Original URL: http://www.theregister.co.uk/2009/06/30/obscenity_law_where_now/

UK obscenity law: Where to now?

Post-Girls (Scream) Aloud, the written word is safe - for now

By Jane Fae Ozimek

Posted in Law, 30th June 2009 11:21 GMT

Analysis As the dust settles on the Girls (Scream) Aloud trial, what are the implications for the future of obscenity law in the UK?

In the short term, the answer has to be "not much". Had the trial produced a guilty verdict, then much would have changed.

It would have been the first successful prosecution of written material under the Obscene Publications Act 1959 (OPA) in over 30 years: it would have succeeded in respect of material that, however apparently appalling, is not that much more extreme than hundreds – thousands, even – of similar works on and off the internet.

The door would have been open to a slew of similar prosecutions: more importantly, it would have had a serious chilling effect, putting on guard any budding writer thinking of dealing with the cruder, rawer side of erotic life.

However, there are implications even from a failed prosecution. One notable question mark lies over the relationship between law enforcement and technology. The reason advanced, both by police and Crown Prosecution Service, for proceeding with this case was a belief that a story based around a well-known girl band might lead many innocent surfers to stumble across it.

Not so. The point of the evidence submitted by this correspondent was that the very fame of Girls Aloud acted as a buffer against such accidental stumbling. Simply using Google to look for "Girls Aloud" would produce millions of hits – with the story in question nowhere in sight. Add a range of terms – such as "rape", "murder", etc and the chances of finding the story become greater – but then the innocence of the searcher (at least according to the CPS worldview) must be brought into question.

Go into safe search mode – and the story cannot be found at all.

In other words, if parents regulate their childrens’ access to the internet, the entire basis for this case goes away.

Julian Petley, Professor of Media Studies at Brunel University, raised a number of questions in evidence to the court. Pointedly, he asked why the Daily Star – which is not known for being shy of pornography – had reported the story initially, and why the Internet Watch Foundation (IWF) had then passed details on to police.

Was this yet another example of the IWF making a judgement call undermining its claims to expertise in this area?

A spokeswoman for the IWF denied this, saying that this was merely one of many day-to-day contacts with the police: a matter was reported to them; it was outside their remit, so they alerted the relevant authorities.

Harder questions, perhaps, for the CPS. As the case hurtled toward an inglorious end, claims circulated that the original decision had been made by a junior member of the North-East CPS, and that there had been a falling-out between the North-East prosecution service and Head Office as to whether to proceed with this case.

Both these claims are denied officially. A spokeswoman for the CPS said that the original decision had in fact been signed off by Nicola Reasbeck, who was Northumbria’s Chief Crown Prosecutor.

The CPS did confirm, however, that there was no necessity in law for this case to have been referred to the Director of Public Prosecutions. This seems to be an odd loophole, since a prosecution for simple possession of material under extreme porn law does require the DPP’s involvement: but a prosecution for publishing or distribution does not.

What have we learned, children?

Yet it is the latter that has far greater implications for public policy and freedom of speech. There have now been a number of calls, including one from Jo Glanville, editor of the respected political magazine, Index on Censorship, for such decisions in future to be automatically passed by the DPP.

From the other side, no demands yet for an overhaul of the OPA: though recent claims that extreme porn legislation has been used in instances where an OPA prosecution might have been more appropriate must give pause for thought. Is the extreme porn model of "tick box" obscenity more attractive to legislators and law enforcement?

This case highlights one further aspect of OPA practice – which is the way in which one individual was publicly pilloried, tried by the media, then spat back out jobless and with future prospects impaired. It is his hope that he can now put this episode behind him: future employment may, however, now fall foul of the government’s Vetting legislation, which requires the police to make even non-conviction information available to future employers.

What, then, has this case achieved? Although the author took down the story quickly in an effort to appease the authorities, a helpful proponent of free speech appears to have reinstated it not very much later. The story is still online.

The CPS and Police say that they needed to act because the site was easy to access – which is partly true – and because it was easy to stumble upon. The latter was always far less true and a simple familiarity with how Google works might have saved both bodies a great deal of time.

Ironically, the mass of searches and site hits likely to have resulted from the publicity around this trial will have raised this story in the rankings of many search engines, and made it far more easy to "stumble upon" innocently. This is the same issue the IWF hit when they attempted to block access to what they deemed to be a potentially illegal image of a Scorpions album cover late last year.

Does that mean illegal material should not be prosecuted? No. However, the authorities need to keep in mind that an almost inevitable result of such banning attempts will be not simply to increase interest in it – which has always been the case – but on the internet, to increase the likelihood of it being found accidentally. ®