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Posted by on Jul 22, 2013 in Culture, In the news, Law, Politics | 11 comments

Now the UK wants a clean feed policy

We went through this in Australia recently – a dangerous policy that involves censorship of internet pornography unless you take positive steps to opt out. It might sound good when you say it quickly. After all, no one wants child pornography on the internet, right? And some kinds of pornography, even apart from child pornography, may be pretty horrible and lead to nasty social consequences, right? The example often given is pornography that somehow fetishizes or glorifies rape.

Now, my position has long been that that I don’t rule out narrowly drafted laws that might attempt to stop some kinds of porn, provided that evidence can be adduced of an urgent need to do this to prevent serious, ordinary harms. The harm doesn’t have to be strictly direct, but there should at least be a solid evidence-based case about both proximity and urgency… but putting this case together has so far eluded anti-porn crusaders: the likes of Gail Dines, Melinda Tankard-Reist, etc. So, despite my general advocacy of free speech, I am not adamantly against all censorship of pornography outside the scope of child pornography. For better or worse, some so-called “extreme pornography” is already banned in the UK.

But so often, what we see is not well-evidenced argument but merely moral panic. And the solutions proposed are often dangerous. Here’s a set of my old posts (from the old site) about the dangers of clean feed laws, from when this was a hot issue in Australia. And here is a pointed set of questions by Paul Bernal covering some of the same territory.

 

  • Colin Gavaghan

    So here’s a slightly tricky question for Millian liberals (or this Millian liberal, anyway). Almost invariably, discussions of this topic begin with a statement something like this: ‘Obviously, like everyone else, I’d want to ban child porn. But when it comes to …’

    My tricky question is this: do we- and if so, why do we – have a justification for banning people from looking at child pornography?

    To clarify, let me make a few assumptions clear. First, I’m assuming that manufacture and distribution of those images will always involve significant rights violations, and very often very significant harms, to those children. As such, there is a very strong justification for hunting down and prosecuting those who make and distribute them.

    Second, I’m assuming that the profit motive plays a significant role in the manufacture of such material. Hence, those who pay to view it are contributing to its manufacture. Insofar as the demand begets the supply, we also have a pretty strong justification for prosecuting those who pay for such material.

    Third, though, I’m assuming that at least some proportion of those who view child pornography don’t pay for it – either directly with their credit cards, or indirectly through visiting sites with sponsors or adverts (would anyone sponsor such a site??) If such a cohort of ‘passive viewers’ does exist, then I’m struggling to see how what they are doing is anything other than a victimless crime. As such, however revolting I may find their predilections, I’m not sure I can think of a credble justification for punishing such people. The fact that almost everyone finds their tastes repellent is – for a liberal – absolutely not the sort of thing that should lead to a ban.
    Obviously, were a reliable causal link to be established between ‘watching’ and ‘doing’, we would be on a different terrain. But in the absence of such evidence … I’m wondering what your thoughts are on this, Russell.

  • RussellBlackford

    It’s a good question, Colin. My answer would probably be along the lines that once there are significant direct (or urgently proximate, etc.) harms coming from a practice the state has a pretty wide margin of appreciation in what it can do to try to stamp out the practice. Just how far that margin extends might be a matter for debate – surely a point must come where you’d have to say that the connection is getting remote and the effects on liberties disproportional to the law’s contribution to the goal. But if part of what the state is trying to do is dry up the market for something like child pornography, I don’t think it has to show that every instance of participation in or, as it were, near that market is adding to the harms in an identifiable way.

    So it comes back to legal concepts to do with administrative simplicity, whether the law is reasonably incidental or adapted to its purpose, and so on. I think someone advocating at fairly broad and technically over-inclusive laws would have to argue along those lines and someone saying that they really are perniciously overbroad would have to show how they can be more narrowly drafted without creating administrative problems, that they are capturing conduct that is only tenuously connected to the harms, and/or that we’d normally think people have a right to engage in, and so on.

    My own feeling – and I think in these cases intuitions may differ – is that it’s reasonable for the state to try to stamp out all child pornography as far as it can, and that criminalising all downloading of the stuff might be a justifiable part of pursuing that policy. The state is thus spared having to argue case by case that a particular viewing was making a contribution to the market in some way. Where I think it gets tenuous is when the state starts banning any representations of underage sex at all, even when it is clear that they are simulated or, in the extreme, when they involve cartoon characters. We’ve all heard of laws that have had that effect. By this point, it seems to me that we are beyond issues to do with administrative workability and into legal moralism.

    As you know, there’s a lot of constitutional law around about purposive powers, how to handle an “incidental power” in a constitution, and so on. That body of law probably has some wisdom in it to offer us.

  • keddaw

    “First, I’m assuming that manufacture and distribution of those images will always involve significant rights violations”

    Would that were the case, it would at least justify the moral panic. However the laws in the UK ban, in no particular order (and from memory):
    Recordings of consenting adults over the age of 18 legally engaged in a sexual act if one of the participants looks under 18;
    Married (or not) adults over 16 but under 18 making a home sex tape;
    Manga-style porn (hentai?) involving schoolgirl-esque characters popular in the genre;
    Consensual rape fantasy porn;
    Any porn containing consensual/faked genital abuse;
    Female ejaculation;
    Text describing rape fantasies;
    Text describing child abuse;

    So, you know, won’t someone think of the cartoon children…

  • Colin Gavaghan

    Thanks, Russell. Yes, I agree that incidental criminalisation of victimless crime may sometimes be a price worth paying to take action against some really harmful conduct. It probably makes sense, for example, to treat highly realistic pseudo-images as if they involve actual children, because the alternative would allow a very wide defence that was easy to claim and nigh-on impossible to refute, and which could have the effect of rendering any prosecution almost impossible.

    But I would argue that the state should not be too quick to accept such ‘collateral damage’ without at least considering whether it could be avoided without thwarting the state’s legitimate purposes. For example, would a rebuttable presumption in those circumstances serve as well as a cast-iron rule? That would transfer the evidentiary burden to the defendant to prove that, say, the image was entirely artificial, or that no money changed hands over it. If a particular defendant could demonstrate – perhaps on the balance of probabilities – that he acquired the material in a harmless way, then perhaps that could constitute a valid defence.

    I would also think a great deal depends on the numbers of dolphins being caught in the metaphorical tuna net; if it transpires that many, or even a majority, of those being prosecuted for downloading CP are victimless offenders, then my intuitions may be that this is not a price worth paying after all – especially in the absence of evidence that this is having much effect on the incidence of child abuse.

    Overall I guess I’m sceptical that administrative efficiency really justifies the potential ruin of a large number of lives, on the basis of something very close to thought crime. And I’m suspicious that pseudo-utilitarian justifications can come to afford a veneer of respectibility to something that comes very close to legal moralism.

    Oh, and a utilitarian postscript: how much police, government and court time/resources are being expended on the pursuit and prosecution of these victimless offenders? And could that perhaps be better deployed in pursuing those who are involved in the actually abusive end of the market?

  • Colin Gavaghan

    The law in this regard is utterly insane. How can the same 16-17 year old person (a) lack the capacity to consent to having a naked picture taken, but (b) possess the capacity to consent to sex, marriage or cohabitation? And how can they magically acquire the capacity to do (a) once they have done (b), but not otherwise?

    It’s quite possible to interpret this as having anything much to do with protecting vulnerable young people from reckless choices, and everything to do with imposing a (conservative) set of moral values.

  • keddaw

    At least part of it is complete cowardice on the part of politicians. Which politician anywhere in the world can you imagine coming out with a strong argument in favour of allowing people to view violent rape fantasy porn, or 16 yo teens having sex? The demographic that appeals to (libertarians and a very small subset of the population with questionable tastes in porn) would not garner enough votes to make up for all the parents and conservatives and old biddies that this policy would lose.

    Even making the broad argument that we need evidence before we go around banning stuff would fall flat against the stupidity of the masses, “obviously people watching violent rape porn or barely legal people having sex need to be watched, obviously if drives them into more and more violent and disgusting behaviour” whereas real evidence can be found that allowing people a safe outlet for their fantasies can actually diminish their desire and likelihood to carry it out in the real world.

  • Colin Gavaghan

    Yep, I agree. The conflation of ‘is aroused by thoughts of X’ with ‘is likely to do X’ – or even ‘would do X if could get away with it’ – is highly dubious, and potentially dangerous. For one thing, it completely overlooks the capacity of rational, moral beings to decide not to do X, despite finding it at some level arousing.

    I recently published a chapter in this excellent collection about precisely this danger.

  • davek99

    I’d definitely agree that there should be solid evidence of the need for criminalisation before new laws are put in place. In my opinion any possible benefits of banning something should be balanced against the clear and unambiguous harm caused to people who are arrested and prosecuted because of it.

    Many people have been arrested under the UK’s current porn laws for offences that amount to little more than thought crime (i.e. nobody was harmed in the production of the pornography they consumed). These people have had their lives ruined because they’ve been caught looking at the wrong pictures. Even someone like Simon Walsh, who was ultimately acquitted, still lost his career and had his life turned upside down over consensual images: http://www.huffingtonpost.co.uk/2012/08/08/porn-trial-simon-walsh-acquitted-fisting_n_1755412.html

    I find cases like that a good argument against expanding what’s criminalised and putting more resources into prosecuting people. The feminist/conservative arguments I’ve seen so far are little more than an assertion that criminalising porn would improve society in some nebulous way (even if there’s no clear evidence linking it to rape and violence), and to me that really doesn’t cut it.

  • RussellBlackford

    Thanks for your thoughts, folks. Appreciated. And let me add that, although I am pragmatic and want administratively workable laws, I also tend to err on the side of narrow drafting. As far as reasonably practicable, we want to avoid prohibiting and stigmatising conduct that does not actually cause whatever harms justified the law in the first place. This was, of course, one of the points of contention in the recent (and ongoing) atheist rift. There were acts that everyone saw as intolerable, but the issue was whether to tailor conduct policies narrowly in an effort not to go beyond that conduct or much more broadly, leaving a discretion not to take action for merely technical breaches (where the behaviour might even be beneficial). Obviously, I am always going to lean toward narrowly drafted rules so no one has to rely on the non-enforcement of the literal rules to avoid bad outcomes.

  • keddaw

    “It probably makes sense, for example, to treat highly realistic pseudo-images as if they involve actual children, because the alternative would allow a very wide defence that was easy to claim and nigh-on impossible to refute, and which could have the effect of rendering any prosecution almost impossible.”

    Two points here:

    1. The laws that are drafted criminalize images regardless of evidence that they are false.

    2. Why is any image illegal? Images showing harm should be evidence of harm and that investigated and those causing harm prosecuted. The image itself is not harmful to participants or society at large. Images that have been taken from an illegal vantage point or where the person taking the image(s) has incited illegal activity are perfectly criminal in their own right. Why there is some societal wish to punish those who like the images, or who want them for whatever reason, is beyond me. Show me evidence that people seeking those images are more dangerous with the images than without and we can have a conversation, until then no harm no foul.

  • Colin Gavaghan

    Yes, I’m well aware of what the law currently says, and the absurdly illiberal turns it has taken recently in the UK. I was talking about what a sensible law might look like. An evidential presumption that images that appear to be of children actually are of children may strike a fair balance between pragmatism and fairness.

    I explained above why I thought their may be a rationale for punishing those who subsidise the production of (real) child pornography.