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Britain’s Singaporean social media restrictions: a kinky case study in idiocy

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By Simon Davies

The UK Crown Prosecution Service (CPS) earlier this week published guidelines for the prosecution of questionable or unlawful material on social networking sites. The publication has – worryingly – gone almost unnoticed, despite there being significant repercussions from the new guidelines.

At first sight this commitment may seem reasonable – almost liberal. However the guidelines are also grossly deficient in a number of respects – and fatally so in terms of helping police decide whether to make an arrest.

At one level the guidelines should be applauded. They establish a high threshold test for material that is “grossly offensive, indecent, obscene or false”. The director of public prosecutions, Keir Starmer QC, struck the right chord with many civil libertarians:

“These are cases that can give rise to complex issues, but to avoid the potential chilling effect that might arise from high numbers of prosecutions in cases in which a communication might be considered grossly offensive, we must recognise the fundamental right to freedom of expression and only proceed with prosecution when a communication is more than offensive, shocking or disturbing, even if distasteful or painful to those subjected to it.”

At first sight this commitment may seem reasonable – almost liberal. However the guidelines are also grossly deficient in a number of respects – and fatally so in terms of helping police decide whether to make an arrest.

The excellent Obscenity Lawyer blog notes that the Guidelines do not even define the meaning of “indecent” or “obscene” and warned “This is a serious problem as, without such clarity, citizens are unable to moderate behaviour in order to abide by law.”

This absence of definition creates a general problem for the population at large, but it has particular relevance to people who pursue lifestyles that are in themselves of uncertain legal standing.

The case study that comes to mind is BDSM (bondage and discipline, sadism and masochism), otherwise known as “kink” or “fetish”. Strange as it may be to many readers, millions of Britons enjoy a consensual lifestyle that involves more than just Hollywood-style romancing. These people like their relationships a little more spicy – and I’m not talking about some random playful spanking with a rolled-up copy of Women’s Weekly magazine.

The Guidelines do not even define the meaning of “indecent” or “obscene”

According to a 2005 survey of 317,000 people in 41 countries, about 20% of the surveyed people have at least once used masks, blindfolds or other bondage utilities, and 5% explicitly connected themselves with BDSM. In 2004, 19% mentioned spanking as one of their practices and 22% confirmed the use of blindfolds and/or handcuffs.

It’s important to view the Guidelines’ deficiency in the context of existing UK case law, which is extremely restrictive in this domain. The Court of Appeal, for example, has decided that private fantasy one-to-one text chat (on the internet) counts as “publication” under the Obscene Publications Act.

Obscenity Lawyer raised some important consequences arising from the combination of the Court of Appeal ruling and the new Guidelines:

This legal confusion between an expression of fantasy and the actual conduct of activities is profoundly important to many people.”

Sending a private message (for example a DM on twitter, email or MSN chat message); intended solely for a single recipient (sent in good faith with the expectation that no-one else will see the contents); about an “obscene” sexual act (for example fisting, an act which is legal to perform); which is purely a fantasy (in the sense that it is an expression of a desire); rather than a statement of an intention to perform that act – means you could be sent to prison.”

This legal confusion between an expression of fantasy and the actual conduct of activities is profoundly important to many people. The 2005 study noted that interest in this sexual behaviour was indicated by 30% of male heterosexuals, 33% of female bisexuals and lesbians, and 24% of the male gay and bisexual men and female heterosexual women. In other words, most people who fantasise about BDSM don’t ever get to live out those fantasies. And yes, their expression of these fantasies appears in itself to be unlawful when communicated through social media.

Rights concerning sexuality and sexual identity are at the core of privacy, and so it’s well worth exploring what the new guidelines mean to the protection of people whose lifestyles are considered “unusual”.

The new guidance prompted the London male kink club Collared yesterday to issue a statement to members advising: “The new guidelines open up a range of potential risks to us in terms of publication of images and forums, as well as chat (which would still be regarded as “publication”. The legal grey area of the past has been widened, and this means we have to carefully consider our legal position.”

The CPS guidelines might well be a useful device to placate the extremes of view in British society, but they do little at any practical level to help us understand the legal limits of communicating on social media.