Abstract
From online activity to terrorism laws, the government continues to make decisions based on fear and ignorance, argues
In George Orwell’s novel 1984, surveillance and censorship, along with propaganda, were the prime means by which power was exercised. So it’s alarming that today, in the real world, surveillance itself has become a means of censorship – not least because it encourages that most insidious form, self-censorship.
After all, if you think that your online activity is subject to state surveillance, and that what you’re doing may be illegal, then you may just decide not to click that mouse. On the other hand, you may think that illegal activity online is the province only of paedophiles and terrorists. In which case you might be in for a nasty shock.
Once, censorship operated largely by banning the production, distribution and exhibition of material deemed taboo. The information age has, of course, made those tasks far more difficult. So politicians have changed tack and, increasingly, have introduced laws that make it illegal to possess certain kinds of material – in UK law, the act of merely downloading that material can count as possession.
Though the internet has made it difficult to censor material, new media have greatly facilitated the tracking down of individuals suspected of producing or disseminating this material, since all online activity leaves a trail; as Gus Hosein and Eric King point out (‘Age of Insecurity’, Index on Censorship, Volume 40, 2/2011), ‘in the 21st century, law enforcement is just a few clicks of the mouse away.’
When the UK home secretary Theresa May was first challenged over the Draft Communications Data Bill, which contains so many possibilities for increased electronic surveillance that it has been called the ‘Snoopers’ Charter’, she declared in the tabloid newspaper the Sun on 3 April 2012 that ‘only suspected terrorists, paedophiles or serious criminals will be investigated’. In other words, the same old refrain: if you’ve got nothing to hide, you’ve got nothing to fear. In December 2012 it was announced that the bill would be redrafted after considerable disagreement within the coalition government.
However, once one begins to examine the relevant legislation and, crucially, how it has been interpreted by police and prosecutors in specific cases, it becomes clear that those other than terrorists or paedophiles may indeed have a great deal to fear.
The Terrorism Act
Take, for example, the Terrorism Act 2000, section 58 of which makes it an offence to collect or make a record of ‘information of a kind likely to be useful to a person committing or preparing an act of terrorism’ or to ‘possess a document or record containing information of that kind’. It’s important to bear in mind that under Section 1 of the Act, terrorism is defined remarkably broadly as an action which:
involves serious violence against a person,
involves serious damage to property,
endangers a person’s life, other than that of the person committing the action,
creates a serious risk to the health or safety of the public or a section of the public, or
is designed seriously to interfere with or seriously to disrupt an electronic system
Section 58 was primarily designed to facilitate the prosecution of those possessing bomb-making manuals. Its first victim, however, was Samina Malik, a young shopworker at Heathrow Airport, who compiled an online library of jihadi-inspired texts and, under the name of the Lyrical Terrorist, wrote poetry extolling martyrdom.
In December 2007, she was given a nine-month jail term after copies of her poems were found by a co-worker. She received an 18-month suspended sentence and was ordered to carry out community service. When her conviction was quashed on appeal in June 2008, the court ruled that 14 of the 21 documents the original jury had been asked to consider did not actually fall within the scope of Section 58 because they were propagandist or theological material. Significantly, however, even the validity of some of the remaining seven documents used by the prosecution was dubious: among them was the Al Qaeda Training Manual, which can be downloaded from a US government website – and even bought on the website of WH Smith, a well-known newsagent in the UK. Small wonder, then, that some accused the authorities of pursuing Malik, 1984-style, for ‘thought crimes’.
In May 2008, UK police arrested Rizwaan Sabir, an MA student at Nottingham University, also for downloading the Al Qaeda Training Manual, even though one of his supervisors confirmed that it was relevant research material for Sabir’s studies. After seven days in custody, he was released without charge and given no apology. But Nottinghamshire police continued to hold an intelligence file on Sabir, which stated that he had been convicted of a terrorist offence, which was plainly not true. Facing imminent proceedings for false imprisonment, breaches of the Race Relations Act 1976 and the Human Rights Act 1998, as well as a claim of violation of the Data Protection Act 1998, the force paid Sabir £20,000 (US$ 31,500) in compensation and apologised for its actions.
It should also be noted that Section 1 of the Terrorism Act 2006 makes it an offence to publish a statement which is ‘likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism’. Indirectly encouraging the commission or preparation of such acts includes any statement that ‘glorifies the commission or preparation (whether in the past, in the future or generally) of such acts or offences’; it can also be ‘a statement from which those members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by them in existing circumstances’.
This was originally introduced as a response to the so-called ‘preachers of hate’, but could, in principle, be used to prosecute praise of any individual or group using political violence anywhere in the world (or indeed any individual or group that has ever done so in the past).
Like so much legislation introduced in a mood of panic, UK anti-terrorism legislation is seriously flawed. In particular its definition of terrorism is far too broad, as are the 2006 Act’s notions of ‘glorification’, ‘encouragement’ and ‘inducement’, which need to be replaced by internationally accepted terminology such as ‘incitement’. These flaws might matter slightly less if the relevant authorities could be trusted to interpret and enforce these laws in a reasonable and proportionate fashion, but all too often this has not been the case. And the situation is made more serious still by the alarming growth of the machinery of the surveillance state. Today, individuals’ computers, and not simply their online activity, are readily available for official scrutiny.
Legislation has been drafted broadly and hastily, without due attention to human rights
Criminalising images
Just as one might think that it should be perfectly possible to help to protect citizens from terrorism with legislation that does not seriously infringe freedom of thought and expression, so one might assume that paedophile material could be criminalised without catching other – perfectly legal – material in the net. If we define such material as consisting of images that depict acts of child abuse, then it is surely right to ban possession, since the trade (whether commercial or not) in such images serves only to encourage their production in the first place. But the ever-growing list of child protection legislation makes it illegal to possess a remarkably wide range of images: it is an offence to take, permit to be taken, make, possess, show, distribute or advertise indecent images of children. According to the legislation, a child is a person under 18, indecent images include those involving ‘erotic posing with no sexual activity’ (which are known as ‘Section 1 images’), and a photographic image includes derivatives of photographs such as line-and computer-traced images.
Samina Malik, who was given a suspended sentence under terrorism laws
Historically, police and prosecuting authorities interpreted Section 1 images as including any images of children naked. In 1991 the businessman Lawrence Chard was successfully prosecuted after film processors showed the police pictures he had taken of his children naked in the family swimming pool. As a result, the magazine Amateur Photographer launched a Campaign for Common Sense, aimed at photographic processors.
Afterwards, a string of similar cases came to light. And in 1995 the newsreader Julia Somerville and her partner Jeremy Dixon were arrested (although not charged) after they had taken film to the pharmacy Boots that contained images of their seven-year-old daughter in the bath. The introduction of the term ‘erotic posing’ to legislation was actually introduced to stop this kind of abuse of process. Of course, most parents today would use digital technology to take these kinds of innocent pictures. But although they may have escaped surveillance by overzealous film processors, their digital images are highly susceptible to rather more intrusive (and effective) electronic forms of surveillance.
Parents can probably now rest assured that they’re not going to be arrested for possessing photographs such as those described above, but there are other images of children which, though manifestly not images of abuse, have consistently attracted the attentions of the police, revealing a profound anxiety around how to define indecent images of children – and this becomes particularly challenging for authorities when it comes to art. In 2001, police tried to pressure the Saatchi Gallery in London to remove photographs by artists Tierney Gearon and Nan Goldin and to withdraw the catalogue accompanying the exhibition. The gallery stood firm, and, much to the fury of the police, the Crown Prosecution Service (CPS) instructed them to drop the case, as a prosecution was unlikely to succeed.
However, this did not stop the police from seizing the same Nan Goldin photo (‘Klara and Edda Belly Dancing’) from the Baltic Gallery in Gateshead when it was exhibited there in 2007. The exhibition was closed down shortly after. In 1996, police successfully pressured the Hayward Gallery into removing a photograph of a child by US artist Robert Mapplethorpe, and in 2009 Tate Modern removed artwork by Richard Prince and censored the accompanying exhibition catalogue. Police stated that anyone who was successfully prosecuted would be put on the Sex Offenders Register, possibly influencing the Tate’s decision to remove the material from the gallery.
The moral of this story? If galleries are prepared to stand up for their right to display this kind of material, the police will back down, since the CPS probably won’t support them. But imagine what might happen in the case of a lone individual who is discovered by the police, via online surveillance, to have simply looked at, let alone stored, these or similar images on their computer or mobile phone – and most of the examples mentioned can easily be found through Google image searches.
Photographer Tierney Gearon, Saatchi Gallery, London, 2001. Police visited the gallery after receiving complaints from News of the World that the photographs violated anti-child pornography legislation
Once cautioned, a person is then placed on the Sex Offenders Register, which of course can effectively wreck lives. In these circumstances, many may decide that perhaps it’s better not to risk looking at such images in the first place. In the UK, people under the age of 18 who take digital images of each other in ‘erotic poses’ and store them on their computers or mobile phones can also face prosecution. Thanks to the very legislation that is supposed to protect them, they too could thus find themselves on the Sex Offenders Register.
Meanwhile, the Coroners and Justice Act 2009 makes it illegal to possess an image of a child if, among other things, it is pornographic, ‘grossly offensive, disgusting or otherwise of an obscene character’ or ‘focuses solely or principally on a child’s genitals or anal region’. So, those who marry legally at 16 should be very wary of taking any pictures of themselves in flagrante until they’re 18. And even then they may not be off the legal hook, since the Act states that ‘where an image shows a person, the image is to be treated as an image of a child if the impression conveyed by the image is that the person shown is a child’.
The Act also specifically refers to non-photographic images of children, which is why it has come to be known as the ‘Dangerous Cartoons Act’. Prior to this, although not explicitly in the statutes, the law had been interpreted to apply to cartoon images only where the images were realistic and indistinguishable from photographs. The new law, however, refers to all images, whether or not they are realistic. Lolicon manga or lolicon anime, which features childlike female characters often depicted in an erotic manner and in a style reminiscent of the shōja manga (girls’ comics), is one genre that can fall foul of the legislation. If you possess such material, and especially if you store it electronically, beware.
Those wishing to view adult pornography, particularly online, must be extremely careful too, since the Criminal Justice and Immigration Act 2008 makes it illegal to possess what it calls ‘extreme pornography’. An image is defined as extreme if it is ‘grossly offensive, disgusting or otherwise of an obscene character’ and ‘if it portrays, in an explicit and realistic way’:
an act which threatens a person’s life,
an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals,
an act which involves sexual interference with a human corpse, or
a person performing an act of intercourse or oral sex with an animal (whether dead or alive)
This mixture of subjective judgement and sheer visual illiteracy led the UK’s Joint Committee on Human Rights, in its pre-legislative scrutiny of the measure, to voice doubt as to whether it met the basic legal requirement of making clear exactly what constituted an offence. But the government pressed on, and the only resistance which the measure encountered was from a number of Liberal Democrat peers in the Lords. The committee’s fears were amply confirmed early in the Act’s life. UK citizen Andrew Holland was prosecuted in 2010 in Mold, North Wales, for possessing a short film, sent to him on his computer as a joke, that apparently depicted a tiger having sex with a woman. It wasn’t until the case reached court that the police and prosecutors actually bothered to listen to the film’s audio – at which point they heard the ‘tiger’ (actually a computer-generated image) exclaim: ‘That beats doing Frosties ads for a living!’ The case duly collapsed. A particularly worrying aspect of this ridiculous case, however, is that Holland’s original legal team had advised him to plead guilty.
One of the many things that is both confusing and disturbing about the Criminal Justice and Immigration Act is that it criminalises the possession of images of activities which in themselves are perfectly legal (for example, oral sex with a live animal, and intercourse with a dead one). It’s significant that, in the recent case against Simon Walsh, former aide to London mayor Boris Johnson, one of the items of allegedly ‘extreme pornography’ was an image of anal fisting, a perfectly legal sexual practice. The jury took less than 90 minutes to acquit him.
The above cases either collapsed or resulted in acquittals or successful appeals, but this should not obscure the fact that they should never have been filed in the first place. Legislation has been drafted too broadly and hastily, usually in a febrile atmosphere, and without due attention to human rights. All too frequently it has then been enforced in a manner that raises serious doubts about both the competence and the motives of the relevant authorities. In the process, the lives of innocent people have been wrecked. And now, developments in information technology have both brought people’s everyday communications activities within the ambit of the law and made them readily available to official surveillance. Those who tweeted false allegations of paedophilia against Lord McAlpine on Newsnight in November 2012 found out that what is illegal offline is illegal online. It is not exactly difficult to track down Twitter users to their homes and places of work in the real world.
My advice, if you’re interested in any potentially tricky subjects? Learn about the relevant laws and how they’ve been enforced. Think about investing in encryption software, which will make it more difficult to subject your online activity to surveillance. (I don’t turn off the browsing facility when using Amazon. I couldn’t help but notice that after I’d finished writing this article, during which time I didn’t visit Amazon at all, the first five items I was invited to consider were books on surveillance.) Make sure you know a good solicitor who’s well-versed in the relevant laws. Be prepared to stand up for your rights. And don’t self-censor. After all, if you do the censors’ job for them, they’ve surely won.