Bowing to the inevitable

There would seem to have been a small outbreak of common sense at the Internet Watch Foundation. At any rate, they've reviewed their decision to blacklist Wikipedia on account of that ancient album cover and decided that it wasn't that great an idea after all. In the words of their carefully-worded statement yesterday:

Following representations from Wikipedia, IWF invoked its Appeals Procedure and has given careful consideration to the issues involved in this case. The procedure is now complete and has confirmed that the image in question is potentially in breach of the Protection of Children Act 1978. However, the IWF Board has today (9 December 2008) considered these findings and the contextual issues involved in this specific case and, in light of the length of time the image has existed and its wide availability, the decision has been taken to remove this webpage from our list. Any further reported instances of this image which are hosted abroad, will not be added to the list. Any further reported instances of this image which are hosted in the UK will be assessed in line with IWF procedures.

This looks like a strategic retreat. They refuse to admit that their decision was legally questionable, which presumably means that they continue to regard naked photographs of children to be "potentially illegal", or at least nudity to be the main criterion of "erotic" under the legislation (although the legislation nowhere mentions nudity). Rather they have taken into account the "contextual issues" - presumably the size, popularity and respectability of Wikipedia, as well as the fact that the image is more than thirty years old. Foremost in their minds may have been the fact that their stance was bringing their little-known role into question and disrepute.

Several things emerge. First, the decision leaves the legal status of the image highly ambiguous. If they believe that it is, in fact, an illegal image - which they plainly do - then it is mysterious why they have not decided to block all sites on which they now find it. That at least would have been consistent. The fact that the album has been (apparently legally) on sale for 32 years is no reason to allow its continued existence. The police, we were told the other day, were consulted as to the legality of the picture: well, if the police believe it to be illegal, why have they not warned online and high street retailers to remove the offending album from their shelves? Since we are all agreed - at least, I thought we were - that child pornography (or "child abuse images" in the IWF's preferred, if problematic, phraseology) is uniquely wicked and corrupting, and that relatively mild stuff is a particular danger (as being analagous to a "gateway drug") to allow such material to remain in the public domain would seem to be a dereliction of duty on the part of the authorities. If anything, the fact of its being widely reproduced would seem to make it more, rather than less, dangerous - especially as it is now so well publicised.

Indeed, they admitted as much: "IWF's overriding objective is to minimise the availability of indecent images of children on the internet, however, on this occasion our efforts have had the opposite effect." But that admission raises the question in an even starker form: if they have inadvertently increased the availability of an indecent image, why are they doing nothing to stop it now? Surely they should redouble their efforts. I am driven to the conclusion that the IWF realises the difficulty they would encounter if they attempted to convert the "potential" illegality into a criminal conviction; in other words they tacitly accept that this picture, on its own, is legal and is likely to remain so. But to have said thus would be to have admitted that its initial assessment was in error, thus casting further doubt on the legitimacy of their whole operation.

The implied threat to anyone hosting the image in the UK is also worth noting. It may be an attempt to spread a chill factor among bloggers and others who have been following the case. But it is hard to see why the police would pursue anyone who posted the image when they allow the album to remain on sale - and equally hard to see any such prosecution succeeding. The IWF have missed an opportunity here to re-state the importance of context: not the context of this particular image in terms of its age, but the context in which it appeared. A "borderline" picture such as this one is not, I would argue, obscene in itself; it would become obscene, however, if it formed part of a a much larger sequence. Thus a site offering dozens of photographs of naked or semi-naked little girls would quite properly incur IWF's sanction - and police involvement were it sited in the UK - even if all the pictures, taken on their own, were no worse than the Scorpions cover. And the reason for this is quite clear: such a site would be designed for, and be frequented by, paedophiles.

However well meaning the IWF bods may be, it is disquieting that the task of censoring the Web - for that is what it does, whatever the talk of "voluntary agreements" - should be delegated to an informal panel funded largely by the industry it superintends. A body which had official sanction would be just as prone to make strange decisions, of course - indeed, it might be even more keen on sticking to the strict letter of the law, however strange the results - but at least it would be open to public scrutiny. What is needed, at the very least, is a proper debate on the role and functions of the IWF, and of the principles on which they base their decisions. They should be at least as publicly accountable as, say the BBFC.

There are wider issues, too, especially with the new law, coming into effect in January, which makes the possession of "extreme pornography" a criminal offence. The IWF will have "jurisdiction" in this area too - and the number of images it has to deal with may be much greater than the 35,000 images of children it already considers each year. While there is broad public consensus about the distatefulness of sexualised images of children (though there remains disagreement about what constitutes a sexualised image) there is no such general agreement about what constitutes an "extreme" image. The law is intended to catch only highly disturbing images - that, at least, is what ministers have always maintained. But what may be disturbing to the uninitiated may turn out to have been entirely consensual and indeed enjoyed by all concerned. That is one problem. The other is that the words of the law would seem to catch a wide spectrum of material - including stills from entirely legal films - thus leading to uncertainty.

The fears of S&M practitioners and devotees in this regard have been widely highlighted, not least on this blog - although it was Ben Westwood's colourful demo in October that attracted the most publicity. Until the law comes into effect, it is impossible to know how it will be enforced: whether the police will hunt down people who collect extreme porn, as they hunt down those who collect images of child abuse, whether they will use the new provisions as a handy way of dealing with people they whom can't pin anything else on, whether they will bother with it at all. The attempts of campaigners like Clair Lewis of the Consenting Adult Action Network to get information from the police about their intentions have been largely fruitless. We can be sure, though, that the IWF will be taking the new law very seriously indeed. Any "extreme" image that is submitted to them will be looked at in isolation, checked against the tick-list in the Criminal Justice and Immigration Act (this was the procedure they adopted in the Scorpions case) and either allowed or blocked. And the criteria they adopt will not be based on case law - for there is no case law - but rather on the basis of "potential" illegality. That is likely to result in a highly cautious - ie restrictive - approach.

Here again there is a way out, if only the IWF would take it: in deciding whether a particular image is extreme, their first move should be to examine whether the site on which it occurs is one which encourages or celebrates violent and abusive behaviour. A website catering to BDSM enthusiasts, which covers different degrees of "severity" and carries messages stressing the importance of consent and verifying the staged nature of all the pictures and videos it hosts, should no more be the subject of an IWF banning order than should Wikipedia or Amazon. In life, we know intuitively the overriding importance of context: that appearances can be deceptive, that most things in the world are not isolated monads but gain their subtlety - often their whole meaning - from where they stand in relation to other things. The Web, which mirrors life in many ways, is equally resistant to simplistic assumptions.

It is difficult to write such subtleties into the law, which must perforce attempt to shoehorn the great variety of the world into discrete and concisely definable categories. That is why English law has traditionally sought flexibility. Time and again it has appealed to the judgement of the "reasonable man", and to the skill and ingenuity of a judge in applying rules laid down by statute and precedent to the unique facts of a particular case. Discretion, experience and common sense have been utilised in many other aspects of life, too. But we live in an age which seems to fear uncertainty, where procedures have to be followed, boxes ticked, hoops jumped through as though they constituted virtues in themselves. Meanwhile the effect of all this rule-adherence in the real world is disregarded. Thus Sharon Shoesmith could defend her department's manifest failings in the case of Baby P on the grounds that the proper paperwork had been completed, and a learned judge in Australia can devote most of a detailed judgement to the question of whether Bart Simpson had sufficient human characteristics to qualify as a "person" for the purposes of pornography legislation. We seem almost to be back in the world of the medieval Schoolmen, to whom arguments about whether dog-headed men had souls or the ability of angels to dance on pinheads were unaffected by the fact that the phenomena they earnestly debated were not real. Except that their disputations had relatively little impact outside their own heads.


Wasp_Box said…
Thanks, excellent post as usual.

The ill-considered, "extreme pornography" legislation is going to increase the sum of human unhappiness considerably. However, I bet there are one or two Government Ministers who are moist at the realisation that the IWF can effectively censor the UK. Watch out you bloggers!
Let's hope the transgendered person in PVC gear and nippleclamps on the Clapham Omnibus retains his/her customary good sense in all such cases.

PS I meant nippleclamps on the passenger. Not the omnibus. And I'm not sure if nippleclamp is one word, or hyphenated, or two words. But I hope you catch my drift.
The Heresiarch said…
Sometimes I worry about you, Valdemar.
A fascinating little episode, and one that leaves more questions than answers.
Anonymous said…
Who appointed the IWF as the internet's image watchdog? There is no law of prior restraint in this country. Any illegality must be decided within a court of law, not the private coffee room committee in an unaccountable lobby group's office.

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