The Obscene Publications Act rides again

The legal world is buzzing at the announcement last week of the prosecution of 35-year-old civil servant Darryn Walker for the online publication of material that Police and Crown Prosecution Service (CPS) believe to be obscene.

This is the first such prosecution for written material in nearly two decades – and a guilty verdict could have a serious and significant impact on the future regulation of the internet in the UK.

The case originated in summer 2007, when Mr Walker allegedly posted a work of fantasy – titled Girls (Scream) Aloud - about pop group Girls Aloud.

The story describes in detail the kidnap, rape, mutilation and murder of band members Cheryl Cole, Nadine Coyle, Sarah Harding, Nicola Roberts and Kimberley Walsh, and ends with the sale of various body parts on eBay.

The piece was brought to the attention of the Internet Watch Foundation, whose remit includes the monitoring of internet material deemed to be criminally obscene: they in turn handed details over to the Police.

The Met’s Obscene Publications Unit are currently handling the case, which is due to come before Newcastle Crown Court on 22 October. At that point, Mr Walker will have the opportunity to enter a plea and, if he opts for “not guilty” the court will set a date for a full trial.

Hard facts on this case are hard to come by, not least because it is now subject to the laws on contempt. There has been some speculation that the story was evidence of stalking intent – and also a degree of blurring between “blog” and “story”.

As far as the Reg is aware, the piece for which Mr Walker is to be prosecuted is story, rather than blog. Reports suggest it was published on “the Kristen archives”, which is itself hosted by the Alt Sex Stories Text Repository (asstr).

Internet veterans will be aware of the alt.sex hierarchy of discussion groups as forming part of usenet, one of the oldest surviving network comms systems still in use and pre-dating the world-wide web by over ten years. Asstr is effectively an archive of any and every story posted in alt.sex since its inception.

Material hosted on this site is subject to little moderation: content ranges from the mildly pornographic to the seriously extreme, and therefore does include subjects (rape, underage sex, bestiality) that much of the population finds disturbing or distasteful.

The true significance of this case – and the reason for our interest – is that it is the first prosecution under the Obscene Publications Act 1959 in respect of written content since 1991.

This Act is the yardstick by which obscenity is measured in the UK: it is an offence to publish material that tends to “deprave or corrupt” its audience.

Unfortunately, the Act has had a somewhat chequered history in respect of the written word. Its first major outing was in respect of Lady Chatterley’s Lover in 1960, which resulted in a resounding rebuff for the establishment view that promiscuity should be deemed obscene.

Initial success in prosecuting the publishers of the Oz Schoolkids issue in 1971 was followed by a reversal on appeal. In 1976, following the acquittal of the publishers of Inside Linda Lovelace, the Metropolitan Police pretty much abandoned prosecutions against books, believing that if Inside Linda Lovelace was not obscene, then nothing was.

The last such case was in 1991, when Manchester magistrate Derrick Fairclough ordered the seizure under section 3 of the OPA of David Britton’s Lord Horror. This would have allowed the book to be destroyed without jury trial. Again, the decision was overturned by the Court of Appeal.

The significance of this prosecution cannot therefore be understated. At present, the UK effectively has no sanction against written material, no matter how apparently obscene. This is not the case for pictorial material, which is regularly seized, prosecuted and in many cases deemed obscene.

Kirsty Brimelow, a barrister with Doughty Street Chambers, probably represents one strand of establishment thinking on this subject. Speaking to the Reg, she said: "There have been rumblings within the legal profession for some time over difficulties policing the internet. There is so much disgusting material that is easily accessible to the general public and can hardly be described as being in the public good.

"The legal system needs to tackle the internet and draw the line between unsavoury material and that which should be classified as criminal.

There have been other straws in the wind. During the consultation phase for the new extreme porn law, Kent Police opined that it did not go far enough and that it ought to include strictures on the possession of written material as well.

Reading between the lines, this feels like a very tentative “toe in the water” on the part of the Met. After investigating the material in question, they clearly believe that this may at last be enough for a successful prosecution - they put the file before the Crown Prosecution Service, who appear to agree.

The implication for UK surfers is immense. If another not guilty verdict is returned, then written material on the internet – as written material elsewhere – will return to its present near-privileged status. On the other hand, a guilty verdict could change much.

This is not just because certain categories of writing could in future be deemed obscene but, as the US Supreme Court is usually keen to point out, the fear of prosecution itself is likely to cause a major chilling effect. Individuals will not write in case they overstep the Law.

More on this later in the month. ®