Extreme Porn Law - Regulatory Impact Assessments (0)

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Posted by emark on Sun 19 Aug 07, 4:48 PM

I had a look at the "Criminal Justice and Immigration Bill Regulatory Impact Assessments".

Edit: Document appears to have been moved to http://www.justice.gov.uk/docs/regulatory-impact... and http://www.justice.gov.uk/docs/regulatory-impact... .

A curious point is that in some places, it seems to be referring to what was stated at the consultation response stage (August 2006) and is out of touch with what's been announced in the bill. The assessment is dated 20 June 2007, and the bill was published 26 June 2007. But it doesn't seem too much to ask that the assessment matches up to what the bill will be, and not what was suggested almost a year or more previously...

* Key benefits are listed as "Helps to protect society, particularly children, from exposure to such material, to which access is increasingly difficult to control." - right, images on your hard disk will be illegal to possess, in case a child finds them - and "Enable the enforcement authorities to take action against individuals who, by procuring such material by whatever means, encourage its further production." - because production of consensual and fictional material is obviously bad.

* The assessment is still trotting out the line that it will only apply to material already illegal to publish under the OPA (so what about that images extracted from legal films may be illegal to possess? Why do they need to exempt classified works, if they wouldn't fall under it anyway?)

* The definitions referred to are depictions of acts which are "life threatening or likely to result in serious disabling injury", and depictions of rape.

For the former, the threshold in the published bill changed to simply "serious injury", but here they refer to the wording that was in the consultation response, August 2006. Can they not at least read the bill they are assessing?

Depictions of rape have been hinted at (e.g., mentioned in the consultation), but never explicitly included in any proposed legislation. Is this going to be sneaked into the bill as an amendment? (Whilst I obviously do not condone actual rape, by including apparent depictions of rape, the bill is made even broader: not only does it catch any consenting adults roleplaying rape, there is also the question of how a jury will decide if an image appears to depict rape? Will this put rough sex, bondage and gags at risk?)

* As background, it explains how shocking it is that people can get hold of material illegal under Britain's victorian obscenity laws by downloading from other countries, and Something Must Be Done. Claims that the material "does not depict openly consensual sexual activity, or the bondage material which is available in legal pornographic material in the UK". It seems that Government and other supporters continually flip on the issue of BDSM, between "It's okay, it won't affect BDSM", and then when pushed, "If it comes under the law, you shouldn't be doing it anyway" - it usually turns out that the bondage material they had in mind was only very mild material. They never seem able to provide actual examples of what would and wouldn't be illegal, or tell us the difference between "evil extreme porn" and "okay BDSM material", instead suggesting that the "extreme" material is more abhorrent than anyone would accept, and leaving the details up to the reader's imagination. Here we have the qualifier "available in legal pornographic material in the UK". The BBFC's list of what would not receive a certificate is rather limited in terms of BDSM. So I feel it's a cunning sentence that leads the reader to feel that most material won't be affected, by framing it in terms of commercial UK pornography (and other parts of the assessment talk about the impact on UK businesses), but this ignores the wider range of acts that take place in people's private life, and ignores the area of material that might not receive a BBFC certificate, but isn't necessarily illegal under the OPA; fundamentally, it ignores the question of whether rules about what can be sold in shops or appear in films should be applied to material distributed between people on the Internet, or completely private images. (I'm also curious about "openly consensual" - any appearance of consent, or lack of, is irrelevant as far as this law is concerned. I guess the important qualifier here is "openly"...) (There's also the point that images from existing legal UK material could be illegal to possess, if extracted for sexual arousal.)

States "The underlying premise of the new offence is that this material should have no place in our society". On the plus side, it doesn't claim that people are being forced into the production of such material.

* Notes that prosecutions under the OPA have fallen, perhaps because "It is also apparent that tolerance, expressed through the courts, of sexual material which 10 years ago would have been found to be obscene, has increased." I presume this is because the OPA requires the jury believe the material would "deprave and corrupt" those who viewed it. This does not apply to the extreme porn law. What's illegal now will be illegal in 10 years' time, even if the jury think the material is entirely harmless. (It doesn't ask why, if the Internet is such a problem, prosecutions haven't increased in the last decade or so from people distributing material online?)

* Something Must Be Done because if not, "there is a risk of sending a message that the Government believes that the production and acquisition of such material was harmless, or not worthy of attention."

* Projects 30 prosecutions per year. Not sure what to make of this. Even if the number is relatively low, it still sucks to be the unlucky ones, and there are still the chilling effects of such a law. I am also not sure what great harm to society is being caused by a whole 30 people a year looking at naughty images...

* For groups affected, it notes that businesses will not be affected (well duh) (although it repeats the claim that the law will only cover material already illegal to publish), and for citizens, it then, believe it or not, goes on about the law won't have any adverse effect on black and minority ethnic groups. Thank goodness for that! It even states that black and minority groups were asked for their views as part of the consultation! It's a shame they didn't consider the effects on those of us who risk being affected... Apart from the brief mention of "bondage material", I see no reference to those who practice BDSM at all.

* When summarising responses to the consultation, it includes the 50,000 signatures to the Jane Longhurst petition - which were mostly collected before the consultation was even published. (It's also worth comparing with when surveying about ID cards in 2003, the Government dismissed 5,000 responses collected through the Stand website because they were deemed to be an "organised campaign" - also see here...)

* Claims that as a result of the consultation, the threshold was raised - ignoring that it is now significantly broader in the published bill.

* Cost of enforcing the law is estimated at Ł424,037 a year, not including the cost of keeping people in prison.

Other aspects of the bill: Prostitutes may face jail. The assessment states that those involved "exercise little choice"; obviously all the more reason to treat them as criminals.

Comments welcome - anyone have any thoughts?

Edited Sun 21 Oct 07, 8:48 PM by emark


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