‘Caveat Viewer!’: The rationale of the possession offence

Abstract

In the light of the increasing availability of extreme and violent pornography on the Internet and its perceived harmful effect on society, a new law is being proposed that would render the simple possession of such material a criminal offence. Child pornography laws are similar to the proposed law in some respect, but there are major differences between them. This article looks at the rationale behind possession offence and analyses it in the context of child pornography. The article will then proceed by highlighting some of the legal issues involved in regulating extreme pornography, both at domestic and EU levels, and contrast this with child pornography laws. This will be examined from a human rights perspective, with particular reference to free expression and privacy rights. The article will analyse if the possession offence for extreme pornography undermines any of these rights, in which case it would be wiser to explore other possible avenues for regulation.

Keywords:

• Internet pornography
• regulation
• possession offence

Notes

1. R v Coutts, EWCA [2005] Crim 52.

2. ‘Public Consultation on the Possession of Extreme Pornographic Material’, Home Office, London, 2005.

3. Ibid., para 10.

4. Criminal Justice Bill 2007: Part 6: Possession of extreme pornographic materials’ (Backlash briefing 13 July 2007), available at http://www.backlash-uk.org.uk/briefing70713.html (last accessed 15 January 2008).

5. ‘Sexual freedom coalition Response to Home Office Consultation Paper on the Possession of Extreme Pornographic material’, available at http://www.sfc.org.uk/sfc-extremeporn.html (last accessed 15 January 2008).

6. Part 6, ss 64-67 of the ‘Criminal Justice and Immigration Bill’, House of Commons, London (Session 2007/08, as introduced on 08/11/2007) available online at http://www.publications.parliament.uk/pa/cm200708/cmbills/001/08001. 44–50.html#j400 (last accessed 15 January 2008).

7. This term was analysed in ACLU v Reno I, in which the court held that a ‘contemporary community standards’ test is not feasible for the Internet as it would impose an ‘impermissible burden’ on speech. This position was subsequently reversed in Ashcroft v ACLU, when the US Supreme Court ruled that the application of the contemporary community standards test per se does not render the Child Online Protection Act unconstitutional.

8. For a detailed discussion see A. Nair, ‘Internet Content Regulation: Is a Global Community Standard a Fallacy or the Only Way Out?’, International Review of Law Computers and Technology 21, no. 1 (2007): 15–25.

9. ACLU v Reno I 929 F Supp 824 (ED Pa 1996) US DC Penn (1996).

10. ACLU v Reno II 31 F Supp 2d 473 (ED Pa 1999) US Ct App (3rd Cir 2000).

11. Ibid.

12. ‘Consultation on the Possession of Extreme Pornographic Material: Summary of Responses and Next Steps’, Home Office, London, August 2006, available online at http://www.homeoffice.gov.uk/documents/cons-extreme-porn-3008051/Gvt-response-extreme-porn2.pdf?view=Binary (last accessed 1 December 2007).

13. See Part 6, s 64 ‘Criminal Justice and Immigration Bill’ (note 6 above).

14. Ibid., s 64 (6).

15. Section 160 (2) of the Criminal Justice Act 1988 for child pornography. Similar defences for extreme pornography are envisaged in s 67 of the ‘Criminal Justice and Immigration Bill’.

16. Section 1(1) Protection of Children Act 1978.

17. See, K. Williams, ‘Child Pornography Law: Does it Protect Children?’, Journal of Social Welfare and Family Law 26, no. 3 (2004): 245–61.

18. Ibid.

19. A.A. Gillespie, ‘Indecent Images, Grooming and the Law’, Criminal Law Review (May 2006): 412–21.

20. D. Howitt, ‘Pornography and the Paedophile: Is it Criminogenic?’, British Journal of Medical Psychology 68 (1994): 15–27.

21. R v Sharpe [2001] 1 S.C.R. 45.

22. Section 163.1 (4) and s 163.1(3) of the Criminal Code.

23. R v Sharpe, emphasis added.

24. Ashcroft v Free Speech Coalition 535 US 234 (2002) US Supreme Court.

25. Council of Europe, ‘Convention on Cybercrime’, Budapest, 23 November 2001, CETS No. 185.

26. Ibid., Art 9, ‘Offences Relating to Child Pornography’.

27. UNICEF, United Nations Convention on the Rights of the Child, Art. 34 (New York: UNICEF, 1989).

28. R v Coutts [2006] 1 W.L.R. 2154.

29. See, e.g., C. McGlynn and E. Rackley, ‘Striking a Balance: Arguments for the Criminal Regulation of Extreme Pornography’, Criminal Law Review (September 2007): 677–90.

30. R v Brown, [1993], 2 All ER 75.

31. Laskey, Jaggard and Brown v The United Kingdom [1997] Case No 109/1995/615/703–705.

32. See, Gillespie, ‘Indecent Images’.

33. Ashcroft v Free Speech Coalition.

34. For example, the Council of Europe, ‘Universal Declaration of Human Rights’, European Convention of Human Rights, Rome, 4 November 1950, ETS 005.

35. See brief by BCCLA, Canada in R v Sharpe.

36. See s 64 (6) of ‘Criminal Justice and Immigration Bill’ (note 6 above).

Additional information

Notes on contributors

Abhilash Nair

Email: [email protected]