cleanfeed and wikipedia

[Ian Batten]

On 09 Dec 08, at 1436, Roland Perry wrote:

> In article <493E505C.6080805@iosis.co.uk>, Peter Tomlinson <pwt@iosis.co.uk 
> > writes
>>> The central problem is that the word "indecent" has no useful  
>>> meaning.
>> Do I think that the picture is indecent? Yes, to me it is. And I  
>> suspect that quite a lot of the experts that IWF use think the same  
>> (no sniggers, please - let's assume IWF is a bunch of good people).
>
> Many people seem to think the IWF is operating in a vacuum, but I  
> expect they get to see the evidence, and attune themselves to the  
> results of, a large number of cases going through the courts. I  
> expect that all they ever claim to do is highlight pictures that  
> (based on this experience) might trigger a successful prosecution.

But that goes directly to (dreadful management cant alert) `risk  
appetite'.  Broadcasters and publishers can and so deliberately  
publish material that is likely to end up in court, because they  
believe there is a wider principle at stake, because they enjoy the  
thrill of the chase, because they think the notoriety is good  
business, any number of other reasons.

When Penguin found themselves in court over the paperback publication  
of Lady Chatterley's Lover, I can't imagine they were surprised: they  
were pretty much spoiling for a fight.  They knew that the book was  
actionable, and they knew that action would be likely to be taken.   
The police could huff and puff, but it was ultimately for a court to  
rule on the obscenity of the book.

By contrast, you can end up in hot water without really having a  
conscious decision to even get in the bath.  L'affaire Ross et Brand  
wasn't a deliberate baiting of the regulator, rather a sloppy set of  
processes which allowed something outside their risk appetite to come  
to pass, and it was an unwillingness to get dragged in to a case that  
meant that Private Eye wasn't sold or distributed by WH Smiths for  
many years.

The problem with the IWF as it stands is that it appears that it  
assumes the risk appetite of both the ISPs and their customers is  
zero.  `potentially' illegal, at the test of `might trigger' could  
cover all sorts of things which people would be perfectly happy to  
take a chance on in exchange for being able to edit Wikipedia.   Half  
a million people have looked at the page in question over the past  
forty-eight hours, for example.

Like a lot of people, I was under the (I now realise incorrect)  
assumption that the IWF's remit covered clearly seriously illegal  
material: material depicting child abuse, for which there would be  
very little defence to a charge of possession, still less  
distribution, and for which there is unlikely to be a workable  
defence.  Sure, it's not the judgement of the court, but the test  
there would be ``90% likely to result in a conviction, and the other  
10% of the time would be a miscarriage in reasonable peoples' minds''.

But we're now into the territory of ``might trigger a successful  
prosecution'', with images that would have to jump several hurdles to  
determine --- in a court, not in a police station or the IWF offices  
--- that they are, in fact, indecent (ie that the offence is possible  
at all) and then that a wide range of other possible defences don't  
apply.  If the risk is ``might the police and the CPS decide that a  
prosecution for the possession of a single image of a 1976 heavy metal  
album cover will result in a successful outcome, and a court then  
deliver that outcome?'' that's rather a smaller risk.  And quite a lot  
of people (for example, every business in the UK whose internet  
connection is more than a DSL circuit) are exposed to that risk right  
now.

> Or is there some other way to define "potentially illegal"?

There's a difference between ``prima facie'' and ``arguable''.  I'd  
say the image in question is arguable as indecent, but not prima facie  
indecent.  Last House on the Left is a rather heavier business, but it  
took a BBFC appeals panel several trips to the well (including,  
bizarrely, Biddy Baxter) to decide on what was an wasn't legal.

ian