Monday, October 06, 2008

Girls Aloud blogger on trial: a case of obscene prosecution?

Some newslets have carried the news that Darryn Walker is being prosecuted under the Obscene Publications Act 1959 for “posting a comment on a fantasy [erotic website] which allegedly described the kidnap, mutilation, rape and murder of Girls Aloud members Cheryl Cole, Nadine Coyle, Sarah Harding, Nicola Roberts and Kimberley Walsh”. All the posts refer to allegations and it seems that none of those writing have actually read the post in question, excepting the Internet Watch Foundation that has made the complaint (it will be good to know if the fact that the foundation’s CEO has been member of the Obscene Publications Branch at Scotland Yard has had any bearing on the unit taking action in this case), so we can talk about it in very general terms (if you have time to look for it within all the archives of the site, let us know).
Starting with the law, most reports mention that the test under the OPA 1959 (section 1) is whether an article’s “effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.” The current statutory provision has been taken from earlier common law, as in R v Hicklin (1868) where it was defined as tending “to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of [that]sort may fall”. So, there is no need to actual depravation or corruption but a tendency to do so and that has proven, rightfully, to be quite problematic. The first problem is that it assumes a patriarchical view that those reading a material are not depraved or corrupted already, to then follow it with the patronizing principle that people are easily corrupted and depraved by either images and/or written words. Strangenly enough, if the publication in question causes shock and disgust, that would constitute a defence under OPA 1959 because a shocked and disgusted person is unlikely to be corruped and depraved by the same material.
Again, we haven’t seein the blog in question, but it is difficult to imagine that it would go further than Marquis de Sade’s Justine (also know as Good Cutoms Well Chastisised or the Misfortunes of Virtue), and we don’t hear much about prosecuting publishers or sellers (this book, as all the other Marquis de Sade’s books, are available at, which is subject to English jurisdiction). Does the fact of using real people in a fictional setting make the issue more serious? (we need to remember that more serious here means only more likely to tend to corrupt and deprave).
It is hard to see any argument, at least under OPA 1959, saying that the use of real life characters may imply a greater likehood of tending to deprave and corrupt. There may be other causes for action, including copyright infringement, but the basis of fan-fiction, real person fiction and, taking out the homosexual connotations, slash fiction is that readers know that is fiction and that no depiction of reality is pretended. Here the argument could be that the killings have the potential of encouraging a real will-be-killer to carry out the act, but there have been many works of fiction talking about killing real characters, including the current president of the US. Can a fantastic story targetted to adults, carried out on a fantasy porn site, tend to deprave and corrupt readers? (taking into account the nature of the site, only adults should be able to access it). Or wer are in front, once again, to another case where activities that are otherwise allowed are persecuted due to be carried out online?
Without even mentioning the fact that there is a very strong argument that there are far more obscene things being shown in Internet (famines, bombings, carnage, corrupt politicians and a long list of etceteras) and nobody seems to care…

No comments: