back to article UK judges quietly declare text chat can be obscene

You could be committing a criminal offence next time you discuss your deepest fantasies with someone online. Alarmist? Only slightly. A ruling slipped out quietly by the Appeal Court earlier this year, and lurking in the background while the substantive case to which it applied came to court, makes it plain: the act of …

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WTF?

Surely this has to go against the European charter of human rights in some way. Isn't there protections for freedom of speech or of thought in there somewhere?

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FAIL

Forget european law, it goes against itself.

In among the guidelines are, "bondage especially where gags are used" and films such as Pulp Fiction are legal to buy.

It is not a case of what is against the law, it is now a case of who the CPS decide to prosecute with it.

The original filing from parliament, as far as I understand it, didn't have a clue what it wanted to do. It only knew it wanted to protect society. It left the detail to the CPS, who have since resisted any attempts for a realistic review of their own guidelines in the face of how society has changed over the decades.

The law a few years ago was no different. A load of wankers crying "protect the children!" got MPs to do something when, in reality, they didn't know what they were doing, and I never got a straight answer out of Maria Eagle when she was heading her department before the last election, as to the various oddities that didn't add up about the whole process.

Net result, a load of people have been blindly making laws and guidance when, in reality, they don't actually have the remotest grip on what it is that they are trying to achieve.

It beggers belief to this day, as to how the CPS and maniacs who have introduced such daft, ill considered legislation, with only the faintest thread of direction ... can still see through all the egg on their faces. And they STILL haven't got the guts to press the reset button and do the job right.

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In the UK, there is no freedom of speech. You do have freedom of expression, but there is a long list of exclusions, including things like obscenity, indecency, threatening or abusive speech (and a vast array of others, including "imagining the death of the monarch".)

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Coat

Does this include conversations...

...with Sheep?

Mine's the one with the soft wooly lining. Nearly Beer-Thirty. :-)

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Coat

Re: Does this include conversations...

Well, not sheep as such, but conveying an image such as:

Imagine that three judge panel sitting in a landscape on a bright sunny say. A cow comes along and all three judges have a fondling relation with that cow one after the other. Then the dominant bull comes along, really seeing red, and starts giving real thrusts of action to all three judges.

Is this violent and obscene enough to bet me extradited to the UK?

(when they do get an order, I can and will refer to the Arkell v. Pressdram case).

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Happy

Re: Re: Does this include conversations...

That is utterly obscene.

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Re: Does this include conversations...

The judgement is obscene. Publishing is one-to-many as any fule no. One-to-one is a private conversation. Grooming is already against the law so this is either bending the rules for one particular individual or yet another land grab for what little remains of privacy.

No sympathy whatsoever for paedophiles; but the implications of this ruling -after you add the inevitable mission-creep is truly horrific for everyone.

Bad judge. Bad.

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See how the #porntrail is going I wouldn't be surprised if the law is extended beyond just child abuse to pretty much anything. And it will likely be used only in cases where someone wants to damage someone else and can't find any other legal route. Why? Well because just about everyone has seen some obscene material. It's only a minority who have not looked at any porn at all.

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quote: "I wouldn't be surprised if the law is extended beyond just child abuse to pretty much anything."

It already is. This is simply providing precedent that a one on one chat (text, IM) can be dealt with under the Obscene Publications Act. The Obscene Publications Act already covers anything a jury decides (on a case by case basis) to be depraving or corrupting.

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Anonymous Coward

Doesn't it also redefine what a "publication" is...

Now you texting a friend is a "publication" and can be tied up in all kinds of new and exciting legal tape and opportunities for the police and their friends to abuse the law.

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Anonymous Coward

It was too good to last

Here was me thinking our Judges were getting a good reputation for sensible judgements recently :(

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Flame

Depraving, corrupting, or obscene

Yeah, That pretty much describes texting the missus.

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Anonymous Coward

what about coca cola adverts

i find myself depraved and corrupted by them. and they get published to basically a global audience. will coke ever have to go to jail? i doubt it. an thats before you get into the obscene way they are polluting the environment, exploiting people etc. and of course no one cares. how many coke union organisers have been murdered this month? oops was i meant to keep that quiet?

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Anonymous Coward

Re: what about coca cola adverts

You remind of the old Bill Hicks skit, he goes on about pornography then draw parallels to ( at the time ) the twin teenagers chewing gum in the Wriggleys ad's ( "When I see them, it's not gum I'm thinking about!" ) and finally finishes up with, "Sooner or later they won't bother with the product anymore, you'll just have naked women, with a cutthroat razor held next to her shaved-pubic region and the slogan will simply say 'DRINK COKE!'.".

These corps selling brain rotting sugar water and other laboratory developed tasty treats are already corrupting kids, by way of the product and advertising ( 9 year olds with eating disorders FFS?! ) . Use of full pornography in advertising is only a matter of time and because it makes millions of dollars for the fat-cats they won't get arrested for publishing obscene material as their highly paid team of lawyers will make sure they always have a get out clause.

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Neutrogena Nipple

Almost happenned. Channel 4 aired Neutrogena ads a long time ago with full naked body from behind, and full breasts on display from the front. Only a matter of time before the camera pans downwards!

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Thumb Up

Re: what about coca cola adverts

If they did this, I'd stop leaving the room when the go compare ad comes on.

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Trollface

Re: what about coca cola adverts

> Wriggleys ad

Freudian slip?

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FAIL

this could be serious - and it's not about pr0n

Has the Court of Appeal thought this through?

If "publication" now includes sending a private message to one other person, then emails, texts, and possibly phone calls (over the internet, or by plain old-fashioned telephone) are publication.

This may mean many more things are covered by the law of libel (instead of mere slander). It may mean that copyrighted "content" is much more strictly controlled (not allowed to quote stuff over the phone / IM; not allowed to have background radio / CD playing while on the phone; not allowed to joke on the phone or by IM about blowing up Robin Hood airport).

It's possible that common sense will intervene, but I'm not optimistic.

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Anonymous Coward

Re: this could be serious - and it's not about pr0n

That's what I thought. So I read the act* and it has, for the purposes of that act only, an extremely broad definition of publish:

"For the purposes of this Act a person publishes an article who—

(a)distributes, circulates, sells, lets on hire, gives, or lends it, or who offers it for sale or for letting on hire; or

(b)in the case of an article containing or embodying matter to be looked at or a record, shows, plays or projects it or, where the matter is data stored electronically, transmits that data."

Given the law, the judges could hardly have decided differently but the decision has no effect on the meaning of publish for other offences. It's not great, but it could be worse.

* http://www.legislation.gov.uk/ukpga/Eliz2/7-8/66/section/1

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Re: this could be serious - and it's not about pr0n

Just because a communication between two people counts as "published" (for the Obscene Publications Act) it doesn't automatically mean that the material was obscene. There is existing case law where the interpretation of "obscene" has depended on the actual or intended recipient of the material. There existing cases where the recipients were deemed to be of a sufficiently robust nature that the material would not deprave or corrupt them and thus it was not obscene.

I suspect GS was given the wrong advice. He should have continued to plead not guilty and allowed a jury to decide whether the one recipient was going to be depraved or corrupted by the material. I imagine there was a preceding dialogue that would demonstrate that the recipient was a like minded individual and hence not corrupted by the material.

Of course, it's possible that the material fitted within some definition of child pr0n. But if that was the case then some other legislation should have been used rather than the Obscene Publications Act.

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Anonymous Coward

Yes it will

Indeed, common sense *will* intervene. If it is a politicians kid that gets caught.

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Re: Yes it will

No that's not how it works.

If it's someone with power/friends they will decide there is not much hope of a conviction, tell them dads waiting outside and off you go.

If it's someone they don't like... bang, off to the cells you go.

1. Make it so everyone is breaking the law* by breathing.

2. Use selective enforcement to deal with people you don't like.

*Make sure to use the law first on scum bags that no one will defend. Once the law is established you can use it on anyone you don't like as long as they are not "important".

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Anonymous Coward

Take a letter...

Presumably this would include me writing a racy letter to someone...?

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Anonymous Coward

Re: Take a letter...

If the person was 8 years old and you detailed how you were going to rape her, probably, yes.

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Re: Take a letter...

If the person was 28 years old and you said you were going to put a gag on her or tie her up, then definitely yes. Seriously, that's all it takes.

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Anonymous Coward

Re: Take a letter...

Wait till another speed dater calls "rape" and see what happens, the last woman who cried it "because he didnt stay after sex" even though it was consentual.

Women can now use text messaging to "lure" a rich mark or their "stalk prey into a corner.

I can see a huge rise in pay-as-you-go throwaway sim cards

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WTF?

I wonder what 'Online' means in the context of the ruling

If I to make a phone call to some (willing) party to discuss a sexual fantasy, is that "online"?

I mean, if the call is carried on the digital telephone network (C/SS7), is that "online"? "After all, a telephone call is carried *on* a wire*line*, you know, your honour.", said the prosecuting lawyer.

Again, is it "online" if it happens that my telehony provider is using VoIP technology to 'transit' such a call between originator and recipient/caller and receiver? "After all, VoIP is an internet technology, your honour.", said the prosecuting lawyer.

The lack of definition is just one wedge that can be used to cleave a wider 'applicability' and 'interpretation' to further the "they are all guilty, all the time" campaign that corrodes, further, the vestiges of freedom in this country.

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Happy

Re: I wonder what 'Online' means in the context of the ruling

Under s1 of the Malicious Communications Act 1998

It is an offence to send an indecent, offensive or threatening letter or other form of electronic communication to another person.

Under s43 of the Telecommunications Act 1984 and Section 92 of the Criminal Justice and Public Order Act 1994

A person who makes indecent, offensive or threatening calls to another via the telephone system network is guilty of an offence.

Funny thing this Internet, you can sometimes find the answers you are looking for by searching using a few key words.

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Headmaster

Re: I wonder what 'Online' means in the context of the ruling

ERODES - not corrodes (corrosion is a chemical reaction).

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Anonymous Coward

Re: I wonder what 'Online' means in the context of the ruling

"ERODES - not corrodes (corrosion is a chemical reaction)."

And erosion is a geological process. Haha!

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...Yes 50 Shades of Grey *IS* legal?

What a world.

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Jop
Meh

Does 50 shades of grey relate to how clear the law is no as to what you can say and where?

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Anonymous Coward

Send the cops to Amazon right away

If "written fantasy material specifically about child rape and murder" is now legally obscene, when are they going to prosecute Amazon for selling de Sade's "The 120 Days of Sodom"?

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Anonymous Coward

Re: Send the cops to Amazon right away

Nah, cause it's too main stream. The tv movie "Last house on the corner" includes a rape scene that is fairly brutal. It aired after this law came into existence. I thought that law outlawed films with rape in them. But this was on main stream tv. I bet if the same scene was on a private video someone could get convicted with it.

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Anonymous Coward

Re: Send the cops to Amazon right away

I thought that law outlawed films with rape in them

Where on earth did you get that idea?

Clockwork Orange?

Death Wish something or other.

Let's not mention Irreversible.

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Re: Send the cops to Amazon right away

Add Battle Royal, the manga version, to the list. Which I bought from Waterstones.

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"This decision ... closes one door where people that would abuse children share and indulge in their fantasies online without the use of images, and prior to now have felt beyond the reach of the law in doing so."

Excellent news - now not only are children such as Lisa Simpson protected but now they can also protect those who aren't even depicted! With any luck they'll be able to arrest those who even THINK of children soon (the pedos will have to prove they aren't thinking about kids). </sarcasm>

Do they really think that making it as much of an crime to engage in FANTASY as carrying out the acts for real a good idea? Don't they see that those with such interests will then be more likely to just have kids of their own purely to abuse them?

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This isn't just about pedos

That ruling could easily cover any fantasies you might harbour about punching your boss in the face.

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Big Brother

Re: This isn't just about pedos

Indeed - it's very very dangerous :/

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Happy

Not just about "online"

I note at least one poster assuming this is merely about the online world. No: that's not what this ruling means.

A point made to me by the CPS, which for space reasons i could not include in the article was:

"the point of the appeal against the terminating ruling was the Crown Court judge’s interpretation of “persons” not whether or not an online chat was subject to the Act, which is made clear in paragraph 21 of the judgment"

It just so happens that the most likely place for one-to-one chat to be picked up nowadays is online...and the OPA is adapting to a new digital reality.

Jane

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Frustration frustration frustration

When the law-makers have difficulty defining the laws how the hell are we supposed to stand a chance in insuring that we live law-abidingly.

Rules and regulations no longer appear to have any other purpose than ensuring that the populace can be held to account for almost anything that they do. This is turn ensures that the corrupt remain in power.

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Big Brother

What about...

If I write a novel, which I release online (or offline) which is about a detective trying to hunt down a rapist/killer, as part of the novel is describes what the perp has done to his victims. Most people would get aroused by it (which I believe is required?) but some might.

Does this then mean I have produced obscene material?

This is utterly ridiculous. Another "well meaning" law to be abused.

Isn't it time we reboot the matrix?

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FAIL

sorry typo.

would not get aroused!

fail, because my typing skills did.

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Re: What about...

"She should have run faster"

--Oswald Danes - Torchwod Miracle Day

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Re: What about...

It certainly can, yes. I think there have been 'extreme' novels of this sort which weren't published in the U.K. for fear of the OPA.

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Not quite the scenario

@ Michelle Knight

'A load of wankers crying "protect the children!" '

I'm pretty sure we're trying to protect the children FROM the wankers

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Offline

We're gradually being driven offline. You can hardly say boo in case some prude gets "offended". Like being offended gives them extra rights somehow. Then there's avoiding saying something about Robin Hood Airport etc. Any why is it these days that whatever happens, somebody has to go to jail?

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Coat

argumentum ad absurdum

I followed the article's link to the 'charging practice' part of the Crown Prosecution Services website covering the Obscene Publications act.

This contains blunt text that has highlighted a number of practices of which I was not previously aware of a perverted sexual nature. I therefore consider it depraved and obscene and it has by definition corrupted my innocence.

I therefore would like to complain about the CPS website under the obscene publications act .

It is also one of the most entertaining official documents I have ever read - for all the wrong reasons.

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Ignoring the sex for a moment

If text and IM chats are now publication - what about using them at work?

Are IM discussion with HR, or legal now still allowed?

Is a patent invalidated if we discuss it internally on Lynq in the same way as I would on the phone?

If I get an SMS about a server down - has that been published? Do I need to make a market announcement to the shareholders since I have published material affecting the performance of the business.

And I might just be being cynical but of course there is now no need for a warrant to intercept sms/IM because you have "published" it.

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