How the government uses dirty data to legislate morality

The other side

When it comes to the "other side", the government consultation on extreme porn was very limited in seeking input from groups representing the bdsm community. Their invitation to Spanner, one of the oldest and most distinguished groups in this area was sent to the wrong address.

Proposals in respect of "cartoon porn," currently before parliament, appear to have been put together with little or no input from any official industry trade body – which may be why the government declared with such confidence that the proposals would have no discernible effect on UK commerce.

However, it is in the area of presumed effect that government law-making is most shaky. The basic Libertarian argument, derived from John Stuart Mill, is that government may make laws where issues of direct harm to individuals are involved.

Unfortunately, across a range of issues, from porn to video nasties, the received wisdom is that there is no such evidence. That does not mean no link exists: Rather that the research that might show such a link beyond any reasonable doubt has not yet been carried out.

When the government was legislating on the content of videos in 1984, a series of claims were made, many based on unsubstantiated media stories, about links between watching videos and subsequent behaviour. These claims were later comprehensively debunked by a number of academics, including Guy Cumberbatch of Aston University – and to their credit, the Department of Culture, Media, and Sport (DCMS) accept this.

What then is government to do? The answer has been twofold – and neither answer does them much credit.

On the one hand are attempts to redefine the concept of harm. One argument that has been developed by feminists is that there is such a thing as "harm speech" - that words can do harm in respect of how they frame a particular group socially and therefore create social consequences for that group.

Whilst this may inform some government thinking, it is not uppermost. More interesting is the concept of "potential harm" or "risk of harm." The former appears in the Video Recordings Act 1984 and has been given added weight in the last year by a ruling that the BBFC should pay attention to risk of harm when classifying films.

The DCMS argue that children shouldn't be exposed to certain kinds of content because it could be harmful. A Westminster Hall debate on "Harmful Content on the internet" produced some intriguing assertions about risk, as Conservative MP, John Whittingdale, observed: "If one looks for empirical, hard, factual evidence [of harm], there is very little. Our view was therefore not...'we cannot act,' but that we should act on the probability of risk."

It is hard to understand what the government and politicians are getting at here. Almost everything is potentially risky. We asked the BBFC why they were happy to censor films on the grounds that some sexual practices were "potentially risky" whilst leaving alone smoking, despite the known hazards that involves. Their answer is that public acceptability is also a factor. Or, in other words, potential risk is important ...sometimes.