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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    1. Anonymous Coward
      WTF?

      Re: Ignoring the sex for a moment

      What have you just done?

      Also, what if I go to www.google.com and start typing in something obscene? Since ajax is transmitting each letter as I type it, is this 'publication' too? Even if I never intended to press enter?

      1. Yet Another Anonymous coward Silver badge

        Re: Ignoring the sex for a moment

        I work in medical stuff for a PLC.

        There are memos every day about what can and can't be said publicly without there being an official stock market announcement. There are vastly more complex rules about confidentiality of data. We even had to change email provider because the previous one had servers in the USA and the lawyers decided that if an email went through American wires then a whole new set of HIPAA rules would apply.

        Then there is a different set of rules about patents and who things can be discussed with at different filing stages of a filing. We even have a pet lawyer sit in on some meetings so that they can be claimed as privileged during discovery.

        If some judge has just determined that all point-point electronic communications are "public" then the whole medical/financial/defence industries are going to have to go back to quill pens.

  1. Anonymous Coward
    Paris Hilton

    I am confused?

    How does "full-hand fisting" become better or worse, or obscene, or less or more obscene than "full fist handing"?

    Is that just a girl girl thing, a guy girl thing, a girl guy thing, a guy guy thing; and does it make a difference if it's vaginal, anal or penile?

    Obviously though the insertion aspect would make it full hand fisting or is that full fist handing?

    I suppose the issue rests on exactly what is being inserted into what, in order to define the point of insertion and reception.

    1. Anonymous Coward
      Anonymous Coward

      Re: I am confused?

      If you can get a fist up your hog's eye you should certainly publish that on the internet.

  2. Anonymous Coward
    Anonymous Coward

    The question of online

    I find it interesting to note that the question that the appeals court ruled on was about the act itself, and the interpretation by His Honour Judge MacDonald where he said it was the same as two people in an empty room having the same conversation was not based on what the act says. In the judgement the relevant bit of the act is:

    (3)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."

    All the appeals court did was rule that since this the data was stored electonically and transmitted it could be considered under the act. As far as I can tell the appeals court did not make any ruling on whether the material published was obscene. In fact, as far as I can tell, they even gave a way out when they referenced:

    The other provision of the 1959 Act we should mention is section 2(6) which provides:

    "In any proceedings against a person under this section the question whether an article is obscene shall be determined without regard to any publication by another person unless it could reasonably have been expected that the publication by the other person would follow from publication by the person charged."

    And it seems to my non-legal mind all the defense had to show was that there was no reasonable expectation that further publication could be expected. Of course it could be saying the exact opposite, in which case please be kind.

    It think it was worth commenting on the Girls Aloud case since only text was involved, while in this case there were images which as far as I can tell could have prosecuted seperately if the publication piece didn't stand up.

  3. Ned Fowden
    Big Brother

    laughable

    to think that anyone still believes that freedom of speech exists anywhere

    laughable to think that anyone is surprised that this wasn't inevitable

  4. Anonymous Coward
    Anonymous Coward

    Missionary position, lights off and dont enjoy it

    Thats the british view of sex and be dammed if you'll be allowed to do anything else.

    On the one hand I understand why it was applied in this case, on the other, this IS going to be abused. As a member of the Alternative community I know they will eventually be comming for me, even though I've never done anything wrong or thought anything definable as wrong, I just think different. Outsid ethe bedroom I'm in a loving, stabl;e relationship, I run my own business, pay my taxes and keep on the right side of the law. But its increasingly the case of be different, stick your head up out the trenches and it'll get taken off but someone on a moral crusade.

    Its ok To be Gay now, and hell that took way to long to happen, but because you enjoy a bit of slap and tickle in the bedroom, you are now a potential criminal, child molester and all round deviant.

    I really really wanted to have some great, long, soapbox rant about it but to be honest I cant, I just feel saddened by it all. I hope our children will enjoy the boring, sterile, unexciting, lawer controlled world we are creating them. I just feel so sad and disparing about the world my children are going to be born into, granted they'll be safe, but I'd intended making sure of that myself anyway.

    1. Graham Bartlett
      Flame

      Re: Missionary position, lights off and dont enjoy it

      Too right. And lest people think this is a one-off,

      * Simon Walsh, who worked for Boris Johnson, was fired for having two pictures of naked men. One was young but definitely over 18; and the other was wearing a gasmask. The CPS are pressing charges for kiddy porn in the first case and extreme porn in the second case.

      * A woman using the pseudonym "Legally Bland" was sacked from her job as a social worker, because she attended BDSM parties and had some photos taken of herself. Never mind that the policemen she'd worked with turned up to speak for her at her hearing. She's currently fighting this (with the help of an organisation called BackLash) under unfair dismissal laws.

      There's a bitter irony in these people having their lives destroyed at the same time as "Fifty Shades of Grey" is topping the bestseller charts...

      1. Anonymous Coward
        Anonymous Coward

        Re: Missionary position, lights off and dont enjoy it

        In the Simon Walsh case, which is the one that has the #porntrial hash-tag on Twitter, a lot of people are asking how the police came to know about a 3 year-old Hotmail message with attachments. Apparently the CPS has now dropped the charge over the photo of the gas-mask wearer.

        What is also known is that apparently Simon Walsh was previously involved with prosecutions against police officers while in the job he was sacked from. Now, what possible reason could the police have for trying to put one over on him?

        1. Martin 47

          Re: Missionary position, lights off and dont enjoy it

          More here about the Simon Walsh case http://heresydungeon.blogspot.co.uk/2012/07/the-trial-of-simon-walsh-at-kingston.html

  5. Anonymous Coward
    Anonymous Coward

    UK law makers are complete w nkers! Well done for totally showing the UK up. Why are these 'people' allowed to even breathe?

  6. Anonymous Coward
    Anonymous Coward

    Oh won't someone etc...

    Kent Police reject this. They told us: "The only crusade Kent Police is on is to protect children from abuse including sexual exploitation. 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."

    Ah, seems the police are no strangers to the "Oh won't someone think of the children!" gambit. Unbelievably though, they seem to have made it work.

    You know what, damn this country. I'm sick and tired of people telling other people how to think, act, behave or speak. What gives anyone the right to decide what two consenting adults can or cannot do, or even can or cannot talk about? A lordship? Yeah, because they are not historically known for bizarre sexual preferences [Lord Laidlaw anyone?].

    It's 3pm and I am definitely leaving for the pub.

    1. Destroy All Monsters Silver badge

      Re: Oh won't someone etc...

      > What gives anyone the right to decide

      I guess it's the gun control laws.

      1. richard 7

        Re: Oh won't someone etc...

        Yeah cause they worked so well didnt they

  7. JimmyPage Silver badge
    Flame

    And so we have another law

    where no one needs to complain, for someone to get banged up.

    I for one, am heartily sick, of seeing the criminal justice system being used to dictate some arbitrary morality upon society. I really have no interest in what people watch, or do amongst consenting adults, as long as no one else gets hurt. Endof.

    Remember the extreme porn law ? Just taking a screencap of certain films, despite being BBFC approved will get you banged up. And you're forbidden to mention the clip came from a BBFC approved film in court.

  8. LordHighFixer
    Coat

    I am still wondering why

    The Olympic committee has not been prosecuted for that pictograph depicting Lisa Simpson, a known minor, giving oral pleasure to a yet to be identified other. Clearly it is published and pornographic. And what are those other figures near by? Is she being forced to perform this action?

    Mine is the one with a well worn copy of Lolita in the pocket.

    1. Graham Bartlett

      Re: I am still wondering why

      "Yet to be identified other"? It's Bart.

    2. Anonymous Coward
      Anonymous Coward

      Re: I am still wondering why

      1. It's Homer

      2. Yes, as is obvious by homer's arm holding her head

  9. Anonymous Coward
    Anonymous Coward

    But how...

    How were these chat logs discovered, and GS taken to court? Who is monitoring this stuff...?

  10. Ken Hagan Gold badge

    That audience of one...

    "There could be no sensible reason for the legislature having excluded otherwise obscene material from the scope of the legislation, merely because it was likely to be read by, and therefore liable to deprave and corrupt, only one person..."

    Perhaps there couldn't, but it surely offers a simple defence. Since the audience is one person and the jury has to decide whether the material is likely to deprave or corrupt, can't they just ask the audience? The recipient just stands up in court and swears under oath that they weren't bothered by it. The jury pretty much *has* to decide that the material "wasn't likely to" deprave because they have sworn testimony that it "didn't".

  11. Trevor 7
    FAIL

    Did the UK judges go to US public schools?

    The inability to determine the difference between singular "person" and plural "persons" is something I expect out the US public school system.

    Sounds like the first judge understood the concept.

    Is this some sort of chav - effect: the more of them there are the stupider they become

  12. AdamWill

    Offences against children?

    "This is a landmark case [and] a good opportunity from a law enforcement point of view. It opens up the possibility of more people being prosecuted for offences against children."

    Surely you missed a word out there. It should obviously read "It opens up the possibility of more people being prosecuted for offences against imaginary children."

  13. Andus McCoatover
    Windows

    Take to the ridiculous extreme. I send a text message "Fuc*k you, sunshine", and I'm banged up....

    Surely there must be some sense of common sense and proportion in Britain?

    Oh, wait....

  14. Allan 1

    So basically, my texts and skype conversations to my girlfriend, currently in the US, are now illegal as they containt "flirtations and descriptive content" that would make some people cringe.

    How long before they just make sex itself illegal except for procreation, and even then it will require a licence and full montoring unfrt RIPA by council officials to make sure its not being actually, enjoyed?

  15. Anonymous Coward
    Anonymous Coward

    Not the place

    Guys this isnt the place, please remeber the way our legal system works, not happy with the results? then take private action. These forums are not the place to be carrying on your case.

    The fact of the matter is, win or loose this case has further poisoned our right to be consenting adults because the wrong law has been applied to the wrong sitauation.

    If, TC, you think that this is the ONLY time this will be applied then whilst I'm truly sorry for what you have been through, you are being neive.This will now at the very least become one of those 'other offenses' used to bolster a case and broadside people who shouldnt have to worry about it. 'Oh dear Mr xxx, we cant prove that you were texting when you hit that padestrian, but oh, lookee here, you texted your wife you were going to tie her up and spank her when you got home an hour/day/week ago.....' Thats the way the real world works.

    Our sucessive Govts love bad and overly broad laws, because our legal system works on precident this makes for a bad situation, hence the examples cited in earlier pages. Put on the sex offenders list because of a cartoon of Lisa Simpson? Really? And thats ok is it? A law should be clearly defined so there are few loopholes as possible for people to use. A law should NOT be a generic 'let some other entity decide what they feel like', not least because every defenedant you haul up is going to argue the case and pull the ruling apart.

    Thought crimes are not covered by our laws and they should not be (although I can think of cases where just existing should). Trying to legislate the danger and badness out of our world will simply not work and lead us into a state where our kids are still stuck to TV screens and Consoles because they cant/dare'nt do anything else. A world where a quick glance will land any man (or woman) in hot water because the opposite sex 'looked 18 yeronner but I didnt ask before I looked'

    The issue here is that most of us are of a pretty broad mind, however the generation before us generally wernt and these people are the ones that make the law and try to inflict their morals on everyone else, because they can and they dont possibly beleive they can be wrong.

    Mrs TC, I'm sorry that you've been through this, I really am, but whats been done in your name is not just or correct. I am a parent, soon to be for a second time, and I know how I'd react in your shoes and I know I'd not be impressed. I would like to think that I wouldnt allow my case to be used to further the relentless hunt for boogie men and terrorists either. These people do exist but they are a great way to get any law the govt want passed, I mean who would fight against a law to catch these people. Before that it was the Communists, and then the Nazis..... There always has to be a boogie man.

    Anon so I dont have to sack myself for voicing my opinions

  16. TDP

    If this is communication between one private individual and another, and the wording of the judgement refers to publishing, surely it cannot be applied as to publish is to make available by definition to more than one person, you cannot publish to one person only ?

    Publish:

    1. To prepare and issue (printed material) for public distribution or sale.

    2. To bring to the public attention; announce.

    Public:

    Adjective: Of or concerning the people as a whole.

    Noun: Ordinary people in general; the community.

  17. Anonymous Coward
    Anonymous Coward

    Here's the unintended definition:

    By this ruling, everything Stephen Hawking says is published, because he can only speak using an electronic medium. Likewise, if you speak to someone who you know uses a hearing aid then you are publishing because you are using their electronic device to send them a message.

  18. Dodgy Geezer Silver badge
    Flame

    The definition of Publication...

    ...is making something available to THE PUBLIC.

    I think that the Law Lords need a quick course with the dictionary....

  19. not_equal_to_null
    Thumb Down

    This is completely and utterly bonkers. That is all.

  20. BleedinObvious
    WTF?

    Leveson Inquiry is all a bit pointless then

    If all the texts count as publication, there's no such thing as phone hacking (text snooping) any more, and all those who had their phones hacked should be jolly well happy with this judge.

    OTOH, the press should start doing more phone hacking and exposing now - probably the only thing keeping t.h.e.m. straight, when the laws are so ripe for abuse^M^M^M^M^M^M^M^M^M.

  21. johnwerneken
    Megaphone

    Ignoring reality

    In reality speech is regulated sometimes. First, there is the 'shouting fire in a crowded theater' situation: there may be instances where a comment could lead directly to real physical harm. Perhaps bans on disclosing national secrets are another example of this. Second, there is the 'fighting words' argument, which I find to be plausible if much weaker than the 'fire' case. The rationale is that some speech is highly likely to produce inter-personal violence. I am not persuaded it should therefore be censored, but I am persuaded that it should be avoided. Third, there is speech whose sole purpose and real result would be to further a criminal conspiracy - it is part of the crime of conspiring to commit a(nother) crime.

    And then we have this, the idea that speech per se, not entailed consequences, is harmful. I don't believe it; the ugly-as-well-as-obscene might offend but I don't see how it could cause one to become depraved (whatever that is). In some ways children deserve more protection than adults from society simply because they lack means of defense. BUT isn't that protection mostly the responsibility of parents and other adults in the community, and not of the State?

    Images of child pornography are a bit different, sort of being the fruits of the abuse of children. Perhaps there ought to be a distinction between photographic evidence that someone has abused real children, and cartoon images of approximately the same thing...

    Certainly COMMENTING on such acts to a limited and willing audience is NOT endangering society, it is just offending those of us that would prefer not to be reminded that we clearly have some fellow citizens who are in favor of deplorable abuse and perhaps given to committing such abuse as well. Disgusting maybe but not criminal, at least not in my opinion.

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