It cuts both ways (was that a Scorpions album too?)

[major_clanger]

A controversial take on the Wikipedia Censorship Affair (WikiGate?) from IT law site OUT-LAW.com. Whilst I don't agree with the general approach of the article, the author does make one very telling point. As he notes, the whole reason that the IWF's action is affecting the editing of Wikipedia articles is because it is triggering Wikipedia's own censorship mechanism.

Wikipedia claims to be 'the encyclopedia anyone can edit', except that that isn't the case; if you offend enough Wikipedia admins, you will be banned from editing. In effect, Wikipedia will censor you based on an IP address blacklist that it is not accountable to anyone for - which of course is exactly the behaviour the IWF and UK ISPs are being criticised for.

Is there a difference? Well, you could argue that when you choose to edit Wikipedia you enter into an implied contract that you won't abuse or vandalise the site, and if you break it then Wikipedia can take sanctions against you. But it's equally true to say that your contract with your ISP almost certainly includes a term that you won't access illegal content, so if you violate that (even without intending to do so) the ISP is no longer bound by its side of the contract to serve up the requested content.

For my own part, I think the situation is ridiculous, and I've just had a good chuckle watching the head of the IWF get mercilessly cross-examined by Jon Snow, who near as dammit got him to concede that IWF was now going to have to go after every other instance of the offending album cover on the Internet (good luck...!) But it is true to say that this affair in some ways says as much about the unaccountability of Wikipedia as it does about the unaccountability of the IWF.

Comments

[zotz]

True, although Wikipedia's controls only affect write access, and then only to that one site.

[del-c.livejournal.com]

Since when was "you can't edit my content" censorship?

[major-clanger.livejournal.com]

Well, when you hold yourself out to be a public resource whose core feature is that content is user-edited, denying someone the right to edit it is censorship. A banned user's freedom of speech is being deprecated in comparison with people who are allowed to edit. I would say it's justifiable in the case of trolls and vandals, but even so who is Wikipedia accountable to for deciding who to ban? Who provides democratically-accountable independent oversight?

Of course there's a difference between Wikipedia and ISPs; for starters, the latter are telecoms providers regulated by laws derived from a series of EC Directives. But to be honest, the way Wikipedia seems to see itself, it's heading in the direction of being a service provider of sorts, so at what point does it start to become accountable and subject to regulatory oversight?

[pjc50.livejournal.com]

"who is Wikipedia accountable to for deciding who to ban? Who provides democratically-accountable independent oversight?"

This looks like being a huge can of worms. Firstly in a matter of scale: once you start regulating forum moderation on Wikipedia, how far down does it extend? BBC "Have your say"? The Guardian commentisfree forum? This LJ?

Secondly in jurisdiction: Wikipedia is a US operation. We don't really want a situation where website regulation applies internationally; for example, it is not possible to create a political world map that is legal in both India and Pakistan. Mentioning the Armenian holocaust is illegal in Turkey. And so on. In fact, one major category of people that get banned from wikipedia is nationalist revisionists of one stripe or another.

Thirdly Wikipedia is open-licensed. This means that there's a different, much less intrusive, way of having a world-editable encyclopedia with a democratic editing policy: copy it. Have HM Stationary Office run their own version regulated by Ofcom.

The value that wikipedia has is almost entirely in what the editors delete; without regulation it would already have collapsed into noise. It's best viewed (like most open source projects) as a mutual or friendly society of loose structure, of the sort that were really popular pre-welfare state.

[marypcb.livejournal.com]

is it amusing, ironic or a sad reflection on society that among the pages that are vandal-locked on Wikipedia is - the page defining vandal locking?

[purplecthulhu.livejournal.com]

The thing that gets me about this is that the image is not actually illegal - there has never been a court case that has found it so - so there is in fact no reason for it to be blocked. At the same time, as noted by reddragdiva on Today and elsewhere, there are many other album covers from Led Zeppelin to Nirvana that feature similar or greater amounts of youthful nudity. Are they now to be banned from every corner of the net by IWF as well?

And what about all the traditional 'bearskin rug' photos that today feature on Flickr and elsewhere? This is in effect rolling out the 'Boots developers' problem where perfectly innocent pictures by parents of their children get reported to the police.

This insane paedophile paranoia has to stop.

[major-clanger.livejournal.com]

The issue is the legal changes made since that photograph was taken - in particular, the Protection of Children Act 1978, the Criminal Justice Act 1988 and also amendments made to those Acts by later legislation such as the Criminal Justice and Public Order Act 1994 and the Sexual Offences Act 2003. In short, there has been a progressively stricter yet at the same time more wide-ranging definition of 'indecent photographs of children' over the last thirty years.

What this means is that, irrespective of the status of the picture when it was taken, there is now an arguable case that could be made in court that it is an indecent photograph of a child. Now, I'm using 'arguable' in the lawyer's sense here - i.e. that there is some evidence to support the proposition, but by no means a conclusive case. However, the IWF, from the interview I saw, is using 'arguable case' as a sufficient basis to block an image - presumably on the basis that if you waited until it went to court, losing could land you in jail with an appointment to sign the Sex Offenders' Register on release.

Why an 'arguable case'? Well, the criteria used for classifying images were established in the case of R v Oliver, and the album cover in question could fall into Class 1 - a photograph 'depicting erotic posing with no sexual activity'. It's very borderline - I think you would be hard-pressed to describe it as pornographic, but equally it's clearly not an innocent beach snap either.

But on these criteria vast swathes of imagery might be categorised as indecent. Even if you limit it, as per strict statute, to photographs (so sculptures, paintings and drawings aren't included*) As has often been noted, the change in the law a few years ago that raised the age limit for indecent pictures of children from 'under 16' to 'under 18' had the effect of criminalising numerous Page 3 photos from the 1980s. And we have the bizarre situation where it is legal to have sex with a 16-year-old girl, but not to take explicit photos of her, unless you are married to her or 'living in an enduring family relationship' with her. Yes, there are probably a lot of 16- and 17-year-olds out there with cameraphone pictures that are, by the letter of the law, kiddie porn.

(*Although a painting or drawing might instead be deemed to contravene the Obscene Publications Act 1959. I'd have to do some digging to see if there have ever been cases about obscene sculptures - well, outside the works of H P Lovecraft, at any rate.)

[purplecthulhu.livejournal.com]

So these legal changes mean that the many people with this album cover in their collection, and similar covers from Led Zep and Nirvana, may be breaking the law and be classifiable as sex offenders, while HMV et al. are in fact peddlers of kiddie porn?

Apart from this making the law look even more of an ass than usual, this is clearly an issue of significant interest to those who own these items. It needs to be sorted out properly*, not by people going after low hanging fruit on the internet, with all the attending nonsense that produces.

* arguably this should have been sorted out during the passage of this legislation. Not that parliament is particularly good at that these days.

[major-clanger.livejournal.com]

Ah, I've finally arrived at that stage in my legal career where someone I've just explained the law to says "...so you mean that [apparently ludicrous legal consequence]?" and I nod and say "Yes."

In one sense this is a bit like what happened when handguns were banned after Dunblane; before the law changed it was legal (subject to strict conditions) to own a 9mm pistol; afterwards it wasn't. Except there the change was single, large and well-publicised. What has happened with the law on indecent images of children is that it has been quietly extended and redefined in a piecemeal fashion, rather as if your neighbour moved his fence 10cm every night and you woke up one morning to find that your garden was smaller than your loo.

I don't even think the current status of the law was an intended effect. (I once joked at a legal conference that it would be a good idea to found the Journal of Unintended Legal Consequences. The person I was talking too agreed that it would be very full.) But each little change, probably in response to one or another unpleasant case (and there's an old saying about how hard cases make bad law) has contributed to a whole that has some rather surprising and far-reaching consequences.

Hmmm. I wonder if IC Radio has a copy of the album in question?

[purplecthulhu.livejournal.com]

there's an old saying about how hard cases make bad law

A saying that MPs and (at least) the current government seem to have forgotten.

It's just the kind of issue that the Lords should be able to comment on, but they don't seem to have been allowed to.

Hmmm - if IC Radio has it, then surely so do the BBC... Not to mention all of the retrospectively actionable kiddie porn in the Bodlean, British Library, National Gallery (all those naked cherubim!) etc.

We are getting as bad as the Victorians and US puritans on this, and I see no evidence that restricting such material has any impact on rates of child molestation at all. Evidence-based policy making? I think not, more likely Daily Mail moral panic based measures!

[desperance.livejournal.com]

Even if you limit it, as per strict statute, to photographs (so sculptures, paintings and drawings aren't included*)

But then, most of the relationships that we have with sculptures, paintings and drawings are through photographs thereof - so presumably Michelangelo's David the object itself is fine, we can look at that in the stony flesh, but owning a photograph of it is a risk?

[major-clanger.livejournal.com]

No; the conduct being prohibited is the making of an indecent photograph of a child (or a photo-realistic image - what's termed a 'pseudo-photograph' in the relevant law). It's the actual depiction that counts, not the method by which it is subsequently reproduced. If the picture is manifestly of a drawing or painting, then it's not a photograph for the meaning of the Act.

As I noted though, a drawing or painting might be deemed an obscene publication. However, the test for this is subjective, i.e. at the discretion of the jury. The problem with the legislation regarding indecent pictures of children is that it is closer to setting an objective test, i.e. it defines certain types of images as indecent per se.

[desperance.livejournal.com]

Ah, right. Thank you.

[pjc50.livejournal.com]

Oh god. I've just realised that the IWF are actually doing us a favour: because of the strict liability, they're preventing us from accidentally committing a serious crime :(

[surliminal.livejournal.com]

I have to say i think it's pushing it on the libertarian front to say Wkipedia is censoring by using a technical fix to stop repeated vandalism - is it censorship to put a chain across your gates so people can't sprap graffiti on your house? And that's a general prohibition whereas Wikipedia's is tailored to the particular vandal.