I’ve been reading some panicky-sounding posts on other boards about the potential harm the new British censorship law (not applicable in Scotland) could do to people who have images from mainstream US TV and movie shows on their computers.
The part that has (some) people wetting their pants is Section 6, which goes like this:
The problem is that both “pornographic” and “extreme” in the bill are pretty much undefined, which means they could be interpreted in all sorts of creative ways by law enforcement agencies and courts that could get a person jailed for, say, having an image of Nastassia Kinski’s bondage scene from “Cat People” on their computer, or even something much milder than that.
Here in the US the bill would be dead in the water, as it would certainly be deemed unconstitutional by the Supreme Court. (In fact, the US Congress has made some attempts to censor the intarwebs in the past but have consistently run afoul of that pesky First Amendment – to date, anyway).
As I understand it, Britain doesn’t have the same level of protection for free speech as the US. I don’t even know that they have a judicial branch that could quash such a bill as un-Magna Cartan. But I could be wrong. So straighten me out.
Is the bill’s effect as described? Are conservative Brits slavering at the thought of arresting other Brits for what appear to be thought crimes? Is there any kind of judicial review body or other means of putting the kibosh on the bill if it proves as stupid as it sounds? Is it scaring the shit out of Brit sexy internet sites as (apparently) intended. Could Brits extradite innocent American pornographers for violating this law?
Well, you’re right, it is defined right there. So I am wrong on that point, fine.
I dunno if that’s such a good definition, in fact, it’s crappy. Would an image of the sex scene from “In the Cut” be deemed pornographic? What about an image of Chloe Sevigny’s scene from “Brown Bunny?” What about an image from most every sex scene in any film whatsoever? If the court thinks the person has the image for purposes of sexual arousal, no matter what it is, does that make it pornographic? Sounds very broad to me.
You’re right, the definition is there.
But this definition is problematical, too. Take this provision:
What about Heather Graham’s consensual sexual asphyxiation scene in “Killing Me Softly”? There have been several such scenes in various mainstream films. Many erotic thrillers feature scenes of edgy, risky sex. Does a scene involving a person going down or giving a handjob to the driver of a fast-moving car fall under that purview? What about someone having sex on the edge of a cliff or atop the railing of a high balcony?
Is “An American Crime” extreme porn under this law?
The other stuff seems more cut and dried, but I could be wrong about that, too.
Well, that’s the $64,000 question of law. “Pornography” has never been well defined; I’m not even sure it can be well defined. Like so many other similar things, you know it when you see it. As for the second part, extreme images, that doe sappear to be very specifically defined; as long as none of those elements are present, I would venture to guess that your image is perfectly legal, regardless of whether it’s pornographic or not.
You do seem to be determined to misinterpret what the bill actually says.
The bill goes on to exempt any film that has already been classified. Which, in this case, means one that has been given a certificate by the British Board of Film Classification. In the Cut, Brown Bunny and Killing Me Softly were all passed by the BBFC.
Excerpts from them in isolation might cause problems, but, as the bill quite correctly recognises, the context (or lack of it) is what is important.
Leaving aside the rest of it, why does the new law include this part? :
“An image falls within this subsection if it portrays, in an explicit and realistic way, any of the following—
…
(d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive)”
I mean yeah, that would be a pretty disgusting image, but I though that what prompted this law was a murder case in which the killer was into “rape porn”? What does that have to do with a freaky taste for bestiality? How is looking at a realistic movie of somebody felching a dead goat supposed to make you want to go out and kill somebody? (Unless it was your pet goat).
I’m no great fan of this part of the new Criminal Justice and Immigration Act either, but it’s not nearly as wide-ranging or draconian as you suggest.
As others have pointed out, works that are classified by the BBFC (including those given the R18 certificate that can only be sold in licensed sex shops) are specifically excluded from the provisions of the Act. So all the examples of films you’ve given will not be effected in any way.
To answer some specific points, though:
You could probably start a whole new thread about this, but this is arguable at least. For example, at the moment, you’re not allowed to protest outside Parliament without prior authorisation from the police.
This simple answer is ‘no’. The House of Lords, the highest court in the UK, does not have the power to quash primary legislation or strike it down as ‘unconstitutional’ or anything similar. Parliament is sovereign - they can do what they want.
Since the Human Rights Act, the courts do have the power to declare a section of law incompatible with any of the rights guaranteed by the European Convention on Human Rights. However, this only sends a signal to Parliament, requesting that they change the law - there is nothing requiring them to do so. In the meantime, the law remains effective and unchanged.
The only Article of the ECHR this law could be challenged under is Art.10 - freedom of expression, which reads:
The keyword when interpreting the ECHR is ‘proportionality’. Is the restriction on freedom of expression proportional to the goal the legislation is trying to achieve? Honestly, I don’t see the UK courts, or Strasbourg (if it were to get that far) deciding this law was in breach of the ECHR.
As I said, I don’t like it though. This whole section of the Act has been brought about because of the murder of Jane Longhurst by Graham Coutts - who was ‘addicted’ to extreme pornography. But instead of blaming the individual responsible (who has been sentenced to life with a minimum term of 26 years) for her murder, the main focus of blame has fallen on extreme pornography. Although there is no evidence that Mr Coutt’s interest in pornography led him to commit the crime. It just seems a complete knee-jerk to me.
Of course, it may not matter. The UK Parliament has a habit of passing laws which are never actually brought into force. Huge sections of the preceding Criminal Justice Act (2003) have still not been brought into force over 5 years after it was passed. So you never know.