definition of "inappropriate".
That is censorship - at its purest. The DM may be latching onto the porn angle, but it`s clear the MPs want to rid the world of much more than that. (Or at least make the world look that way, to anyone viewing it from the UK)
Harvey [29386. Posted 23-Jul-2013 Tue 06:23] View Near Messages
I think what S. Moore was trying to say is that when she searched for "Internet Porn Summit", she accidentally typed "Internet Porn Sumi" - and was horrified to see the results Yahoo! threw at her, the silly bint.
Harvey [29385. Posted 23-Jul-2013 Tue 06:15] View Near Messages
There was a consultation, remember? Lots of groups and individuals responded. Of the parents that responded, only 35% were in favour of default filtering of the internet by their ISP.
The government`s response to the findings was to point out the problems with filtering of "adult content", namely; that it doesn`t work, some things are blocked which shouldn`t be, and some things which parents were most concerned about - bullying, abuse, grooming - wouldn`t be covered by any filtering. http://media.education.gov.uk/assets/files/pdf/c/20130122%20gov%20response%20to%20parental%20internet%20controls.pdf
Claire Perry admitted that parents didn`t subscribe to her view of what being a parent should involve and that it was they, not the government or an ISP which should be responsible for what their children can and can`t access on the internet.
But in the intervening few months we have seen the campaign re-ramped, culminating in yesterday`s speech by Cameron to the NSPCC. Default filtering will be foisted onto parents who have said they don`t want it, and onto everyone else who isn`t a parent.
So... what should a parent do? The moral crusaders seem to think that there are just two kinds of internet users; "Adults" - who will choose not to be filtered and "Parents" - who will. But that`s not the real world, is it. Most adults don`t want to be restricted in what they can and can`t access on the internet, even those who are also parents. It will only take a few instances of not being able to reach certain websites (this one, for example) for parents to opt out of the ISP level filtering. I suspect that of those, there will be some who will set device level filtering for their children whenever they can, but the majority will be as confused about it as they are now.
Harvey [29333. Posted 8-Jul-2013 Mon 11:29] View Near Messages
It`s an honest piece. But perhaps not as brave as it could have been.
Tim Worstall knows the evidence on the subject. As he says, which has been said here on numerous occasions, whilst gut instinct would have you believe that viewing violent porn tends to desensitise you to sex or violence, it isn`t reflected in an increase in violent or sexual crimes when porn is introduced to places which were formerly porn-free zones. Often the effect is in the other direction.
Worstall has written about this before, http://www.theregister.co.uk/2011/06/30/smut_freakonomics/
And most recently on his own site in the midst of the furore over Mark Bridger`s murdering of April Jones; http://www.timworstall.com/2013/05/31/pure-fucking-bollocks-about-child-pornography/
So why not brave enough? Well, because while he sees the evidence, he just wrings his hands. Of course, he says, we don`t want to have children abused to produce child pornography, but banning what`s already produced might make other children less safe It`s a dilemma. What can be done?
The answer, surely is to draw lines of criminality around the harm; the production and possibly the distribution of images of child sexual abuse, but stop criminalising those who merely possess or view such images. And while you`re about it, stop criminalising those who might make pseudo photographs or drawings of imaginary children.
BTW, Julian Brazier is quoted in that piece as saying that the evidence presented to the Parliamentary Investigation into Online Child Protection was "overwheming", showinga "correlation" between image viewing and offending. Quite apart from the fact that a correlation is not evidence of causation, the evidence the investigation heard said no such thing. Their report, complete with all the evidence they heard is here: http://www.claireperry.org.uk/downloads/independent-parliamentary-inquiry-into-online-child-protection.pdf
Harvey [29308. Posted 19-Jun-2013 Wed 02:02] View Near Messages
It will be an order of magnitude estimate.
From the offenders they have investigated, CEOP will have images and know which have been download from the internet. Keeping a database helps find other offenders who are downloading the same images. They will also know the rate at which new, unique images are being added to their database, so they will have a rough and ready idea of the number of unique images out there.
Harvey [29305. Posted 18-Jun-2013 Tue 15:32] View Near Messages
The IWF receives reports from members of the public who send one in if they find images which appear to them to be indecent images of children. I would suspect that many of the reports are multiple instances of the same sites.
1m unique images of child abuse sounds like a huge number, but they`d comfortably fit on a 64Gb micro SD card from a smartphone. They can be copied from place to place in minutes and so are likely to have been replicated all over the internet and will no doubt continue to be replicated. Finding every instance or even a fraction of the instances of those 1m unique online images is, well, let`s say ambitious.
Harvey [29264. Posted 8-Jun-2013 Sat 01:07] View Near Messages
"Anyone know where they get this figure from?"
10 years ago, John Carr and co were routinely quoting a figure of 35% as the proportion of viewers of child porn who would subsequently commit hands on offences against children.
This seems to have come from a US Postal Inspection Service report, which Carr quotes in the this http://make-it-safe.net/esp/pdf/child_pornography_internet_Carr2004.pdf report he write for NCH (page 8). However he doesn`t quote the source.
He also refers to it in this piece http://www.guardian.co.uk/technology/2002/nov/12/childrensservices.crime he wrote for the Guardian in 2002. Again, no source. When he wrote it in 2002 he was complaining that Op Ore wasn`t being thorough enough. Suggesting that of the 7000 names on the Ore list, the police had only dealt with those where there was other evidence or previous convictions of searching for indecent images. He claimed this meant that up to 3000 individuals in the UK, whose names were known to the police, could be abusing children.
What we do know that in Scotland there were 700 named individuals in Op Ore. In England Wales and NI the Ore picture is confused because the offence of incitement was used to cahrge or caution people whose names were on the Landslide server, but weren`t found to actually possess any indecent images. However, Scottish law didn`t allow for prosecution except where images were found. So we know that in Scotland of the 700 names, approx 100 resulted in convictions for possession or making indecent images. As far as we can tell, in not a single one of those 100+ cases was there any hands on child abuse detected. Not a scientific study, of course, but it does show how way off beam the claims of Carr and Gamble were regarding Op Ore.
Of course Carr would argue that the cops intervened just in time, arresting the paedos while they had images but before they had progressed onto hands on abuse. But the Landslide data was from subscriptions made in 1999. It was 2003/4 before any mass arrests were made.
Harvey [29242. Posted 31-May-2013 Fri 00:49] View Near Messages
It`s the usual mob. Gamble, Keith Vaz and John Carr. Carr says that of those who had never looked them before, between 15 and 50% of men who look at pics of violence involving children will go and commit asexual or violent offence. He never cites any evidence for this figure. Even if there was a statistic he could rely on, it`not the relevant figure. What we really need to know is how many offences would be prevented if the controls they propose were introduced. Google will not play their game, though. They make far too much money from the clicks that porn searches generate.
Harvey [29155. Posted 3-May-2013 Fri 16:56] View Near Messages
Yes. It`s a sex aid.
Some women may enjoy it, but predominantly, that`s the case.
The political feminist wants to change the gender power balance, so taking men`s porn away makes perfect sense.
Harvey [29148. Posted 1-May-2013 Wed 11:22] View Near Messages
First, you need to be clear about your definitions of things such as `porn` and `harm` BEFORE you start collecting data about whether `porn` causes `harm`.
Second, simply looking for correlation isn`t really helpful. Draw a graph of insurance loss to fire damage versus number of fire brigade call-outs and you`ll see a striking correlation. Does this imply calling out the fire brigade results in greater fire damage? Obviously not, but that`s pretty much the `Reading Penthouse causes rape` result you mentioned.
Third, inferences are no better. To say that because we observed X, and later observed Y, that Y must have resulted from X. Complete nonsense, but a favourite of politicians. And that`s pretty much the University of Hawaii`s study of sex crimes in Japan. I`m not even sure whether they looked at whether porn use or porn availability actually changed when the law was eased, or they just assumed it was likely.
A scientific approach would be to create a randomised control trial where groups of subjects would be selected to receive varying `doses` of porn and then studied to measure the occurrence of harm. There must be a control group who think they are being given porn, but actually it`s just a sugar pill. It`s also important that the people measuring the effects don`t know to which group the subjects belong. Then you look to see if the result is statistically significant, then you publish your results. Then someone else tries to replicate the same thing in a different RCT study. Then if you have established a relationship between porn and harm you really need to find out WHY and HOW porn causes harm, otherwise you might just make a decision which has unforeseen and undesirable consequences.
Harvey [29119. Posted 13-Apr-2013 Sat 11:01] View Near Messages
MF (Dave) 
A perverted view of art
The article covers all the ground I`d expect. The author criticises the Tate`s decision to remove the Ovenden prints from their online collection as if it is a final judgement. I think we are still waiting for that.
But the author really should get a better understanding of the law. Describing an image of a 10-yr old Brooke Shields she says; "Although it was a provocative exploration of celebrity, it depicted nothing illegal." That might be so, but the subject being depicted is not the legal test which is applied to images of children, rather whether the image itself is indecent (if a photograph, or pseudo-photograph) or pornographic (if it is a drawing or painting)
Harvey [29111. Posted 10-Apr-2013 Wed 09:09] View Near Messages
It`s not about differing opinions. Everyone should be free to think whatever they like when they look at a painting or photograph, watch a film or read a book.
It`s about censorship and more recently, the criminal law as it relates to possession.
Harvey [29108. Posted 9-Apr-2013 Tue 10:49] View Near Messages
I wasn`t saying anything about Caravaggio`s work.
As it happens, I saw that painting when I went to The Staatliche in Berlin and nothing about it should suggest indecency. Its subject is allegorical - symbolic, and it`s an amazing image. If you want a memento, you can buy the postcard.
But... if you dared to paint something like that today, in Britain, and make it available to the public, you`d be likely to be arrested and there`s an outside chance you`d be charged with possession (it`s the possession that breaks the law - a fact of which the Tate will be aware) of a pornographic image of an imaginary child.
Ovenden was targeted first on the basis that he was creating indecent images of children. On both occasions, the prosecutors failed, dismally to get their man. That leaves me suspicious that the charges of of actual indecency and indecent assault have been somewhat elaborated, but he`s had his day in court and who are we, really, to second guess a jury composed of ordinary people with no particular axe to grind?
So, to the extent it`s now apparent that children were exploited by Ovenden, let`s allow the Tate review which work they think should be in their collection.
From what I`ve seen of Ovenden`s work, it isn`t even in the same room as Caravaggio`s. Not that that`s a reason for removing it from a national collection, but if you want to compare and contrast, the contrast is stark.
Harvey [29102. Posted 8-Apr-2013 Mon 12:04] View Near Messages
Yes. It was the particular issue of having the work depicting the exploited children displayed, which distinguishes the Ovenden case.
Otherwise I think you`re quite right to point to the phenomenon of the disgraced individual`s work being cleansed from history. Chris Langham - very talented writer, a less talented actor, but nevertheless a star of a popular, topical and clever TV program, The Thick of It. Following his conviction his association with anything became toxic. I mention him specifically because although he was convicted of downloading indecent images, on the more serous charges of indecent assault, which he strongly denied, he was cleared by a jury. But even if he had been convicted, I don`t see why any crimes he`d committed should devalue his work. It`s very odd and quite irrational.
If a bricklayer is convicted of beating someone to death with a baseball bat, do we knock down all the houses he`s worked on?
Harvey [29099. Posted 7-Apr-2013 Sun 18:49] View Near Messages
There`s a glaring difference between the art of Caravaggio and that of Graham Ovenden.
In the case of Ovenden, the evidence which convicted him was that he engaged in indecent acts and indecently assaulted at least some of the child models who posed for his paintings and prints.
Given that those children are still around, though now adult, I can`t see it would be right for the works to be on public view. The Tate says it`s reviewing their collection of Ovenden`s work, in light of the trial. Given the evidence of his activities, the presumption has to be that the child models are likely to have been exploited by Ovenden, so for each work, unless it can be shown that`s not the case, surely the only thing to do is remove it from the collection.
Analogous to requiring stores to remove their stocks of cheap sportswear if it`s found to have been made by child labour. That`s quite a different thing to suggesting that art collections should be `cleansed` on the basis of taste or whether the artist was a bit killy or otherwise a bad person.
Harvey [29087. Posted 3-Apr-2013 Wed 17:04] View Near Messages
That`s a classic link.
"access to adult pornography among children is now so widespread that it should trigger “moral panic” among parents, schools and the Government about what should be done."
`Moral panic` being the knee-jerk, herd response to unexpected sociological change, the Children`s Commissioner has just asked parents, the government and schools to behave completely irrationally, out of fear and ignorance.
I`m sure they won`t disappoint her.
"How can we even debate it...?"
I don`t think you`re being invited to debate.
Harvey [28966. Posted 25-Feb-2013 Mon 07:07] View Near Messages
I`m not against the idea that everyone should have a reasonable expectation of being left alone in their own space.
OTOH, the catholic church does seek to influence how non-catholics must behave. Other churches and organisations do it too. While they claim the right to express their bigotry, homophobia and dangerous proselytising outside their churches, I don`t think it`s unreasonable for those who disagree, to go inside and say so.
My particular line in the sand would be use of violence against people or wanton destruction of property. But without resort to either, it should be possible to protest.
Harvey [28964. Posted 21-Feb-2013 Thu 12:26] View Near Messages
re: Nobody Actually Believes that People are `Depraved` by Obscenity These Days
Awful article. I`m not even convinced the author understands the laws he`s writing about.
The DPA crininalises mere posession of an image - never the case with the OPA.
The DPA provides no equivalent of the "public good" defence - which existed in the OPA.
The DPA provides that the requirement to notify (Sex Offender`s Register) will apply where a custodial sentence of two years or more is handed down. The notification being for 10 years for a sentence up to 30 months, for life for a sentence of 30 months or more. Never a consequence of a conviction under the OPA.
Posession of indecent images of children has seen constant creeping changes of definition. First that a child is a person under 16, then under 18 First it was taking photographs, then possession of photographs then "pseudo-photographs", next an image, however made, next that an image may be an image of an imaginary child and no mention that any kind of image of a fully clothed child, showing no sexual activity, may nevertheless be "indecent".
The OPA isn`t obsolete because we`ve become more tolerant, but because we`ve allowed new laws to be made which have superceeded and even exceeded the provisions of the OPA.
I hope nobody accused of anything serious actually finds themselves represented by a solicitor who can write this kind of ill informed crap or think it worthy of their website. (IANAL)
Harvey [28907. Posted 23-Jan-2013 Wed 04:11] View Near Messages
"Just reading that article about the EDL leader who`s just been jailed for posting "insulting" remarks."
Harvey [28896. Posted 16-Jan-2013 Wed 13:12] View Near Messages
I`d steer clear of Twitter, if I were you, phantom.
Suzanne Moore`s `crime` was to refer to a "Brazillian transsexual". The term "transsexual" being offensive and derogatory when applied to transGENDER individuals. It`s `transphobic` in the same way that using the derogatory terms `queer`, `poof` or `arse bandit` are homophobic.
You, however, have reached new levels of offence by describing such a person as a Brazillian TRANSVESTITE.
I think the first point to make is that Moore wasn`t trying to be deliberately offensive, she just used a term which caused offence and was initially fairly gently chided for doing so but when she reacted right back, demonstrating some less than latent `transphobia`, she was then subjected to a fair amount of offensive comment herself, via Twitter.
Lots of people were offended, but surely that`s what happens when people put their views into a public forum?
The more serious point is that just as with homophobia, transphobia does sometimes manifest itself in violent attacks being made on people, so you can understand the sensitivity. It`s just that`s not what was actually going on here.
Burchill just likes being offensive and Toby Young just hates the Guardian/Observer and all its readers. It`s all so ritualistically transparent that whenever they try to strike an indignant pose, to me they just look comical.
But it was all between grown adults and nobody actually threw a punch or suggested anyone else should, so it was depressing to see Burchill`s piece pulled from the Observer.
Harvey [28892. Posted 15-Jan-2013 Tue 16:07] View Near Messages
You can save your indignant writing muscles, Phantom.
Toby Young has published Burchill`s piece on the Torygraph blog --------> http://blogs.telegraph.co.uk/news/tobyyoung/100198116/here-is-julie-burchills-censored-observer-article/
Once again, an attempt to censor something simply results in more people than ever wanting and getting to read/see it.
On the other hand, though it will be available in the US and the rest of Europe, a book about the "Church"of Scientology won`t be published in the UK as the publishers are frightened of the libel laws. http://www.guardian.co.uk/world/shortcuts/2013/jan/14/cant-read-scientology-book-uk
Harvey [28889. Posted 14-Jan-2013 Mon 17:19] View Near Messages
So, sergio. There`s good censorship and bad censorship?
I can`t agree.
I don`t tend to agree with JB either, but can`t support the editorial staff`s decision to pull her admittedly lamentable piece in the face of complaints.
Harvey [28850. Posted 21-Dec-2012 Fri 13:07] View Near Messages
As a technical solution your suggestion works, but why should everyone be required to have two IP addresses? And why should an individual ISP, or worse some state agency, be deciding exactly what isn`t available on the censored one?
Because there aren`t just two types of content, appropriate and not appropriate. Parents, schools, clubs and anyone else responsible for a young persons internet use will decide what might be appropriate, based on the age of the child and whether the access is directly supervised or not. What if they decide that it is appropriate for the child to access something which has been blocked on the censored IP? They might allow them access to the uncensored one. But of course that would expose the child to everything else... so they might not.
ISTM there is no substitute for proper supervision of children, be it their internet use, their running down corridors carrying scissors or their inappropriate use of drugs or alcohol. Blocking of access to parts of the internet should be decided by THE RESPONSIBLE ADULT who has a range of tools available already at the machine level or possibly the level of the home router.
Seems like Cameron understands this but after being burned in effigy on same sex marriage, isn`t keen on picking another fight with the moral crusaders. Hence this hotch-potch of parental choice options, which the ISPs will be expected to manage. Will ISPs be forced to agree on what belongs in which tick-box category or will they be free to selectively censor as they see fit?
Harvey [28761. Posted 12-Oct-2012 Fri 14:31] View Near Messages
"I baggsy the role as chairman!"
NOW you get the idea... You`re duly elected and I wish you every success as chairbod.
Don`t spend your highly inflated salary all at once.
An OBE can only be a few monarch`s birthday`s away.
Harvey [28758. Posted 11-Oct-2012 Thu 05:27] View Near Messages
Apparently there had been allegations about Savile and a police investigation. Not specifically related to the BBC, but it all came to nothing as the investigation found insufficient evidence to charge him with an offence.
The problem is always evidence. Making an allegation without being able to back it up would invite being sued for defamation. Savile had taken legal action against various publications during his lifetime. Now he`s dead, he can`t be libeled and as no prosecutions will result, the police can be pretty free what they say about his alleged offences - hence it`s open season and lots of what could not have been alleged now becomes public. I just hope it doesn`t become a complete witch hunt and an unseemly scramble for compensation from Savile`s estate or the organizations where the alleged abuse took place.
I`d be surprised if the BBC or the NHS hospitals indulged in covering things up, but as organizations they would have been just as wary as anyone else of making statements which could be defamatory without having pretty solid evidence.
The truth probably is coming out, but what`s also becoming apparent is that at the time many of the alleged acts were taking place, up to 40 years ago, adults were implicitly trusted, protection of children wasn`t seen as important and children`s complaints were routinely dismissed or ignored. My worry is that we may be seeing over-reaction to that state of affairs, which the Savile revelations only tend to push.
Harvey [28743. Posted 2-Oct-2012 Tue 16:03] View Near Messages
"I took the question to be a hypothetical one"
I took it to be a fairly direct question. i.e. "Someone in France has taken the photograph[s]." "What law have you broken if you publish them in the UK?"
"Obscenity isn`t part of the test for voyeurism"
Err, no. It`s part of the test for publishing an obscene article under the OPA ...which you brought up.
The drafting is only the half of it. I`m never surprised by the extent the CPS will go to in carefully constructing a charge to fit an offence, but surely even conspiracy has to relate to a specific offence within the jurisdiction. Any charge built on conspiracy to voyeurism would have to involve voyeurism within the UK (wouldn`t it?).
You could assemble a whole roomful of lawyers and fail to find a consensus on this, but even I`d be surprised if publishing a photo of a royal tit (see: Harry, endlessly, passim) would breach the criminal law in the UK.
Harvey [28735. Posted 1-Oct-2012 Mon 01:07] View Near Messages
It should have nothing to do with wealth or notoriety. Everyone has the same expectation of privacy.
"It could consititute an offence in the UK" Only if the photographs were taken in the UK and to prosecute, first you`d have to catch the photographer. Apparently his/her identity is still unknown.
If published in the UK, it would be a very chancy prosecutor who thought he could convince a jury that the photos were obscene simply because they featured naked breasts.
If someone is in a public place, they have no reasonable expectation of privacy. But contrary to what you have been led to believe, my understanding is that even though you might pay to stay some place, however much you pay, you can still expect privacy. The French judges certainly thought so, which is why they granted an injunction preventing further publication in France as William and Kate ‘could legitimately suppose’ the chateau they were staying in ‘was sheltered from prying eyes’. So I do think any paper publishing them in the UK would be sued here and the paper or magazine would be quite likely to lose if they took it to court.
Harvey [28732. Posted 30-Sep-2012 Sun 17:15] View Near Messages
I don`t think it would constitute a criminal offence if a UK newspaper published the photos taken of Kate in France.
However, by publishing them, it would probably be able to be sued through the civil courts, in the same way that Max Mosley was able to sue the News of the World and News Group Newspapers when they invaded his privacy and published photos, videos and a story relating to what the paper described as a "sick Nazi orgy". He won and received damages, partly because the newspaper had no facts to justify the `Nazi" jibe, but also because the photos of Mosley were taken at a private "event" and were published without his consent.
The level of damages and costs awarded against NGN were substantial, but not enough that other papers would be deterred from doing exactly the same at some point in the future if they thought it would sell enough extra copies. The fact that no UK paper or magazine has published the photos of Kate is probably due to the time we find ourselves in, with Leveson busy writing his report and the newspapers concerned that there may be legislation in the pipeline. Publishers are desperate to prove they`ve totally changed their spots can regulate themselves. AA Gill says they are being "cowed".
Harvey [28730. Posted 30-Sep-2012 Sun 10:51] View Near Messages
I certainly can imagine that the press might have exercised more restraint in relation to Princess Kate than if it had been just another sleb. Where I depart from AA Gill, is that he seems to think there should be no restraint at all and everyone`s privacy should be trashed, whereas I think everyone`s privacy should be protected, unless it`s a matter of grnuine public interest. At the moment we have a situation where to the extent that it`s protected at all, privacy is only available to those who are wealthy enough to take a case through the civil courts.
"From what I understand the pixelated piece of footage was taken from a broadcast of the match."
That`s what I understood, too. In fact, the player towards whom the offence was allegedly directed wasn`t aware of it until his friends and colleagues told him after the match because they and/or others who had seen the TV decided they could read Terry`s lips...
As for restricting the footage being repeated later, the point is that it would not have been shown as it originally was, as part of the match, but with news reporters speculating and interpreting what words were said and whether they were offensive as had been claimed. Refraining from that is not deference to English justice, it`s allowing someone to have a fair trial by not conducting it in the media.
I`m not convinced by an argument which says that because someone else has already invaded someones privacy and published photographs or private information, that it becomes fair game for others to publish he same. The press might claim to be performing some kind of public service, but they are in business to turn a profit for their proprietors. They only publish because they expect people will pay to see it or to have their advert shown on the same page. They might not have committed the original offence of invading the victim`s privacy, but they are claiming the right to profit from it. It`s akin to a crook who says he should be allowed to profit from buying and selling stolen goods because he wasn`t the original thief.
The press want to have an argument about individuals` privacy framed as if it is really about censorship or freedom of expression. That alone is disingenuous, but then they go further and appeal to their customers and their "right to know". But before you run out on to the streets demanding your rights, perhaps take a few steps back and question whether you really do think you have a right to know everything about everybody.
Harvey [28728. Posted 29-Sep-2012 Sat 20:51] View Near Messages
Certainly - it`s never a bad time to remind ourselves that the press is not the voracious purveyor of truth to the masses that it claims. Just not sure that in making that point, AA Gill is picking the best examples he could.
The Princess Kate story is not that boobs were photographed, but that privacy was invaded. I can read the story and understand it as it stands. The photographs themselves would add nothing to my understanding. But even if some viewers and readers lack the ability to understand words and need the pictures, The.Whole.Point.Of.The.Story, surely, is that the photographs were taken without consent and were published in France, in breach - we are led to believe - of French law.
AA Gill knows that. So why does he criticise the press who have not printed the photographs here? Well... the UK doesn`t have a specific privacy law - yet. But there are some newspaper proprietors who are currently very bothered that their past behaviour, revealed by Leveson, might shortly return to bite them in the wallet should a similar privacy law be one of his recommendations. Gill is parroting the tired journalistic line; that whatever interests the public is in the public interest and should be published. That`s what justifies taking photographs of people in private, listening-in to their phone messages or `blagging` their personal medical or financial records. Of course that such information might titillate the public isn`t a valid journalistic justification. It never was and it`s a scandal that most of the low-lifes in the UK press have got away with it as long as they have.
On politicians, the police, footballers, other celebs, movers and shakers, I find the stories genuinely tedious. You say; "we weren`t deemed able to handle what language was used", and yes, it does look odd when a newspaper reports, quoting w**t was s**d in su*h a si**y way. But again, here, to my mind the greater silliness is that the newspaper doesn`t actually know what was said, cannot possibly know what was said and yet the fact of what was said is the story in its entirety.
At least in the case of a footballer where it was alleged something was said, there was evidence in the form of video of the match being played. It isn`t true that when it was played on TV news reports, the sound was muted. The sound wasn`t recorded as the football players weren`t miked up. But even if there had been sound, should it have been played on TV news? Here again, I think the broadcasters got it right by obscuring the footballer`s mouth. Simply because what was alleged was that one person has said something offensive to another and that`s criminal offence. Any evidence of what was said would feature prominently in any police investigation or criminal proceedings. As it turned out that very footage was evidence presented in court and lip readers gave expert evidence of their interpretation of it. Early disclosure with interpretation by non-experts, with no context, could have been highly prejudicial to the footballer concerned getting a fair hearing.
Of course, it`s nonsense that simply saying something offensive should be a criminal offence, even if it somehow, sometimes, qualifies as "grossly" offensive. But as it is, the law does exist and someone did stand to get a criminal conviction so the broadcasters did need to respect the law of contempt by not prejudicing the case. You didn`t get to see the video of words being mouthed but you did eventually get to hear the lip reading experts` not entirely conclusive interpretation of what it might have shown being said.
In the final analysis, whether it is the existence of someone`s breasts or what one footballer might possibly have said to another; can you honestly claim to have been denied access to the essential truth? If I were AA Gill, with access to a space in the ST, I`d use it to comment on the number of times the press deliberately or casually misreport facts, present editorial opinion as if it`s fact, or simply decline to report a story at all because it upsets a particular proprietor`s view of the world.
Harvey [28723. Posted 27-Sep-2012 Thu 17:19] View Near Messages
"outrage about the boobs, but not the boobs"
Perhaps AA Gill has a point... He is still the restaurant critic, isn`t he? Maybe the next time he`s critical of a particular restaurant he`s reviewing he`ll feel obliged to invite all his readers to dinner so they can check for themselves. Otherwise anything he writes is simply his "disgust about the terrine, but not the terrine", isn`t it?
Harvey [28718. Posted 25-Sep-2012 Tue 11:04] View Near Messages
It`s quite difficult for anyone who supported the dangerous drawings legislation to argue against Beresford`s main point - that words can be just as powerful as images.
As it`s a private members bill, it has virtually no chance of getting much further without the government allotting time for it. But just as the dangerous pictures legislation proved to be a handy template for banning possession of dangerous drawings, it`s hardly surprising that it, in turn, becomes the template for banning the possession of dangerous writings. It wouldn`t be surprising if it found its way into the next government bill, when one comes along.
Harvey [28704. Posted 18-Sep-2012 Tue 18:53] View Near Messages
The question of whether a message is "grossly offensive" went to the House of Lords.
Read it and weep.
Harvey [28702. Posted 17-Sep-2012 Mon 14:15] View Near Messages
"If I`m not mistaken this was the same act that was used against Paul Chambers and his infamous twitter comment regards blowing up Robin Hood Airport."
Same section [127(1)] of the same Act.
But whereas Chambers was accused of sending a message which was "menacing" Ahmed`s was deemed to be "grossly offensive".
Chambers eventually succeeded in his final appeal when the court ruled that as the message didn`t cause "fear or apprehension", it wasn`t "menacing".
Harvey [28622. Posted 14-Aug-2012 Tue 14:28] View Near Messages
"It can be legal and illegal to own the same image."
The law is full of these kinds of issues, though.
It can be legal OR illegal to carry the same baseball bat into a public place.
It depends on whether a jury can be convinced you are carrying it with the intention of using it to injure someone.
BTW in the case of the DPA, the prosecution doesn`t have to convince the jury that you`d be turned on, but that the person who produced the image intended that it would be used in that way.
Harvey [28618. Posted 14-Aug-2012 Tue 04:03] View Near Messages
The conundrum is inevitable once you accept the justification that, sometimes;
It is illegal to have an image.
Harvey [28613. Posted 11-Aug-2012 Sat 16:46] View Near Messages
I think the defence in R v GS was splitting hairs by trying to suggest that the OPA can`t apply to something sent, sold, lent, etc to one person, rather than several.
It remains to be seen how the ruling in R v GS will affect future prosecutions, but the test of obscenity hasn`t changed. As I understand it, the case went back to Crown Court and the defendant pleaded guilty to publishing, so it wasn`t put to a jury to decide.
Harvey [28611. Posted 10-Aug-2012 Fri 04:07] View Near Messages
"How does the writer know what the amateur pics were like?"
The pictures were described by witnesses in the trial.
Alex is pretty hot on the fine points of the law; harm vs serious injury, pornographic vs sex and rightly critcises the CPS accordingly. But she falls into the same trap herself in relation to the Peacock trial, declaring that fisting images were found not to be obscene. That`s not actually the case, for while it`s true that Peacock was found not guilty an image is never obscene per se, but may or may not be obscene depending on who is likely to see it and the likelihood that they will be depraved or corrupted by it. There are also specific `public good` defences to publication which depend on the circumstances of publication as well as the nature of the image. The Peacock trial didn`t consider fisting images in general, but the specific DVDs and the circumstances of their publication and it`s misleading to claim otherwise. It`s quite possible that a jury would find some fisting images to be obscene and others not (and that on another day, another jury would disagree).
So yes, Peacock was found not guilty of publishing DVDs featuring fisting, but Walsh was found not guilty of possessing an indecent image of a child. Would Alex cite his acquittal to claim that the CPS shouldn`t prosecute cases of child porn? I know she knows the answer...
Also on Newsnight, Walsh claimed that on the count of possessing an indecent image of a child, the jury had decided that it was an image of an adult. Not true. They found him not guilty of possessing an indecent image, and his defence argument was in part that he never possessed it, in part that it was not of a child. We don`t actually know why the jury found him not guilty.
Harvey [28609. Posted 9-Aug-2012 Thu 23:55] View Near Messages
"I sensed that attitude from Walsh himself on Newsnight-the DPA being basically a good necessary law, fine and dandy for other people`s "weird" sexual practices, but it shouldn`t apply to his."
I sensed that too. But of course, as the jury found. the law DOESN`T apply to his kind of sexual practices.
Harvey [28604. Posted 9-Aug-2012 Thu 02:12] View Near Messages
Simon Walsh was interviewed for `Newsnight` 08/08/12 now on iPlayer about 20mins in.
Simon thinks the law is fine - intended to catch serious injury such as insertion of knives (!?) - but it was wrong to use it in this particular case, to prosecute him.
CPS interviewed as well. They think they were quite justified in bringing the case as they had evidence and a reasonable prospect of a conviction.
Harvey [28603. Posted 8-Aug-2012 Wed 16:57] View Near Messages
And Jane Fae on why the verdict isn`t a reason for celebration.
Harvey [28602. Posted 8-Aug-2012 Wed 14:41] View Near Messages
Extreme Porn trial article in the Guardian
Mail reports the acquittal
Harvey [28600. Posted 8-Aug-2012 Wed 07:49] View Near Messages
There`s no precedent.
He was found not guilty of possessing an indecent image of a child. Maybe the jury thought it wasn`t an image of a child or maybe they couldn`t see any evidence it was in the possession of the defendant - but either way, it sets no precedent for any future "child porn" prosecutions.
We don`t even know on what grounds the jury chose to acquit on the other 5 counts of possession of an extreme pornographic image. Was it because as a participant in a consensual act, he had a defence or maybe it was because the image did not portray an act likely to cause serious injury or perhaps it was that the image was not pornographic or even that it wasn`t either grossly offensive, disgusting or otherwise of an obscene character.
BUT... there was some pretty convincing expert evidence given in relation to the likelihood of serious injury resulting from the acts of fisting and urethral sounding which the CPS would do well not to ignore.
The question is; were we right to be arguing that the DPA would make possession of images of consensual BDSM play liable to get you thrown in jail. The outcome of this trial suggests we were scaremongering?
Maybe? But you can bet the CPS will not stop looking for people to prosecute.
Harvey [28598. Posted 8-Aug-2012 Wed 06:36] View Near Messages
I believe the verdicts were unanimous and the jury lost no time in coming to them. Good for Simon Walsh and his legal team. I hope he can now recover from the ordeal of being put through a trial.
The CPS will pack up their tents and move right along.
How will the Daily Mail report the verdict?
Harvey [28594. Posted 7-Aug-2012 Tue 06:33] View Near Messages
From what`s being tweeted...
The question of possession only relates to the indecent ("child porn") image. All others were found in the defendant`s hotmail "sent" box.
Harvey [28591. Posted 6-Aug-2012 Mon 15:05] View Near Messages
@MichaelG It`s the same case sergio was discussing.
If you want a different take to the Mail`s, the solicitor representing the defendant, Simon Walsh has been live tweeting from the court as the case progresses. https://twitter.com/ObscenityLawyer
Even if he`s acquitted, Simon Walsh`s life has been comprehensively trashed.
Harvey [28589. Posted 6-Aug-2012 Mon 07:47] View Near Messages
Apparently there was no evidence of any of the images on the defendants computers, cameras, memory sticks, etc. They were only found when a policeman went to look at the hotmail account. No evidence that the attachment had been opened by the defendant.
Harvey [28587. Posted 6-Aug-2012 Mon 00:03] View Near Messages
"If the age is unverifiable then what happens?"
The jury, alone, decide based on the evidence.
Usually the only evidence is the image itself, so in those cases whether you are charged really depends on whether the CPS think a jury will decide the image is of a child under 18.
Interesting that the obscenity lawyer blog referred to describes the trial as being a test of whether the DPA extends to the same kind of fisting images which featured in the OPA case in which Peacock was acquitted. Of course there are other counts under the DPA featuring non-fisting images and the single count of "child porn" to consider.
Suggestions that as well as the issue of whether a fisting image is "extreme" the defence will argue that the eamil to which the images were attached was unsolicited. It is a defence to the possession cahrges for the defendant to prove that the image was sent to him without any prior request made by him or on his behalf AND that he did not keep it for an unreasonable time. It looks like the email had been on the server for 3 years though, so that defence may not wash.
But, the fact that images were in an attachment to an email which only existed on the sever could be significant. I`m just wondering whether there will be enough evidence to convince a jury that the images were ever in the defendant`s possession. If they aren`t convinced, as the question of possession applies to all the images they will acquit on all counts.
If they do accept he possessed the images, it then comes down to whether individual images are "ponographic" and "extreme" (the court is currently hearing from experts as to what acts are likely to cause serious injury) in the case of the DPA or "indecent" and "of a child" in the case of the "child porn".
Whatever happens there will be people jumping up and down to try and claim that the case sets some kind of precedent. The truth is that it won`t, though it might indicate what other juries looking at other images might decide if other defendants were ever charged. One problem with extrapolating to future cases is that the jury never give reasons for their decision, so it will be important to see whether they return not guilty verdicts on all counts. If so, it`s likliest that they will have decided the case on the question of possession rather than whether a particular image is "extreme" (or, indeed "of a child").
Harvey [28583. Posted 3-Aug-2012 Fri 19:35] View Near Messages
Where is the child porn?
MF has updated the "Extreme Prosecution..." entry with the very useful account of the trial from a blogger. http://www.melonfarmers.co.uk/gch.htm#Extreme_Prosecution_6145
Apparently one of the six charges is for possessing an indecent image (of a child)
Although the main interest in this trial is on the issue of whether possession of images involving fisting are vulnerable to prosecution under the DPA, it looks like the CPS have brought charges of possession for images which were found, not on the defendant`s computer but in an email attachment in a hotmail mailbox on a web server. The police officer giving evidence admits he cannot prove the defendant actually viewed the contents of the email attachment, so were any of these images ever possessed by the defendant?
I hope the blogger continues to report on the trial as it progresses.
Harvey [28523. Posted 18-Jul-2012 Wed 16:49] View Near Messages
I don`t doubt that he had no idea he was breaking the law, but ignorance wasn`t a defence.
He pleaded guilty (i.e. no defence offered) and was given a 3yr Community Sentence, night-time curfew for 3 months, computer crushed and of course he would have lost his job if he hadn`t already quit. Par for the course.
"Walked free" is Mailspeak for this.
cf. The same story, without the Daily Mail `treatment`. http://www.thisisgrimsby.co.uk/PCSO-haul-animal-porn-escapes-jail-term/story-16548274-detail/story.html
Harvey [28283. Posted 13-Feb-2012 Mon 05:06] View Near Messages
"How photodna works
Interesting. Quite clearly, PhotoDNA doesn`t identify pornographic photographs let alone "indecent photographs of a child" or "extreme pornographic images".
It scans an image and produces a metric or signature which can be used to allow an automated process to compare it with many other images and thereby identify similar ones. Or at least that`s the theory. From the description it looks like the signature could be used to pick out matches between digital images which were resized versions of each other or had been converted from one file format to another. It seems to me that the process would be completely flummoxed if images were cropped or had additional graphics superimposed on them. And unless every frame is to be scanned and PhotoDNAed it`s not at all clear how this could be used to identify video images.
There is also the problem of what to do when a match occurs. Does a human check whether the images are indeed alike or is automation taken to a point where some action is taken based solely on a PhotoDNA "match" being found, by deleting an image from a server, or maybe suspending the associated account, for there is always the possibility of false positives.
From this promo from Microsoft, http://www.youtube.com/watch?v=THlDdjMjfkU it looks like the National Center for Missing and Exploited Children expect web hosting providers to use PhotoDNA to routinely scan for images matching a list of signatures that they will provide and require them to remove child porn from their servers.
And as ever, we have the questions of who decides what goes on the list and when draconian action is taken on the basis of a computerized "match", what can be done should either the computer or the list be wrong.
Actually, reading the transcript of Mr Zink`s evidence, Leveson seems fairly clued-up on the difficult issue of regulating content on the internet.
Harvey [28223. Posted 19-Jan-2012 Thu 16:41] View Near Messages
The test will be whether the distributor challenges the BBFC cuts.
It`s all very well calling the BBFC, but if a distributor accepts the cuts without demur, surely they are accepting the BBFC`s interpretation of the OPA?
Harvey [28215. Posted 17-Jan-2012 Tue 15:09] View Near Messages
"If the Peacock case took us a step closer to that point. Good."
That is the message I take from the Peacock acquittal. Actually I think the defence could simply argue that since the DVDs were only likely to be seen by adults (and not just gay porn loving adults) who would not tend to be depraved and corrupted by seeing them, they could not be deemed obscene by being distributed to them by Mr Peacock.
Of course in a particular case, the defence would be taking an unnecessary risk by not deploying the strongest possible argument so I don`t blame them for pointing out that in Peacock`s case the audience was one of gay porn lovers.
Harvey [28213. Posted 17-Jan-2012 Tue 09:02] View Near Messages
"selling to inappropriate person(s)"
That is effectively the present OPA, and I think it should be emphasized whenever any discussion arises as to whether a particular video would or would not be `obscene`.
The BBFC is very quick to state that a scene in a video would be `obscene` under the OPA. My response to such a claim would be; "When seen by whom?"
Harvey [28211. Posted 17-Jan-2012 Tue 07:52] View Near Messages
You are right. "There is a quality called `obscenity`"
But my analogy was to show PRECISELY that it is NOT simply the quality of the vodka/DVD which is being tested in court, but the act of selling/showing it. And that depends to whom it is being sold/shown. In the context of the OPA `obscenity` is defined in section 1 (1);
"For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it."
So as it relates to the OPA, `obscenity` is not simply a property of the article (book, website, DVD) but of the effect of it being read, seen or heard by certain persons.
Therefore, even after the recent verdict, it really is meaningless to say that any particular article or genre either is or is not going to be found to be `obscene` under the OPA. It really depends on who is likely to see it as a result of it being shown.
Of course, this results in the situation where distributing a particular DVD can be both not obscene, if distributed to those who are beyond being depraved and corrupted by it, and obscene if distributed to others. I appreciate it does not neatly define particular articles as being inherently either `legal` or `illegal`, and so may be unsettling for those who like to see the world that way. Personally I find this formulation of the law, which allows a jury to discriminate depending on the *effect* of publication, far preferable to one, like the DPA, which is prescriptive, based simply on the nature or content of what is being published.
Harvey [28209. Posted 17-Jan-2012 Tue 05:25] View Near Messages
"Does the dvd `change` according to who is watching it?"
No. The DVD stays the same. What changes is whether a criminal offence is being committed by the person who shows it to them.
c.f. Sale of alcohol. A licensee selling vodka to an adult is behaving legally. If he sells the same vodka to an under 18, he`s committing an offence. So, does the vodka change according to who is buying it?
Harvey [28201. Posted 16-Jan-2012 Mon 03:10] View Near Messages
"In my view they were expressing their hatred of homosexuality.
I don`t see that as necessarily the same thing as inciting hatred."
But from the reports we have of the trial, they were handing out leaflets which encouraged others to hate homosexuals.
Some of the leaflets described ways in which homosexuals could/should be murdered.
Harvey [28200. Posted 16-Jan-2012 Mon 03:03] View Near Messages
-- ????? `... the way in which it was being distributed to others ...`
Doesn`t that come under the VRA?
In the context of the OPA, it probably refers to "persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it".
Peacock`s defence argued that the DVDs would only be seen by gay men who were specifically interested in the genre of pornography which was being distributed.
In R v Perrin, he was acquitted of counts where the porn was behind an adult paywall, but convicted of publishing trailers which were not, so it`s clear that juries are looking carefully at the law and in particular whether they think that "persons who are likely to read..." are the kind who would be depraved, corrupted, etc.
Having regard to this, it`s probably far too simplistic to say that any particular genre of porn is now officially not obscene. Because it`s not just the content which determines whether publication or distribution is an offence, but the nature of the intended audience and the care taken to make sure that it`s not seen by others.
Harvey [28195. Posted 15-Jan-2012 Sun 04:30] View Near Messages
sergio  MF 
It makes you wonder if Peacock was deliberately exploiting the period from August 2009 to January 2010 during which the VRA was unenforceable and that`s why he could not simply be let off. The CPS had every reason to think a jury would probably convict on at least one of the counts.
Harvey [28181. Posted 10-Jan-2012 Tue 11:49] View Near Messages
I think the BBFC will say that it`s not valid to take the acquittal of Peacock and claim that the DVDs in question are not "harmful" in any other circumstance and that therefore they should be classified R18.
Firstly (they will say) the OPA test is a test of *moral* harm caused to those who may be depraved and corrupted by reading, viewing, etc the work in question. Whereas the BBFC are obliged to consider physical as well as moral harm caused to the wider society, rather than just how the viewer himself could be harmed by viewing it. e.g. by watching videos of violent rape, a person might think it justifies their carrying out an actual rape or sexual assault... apparently.
There is also the question of presumption and standard of proof. In a criminal trial a jury has to be convinced beyond reasonable doubt that a likely viewer *would* be depraved or corrupted. Whereas in considering whether to pass something at R18, the BBFC need only look at what harm *may* occur...
So, I`m guessing that the BBFC will still demand cuts to video works which feature piss, fisting, etc. The significance of the Peacock case will be if it encourages the producers or distributors of those videos to appeal or challenge the assumptions the BBFC have used.
Harvey [28178. Posted 9-Jan-2012 Mon 12:12] View Near Messages
"A new line will be drawn. It will, again, claim to be based on the OPA, possibly now with some DPA mixed in for good measure."
I`m sure the BBFC will try and draw a new line, but the OPA is not the only criterion they have to look to. There is the so called "harm" which they need to protect people from, and while a part of a particular work may not be obscene, they may still see it as potentially harmful and demand a cut.
The test will be how far the producers and distributors want to go in challenging BBFC rulings through the appeals process and ultimately in the courts by applying for Judicial Review.
Bit difficult for the BBFC to claim that a work must be cut lest if fall foul of the DPA, though. Anything passed by the BBFC being instantly exempted from the provisions of the DPA makes that process somewhat circular.
Harvey [28165. Posted 7-Jan-2012 Sat 09:25] View Near Messages
"how in practical terms could one publish and escape liability for possession?"
Well in practical terms, by being beyond the jurisdiction of the English courts.
The entire justification for the Longhurst campaign was that the "extreme" websites were being published in foreign countries, beyond the reach of the OPA.
Harvey [28161. Posted 6-Jan-2012 Fri 17:29] View Near Messages
emark, phantom, sergio...
Tend to agree that claims for the Peacock verdict being "The end of censorship" are rather overblown, but as much of the basis for BBFC decisions are what they claim the effect of the OPA would be if brought to bear on a certain work, their ability to restrict what might be distributed here in the UK (or England and Wales, at least) just took a serious hit. Likewise that which HMRC feel able to confiscate or impound...
But surely the biggest dent has to be to the DPA? As we argued at the time, claims that the new CJIA law would only criminalise possession of that which it was already illegal to publish under the OPA, were mischievious, at best. Now those claims have been shown to be false, we seem to headed for the bizarre situation where a person in England and Wales can be criminalised simply for possessing something which could be quite legally published there.
BTW, not sure where the 1000 extreme porn prosecutions last year comes from. I tend to think most of those would be animal porn cases, or child porn cases where charges relating to depictions of consensual sexual activity involving adults are "tacked on" for the benefit of police and prosecutors, and wouldn`t neccessarily stand up in court on their own.
Anyway, today was a good day. Just a shame the significant details of this case haven`t had a wider coverage in the press. First test will be seeing how far producers go in challenging BBFC cuts.
Harvey [28116. Posted 17-Nov-2011 Thu 12:27] View Near Messages
Re: "Gas Mask man"
"Simon Walsh, 49, said he had been trapped by new laws that made it a crime simply to open a picture - of a naked man he insists would have been over 18 - that had been sent to him unsolicited on email."
"He claimed the charge of "possessing and making" an indecent picture of a "child" was wrong - saying he was sure the picture would have been of a man aged over 18. Police charged him with "making" the picture simply as a result of him opening it on his computer."
Does anyone know exactly which "new laws" this might refer to? It looks very much as though he`s been charged with "making" an indecent image of a child because he viewed it on his computer. That law and the way the courts interpret "making" is not exactly new. The law is the Protection of Children Act 1978. The interpretation of "making" in relation to computer images was established in R v Bowden (1999) and it was the Sexual Offences Act 2003 which extended the definition of "child" to include persons aged 16 and 17 as well as those under 16.
Looks like this case is going to Crown Court.
Harvey [28115. Posted 17-Nov-2011 Thu 12:15] View Near Messages
MF (Dave) #28111
The charges (9 counts) against Waters look laughable, but only because he could show that the images were taken from broadcast TV. In another context, those same images downloaded from the internet could easily have been put before a jury and a conviction obtained.
This is all of a piece with images from the Hamilton books which are not indecent when on sale in WH Smith, but are indecent when found on your hard drive.
Harvey [28048. Posted 11-Oct-2011 Tue 08:19] View Near Messages
Ok, maybe you will have to tick one of two boxes, rather than chosing whether or not to tick a box.
Harvey [28046. Posted 11-Oct-2011 Tue 05:11] View Near Messages
"The system is opt _out_"
There seems to be some confusion about whether it`s to be opt-in or opt-out.
Guardian says: "Subscribers to four of the UK`s biggest internet service providers will have to "opt in" if they want to view sexually explicit websites..." http://www.guardian.co.uk/society/2011/oct/11/pornography-internet-service-providers
BBC News says: "Four leading web providers are to offer customers the option to block adult content..." http://www.bbc.co.uk/news/uk-15252128
The Daily Mail is really confused. Its website headline says "Four biggest internet providers to ALLOW parents to protect children from porn in government crackdown". But click on it and the article says "Subscribers to four of the UK`s biggest internet service providers will HAVE TO "opt in" if they want to view sexually explicit websites. http://www.dailymail.co.uk/news/article-2047651/New-curbs-internet-sleaze-protect-children-unsuitable-content.html
Talk Talk already provide "HomeSafe" blocking. You "opt to block" as opposed to "opt to access". Apparently it blocks access to filesharing sites as well as "sexually explicit" or "adult content" and there is no way to selectively tweak what is blocked, it`s all or nothing. Plus it works at the network level so that once selected, blocking applies to all devices or users. http://www.itproportal.com/2011/05/10/talktalk-homesafe-kicks-out-torrent-sites/
My sense is that Virgin, Vodafone and BT are saying they will do something similar.
On Parentport, it`s not the existence of a website which is relevant, but what kind of body is sitting behind it and what power they will have to do anything regarding whatever content is being grumbled about. Seems to me that the ISA and OfCom already accept complaints about inappropriate TV and advertisments. Will Parentport just sort the complaints and send them boxloads of emails?
Harvey [27939. Posted 6-Aug-2011 Sat 12:35] View Near Messages
"Frankly, this deep packet stuff sounds just a tad Orwellian."
It`s rather sensible and refreshing of Ofcom to point out that blocking individual addresses isn`t practical. Instead they suggest some clever filter boxes will somehow come into being as if by magic. Let`s see what happens when someone works out how much it would all cost and more importantly, who would be asked to pay. Put it this way; if you were a UK ISP, exactly how much of your profits would you be happy to spend to protect the copyrights of the US movie studios and record companies.
I invite you to look at the problem (and it is a problem) of uninsured motor vehicles. By all accounts around 15% of cars are uninsured. A recent new law says any uninsured vehicle can be clamped, taken off the road and destroyed. So it`s a draconian approach, Orwellian, maybe. After all the DVLA have a record of every insured vehicle, so clamping those uninsured ones should be a breeze. Take a look down your street, take a stroll around your town. How many clamped cars do you see? The state has created the law but its enforcement costs - and it`s a cost that can`t easily be dumped onto someone else.
Harvey [27928. Posted 3-Aug-2011 Wed 19:22] View Near Messages
"More that it is the first case of legally enforced cleanfeeding of anything that isn`t child porn."
If you look at section 3 of the Terrorism Act 2006, it does appear to require access be blocked to a statement or article appearing on the Internet which is deemed to be encouraging or glorifying terrorism. The govt. at the time said this did not equate to a statutory requirement on ISPs to act to block access to such articles, but that the Act provided "flexibility" so that this could be required if it proved necessary (whatever that means)
Regarding Newzbin I just encourage you to read the judgment rather than the press reporting of it. The mechanism required to restrict access to Newzbin isn`t actually specified. Cleanfeed is mentioned but the actual mechanism will be decided at a further meeting between the parties in September or October. It may or may not turn out to be that Cleanfeed (i.e using the same list of target sites and the same proxy) is adopted. The court was quite up front in stating that even this method would only restrict rather than prohibit access. Cleanfeed was only created so that the ISPs could reasonably claim "look we are blocking kiddy porn sites". It`s not that difficult to work around and any kind of restriction really relies on the target site remaining passive in the face of the attempt to block access to it. Newzbin has said it will not remain passive, so let`s see where this goes.
"In which case, extradite them as with any other law."
I`m sure you`re aware that extradition isn`t possible in the situation of seeking remedy in the civil courts. Not least because if it was, the state would be taking sides in a dispute between two private parties. Even criminal cases may not be amenable to extradition. Russia, for instance, refuses to allow any of its citizens to be extradited. Other jurisdictions only allow extradition in cases of serious crimes of the kind which wouldn`t usually include a copyright offence. And even if a criminal conviction was possible and successful, with or without the offender being brought into court, the illegal activity would still continue as long as the infringing site continued to exist. If the site itself is outside the jurisdiction of the UK courts, other than requiring UK ISPs to block access to it, what enforcement action can be taken?
"Government/courts mandating that website is blocked - censorship, and a worrying thing."
Well, I would agree that where the government or state appointed body mandates the blocking by others of access to published material based on taste, political expediency or other arbitrary whim, that is undoubtedly censorship. And it`s more than worrying. If that was happening, it would be completely unacceptable. (This is what the IWF list/Cleanfeed does, but even in the UK you can still chose an ISP which isn`t signed up to Cleanfeed.)
But if you accept that the creator of a book or film, game or other computer program has some rights over the extent to which their work may be copied, surely you have to accept that those rights must be able to be enforced where an infringement occurs? And how can there be any kind of remedy unless the infringement is restricted in some way or other? If you do accept that there needs to be some remedy available, do you call the restriction censorship? I say no, because it invites an equivalence with the arbitrary banning of books or blocking of websites by the state which rather than attempting to protect anyone`s right or provide remedies, only infringes the right of the author to free expression. So I see no equivalence.
The coalition had already flagged up that they intended to ditch sections 17 and 18 of the Digital Economy Act. It had been a LibDem pledge prior to the last election, so to have it confirmed is welcome. Giving the Secretary of State the ability to instigate the blocking of access to anything on the Internet is wrong in principle. The clauses were drawn up so that it could have amounted to censorship rather than protecting anyone`s copyright and even where someone`s copyright is infringed why should they be in the unique position of having the state seek remedy on their behalf when everyone else has to cough up and drag themselves through the civil courts.
I hope we see the powers in the Act to disconnect users` Internet accounts similarly ditched. To keep these means in law would be totally disproportionate to the alleged infringement and contrary to the principles of justice which require there be no punishment without a fair trial.
In all the discussion about blocking access and disconnecting users the most pernicious form of censorship hardly gets a mention. It is the practice of hosting ISPs to operate a notice and takedown process which acts to restrict what you can access to a far greater extent than Cleanfeed ever will. Someone on a Commons committee recently related a trial which had taken place whereby an extract from Thomas Paine`s Rights of Man was posted on a number of websites. Then each hosting ISP was given a notice and takedown request claiming copyright infringement. The vast majority of host ISPs complied with the request without question. [Tom Paine`s work was written in 1791 so no longer under copyright] It also occurred to a site to which I contributed regularly. Hosted in the USA, we succeeded in getting right up the noses of the UK police by revealing some of their excesses and downright lies in relation to Operation Ore. UK plod had a quiet word with their friends in the FBI who told the host the site was operating illegally and that they should take it down. They did, (so much for constitutional protections!) but despite the alleged illegality nobody was arrested, let alone charged either in the US or the UK. Like I said; nobody should be required to block access to anything without a court order, otherwise I can`t see how it`s anything other than censorship.
Harvey [27923. Posted 3-Aug-2011 Wed 04:50] View Near Messages
My point is/was that I find it difficult to see the Newzbin case as censorship.
I`m sure everyone here will care about whether something is censorship or not and whether censorship is justified. I just encourage everyone to read the court`s judgment in this case. ISTM that the court has gone to great lengths to make sure it is not acting as a de-facto censor. If other people think differently, of course they will make their own minds up.
"If they`re out of the UK, then tough."
I just disagree with that. If someone is publishing in the UK they are both subject to the laws and protected by the rights which apply in the UK. When they are themselves outside the UK and publish by means of the Internet it does not mean the UK courts should stand aside and do nothing either to protect their rights or apply the law. It cuts both ways, so that if I am in Lithuania or Brazil and publish an article on the Internet, if that publication breaks no UK laws, I should be able to rely on the UK courts to act if an ISP like BT blocked UK users from accessing it, shouldn`t I?
"But censor my Internet connection, and that`s messing with me instead."
But to what extent is it *your* Internet connection? ISTM that once you go very far beyond simple file transfer, the Internet provides any number of mechanisms that restrict, modify or suppress what has been published. If you use a 3G celluar Internet connection you will find that providers like Vodafone and Orange "optimize" the loading of web pages by using lossy compression of image files. The result is that you see a lower quality image than the one which was published. Are Vodafone/Orange censoring your Internet connection? Some ISPs don`t carry all of Usenet. Is this censorship or just a commercial decision by the ISP? Some ISPs don`t allow access to particular services or via certain ports. Censorship?
I completely agree that Cleanfeed was introduced under threat. It would have been far preferable if ISPs had stood their ground as BT did in the Newzbin case and required a court order before blocking anything. Furthermore, in the case of indecent images I believe the court would have been justified in requiring access to the images themselves to be blocked. Perhaps if that had happened we would have seen a better blocking mechanism devised.
Harvey [27920. Posted 2-Aug-2011 Tue 04:40] View Near Messages
"If I can`t access a website, it`s censorship."
Yes, but my point was that in requiring BT to block access to Newzbin, it is the compendium of links which is being "censored", the copyrighted material is still available on Usenet. If the court had required BT to block access to Usenet, I think we would then be in "censorship" territory of the kind I`d be prepared to get active in protesting against.
So the court has been quite precise in granting its injunction and BT has also been quite principled in refusing to block anything (other than the IWF list) without a specific court order. I would recommend looking at the actual judgment. It`s quite long but my reading of it reassured me that this was nothing like the precedent which the film rights holders were claiming.
"Should access to any site be blocked if it`s potentially illegal?"
Well first, there is no such thing as "an illegal website". There are sites whose publishers may be breaking UK laws. Some of those sites might be in the jurisdiction of the courts in the UK. There are also sites which contain content which it would be illegal for someone in the UK to possess. Should access be blocked to any of those sites?
In my own view you first have to deal with the weasel word "potentially" and that means nobody should be required to block access to anything unless ordered to do so by a court. BT and others do block access to the IWF list and although I do criticise the method by which the Cleanfeed/IWF blocking works, that is by choice. So basically while I think everyone should be free to publish what they wish within the law, service providers should also be free to decide what to carry on their service. The problem with Cleanfeed is that it does not simply block access, but redirects via a proxy server. We saw the potential for that process to interfere with the way the internet operates in the Wikipaedia/Wayback Machine incidents.
So what should the UK courts be able to require a service provider to block access to? My view is that it should be limited to that which would be subject to the law and would be required to be removed if it were in the jurisdiction of the UK courts to make an order or issue an injunction. Or, in the case of a site acting against the criminal law it would be as a result of a conviction at trial, with proof required to the normal criminal standards.
We then have the category where there is content which is illegal to possess in the UK. Here my view is that it is wrong in the first place to criminalise anyone simply for possessing either words or pictures. I can see the need for some protection given as to what may be published, distributed or shared, but simple possession of words or pictures should not be a criminal offence. So access to that material should only be required to be blocked where the publisher has been tried and found guilty in a criminal prosecution and an order made by the court.
In the case of Newzbin, the court first made an order requiring them to cease providing the links to the copyrighted material. The company ignored the order and moved offshore instead. It was only after that happened that the rights holders brought the action against BT to block access to Newzbin through their service.
Harvey [27917. Posted 1-Aug-2011 Mon 04:54] View Near Messages
emark... is this really "censorship"? Let`s remember that Newzbin are/were running a nice little business earning themselves 6 figures per annum by selling access to someone else`s work.
The copyrighted material itself isn`t being blocked. It`s still there on Usenet and available for anyone to download.
And of course it remains possible to actually pay for the films.
Harvey [27915. Posted 31-Jul-2011 Sun 16:49] View Near Messages
"copyright infringement isn`t even a criminal offence, it`s a civil issue."
Copyright infringement for gain, such as copying for the purpose of selling or hiring to others, public performance of a copyrighted work, commercial manufacturing of protected works are criminal offences.
Even so, Newzbin weren`t prosecuted under the Copyright, Designs and Patents Act, but in the original case the court found they had infringed the film studios and granted an order against them requiring them to stop further infringement. Newzbin just moved offshore, prompting the recent judgment.
"I think we`ve got a bit of a precedent here."
It`s a legal precedent. BT had been politely asked by the film studios to block access to Newzbin when it moved offshore. BT refused to do it without a court order.
The film studios would like to present this as the crack in the dam which allows them to have all and sundry access to their copyrighted material blocked, but I don`t think it`s that clear. I`m sure that if approached, the ISPs will still require a specific court order before they block access to any other site. So there is now a precedent, but will the copyright holders be prepared to go through the same long and expensive legal process in each and every case.
Harvey [27906. Posted 28-Jul-2011 Thu 05:07] View Near Messages
"AFAICT it`s a general Usenet search engine - might as well block Google for linking to copyrighted material, or because people use it to find torrents."
From my reading of the judgment, Newzbin provides more than simply links but a mechanism to quickly download from Usenet. The links are created and managed by "editors" who add links to further descriptive material in addition to the basic Usenet message(s), so it`s not directly comparable with a search engine. Having said that, again from my reading of the judgment, Newzbin doesn`t actually host the copyrighted material itself.
"Would this ruling have gone this way, if Cleanfeed didn`t conveniently exist?"
ISTM that if Cleanfeed didn`t already exist, the judgment would require BT to produce something similar in order to comply with the injunction. It`s pretty clear that the other major ISPs will now follow BT and include Cleanfeed blocking of Newzbin. It remains to be seen whether the MPA will go after minor ISPs who decline to block Newzbin. The other question is to what extent the MPA or other copyright owners will go to insist ISPs block access to other websites.
Harvey [27893. Posted 18-Jul-2011 Mon 19:02] View Near Messages
@MF (Dave) 
The succinctly titled "Draft Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2011" is really just a tidy-up.
The requirement to notify (commonly called The Sex Offenders Register) is a provision of the Sexual Offences Act 2003. That Act applies the whole of the UK. The SOA 2003 contains a schedule (3) which lists the specific offences which trigger the requirement to notify. The Scots are simply asking the UK Parliament to change the schedule to their 2003 Act so that the Scottish offence will be included and thus the notification requirements will be triggered and apply, UK wide, for a person convicted of that offence.
The SOA was similarly modified to include the DPA offence in Schedule 3. The DPA offence applied only to England, Wales and NI, but since it was made in the UK Parliament and the SOA applies to the whole of the UK, it was all accomplished with the text of the DPA, rather than requiring a separate tidying-up order so that a person convicted of the English offence would be required to notify even if they moved to Scotland.
Since the amendment simply includes a new Scottish offence to the schedule, it would not appear to change anything in the present law as it affects persons convicted of offences in England, Wales and N. Ireland.
Harvey [27712. Posted 12-Apr-2011 Tue 13:36] View Near Messages
@pbr Re: Koran burning
presumably he was charged under section 4A. Which is the usual catch-all. (Unless you are in Scotland when they dream up a breach of the peace).
Harvey [27707. Posted 11-Apr-2011 Mon 11:13] View Near Messages
RE: Operation Ore.
Thanks, Spiderschwein. It`s well worth reading the transcript.
Harvey [27687. Posted 4-Apr-2011 Mon 10:55] View Near Messages
Talking of incitement - In the Register today - Ore.
Judge hits police with massive bill over false Operation Ore charges
Operation Ore was based on flawed evidence from the start
More cases to come. Thy key quote here is from CEOP who said: "We will not be making any further comments on this operation or its various investigations unless required to do so by a court of law or a law enforcement organisation."
This tells local police forces that now Gamble has left, they can no longer expect to receive any help from CEOP and they are on their own if they want to justify the way the prosecuted Ore cases.
Harvey [27314. Posted 16-Nov-2010 Tue 10:34] View Near Messages
What would you be looking for in an FOI request? The material has been described in open court as "disgusting", etc, etc and therefore "extreme" according to the 2008 Act. The defendant himself must have agreed otherwise why did he plead guilty?
The point is that on another day or in another court another defendant might successfully argue that possession of the same image(s) was not an offence because they were not "extreme" or, perhaps, that they were not "pornographic". So even if the nature of these images was released to the public, it wouldn`t constitute a definition of what was or wasn`t "extreme" any more than the details of one case of a householder apprehending a burglar on his premises constitute a definition of what is or isn`t "reasonable force".
Just to note that plenty of these cases seem to be dealt with in Mags Court by way of guilty pleas, and plenty of those seem to originate with the N. Wales Police who appear to be developing a penchant for bringing charges for EP when their original line of enquiry has come to nought. The local press should be asking why that is instead of just printing matter of fact pieces like this.
Harvey [27295. Posted 10-Nov-2010 Wed 19:06] View Near Messages
If the rash of news stories this evening isn`t enough of a hint.
Just to let you all know that tomorrow (Thursday) the Court of Appeal gets to hear just how dumb the cops and their IT goons running Operation Ore actually were. Dead man walking is that publicity seeking opportunist, zealot and nincompoop, soon-to-be ex-Chief Executive of CEOP; Jim Gamble. Strangely for Jim, when ITV news called he said he`s not available for comment.
The hearing is expected to last two days. Final judgement will probably be reserved to a future date.
Harvey [27268. Posted 21-Oct-2010 Thu 17:36] View Near Messages
The CPS might not record sentencing details but they do record outcomes (conviction, guilty plea, acquittal, discontinuance, etc)
They compile the stats for their Annual Reports, so of the prosecutions they have instigated and have ennumerated for you, they will have the data which will allow them to provide the outcome in each case, if not the sentence of the court.
You need to word your FOI request to ask for outcome, rather than sentence.
Harvey [27232. Posted 5-Oct-2010 Tue 14:00] View Near Messages
"Seems that Gamble resigned because the government wanted to incorporate CEOP into a national police agency. Thus ridding CEOP of it much prized independence."
+ `commercial partners`
CEOP benfits from "partnerships" with Microsoft, AOL, Vodafone, etc. What would happen if that tap was turned off and CEOP had to compete for its budget with real police?
It`s a gravy train - buffers situation and Jim thinks he`ll find the grass greener on the charity circuit.
BTW Ore day is November 11th and I am intending to have a ringside seat. Watch this space.
Harvey [27227. Posted 4-Oct-2010 Mon 15:16] View Near Messages
Well, of course that`s what they say. But the trend has always been for politicians to become more, rather than less, authoritarian once faced with the responsibilities of office.
After all, it is the Minister in charge who will be faced with answering the questions when the next Baby P case hits the tabloids, radio phone-ins and daytime TV rent-a-mob shows.
Social Services will tell you (and the Minister) that a large part of the problem is that many of the most vulnerable children aren`t labelled "at risk" because all the dots are never joined up. so let`s see how "limited" the Contact Point database actually is, be fore we chirrup that it`s been abolished.
By the way, Jim Gamble has resigned - http://www.u.tv/News/CEOP-Chief-Executive-resigns/d68fef75-abe2-479a-8b2f-500e69325692
Harvey [27223. Posted 2-Oct-2010 Sat 15:52] View Near Messages
"axing the child register"
Yes, that`s what they said... But what have we here?
"After the election the coalition government announced it was pulling the plugs on the project, but now a parliamentary written answer, indicates they are having second thoughts and are considering a streamlined version of the database."
Whichever party it is, they always turn up promising to undo the overblown authoritarian measures of the previous lot, but I`ll cheer when all the bad legislation is repealed, and not before.
Harvey [27177. Posted 8-Sep-2010 Wed 15:36] View Near Messages
"`Lesbian feminist Communist` is a pretty apt summing up of her."
I don`t despise Campbell for her political views and I`ll forgive her lack of knowledge of what might stimulate a male to the point of ejaculating.
But she has an agenda which is written in terms of certain absolutes and has lost all sense of reason. Dig around some of the scandals which have fueled mass hysterical reactions over the past couple of decades and the chances are you`ll find the malign influence of Bea Campbell. Broxtowe (Satanic Ritual Abuse myth), Shieldfield (False accusations of child sexual abuse), Cleveland (Mass misdiagnosis of child anal rape). The facts are warped to fit the only "truths" she`s prepared to accept: That all men are rapists and child abusers and that women only commit crimes because men force them to.
Didn`t listen to Vine, though. Why his editor thought NHS wank porn was an "issue" worthy of discussion remains a mystery.
Harvey [27137. Posted 13-Aug-2010 Fri 17:23] View Near Messages
I tend to think the biggest trouble will be with prisons, rather than the courts.
Harvey [27135. Posted 13-Aug-2010 Fri 17:09] View Near Messages
Well legal aid was being squeezed even before the government`s finances got so out of shape. But I take your point that when the budget gets slashed, there will be less justice to go around.
Although... the slashing of budgets at the MoJ could work to prevent the CPS spending money on such nonsenses as the tiger porn man`s case. So it`s swings and roundabouts.
Harvey [27133. Posted 13-Aug-2010 Fri 16:46] View Near Messages
I think the facts of the McLibel case also bear on the ruling. It was McD who sued Steel & Morris. They were not seeking legal aid to bring a case of their own, but to defend themselves in an action brought against them. AND it was a very unequal struggle between a wealthy multi-national and two individuals of limited income. So while the ECHR upheld the claim of the McLibel 2, that in their case they had been denied a fair trial, that`s far from being a ruling that the discretionary awarding of legal aid is in conflict with article 6.
But in the recent comparable and notorious libel action against Simon Singh by the British Chiropractic Association I don`t think he got any legal aid to defend himself. Though the BCA eventually dropped the case, he was left with a legal bill well into six figures. Singh wasn`t denied a fair trial. He just had to pay for it. But then the BCA probably paid a similar amount, if not more to exercise their right.
Harvey [27125. Posted 12-Aug-2010 Thu 16:32] View Near Messages
IanG, AFAIK there is no general entitlement to legal aid for civil cases. Though the ECHR does say that to ensure the right to a fair trial there should be legal aid for criminal proceedings AND to determine civil rights.
Other claims are assessed on merit, and even then any legal aid is means tested. Even with a strong case, you have to be virtually destitute to qualify for anything. Taking a simple case to the High Court to get a judicial review could cost you anything up to £10k in fees and lawyers charges.
Harvey [27123. Posted 11-Aug-2010 Wed 19:17] View Near Messages
Civil cases involve individuals or parties who each fund their own cases as far as court and if applicable the losing party may have to pay some or all of the costs of the other. The state acts as judge and in some cases there is a jury. It is almost impossible for an individual to get state funding to bring a civil action.
In criminal cases it`s an individual up against the state itself. If the state prosecutes you, it will provide legal aid to cover the basic costs of hiring lawyers to defend yourself. If you lose, you will be sentenced to jail or a fine or other punishment, but you won`t be handed the bill for the costs of the prosecution.
So in prosecuting criminal cases there is a sense in which the state, with its vast resources, can always "have a go". It knows it will cost the same to fight you and lose as to win so the only decision is whether to fight the case against you rather than any other case. The only sanction would be that you could sue the police for malicious prosecution. You would need to show malice or a malign motive and as it`s a civil action, you`d only need to show that malice was more likely than not rather than beyond reasonable doubt. But... you`d need to raise the money to bring the case in the first place - it being almost impossible for an individual to get state funding to bring a civil action. If you win you`d be awarded damages. I know of at least one Ore case where a the police are being sued for malicious prosecution. http://www.watfordobserver.co.uk/news/4769650.Photographer_to_get_retrial_over_child_pornography_damages_claim/ It`s still winding it`s way through the legal morass.
Beyond that, if the police actualy falsify evidence or lie or withhold material they know would help you defend yourself, they could be open to criminal charges themselves of perverting the course of justice, perjury, misfeasance in a public office or contempt of court.
Harvey [27118. Posted 10-Aug-2010 Tue 10:14] View Near Messages
In the OPA case I think you`re referring to (Girls Scream Aloud), yet again the prosecution offered no evidence. So we can only guess what may have happened in the trial.
The press were reporting that the issue was concerning who may have been likely to read the story and the court may have allowed an expert to unravel the workings of the internet and the story site where the article was posted for the benefit of the judge and jury.
Harvey [27113. Posted 9-Aug-2010 Mon 18:39] View Near Messages
Would he have been allowed to call experts to testify that the image was not pornographic? I would expect the court to say it was a matter for the jury to decide and that they could be expected to do so purely by looking at the image itself. There was similar argument as to the admissibility of expert testimony in relation to the apparent age of a person featured in an image. The Appeal Court ruled that it was a matter for the jury alone to decide if it was a child.
"In R v Land (1997), the Court of Appeal held that a jury is as well placed as an expert (e.g. a paediatrician) to assess any argument addressed to the question whether the prosecution had established that the person depicted in a photograph was a child, and in any event expert evidence would be inadmissible: expert evidence is admitted only to assist the court with information which was outside the normal experience and knowledge of the judge or jury." [http://www.inquisition21.com/pca_1978/#_int_age_unk]
The whole point being that if the courts accept that it takes an expert to decide, how could any ordinary person, reasonably know whether any image they possess is of a child (or indecent or pornographic or extreme)? Though I admit that the way the DPA is worded expects the jury to decide on the motivation of the person who made the image, I`m sure the courts won`t torpedo the whole offence by admitting it takes an expert to decide.
So, I still believe they planned to run a specific defence (most likely that the image had been sent without him having requested it) and that`s the reason why the prosecution folded. But because it was never actually tried, it is possible for both the prosecutors and the defence to make all kinds of claims about what would have happened if it had been and we are left wondering exactly why the CPS bottled out.