A Spanner in the Works

I couldn't possibly fail to comment on yesterday's announcement that possession of violent pornography is to be made a criminal offence. It raises so many interesting issues about the relationship between freedom on the one hand, and protecting people on the other. Plus, everyone is blogging about porn these days and it is time I joined in.

The issue is such an emotive one that even libertarians have been remarkably quiet but there have still been a few murmurings and the usual complaint about it being a "grey area". In fact, it is pretty clear what is covered. Depictions of sexual violence in TV drama will not be affected and neither will poorly-acted porn (which is, lets face it, virtually all of it). Only when people are obviously cut or bruised deliberately or subjected to life-threatening risks will the images become illegal. This seems reasonable enough if you ask me.

One way in which this policy is controversial is that it will also apply to convincingly fake pictures of the acts in question. However, this is an abslolute necessity if the law is to be enforceable. The principle of 'reasonable doubt' is rightly central to our criminal justice system but it can cause problems in cases where evidence is difficult to obtain. In this situation, anyone could argue that their pictures were acted and would be certain to walk free. The minor dent made to freedom of expression is a small price to pay for bringing the abusers to justice.

Another problem is the one of consent. (I can't believe that I am talking about consent and genitals again for the second post in a row - It's a coincidence, I swear.) Anyway, there are apparently men who like to inflict violence upon one another for their own tittilation and they are concerned about the restriction to their own freedom. One organisation, called the Spanner Trust, is named after Operation Spanner, a police investigation which led to the arrest of several men for consensual violence. I don't know why it was called Operation Spanner and, quite frankly, I don't want to know. The European Court of Human Rights refused to overturn the convictions.

This seems very unfair and I do have sympathy for the men but again the problem is one of making the law work. Claiming that someone consented (or that it was believed that they consented) is a very effective way of creating reasonable doubt as is shown by the gross injustice of the many rape cases which collapse every day in this country. This problem cannot be solved in the case of rape without banning sex but it can be solved in the case of violent pornography by not allowing people to consent to these practices. And if it means that a small number of people will have to find a new hobby then they should be willing to do so for the sake of the women (and it is mainly women) who will be protected by the new legislation.

However, there is one civil liberties issue which has been barely mentioned and concerns me much more. Law enforcement agencies have begun to ask for people's search records on Google. This could lead to all sorts of dangerous confusion and frankly sometimes makes me scared to use the search engine at all. While I was researching this blog entry, I came a gnat's wing away from typing "violent porn" into its news server but I stopped myself just in time.

Fight for your Right to Self-Circumcise!

I am required as part of my law course to write about voluntary euthanasia in the human rights context, particularly focusing on the challenge by Diane Pretty at the European Court a few years ago. I've only just started looking into it but have discovered a couple of gems.

The barrister for Ms Pretty was Philip Havers QC who advanced the argument that the issue was one about choice, and so was consistent with Article 2, the right to life. He later took part in the case in which Leslie Burke tried to enforce his living will not to be denied food and water. Havers showed the true level of his commitment to patient autonomy by representing the General Medical Council against Burke.

But the classic, and unsuccessful, argument was the one claiming discrimination, which runs like this. It is not illegal to commit suicide and so, by the ruthless logic of negative rights, we all have the right to kill ourselves. However, Ms. Pretty was denied this right because she was not physically able to do so, and it is illegal to assist suicide.

It strikes me that this chain of reasoning is rather odd. There are an infinite number of things that are not illegal and there surely cannot be a positive duty to ensure that disabled people have access to all of these negative rights, however tenuous. I almost wonder if a negative approach to rights can be compatible with disability equality at all.

Finally, here is a rather bizarre example. According to the Female Genital Mutilation Act 2003, it is sensibly illegal to mutilate a woman's genitals, even if she gives her consent. However, the law remains silent on the issue of whether you are allowed to mutilate your own genitals, and so this is presumably perfectly legal and, therefore, a negatively-defined right. Does the Act therefore discriminate against disabled people who are incapable of such acts of self-mutilation, and should we fight for new legislation to plug this gap? I rather think not.

Comicocracy

At the BBC this week:

Russell Brand made a brave stand for disability rights. He refused to endorse a podcast of his radio show which excluded an interview with his wheelchair-using friend Ade Adepitan, who reported being abused and refused entry to a nightclub. In a piece in the Guardian, who have been less cowardly than the Beeb over this issue, he explained that he had an obligation as a celebrity to listen to his conscience.

There was also a welcome repeat for the episode of 'Extras' featuring Kate Winslet and Francesca Martinez, an actress with cerebral palsy. The appearance of the latter is remarkable, given the frequency with which disabled roles continue to be filled by non-disabled actors. Julie Fernandez, who played Brenda in 'The Office', is also notable for being a real wheelchair-user. This is no coincidence. Unlike Jim Davidson, Ricky Gervais has always been keen that his disability-related humour should always be directed at actual disabled people and Martinez has acknowledged the extent to which he has supported her career, and persuaded the powers that be in television to do the same.

Contrary to the claims of people such as Rik Mayall, the pressure to produce more a diverse output does not come from the BBC, at least as far as disability is concerned. Rather, it is the talent themselves who are forced to take the initiative if they want things to move in the right direction. Big stars such as Brand and Gervais have the influence not only to ask for blue M&Ms but also to prevent their employer from abdicating its responsbility as a public broadcaster.

And they are not fringe figures. Russell Brand's podcast is second only to Ricky Gervais in terms of the number of downloads so it seems that it is they who are in touch with the public mood rather than the men in suits. In a modern democracy, it is not usually considered to be constitutionally desirable for stand-up comedians to wield so much power, but who knows? It might just happen to work out OK.

Summer of Libel

The summer is usually pitifully short of news and this year is no exception. Yes, there is war in the Middle East, but that isn't really news in the same sense that 'Dog Bites Man' is not news. Peace in the Middle East, on the other hand, would be very big news indeed.

With not much going on and the football season only just creeping into view, I often fall back onto libel trials for my entertainment, and they are very entertaining indeed. I don't know whether comic libel trials are more common at this time of year, or whether they simply get more attention, but there always seem to be plenty around.

The first case didn't quite make it to the courtroom after the Sun and the News of the World apologised to Ashley Cole and paid damages for aspersions of homosexuality. Cole wasn't offended to be called gay, of course - he simply disliked the suggestion of dishonesty (hmm). The case turned on what is known in legal circles as an 'innuendo', a word whose technical definition, in this instance, turned out to be uncannily close to the popular meaning. The Sun printed a photo of Cole buying an engagement ring for Cheryl Tweedy with the caption 'Ashley's got a good taste in rings'. Along with several stories in the News of the World, linking an anonymous Premiership footballer with 'gay romps', this was enough to persuade the defendants to settle. Personally, I think it's a shame that the case never came to trial because Cole's lawyer was denied the chance to explain the innuendo to a judge.

Another classic was the successful suit by the hypnotist Paul McKenna against the Daily Mirror, whose TV critic Victor Lewis-Smith had accused him of deceiving the public, with a Mickey Mouse degree obtained on the internet. The judge summarised the case by saying that the degree was indeed of dubious origin but that McKenna had not deceived anyone because he genuinely believed it was meaningful!

And finally, the best of all came last Friday when Tommy Sheridan, a Scottish politician virtually unknown in England until last week, won a claim against the News of the World over reports of adultery, orgies, and drug taking. In a particularly salacious trial, which probably did more to damage his reputation than the original allegations, there were descriptions of three, four and five-in-a-bed, and Sheridan even offered to strip to show that certain statements about his physical appearance were untrue. One of the leading defence witnesses turned out to have worked for the News of the World while Sheridan sacked his legal team to conduct his own case, only to constantly refer to himself in the third person. It is probably fair to say that he won despite, and not because, of this generally unwise decision. There were wildly contradictory claims made by the two sets of witnesses and police are considering the possibility of prosecutions for perjury.

These cases, and others like them, are often used to argue that the libel laws in England and Scotland are unfair. I agree that the burden of proof is probably too strictly weighted against the media, but it is my view that intruding upon the personal lives of individuals, rather than investigating the more serious business of government activity, is something of an abuse of free speech. Newspapers are sadly under no obligation to report the truth about anything of importance and so there is some small comfort from the fact that they at least have an incentive to do so when it comes to ridiculous celebrity gossip.