It’s been a bad week here in Britain for freedom of expression. For starters, Heretic TOC’s voice has been choked off by a “broadband” connection getting narrower and narrower for weeks now, finally strangling the life out of any internet availability in recent days. This follows a service “upgrade” by my ISP, which, in the Orwellian language of our times, is actually a downgrade.
No doubt it’s all a government plot, which is exactly what the press have been claiming about the new royal charter on press regulation, sealed this week (under the Great Seal of the Realm, stamped onto scarlet wax on a vellum document), although to our American friends it might sound as though King George is back on the throne, personally intervening to stop the press saying he is mad, and perhaps plotting under cover of press silence to take back the rebellious trans-Atlantic colonies.
Actually, it is not a royal plot, nor a government one, nor even a parliamentary one, even though all the major political parties support the new charter. It is a measure which in the long term has the potential to bring about not censorship but, on the contrary, a fuller range of information and opinion in the mainstream media. This is because the system of voluntary self-regulation by the press which is envisaged would provide for, amongst other important features, a right of reply for those who are traduced in the routine character assassinations carried out by press barons such as Rupert Murdoch, owner of The Sun, Fox News and much else, and Paul Dacre, editor of the hideous Daily Mail. These big guns look like rejecting such a voluntary code for the time being, but this could leave them seriously vulnerable to high court costs when defending any future cases brought against them for libel and other civil claims.
No, the real reason it is a bad week for freedom of expression here has come much more stealthily, like a thief in the night. The threat in question is a brief measure which has passed entirely under the radar so far. I am referring to the Coroners and Justice (Amendment) Bill, which you have probably not heard about even if you live in the UK. It is a Private Member’s Bill sponsored by Sir Paul Beresford, a Conservative Party MP, who has a track record of quietly sneaking nasty, freedom-slashing measures into law while his fellow legislators are shagging their secretaries or propping up the numerous bars in the Houses of Parliament. Or so it seems, judging by the lack of any hue and cry over his dark deeds. Or perhaps it is just Beresford’s tactical cunning that fools them, because he presents himself not as a thief of freedom but as – this will be no surprise – a protector of children, and of decency.
So what, then, is his latest wheeze, his new coup of legislative legerdemain? In the official summary on parliament’s website, it is “A Bill to amend section 62 of the Coroners and Justice Act 2009 so as to apply additionally to the possession of pornographic written material about children.” Yes, your suspicion is correct, this guy wants to ban possession not just of images, as per the existing section 62, but also of the written word where material about children is deemed to be pornographic – an extremely alarming development if it succeeds, and one which would be unconstitutional in the US. It could be used to censor and punish private fantasies in a personal unpublished journal, for instance, and could inhibit legitimate discussion of children’s sexuality in correspondence or on a blog like this.
Some heretics will remember the Sharpe case in Canada, where the law already restricts the written word. The case against Robin Sharpe’s writings was eventually dismissed when he argued in their defence that they had artistic merit. A professor of literature compared Sharpe’s written works to “transgressive expression” parallel to the Marquis de Sade’s 120 Days of Sodom. Under Beresford’s Bill, though, artistic merit would not be available as a defence.
The original section 62 was itself slipped into a Bill that, as the name implies, was supposed to be mostly about coroners and the courts over which they preside, and thus concerned with death, not childhood. On that occasion, in 2009, the Bill was used to outlaw possession of pornographic images of children other than photographs, which were already covered under the law against indecent images. This measure was aimed against pornographic Japanese manga and suchlike. The offence carries a three-year maximum prison sentence. There do not appear to have been any high-profile prosecutions under the Act but that does not mean it has not been used – I personally know two people who have been convicted following police raids in which their own drawings have been among the items taken along with (inevitably) any computers.
The proposed law says in order for material to be illegal it would need to be “grossly offensive, disgusting or pornographic or otherwise of an obscene character.” The same four descriptors are used in the 2009 Act with regard to images. In a BBC news item over a year ago Beresford outlined his plans, claiming the law would be tightly written to cover obscene writing of a nature “that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal”. Only “absolutely vile” material would be targeted, he said, adding by way of example that well-known novels such as Vladimir Nabokov’s Lolita – which famously explores a middle-aged man’s sexual involvement with a 12-year old girl – would not be covered.
Plenty of people, though, have professed themselves grossly offended and disgusted by Lolita. Possession of that particular work might be hard to prosecute as it has become so well established, but the works of newer writers of equal merit would be much less secure. The Crown Prosecution Service advises that “grossly offensive, disgusting or otherwise of an obscene character” are not intended to be read as three separate concepts. “Grossly offensive” and “disgusting” are examples of “an obscene character” and not alternatives to it. But is that how a jury would see it? The wording will surely suggest to them that their visceral dislike of the material is a good enough reason to say it is illegal, and that is a very dangerous notion.
Bad law or not, though, Beresford tends to get his way. His successes include a five-year possible jail penalty for those who refuse to provide a decrypting key to allow police to inspect computers suspected of holding child pornography. He was also involved in efforts to introduce a fast-track procedure for issuing warrants in cases where people on the sex offenders’ register refuse police access to their home.
Yesterday, the Bill was due to be given its Second Reading in parliament – a crucial stage which usually determines whether a Bill will become law or not. It appears to have been postponed, though. Parliament’s website is now saying it will be next week, on 8 November. British heretics should consider alerting their own MP to the need to oppose the Bill – some parliamentarians, after all, even Conservatives such as David Davis, do actually take a serious interest in preserving civil liberties and opposing excessive surveillance and censorship. Only vigilance, including ours, can stop people like Beresford from going too far.