Repeal laws criminalising creation of images with no illegal source material

The creation and personal possession of any image which has been created manually, be it through being sketched, painted or rendered using a computer, should be legal regardless of the contents of the images. If these images incorporate elements sourced from photographs (or similar) then they should still be legal to create or possess so long as the source image was also legal.

Any laws banning these images should be placed on the distribution or publication stage, and normally only where there is a justifiable reason to believe that distribution to the target audience will result in genuine harm to one or more individuals or products.

Example images where the publication or distribution could be controlled.

If the image contains pornographic or extremely violent material it would be desirable to make intentional distribution to minors illegal. There should already be plenty of laws covering this.

If the image has been created in such a way that when people look at the image they would mistakenly believe that a particular element of the image (e.g. a person, company or product) was involving in an act or situation that that element or its owner would not like to be believed to be involved in then it should be illegal to distribute under libel (or similar) grounds (this is most likely to occur when legal photographic source material has been manipulated so that it looks like an illegal act has occurred).


 

Why is this idea important?

The creation and personal possession of any image which has been created manually, be it through being sketched, painted or rendered using a computer, should be legal regardless of the contents of the images. If these images incorporate elements sourced from photographs (or similar) then they should still be legal to create or possess so long as the source image was also legal.

Any laws banning these images should be placed on the distribution or publication stage, and normally only where there is a justifiable reason to believe that distribution to the target audience will result in genuine harm to one or more individuals or products.

Example images where the publication or distribution could be controlled.

If the image contains pornographic or extremely violent material it would be desirable to make intentional distribution to minors illegal. There should already be plenty of laws covering this.

If the image has been created in such a way that when people look at the image they would mistakenly believe that a particular element of the image (e.g. a person, company or product) was involving in an act or situation that that element or its owner would not like to be believed to be involved in then it should be illegal to distribute under libel (or similar) grounds (this is most likely to occur when legal photographic source material has been manipulated so that it looks like an illegal act has occurred).


 

Repeal the Obscene Publications Act of 1959 and 1964

The Obscene Publications Acts prohibit the production of material likely to "deprave and corrupt" those likely to view it. This is applied to all films being processed by the BBFC, especially pornography.

I would also like to see Section 63 of the Criminal Justice and Immigration Act 2008 repealed as it prohibits  'extreme pornography' such as BDSM, bestiality and simulated rape – all of which can be produced with the consent of the participants.

Why is this idea important?

The Obscene Publications Acts prohibit the production of material likely to "deprave and corrupt" those likely to view it. This is applied to all films being processed by the BBFC, especially pornography.

I would also like to see Section 63 of the Criminal Justice and Immigration Act 2008 repealed as it prohibits  'extreme pornography' such as BDSM, bestiality and simulated rape – all of which can be produced with the consent of the participants.

Repeal Section 63, Criminal Justice Act

 

The Criminal Justice and Immigration Bill (2008) includes a Section 63 that prohibits a range of images, whether still or moving, possessed digitally or physically, as ‘extreme pornography’, exposing those found 'in possession' to  fines or up to five years in prison. 

 

Prohibited Images must satisfy four tests:

1. The image must be pornographic: ‘must reasonably be assumed to have been produced solely or mainly for the purpose of sexual arousal’.

2. The image portrays at least one of the following:

(a) an act which threatens a person’s life,

(b) an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals,

(c) an act which involves sexual interference with a human corpse, or

(d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive).

3. The portrayal must be ‘explicit and realistic’; a reasonable person must believe the actors (and animals) involved are real.

4. The image must be ‘grossly offensive, disgusting or otherwise of an obscene character’.

Defences include having a legitimate reason for possessing images, accidental access of images, or the possessor having taken part in the images with other consenting adults. Complete works that have been classified by the BBFC are exempt (although extracts of classified films are not).

 

It seems to me (and many others) that this is thoroughly bad law. not only is it selective and arbitrary but also creates a new category of 'thought crime'. 

The law takes little account of whether the images are the product of actual dangerous and abusive activities, or merely realistic depictions or acted scenes. It also fails to take account of whether the images were produced consensually. What it does, therefore, is to make some perfectly legal acts into illegal ones when recorded or viewed. And it makes the viewer the criminal, rather than the producer. 

However, to muddy the waters even further, Section 66 of the Act provides a defence in relation to participation in consensual acts. In order for it to be present the following elements must be established:

– That the defendant directly participated in the act or any of the acts portrayed

– That the act or the acts did not involve the infliction of non-consensual harm on any person

– That acts involving the portrayal of a human corpse was not in fact a human corpse

Given that all pornography sites explicitly state that all acts depicted are both non-harming and consensual, it seems that the law fails even to address properly the anti-porn campaigners stated target.

The law is meant to be limited by an 'obscenity test' similar to that used for prosecuting publications. However, the history of obscenity laws (Lady Chatterley's Lover, the Oz Trial, etc) shows that obscenity is arbitrary. Therefore most people will not know whether they have broken the law before they have been prosecuted.

 

Why is this idea important?

 

The Criminal Justice and Immigration Bill (2008) includes a Section 63 that prohibits a range of images, whether still or moving, possessed digitally or physically, as ‘extreme pornography’, exposing those found 'in possession' to  fines or up to five years in prison. 

 

Prohibited Images must satisfy four tests:

1. The image must be pornographic: ‘must reasonably be assumed to have been produced solely or mainly for the purpose of sexual arousal’.

2. The image portrays at least one of the following:

(a) an act which threatens a person’s life,

(b) an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals,

(c) an act which involves sexual interference with a human corpse, or

(d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive).

3. The portrayal must be ‘explicit and realistic’; a reasonable person must believe the actors (and animals) involved are real.

4. The image must be ‘grossly offensive, disgusting or otherwise of an obscene character’.

Defences include having a legitimate reason for possessing images, accidental access of images, or the possessor having taken part in the images with other consenting adults. Complete works that have been classified by the BBFC are exempt (although extracts of classified films are not).

 

It seems to me (and many others) that this is thoroughly bad law. not only is it selective and arbitrary but also creates a new category of 'thought crime'. 

The law takes little account of whether the images are the product of actual dangerous and abusive activities, or merely realistic depictions or acted scenes. It also fails to take account of whether the images were produced consensually. What it does, therefore, is to make some perfectly legal acts into illegal ones when recorded or viewed. And it makes the viewer the criminal, rather than the producer. 

However, to muddy the waters even further, Section 66 of the Act provides a defence in relation to participation in consensual acts. In order for it to be present the following elements must be established:

– That the defendant directly participated in the act or any of the acts portrayed

– That the act or the acts did not involve the infliction of non-consensual harm on any person

– That acts involving the portrayal of a human corpse was not in fact a human corpse

Given that all pornography sites explicitly state that all acts depicted are both non-harming and consensual, it seems that the law fails even to address properly the anti-porn campaigners stated target.

The law is meant to be limited by an 'obscenity test' similar to that used for prosecuting publications. However, the history of obscenity laws (Lady Chatterley's Lover, the Oz Trial, etc) shows that obscenity is arbitrary. Therefore most people will not know whether they have broken the law before they have been prosecuted.

 

Repeal ‘Extreme Pornography’ Law

Section 63 of the Criminal Justice and Immigration Act 2008 makes it an offence to possess an 'extreme pornographic image', where this is defined to be:

"grossly offensive, disgusting or otherwise of an obscene character" and "it portrays, in an explicit and realistic way, any of the following— (a) an act which threatens a person’s life, (b) an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals, (c) an act which involves sexual interference with a human corpse, or (d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive), and a reasonable person looking at the image would think that any such person or animal was real."

Bestiality, necrophilia and grievous bodily harm are already illegal, so there is no need for this clause, as it does not protect anyone from harm. Instead, it criminalises the possession of images which are present in most mainstream films, since many films realistically depict acts which threaten a person's life. Section 64 of the act therefore has to exclude certified works from the provisions of section 63, unless the works have been extracted for the purpose of sexual arousal. It is totally unclear how it is to be determined whether works have been extracted for such a purpose or not.

Section 63 needs to be repealed, rendering sections 64-66 unnecessary, so these should be repealed also.

Why is this idea important?

Section 63 of the Criminal Justice and Immigration Act 2008 makes it an offence to possess an 'extreme pornographic image', where this is defined to be:

"grossly offensive, disgusting or otherwise of an obscene character" and "it portrays, in an explicit and realistic way, any of the following— (a) an act which threatens a person’s life, (b) an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals, (c) an act which involves sexual interference with a human corpse, or (d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive), and a reasonable person looking at the image would think that any such person or animal was real."

Bestiality, necrophilia and grievous bodily harm are already illegal, so there is no need for this clause, as it does not protect anyone from harm. Instead, it criminalises the possession of images which are present in most mainstream films, since many films realistically depict acts which threaten a person's life. Section 64 of the act therefore has to exclude certified works from the provisions of section 63, unless the works have been extracted for the purpose of sexual arousal. It is totally unclear how it is to be determined whether works have been extracted for such a purpose or not.

Section 63 needs to be repealed, rendering sections 64-66 unnecessary, so these should be repealed also.