Original URL: http://www.theregister.co.uk/2009/02/18/cartoon_law_loophole_choke/

UK 'bad' pics ban to stretch?

Is that a loophole? How disgusting

By Jane Fae Ozimek

Posted in Law, 18th February 2009 11:59 GMT

The government could be planning to up the ante when it comes to material it doesn't approve of - it may become illegal to even look at images, not merely possess them.

Some odd, ambiguous remarks by Keir Starmer, Director of Public Prosecutions, raise this gruesome possibility. Evidence for it emerged from an elliptical exchange between Starmer and Jenny Willott, Lib Dem MP for Cardiff Central during the committee stage of the Coroners and Justice Bill.

Miss Willott has clearly done her homework. She noted that whilst the Internet Watch Foundation focuses on images that can be downloaded – the traditional web route – images accessed through other means, such as streaming, are not within its remit. She asked Mr Starmer: "If someone is watching streaming images online, there would be no actual copy on their computer, so they would not technically be in possession."

He replied: "It would be for the courts to interpret the meaning of possession. We would proceed on the basis that there should be no such loophole."

Mr Starmer’s reply can be interpreted in two ways: streaming is not a loophole, either because the government is not interested in going after it; or because they intend – or hope – that in time the courts will extend the definition of "possession" to the simple act of watching something unfold on a screen.

We asked the Crown Prosecution Service to expand on this statement, but they were equally Delphic in their pronouncements. A spokesman said: "The Director has given an answer to the committee… We are not in a position to expand upon it.

"It is clear from the fuller exchange that the Director is saying that he doesn’t think that there is a loophole, and we would proceed on that basis."

So there you have it. Or possibly not.

Mr Starmer ducked other questions raised by the Committee. Conservative MP Henry Bellingham raised the fear expressed by many fans of cartoon art that the Bill had been drawn too widely and could catch material that was wholly innocent.

This is the fear raised by, amongst others, the Comic Book Alliance, who point out that at the consultation stage for this law, no significant producers of legitimate comic book material were consulted: the government appear to have proceeded on the basis that adult cartoons were at best pornographic, at worst abusive, and to have ignored any input from those involved with the subject.

Mr Starmer expressed the view that there will be no issues in respect of artistic works, because, he argued, this law will be aligned very closely with the existing law relating to indecent images of children.

This is an unfortunate position, for two reasons. First, many quite respected artists have mingled art and sex quite freely in the past: perhaps Mr Starmer is unaware of the works of Aubrey Beardsley (NSFW)?

Second, the offence under existing child abuse law is "strict liability": the intention of the creator is not an issue, giving rise to cases such as that of Dr Marcus Phillips, who was found guilty of creating indecent images, despite a court acknowledging that there was no sexual intent. Either Mr Starmer is being disingenuous, or does not know his law very well.

He also confirmed that the law should catch "any pornographic image scrawled on a piece of paper": even, presumably, an image that an individual created for their own use and no other.

Last word goes to Miss Willott. Speaking to us at length, she said: "The Coroners and Justice Bill as a whole is a real hodge-podge of measures, with many ideas in it that seem to have been only half thought-out.

"This is the case with the sections on possession of Cartoon images... We are being asked to choose between two conflicting world views: on the one hand, there is a belief in the 'slippery slope', that looking at images habituates individuals to the actions involved and can increase the risk to children; on the other it is argued that these images act as a release and actually reduce the incidence of harm.

"It is worrying that we appear to be legislating on this subject without hard evidence either way – especially when getting it wrong could have such serious implications for children. We have passed laws against possessing indecent images of children, because such images are evidence of harm committed: that is clearly not the case with CGI imagery, and before we criminalise it, we should be prepared to come up with evidence of harm caused by the impact of seeing that image.

As for the streaming issue, Miss Willott felt that this was further evidence of things not being thought through. As far as she was concerned, "the Law as it is written would not criminalise people for looking at images. It is about possession. If the government wishes to take the further step of making it illegal to look, then they need to change what the Bill says.

"Even so, it is not at all clear that the technology to do this sort of thing exists: they would be criminalising an action that they cannot police, which is not good law-making practice." ®