Britain has often had a very confused relationship with obscenity and pornography, one that has been played out in the law a few times over the years. We don’t quite know what to think about it, let alone what to do about it. Mervyn Griffith-Jones expressed the kind of attitude that many have in his notorious statement from the Lady Chatterley’s Lover trial in 1960, when he asked if it were the kind of book ‘you would wish your wife or servants to read’.
That kind of attitude seems to be in play again as another old idea about pornography seems to be emerging again: the idea of blocking all ‘pornography’ on the internet, forcing people to ‘opt-in’ to get access to pornography.
Details of how the idea might work have yet to be made clear. The stimulus this time around is that Iceland is actively considering proposals to block access to ‘violent and degrading’ content. Where Iceland leads, the UK, some have said, would like to follow next. But could it? And should it? And would such a ban be legal or proportionate? Perhaps even more pertinently, could the introduction of such a scheme have disturbing side effects?
Article 10 of the ECHR
Article 10 of the European Convention of Human Rights says that:
“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
The ‘receive’ part of this right is often neglected – we not only have the right to express ourselves, but to receive information and ideas without interference, subject, of course, to Part 2 of the Article, which says amongst other things
“…as are prescribed by law and are necessary in a democratic society… …for the protection of health or morals…”
So, if we are to suggest a block on online pornography, it would require it to be prescribed by law, and somehow for the ‘protection of health or morals’, which brings us back to the complex relationship we have with the whole idea of obscenity and pornography – back to Lady Chatterley’s lover.
Prescribed by Law
It is worth remembering that child sexual abuse images (sometimes described as child pornography) are already illegal pretty much everywhere in the world, and indeed on the internet. In the UK they are fairly effectively blocked, through the activities of the Internet Watch Foundation – an organisation that though it has been criticised in a number of ways (see for example this excellent article by my colleague Dr Emily Laidlaw) does seem to keep a tight rein on access to child abuse images.
There is consensus on this issue – and that consensus is reflected in both law and practice, not just in the UK but also in most other parts of the world. The level of success of the legal ban and its enforcement is another matter – but any ‘new’ ban on online pornography would not be about child sexual abuse images, no matter what campaigners say. Rather, it would be about a choice to ‘regulate’ access to content that is considered, in the UK at least, to be legal, at least for adult consumption.
Pornography is legal…
Of course there are some who may want porn not to be legal – but there are many others who would consider that an infringement of their Article 10 rights. One big question is how to define pornography – a question that the law has struggled with over the years. Section 63 of the Criminal Justice and Immigration Act 2008 made an attempt to define ‘extreme pornographic images’ but it has been subject to serious criticism (e.g. by Professor Andrew Murray in the his article for the MLR, available online here). The not guilty verdicts in R v Peacock and R v Simon Walsh in 2012 further muddied the waters – at the very least suggesting that there is no convincing consensus against pornography in our society. Taking it another step further, what about books like Fifty Shades of Grey? Not only is that not censored, but it is for sale in pretty much every bookshop in the country – and boldly and brightly on display, without any kind of an age-barrier. Is it pornographic? If not, how would pornography be defined so as to exclude it?
As well as the difficulties in defining pornography, there is the issue of enforcement. Who is going to trawl through the web looking at websites to try to classify them according to any standards that do get agreed? The IWF largely relies on sites being reported to them – to extend such a system to cover pornography in general would require huge resources, and the establishment of some kind of a censorship body.
Opt-in to porn?
But those proposing such a system might say, we’re not banning anything, or making anything illegal – people could just ‘opt-in’ to pornography, exercising their choice. In the digital world it isn’t as simple as that. First of all, there’s the question of whether it would work at all – and many commentators (for example Dr Brooke Magnanti in the Telegraph) have significant doubts. Blocking anything in the internet is much more easily said than done.
Secondly, bringing in an ‘opt-in’ system would have further implications. Signing yourself up as someone who opts-in to porn will put you on a database, a database of people who want access to pornography. What will that database be used for? It is a relatively simple slippery slope for a database of those who want access to adult content to become a database of people who are worth further investigation for other reasons.
It would be a database that would be of great vulnerability – the possibilities of using such information against people on it are significant. How many people would want their families, their employers or their friends to know that they had ‘opted in’? Effectively, forcing a sign-up could have a direct chilling effect: many people may not want to sign up for fear of the implications of that sign-up.
That, indeed, may well be the prime motivation behind some of these ideas: simply to discourage people from viewing pornography. That might be a laudable aim, but it is a bold claim to suggest that all pornography is ‘bad’, and some claim otherwise: Leslie Green in particular suggests that for the gay community pornography can be empowering and expressive rather than exploitative and oppressive. If it were to be accepted as a claim, it would need good, strong, empirical evidence to back it up. Is there such evidence? Even if there is, is such an aim one that either could or should be achieved through the law, and, ultimately, through censorship? That, ultimately, is what this kind of a system would result in.
It may in some ways be a laudable form of censorship, with laudable aims, at least insofar as some of the more extreme pornography is concerned – but it would be censorship nonetheless. What is more, it would be censorship of content that the law currently views as legal. If a porn-block is desirable, the first stage should surely be to designate the content as illegal – and not just on the internet. As mentioned above, the law has had great difficulty with that – R v Peacock and R v Walsh being recent examples – and it is hard to imagine that it wouldn’t have similar difficulties in the future.
There are echoes of the paternalism of the past in the current proposals, and, one suspects, some similar motivations. To update Mervyn Griffith-Jones’s notorious statement referred to above, there are some who might wish to ask:
“Is this the sort of website you would wish your husband or son to view?”
The answer to this question may very well be no – but it is worth remembering that Penguin won the Lady Chatterley’s Lover trial. Would the trial of Lady Chatterley’s Online Lover be any different?
Dr. Paul Bernal is a lecturer in the UEA Law School and a member of media@UEA. He blogs at: http://paulbernal.wordpress.com/ and tweets as @paulbernalUK.
Suggested citation: P. Bernal, ‘The Trial of Lady Chatterley’s Online Lover?’ UK Const. L. Blog (27th February 2013) (available at http://ukconstitutionallaw.org).