CyberLaw Blog

Archive for the ‘possession’ Category

Battle lines drawn over Bill to ban ‘extreme’ porn – UK Politics, UK – The Independent: “Battle lines drawn over Bill to ban ‘extreme’ porn

State seeks ‘unique powers to police bedrooms’, claim critics, including two lords

By Jerome Taylor, Tuesday, 30 December 2008

To some people it is exactly the kind of protective legislation that Britain needs in a world where access to a vast array of pornography is available at the click of a mouse. To others, a new law banning “extreme” pornography gives the Government unprecedented powers to police bedrooms (and basements).

Critics, including at least two lords, say that legislation coming into force next month forbidding the possession of “an extreme pornographic image” will criminalise thousands of previously law-abiding people who have a harmless taste for unconventional sex.

Section 63 of the Criminal Justice and Immigration Act 2008 comes into force on 26 January and makes owning offending pictures a criminal offence punishable by up to three years’ imprisonment. An image is deemed to be extreme if it “is grossly offensive, disgusting or otherwise of an obscene character” and portrays in any way an act which threatens a person’s life, or which results or appears likely to result in serious injury to someone’s genitals or breasts.

The law was passed earlier this year following a mother’s emotive campaign after her daughter was killed by a man who claimed he was addicted to violent porn.
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Reg readers in the dark over extreme porn: “

Local police clueless too

A Register reader has been left baffled by the reaction of her local police force when they were asked what exactly is likely to constitute an actionable image when the extreme porn laws come into force in January.…

“

(Via The Register – Public Sector.)

BBC News: Fake Simpsons cartoon ‘is porn’

By Nick Bryant, BBC News, Sydney

An appeal judge in Australia has ruled that an animation depicting well-known cartoon characters engaging in sexual acts is child pornography.

The internet cartoon featured characters from the Simpsons TV series.

The central issue in the case was whether a cartoon character could depict a real person.

Judge Michael Adams decided that it could, and found a man from Sydney guilty of possessing child pornography on his computer.

The defence had argued that the fictional, animated characters were not real people, and clearly departed from the human form.

They therefore contested that the conviction for the possession of child pornography should be overturned.

Justice Michael Adams said the purpose of anti-child pornography legislation was to stop sexual exploitation and child abuse where images of ‘real’ children were depicted.

But in a landmark ruling he decided that the mere fact that they were not realistic representations of human beings did not mean that they could not be considered people.

He ruled that the animated cartoon could ‘fuel demand for material that does involve the abuse of children,’ and therefore upheld the conviction for child pornography.

Rather than jail the man, however, he fined him Aus$3,000 (US$2,000).

Splash Page » Neil Gaiman On The ‘Obscenity’ Of Manga Collector Christopher Handley’s Trial: “Neil Gaiman On The ‘Obscenity’ Of Manga Collector Christopher Handley’s Trial
Published by Jennifer Vineyard on Monday, November 24, 2008 at 2:09 pm.

Neil GaimanLook through your comic book collection. Do you have Alan Moore’s ‘Lost Girls’? Any of S. Clay Wilson’s Underground Comix? Even Neil Gaiman’s ‘Sandman’ series? If the prosecution of manga collector Christopher Handley sticks, all of that and more could be considered obscene, Gaiman told MTV.

‘I wrote a story about a serial killer who kidnaps and rapes children, and then murders them,’ Gaiman said, referring to a storyline in ‘The Doll’s House.’ ‘We did that as a comic, not for the purposes of titillation or anything like that, but if you bought that comic, you could be arrested for it? That’s just deeply wrong. Nobody was hurt. The only thing that was hurt were ideas.’

Gaiman’s currently supporting the Comic Book Legal Defense Fund’s fight to defend Handley, who was arrested in Iowa for possession of obscene material based on his private collection, which included lolicon and yaoi manga. Lolicon focuses on the Lolita complex, where yaoi features male homosexual romance for a primarily female audience.

‘They found his manga, and found some objectionable panels,’ Gaiman said. ‘He’s been arrested for having some drawings of rude things in manga. I’m sorry, but if you went through my comic collection, you could arrest me if you’re going to start doing that. It’s just wrong.’

‘There is explicit sex in yaoi comics,’ Handley’s lawyer Eric Chase told MTV. ‘And the men are drawn in a very androgynous style, which has the effect of making them look really young. There’s a real taboo in Japan about showing pubic hair, so they’re all drawn without it, which also makes them look young. So what concerned the authorities were the depictions of children in explicit sexual situations that they believed to be obscene. But there are no actual children. It was all very crude images from a comic book.’

‘Do you remember there was a law passed prohibiting making things that simulated child pornography, even if the things actually weren’t?’ Gaiman asked, referring to part of the PROTECT Act (18 U.S.C. Section 1466A). (As in situations where an of-age female is in a pornographic situation, but ‘where she’s being presented as if she were 13.’) ‘They said, ‘For heaven’s sake, we’re not talking about art. We’re only talking about stuff where you’re leading people to believe they’re looking at real child porn,’’ said Gaiman.

Still, despite the argument that there was no actual children portrayed in the manga, Handley faces felony obsenity charges, including the receipt and possession of obscene visual representations of the sexual abuse of children. The case is going to trial on December 2. The jury will determine whether the manga is obscene or if it has artistic value. If found guilty of the charges against him, Handley faces a five-year mandatory minimum sentence.

‘He’d be punished as if it were actual child porn,’ his lawyer said. ‘And he did not look at child pornography.’

Gaiman’s been making appearances and giving the OK to Black Phoenix Alchemy Lab to make perfumes of his books to benefit the CBLDF to help them raise funds for Handley’s defense, as they did for comic book store owner Gordon Lee.

‘They’ve made in excess of $38,000 for the fund, which is pretty wonderful,’ Gaiman said, ‘and it’s real money that gets used for legal cases.’

Interesting case developing in the USA, and the prosecution involves child pornography in Manga format.

CBLDF – Press Releases: CBLDF To Serve As Special Consultant In PROTECT Act Manga Case

The Comic Book Legal Defense Fund has signed on as a special consultant to the defense of Chistopher Handley, an Iowa collector who faces up to 20 years in prison for possession of manga. The Fund adds its First Amendment expertise to the case, managed by United Defense Group’s Eric Chase, and will also be providing monetary support towards obtaining expert witnesses.

Handley, 38, faces penalties under the PROTECT Act (18 U.S.C. Section 1466A) for allegedly possessing manga that the government claims to be obscene. The government alleges that the material includes drawings that they claim appear to be depictions of minors engaging in sexual conduct. No photographic content is at issue in Handley’s case.

‘Handley’s case is deeply troubling, because the government is prosecuting a private collector for possession of art,’ says CBLDF Executive Director Charles Brownstein. ‘In the past, CBLDF has had to defend the First Amendment rights of retailers and artists, but never before have we experienced the Federal Government attempting to strip a citizen of his freedom because he owned comic books. We will bring our best resources to bear in aiding Mr. Handley’s counsel as they defend his freedom and the First Amendment rights of every art-loving citizen in this country.’

Mr. Handley’s case began in May 2006 when he received an express mail package from Japan that contained seven Japanese comic books. That package was intercepted by the Postal Inspector, who applied for a search warrant after determining that the package contained cartoon images of objectionable content. Unaware that his materials were searched, Handley drove away from the post office and was followed by various law enforcement officers, who pulled him over and followed him to his home. Once there, agents from the Postal Inspector’s office, Immigration and Customs Enforcement Agency, Special Agents from the Iowa Division of Criminal Investigation, and officers from the Glenwood Police Department seized Handley’s collection of over 1,200 manga books or publications; and hundreds of DVDs, VHS tapes, laser disks; seven computers, and other documents. Though Handley’s collection was comprised of hundreds of comics covering a wide spectrum of manga, the government is prosecuting images appearing in a small handful.

Putting the case into context, Burton Joseph, CBLDF’s Legal Counsel says, ‘In the lengthy time in which I have represented CBLDF and its clients, I have never encountered a situation where criminal prosecution was brought against a private consumer for possession of material for personal use in his own home. This prosecution has profound implications in limiting the First Amendment for art and artists, and comics in particular, that are on the cutting edge of creativity. It misunderstands the nature of avant-garde art in its historical perspective and is a perversion of anti-obscenity laws.’

Eric Chase and his team at the United Defense Group have been vigorously defending Handley, and scored a major First Amendment victory earlier this year when the judge found portions of the PROTECT Act unconstitutional in his ruling on a motion to dismiss. District Judge Gritzner of the Southern District of Iowa found that subsections 1466(a)(2) and (b)(2) of 18 U.S.C. 1466A unconstitutional. Those sections make it a crime to knowingly produce, distribute, receive, or possess with intent to distribute, ‘a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting,’ that ‘is, or appears to be’ a minor engaged in sexual conduct. Judge Gritzner found that those sections restrict protected speech and are constitutionally infirm.

Handley now faces charges under the surviving sections of 1466A, which will require a jury to determine whether the drawings at issue are legally obscene. The material cannot be deemed obscene unless it meets all three of the criteria of the Miller test for obscenity: ‘(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.’ The jury must answer all three questions in the affirmative in order to convict.

Eric Chase recognized the importance of the case, and of the CBLDF’s contribution to it, in a statement to the CBLDF: ‘This case represents the latest in a string of efforts by the Department of Justice to encroach on free speech. The United Defense Group is committed to fighting to maintain the protections guaranteed in the Constitution, and we appreciate the CBLDF’s support in this fight.’

About the Comic Book Legal Defense Fund

The Comic Book Legal Defense Fund was founded in 1986 as a 501 (c) 3 non-profit organization dedicated to the preservation of First Amendment rights for members of the comics community. They have defended dozens of Free Expression cases in courts across the United States, and led important education initiatives promoting comics literacy and free expression. For additional information, donations, and other inquiries call 800-99-CBLDF or visit http://www.cbldf.org or http://www.myspace.com/cbldf.

As mentioned in an earlier article the extreme pornography provisions will come into force on 26 January, 2009.

There is not much “clear” guidance to be honest on the Ministry of Justice document only provides a concise summary of what the legislation itself says. There is some “guidance though” and here is a summary of the more interesting stuff from the Guidelines.

(1) With regards to deleting images, the Ministry of Justice Guidelines state that “case law supports the view that, in normal circumstances, deleting images held on a computer is sufficient to get rid of them, i.e. to divest oneself of possession of them. An exception would be where a person is shown to have intended to remain in control of an image even though he has deleted it – that will entail him having the capacity (through skill or software) to retrieve the image. Porter [2006] _ WLR 2633.”

I did refer to this issue back in May 2008 and wrote that “possession of digital content is also problematic from a technical point, and simply deleting dangerous images may not be enough to avoid prosecution. A recent Court of Appeal decision with regards to deleted images involving child pornography (R v Porter [2006] EWCA Crim 560) established that it may not be so easy to get rid of images from one’s computer.

Following the decision of the Court of Appeal, in the scenario of Joe knowingly downloading child pornography (or for that matter extreme pornography) but deciding to delete them with no intention to undelete or recover them, Joe would expect to avoid possession and could have a defence, if the images were in deleted state and unrecoverable by Joe at the alleged time of possession and Joe does not have in his possession software which is capable of recovering deleted images or there is no evidence to suggest that Joe tried to recover the deleted images by such software.

Following Porter, it would be a matter for the jury to decide whether the deleted images were within the control of Joe having regard to all the factors in the case, including his knowledge and particular circumstances and the available evidence.” Porter was reinforced in another recent Court of Appeal decision in R v. Rowe [2008] EWCA Crim 2712. At trial, experts agreed that Rowe would have needed specialist software to access the deleted files, which he did not appear to have. It was not possible for them to prove whether the deleted files had actually been viewed. The last time that the non-deleted files had been accessed was years before the date on the indictment.

(2) In terms of Accidental Access, the Ministry of Justice Guidelines state that “the offence is not targeted at those who accidentally stumble across extreme pornographic images while surfing the Net. As with the position regarding deleted images the key issue will be whether the person knowingly has control or custody and therefore possession of the image in question and does not keep it for an unreasonable length of time.”

In my view, this will depend upon the nature of “accidental access” and whether there was any intention to “keep the images somehow” after the “accidental access”. There are software, which, for example, can recover images from the cache files of popular Internet browsers.

(3) In terms of the “Sex Offenders’ Register” issue the Ministry of Justice Guidelines state that “there are very limited circumstances in which people convicted of the new offence would be made subject to notification requirements under part 2 of the Sexual Offences Act 2003. Offenders must be aged _8 or above and receive a sentence of two years’ imprisonment or more. This is the maximum sentence available in respect of possession of bestiality and necrophilia images and towards the top of the scale for the other categories of material.

Judges would be aware that a certain sentence length would trigger notification requirements and a sentence of two years or more would reflect the concerns of the court about particular aspects of a case, such as the amount and severity of the material or the number of previous convictions.”

With regards to the sentencing issues it is worth reading what I wrote back in May 2008 Extreme Pornography: Sentencing Issues as this piece discusses the Court of Appeal’s approach to sentencing in possession of child pornography prosecutions. A similar approach is expected to be adopted for the crime of possession of extreme pornographic images.

(4) The Ministry of Justice also encourages users who come across extreme pornographic images on the Internet to report them to the government’s favourite watchdog, the Internet Watch Foundation. I do NOT, however, agree that the IWF can determine whether the images are potentially in breach of UK legislation.

Based on due process principles, it should be up to the courts of law to decide on matters of illegality and an “administrative private body” should not be making judgments on illegality especially where there are serious concerns for “freedom of expression”.

(5) Finally, in the FAQ section, the Ministry of Justice tries to answer the question of How can I get rid of material if I think it is illegal? The response given is If the material is on a computer, you should delete it. If it is in another form, such as paper, video or DVD, you should destroy it and dispose of it responsibly.

I would still recommend reading the full Ministry of Justice Guidelines document which is provided in a PDF file.

[Blog entry by Yaman Akdeniz]

The Ministry of Justice has just published (see below for the details) an 8 page Guidelines on the new offence of possession of extreme pornographic images.

New offence of possession of extreme pornographic images – Ministry of Justice

26 November 2008

The Criminal Justice and immigration Act 2008 introduces a new offence, in England, Wales and Northern Ireland of the possession of extreme pornographic images.

This document provides general information for members of public on the new offence of possession of extreme pornographic images in Part 5, Sections 63 to 67 of the Criminal Justice and Immigration Act 2008. These sections are due to come into force on 26th January 2009 in England, Wales and Northern Ireland.

As well as providing information about the offence, this document is intended to answer some of the more frequently asked questions about the offence. It should be read in conjunction with the Explanatory Notes on the Act published on the Office of the Public Sector Information (OPSI) website.

Further information on the new offence of possession of extreme pornographic images [PDF 0.12mb, 8 pages]

See further The Register article by John Ozimek entitled “UK.gov says exteme porn isn’t illegal if you delete it…unless you know how to recover a hard drive,” 28 November, 2008.

Government finally names the day for porn ban: “

It’s the end of your smut as you knew it

Sixty-one days and counting: if your stash contains any material that is or may fall foul of the Government’s new laws on extreme porn, then that is how long you have left to destroy it or otherwise get rid of it. Because, courtesy of Consenting Adult Action Network (CAAN), The Register can reveal today that the law is going live on 26 January 2009.…

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No guidelines are issued yet by the Ministry of Justice…

The Criminal Justice and Immigration Act 2008 (Commencement No. 4 and Saving Provision) Order 2008 No. 2993 (C. 128)

The date appointed for the coming into force of the following provisions of the 2008 Act is 26th January 2009—

(a) section 63 (Possession of extreme pornographic images);
(b) section 64 (Exclusion of classified films etc.);
(c) section 65 (Defences: general);
(d) section 66 (Defence: participation in consensual acts);
(e) section 67 (Penalties etc. for possession of extreme pornographic images);
(f) section 68 (Special rules relating to providers of information society services);
(g) section 71 (Maximum penalty for publication etc. of obscene articles)

I must have missed this one out, Waris Ali was found not guilty of three counts of possession of an article for a terrorist purpose. His school friend Dabeer Hussain was also acquitted of one count of the same charge at Leeds Crown Court.

BBC News: Teenage bomb plot accused cleared

Two teenagers who were accused of discussing a plot to blow up British National Party (BNP) members have been cleared of terror charges.

Waris Ali, 18, from Dewsbury, West Yorkshire, was found not guilty of three counts of possession of an article for a terrorist purpose.

His school friend Dabeer Hussain, 18, was acquitted of one count of the same charge at Leeds Crown Court.

After the 13-day trial Mr Ali said he was ‘extremely relieved’.

Friends and family of the two men hugged in the public gallery as the jury returned their verdicts after deliberating for two and a half hours.

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