Original URL: http://www.theregister.co.uk/2008/11/28/extreme_images/

UK.gov says extreme porn isn't illegal if you delete it...

...unless you know how to recover a hard drive

By Jane Fae Ozimek

Posted in Law, 28th November 2008 16:28 GMT

The Ministry of Justice promised to provide public guidelines to the new extreme porn legislation this week and – behold! – here they are.

They have been greeted with some degree of criticism from those opposed to the legislation, on the grounds that they add little new to what was already known and fail to make matters as clear as they could. Much of this criticism, however, is as much to do with the substance of the law as the guidelines.

What almost all those involved agree – whether for or against – is that we shall not know how wide-reaching this new law will be until the first few cases are heard before a court. Everything else is mere parlour room speculation – and readers who wish to indulge in a little speculation of their own should proceed rapidly to the end of this artcle.

To fall foul of the new law – ss 62-67 of the Criminal Justice Act 2008 – images must be pornographic, grossly offensive and portray activity that threatens harm to life or limb, or involves sex with a corpse or animal.

"Life-threatening" is defined according to the usual dictionary definition: "serious injury" is not defined, but "could include the insertion of sharp objects or the mutilation of breasts or genitals".

"Explicit and realistic" take their ordinary dictionary definition.

The guidance is clear that the material will include "images which are indistinguishable from photographs and films": that includes cgi; and also, if Sadville ever gets its act together, some of the more extreme performances of virtual sadism.

Deleting an image will be sufficient to prove you no longer "possess" it – unless you have the skill to recover it. In which case you could still be done: techies beware.

Two interesting features of this new law arise in respect of potential defences. The first is where the material in question is a BBFC classified film, that should be an absolute defence. However, if you extract images or sequences from that film, your defence may fall.

That raises the interesting question of whether the BBFC would ever pass for viewing any scene, however transitory, that would fall foul of the Obscene Publications Act. The interesting answer from the BBFC was that although they knew of no such instance, the theoretical possibility was always there, not least because juries in different parts of the UK might have different views on what constituted obscenity.

Back in 1997, the Police took possession of material produced by Nigel Wingrove. Mr Wingrove is no stranger to controversy, being both the impresario behind the Satanic Sluts, and an avant-garde filmmaker famed as producer of Visions of Ecstasy, the only work still banned by the BBFC on the grounds of potential blasphemy.

When Mr Wingrove objected that the material in question had been passed by the BBFC, the Police suggested that they might have to raid that body as well.

Such a move would have been devastating for film in the UK, which is why it never happened. The BBFC has no formal powers at all to ban film: but Councils use its recommendations almost without question. Loss of faith in the BBFC system could lead to a collapse of the classification system – and the need for government to intervene.

A question asked by opponents of the law is whether the new legislation might trigger such a collapse – or at least cause problems. Despite repeated claims by its advocates that this offence is merely a filling in of loopholes under the OPA, it clearly is not, criminalising categories of image that would not fall foul of the existing law.

If, as seems inevitable, images from mainstream film eventually end up on the charge sheet in court, this may turn out to be a field day for moralists who have always insisted that the BBFC do not go far enough.

The guidelines further confirm that although you may possess pics of you and your beloved (singular or plural) indulging your taste for the extreme, this defence does not extend to the photographer, unless they were also a participant in the hanky-panky. Whether that means they have to set the timer going, then rush round the front to appear in the action, or just need to alternate turns with the camera and the nipple clamps is still unclear. ®

Debate - NSFW

As promised, here are some images or suggested images from mainstream film that might not stand the test set by the new law. Do feel free to comment and or provide your own suggestions and links (whilst recognising that our moderators are only human and do not all have cast-iron stomachs).

We start with our now familiar pic of two Satanic Sluts taking a bloodbath together

Then there is the rape scene from "Clockwork Orange" – which has been banned from YouTube.

Here is an award-winning Finnish short, which highlights the problem that this law might pose for much of the horror genre.

From Matador, by Pedro Almodovar, look carefully for the instant where the hero holds his girlfriend's head underwater in the bath so that she starts to drown whilst they are having sex. The guidelines target asphyxiation.

And here's some gratuitous violence.

A writer on UK film has also suggested a couple more scenes, for which we have been unable to obtain links:

The scene in The Man who Fell to Earth, where David Bowie's character threatens his girlfriend with a gun in a classic sex scene set to the tune Hello Mary Lou.

In Blue Velvet Dorothy holds Jeffrey at knifepoint after discovering him spying on her. She orders him to undress and they subsequently have sex.

If, however, you enjoy gross mutilation in a non-sexual context, have no fear: this new legislation will not touch such classics as Saw, Saw II, Saw III etc.

Apparently extreme images are only dangerous if watched by sexual deviants: psychopaths and murderers are unaffected by them.