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'Extreme' extreme porn law puts Scots out of kilter

Proposals would criminalise material allowed in rest of UK

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If you thought Scotland might be a safe place to stash your collection of dubious erotic artwork when legislation on extreme porn comes into force, think again.

Proposals announced last week by the Scottish Executive suggest that far from being a haven for smut, Scotland is soon to become an even tougher regime for those with "forbidden" interests.

As regular readers will be aware, back in May the Westminster Parliament passed the Criminal Justice and Immigration Act. This included legislation (s.63 - s.66) that would make it a crime to possess material that was pornographic and realistically depicted various acts, including extreme violence, bestiality and necrophilia.

Although the Act was passed in May, these sections have not yet been "commenced"- the official position appears to be that it will become active law in January 2009.

However, this legislation only applied to England, Wales and Northern Ireland. For a while it looked as though a gap might have opened up between Scotland and the rest of the UK.

Not so. In an announcement last week, the Scottish Executive made clear its intention to bring forward legislation on a wide range of topics that would "modernise and improve the Criminal Justice System".

Amongst these was legislation on the possession of extreme pornographic material. Whilst these proposals are modelled on the law already passed in England, they go further than that – and further, too, than proposals included in their original consultation on the subject.

Thus, it could become a crime to possess pornographic material that realistically depicts not only life-threatening acts, bestiality or necrophilia, but also "rape and other non-consensual penetrative sexual activity, whether violent or otherwise".

It is the last category – rape and other non-consensual activity – that goes beyond existing legislation. This is still at the consultation stage, and readers wishing to put in their own two-pence worth should take a look at the latest consultation document.

Will this cause issues of enforcement? We spoke with the Internet Watch Foundation (IWF), which is in conversation with the Home Office about enforcing the legislation in the rest of the UK. Its view is that there will be no problems. Any extension of the remit to cover extreme porn is likely to be limited to monitoring UK sites that were producing material that potentially fell foul of the new legislation.

There were very few sites likely to meet the extreme porn criteria, and these would simply be referred to the appropriate authorities for further investigation. The IWF currently has no intention of compiling a block list of extreme pornographic URLs.

Whilst this measure may not - yet - see different filters on your PC according to whether you live north or south of the border, it does raise the question of whether the day might come when material legally downloaded onto a laptop in London could lead to your arrest and imprisonment in Edinburgh.

The view of the Scottish Executive is that this will "help ensure society is protected from exposure to pornography that depicts horrific images of violence".

A spokeswoman for Consenting Adult Action Network (CAAN) Scotland rejects this. According to her: "This is nothing more than the SNP using legislation as a sop to buy support. In Scotland there has always been greater pressure on legislation from organised religion.

"The SNP has already given way to the Catholic Church on denominational schools. This is just more in the same vein, based on the calculation that few people will risk standing up in public and arguing for pornography.

"In fact the issues are much wider. Measures of this kind create a vast amount of uncertainty, which in the end has the effect of chilling speech overall. As someone who works in the film industry, I was recently involved in covering the Glasgow 'bootleg film' festival. This was about film as art and included a wide range of contributions from low-budget independent producers.

"They will not be able to afford the legal advice to tell them whether they are breaking the law – and if legislation of this type passes, such events will be far more constrained in future". ®

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