Online chat in the UK is still not free

The “Twitter joke trial” may have finally wound its torturous way to a conclusion, with the winning today of an appeal by Paul Chambers against his conviction, but amidst all the rejoicing, it’s prudent, I think, to sound a more cautious note.

At a time when society has, in general, been becoming more liberal in many areas, a curious counterpoint has been the extension to the digital realm of more and more draconian rules. One of the most obvious of those is the horrific proposals to censor everyone’s internet connection in the UK. I know that some might not call porn filtering censorship, but as I’ve written before, there are serious dangers with the idea that companies will have to maintain a list of people who want to watch porn.

It’s easy sometimes to wonder if there’s almost a conscious effort on the part of governments to toss a bone to the prurient at the same time as they liberalise, so greater equality for lesbian and gay people happens around the same time as a tightening of the laws on extreme pornography; the prospect of equal marriage happens around the same time as the proposed internet filtering. One law to keep the liberals happy, one to keep the righteous from grumbling.

So, it’s worth noting, in tandem with the great news about Paul Chambers winning his appeal, that we still have serious – and growing – issues with our ability to talk freely on the internet in the UK. How so? You should take a few moments to read and digest the implications of this blog post from Miles Jackman, a lawyer who specialises in obscenity.

Essentially, the Court of Appeal has this year reached the conclusion that a private, one to one text chat on the internet can be subject to the Obscene Publications Act (OPA). As the blog points out, it’s easy to think “well, that conclusion was reached in a case to do with paedophile material” and simply move on. No one has sympathy for that sort of behaviour.

But, we should worry – the door has been opened for the OPA to be applied to any private one on one text chat. And the guidelines for what could be liable for prosecution under that Act are pretty broadly drawn. Now, some of the activities might not be to your taste – but they’re perfectly legal.

That includes, for example, bondage, urination, and other consensual activities. If you’ve ever been on certain types of dating site, or engaged in online chat, and you’ve talked about some of your sexual fantasies, this new ruling means that you could be breaking the Obscene Publications Act, and potentially subject to criminal damages.

Add to that some of the laws that, like the “Extreme Pornography” rules mean you can actually be prosecuted for having photos of acts that are themselves perfectly legal, and it’s clear that there is a very real risk that chatting online with others who share your sexual interests could land you in very hot water, even if what you’re discussing is legal and consensual. Before starting a conversation, will we have to ask “Would you want your wife or your servants to read this chat transcript?”

We can all breathe a sigh of relief that a semi-public joke on Twitter has ultimately been considered not to be a threat, notwithstanding reminders that the appeal does not give a green light to say whatever you like online. But we should also be deeply worried that expressing your sexual fantasies, in a private, one on one chat, could now land you in court.

And that’s no laughing matter.

Update: 9th August

Since writing the post above, another significant trial has been held, in connection with the ‘Extreme Pornography’ provisions of the law; it resulted in a Not Guilty verdict on all counts, but it too raises important questions about the CPS and its role in policing what consenting people do in their bedrooms. I blogged about it on another site I run.

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