A landmark case is being brought against a UK man in relation to a blog post allegedly authored by him which details his fantasy of the kidnap, rape, torture and murder of an all-girl band called Girls Aloud. I must say that I’d never heard of the band before (indeed, Wikipedia says their efforts to crack the Australian market were unsuccessful). However, apparently they have become very popular in the UK after appearing in a British reality TV show in 2002. The website was a fantasy porn website hosted outside the UK, but the man is able to be prosecuted in the UK because he is a UK resident and citizen.
The prosecution is brought pursuant to the Obscene Publications Act 1959 (UK). This Act forbids obscene publications which “tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in [the publications].” It has been amended to encompass material transmitted by computer. Famously, the Act was used to prosecute Penguin Books in 1960 for the publication of D.H. Lawrence’s Lady Chatterley’s Lover. That prosecution failed.
Apparently the test for whether material is obscene in the UK is still that established by R v Hicklin (1868) LR 3 QB 360 (’the Hicklin test‘). In that case, the court did not look at the material as a whole, but looked at the material page by page. Therefore, if one small part of a work was obscene, then the entire work could be outlawed. Secondly, whether or not the material was obscene should be judged according to the effect of the material on a possible audience. Cockburn CJ said:
I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.
Thus, the test is a broad one which considers the effect of specific obscene passages on vulnerable persons. The US apparently has a test which considers the effect of a work as a whole, but also appeals to “community standards”, meaning that the specific meaning of obscenity varies over time and from State to State.
It is apparently unusual for a case involving the written word to be prosecuted in the modern day.
I suppose the difference between publication of a book and publication of a blog post on the Internet is that children and teenagers who may be fans of Girls Aloud have a greater opportunity of coming across the blog post than they would of coming across a book or article. It sounds like an extraordinarily unpleasant fantasy to me - you can’t stop people from having such thoughts, but perhaps you can stop them from making such fantasies available to the public. Personally, I would think the such material would be obscene because of its obvious offensive nature and the lack of any social, political or artistic merit. However, I can see that some might argue that we cannot say something should be banned simply because it is offensive: to do so is an illegitimate limit on freedom of speech. Nonetheless, I tend to think there should be limits somewhere, and that this is the kind of publication which should not be encouraged.
8 Comments
Hoo boy, this will be a doozy - will we have a court arguing over ‘artistic merit’ wrt a porn site? Watch this space.
One particularly vile thing about this is the conflation of sexual fantasy with ‘rape, torture and murder’ — which are all GBH or worse, beyond any sexual gratification they might afford a particular brand of sicko. So it’s more than just porn.
So was, say, American Psycho, of course; but then American Psycho was not about real people.
Frankly I think the potential effect on the potential audience is the least of it. (Don’t the British obscenity laws have their orgins in the men of the middle and upper classes wanting to make sure their wives, daughters and servants don’t read anything about sex?)
Legally it’s an interesting intellectual problem. Morally and psychologically it is a stinking pit.
Yup, SL, it will be a doozy. I doubt there’s much artistic merit in this one.
PC, the Obscene Publications Act was indeed all about protecting women, children and the “feeble minded” (I kid you not, those latter words are those of Lord Campbell introducing the Act).
I can’t get up any passion about freedom of speech with regards to this fellow. You’re totally right, it’s a stinking pit. If I just acted on my instincts, I’d gaol this fellow straight away. Ugh.
It also raises interesting legal issues of extra-national authority. In this case the author is UK-based and being prosecuted under UK law, but just this week Fred Toben (the Adelaide Institute revisionist) was arrested at Heathrow airport while travelling through to Dubai. The German authorities have issued an EU arrest warrant on the grounds that he published online material of “an anti-semitic and/or revisionist nature” which is illegal in Germany (David Irving was at least in an Austrian gaol for over a year for public statements he made in the country). Toben is an AUSTRALIAN national in transit through another European country. He hasn’t set foot in Germany, so do they have legal authority to enforce their law for ‘offenses’ not recognised in many countries and committed online? The extradition hearing was adjourned until later in the month but the guy is being held in custody until then.
Many would find Toben’s material just as offensive as that of the Girls Aloud pervert, but I find the jurisdiction question as applied to the internet a fascinating one.
Also the material Toben published, while global in reach (insofar as a blog is ‘global’) was ‘published’ in Australia. The Adelaide Institute has - AFAIK - a .au domain.
Funnily enough, my husband and I were discussing this exact parallel last night in light of this post. Where to sue people who post material on the web is a very difficult questions.
The Joe Gutnick defamation case comes to mind - the material was published on a server in the US by a US company, but he was able to sue in Victoria because the damage to his reputation occurred in Victoria.
Using the same principles, it could be argued that the damage occurred in the jurisdictions concerned because the sites could be viewed within those jurisdictions. But it’s worth considering that this judgment is very controversial…
Hmm. So if you have anything controversial to say, the only safe way to express it is to be a US citizen and never leave the country…
DEM, essentially you are correct. Although it didn’t stop Diamond Joe suing Dow Jones in the above case. He just served Australian proceedings on them in the US.
I’ve no idea how the First Amendment interacts with US defamation law and whether it bears any similarity to Australian defamation law. I should research it.
Even despite the more permissive attitude of the US, I don’t think that blog author above would necessarily be safe if he were a US citizen. Apparently various US online fantasy website owners have been prosecuted for obscenity or closed down because of fear that they would be prosecuted. There’s been a bit of a crackdown.