I am indebted to Jane Fae for alerting me to this important story earlier in the month. Myles Jackman, aka @obscenitylawyer reported on his blog the case of R v GS [2012]. You could be forgiven for not having heard of it - few seem to, and yet the case has potentially extraordinary implications for English obscenity law. According to the Court of Appeal, private one to one text chat on the Internet can be subject to the Obscene Publications Act 1959 (OPA). This means that anyone using the Internet to discuss sexual fantasies may be at risk of committing a criminal offence.
Myles' blog includes the full law report which is well worth a read.
The Court was clearly determined to bend the law for the purposes of an individual case - concerning paedophile images. Unfortunately, in doing so the Court has unwittingly extended the law - shifting the meaning of 'to publish' to be just one person (for example, via instant chat). It significantly expands the scope of material that the Police might seek to obtain in the course of an investigation and also means that conversations individuals might be having via chat - and thus be speculative fantasy exploration - may well attract the law in a way that those individuals may be shocked at.
It's tempting to think, "well, this doesn't concern me". After all, this case concerned a conversation relating to paedophilia, and few would seek to defend such conversations - regardless of the significant extension of law.
However, take a look at the CPS guidelines on the Obscene Publications Act and the scope of instant chat conversations that could come into focus expands further. Here are those areas that the CPS would currently seek to prosecute (you will note the continued inclusion of fisting despite R v Peacock)
- sexual act with an animal
- realistic portrayals of rape
- sadomasochistic material which goes beyond trifling and transient infliction of injury
- torture with instruments
- bondage (especially where gags are used with no apparent means of withdrawing consent) dismemberment or graphic mutilation
- activities involving perversion or degradation (such as drinking urine, urination or vomiting on to the body, or excretion or use of excreta)
- fisting
So, once again, BDSM practices disproportionately fall within the attention of the law, and we also have scat and piss-play 'chats' falling in the scope of potential criminalisation.
It remains to be seen just what impact the case will have, but it is potentially very serious indeed and surely worthy of greater awareness and debate.
UPDATE: Another great post on this story from Nigel Whitfield can be read here.
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