The Observer bravely stands up for punishment without trial


1:58 pm - February 14th 2011

by John B    


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There was a very odd piece in Sunday’s Observer, running under the headline MEPs putting child pornographers’ rights ahead of abuse victims, claim campaigners.

The piece, written by veteran home affairs correspondent Jamie Doward, says – as a reported fact in the piece, not as a quote from a pressure group:

The European parliament’s civil liberties, justice and home affairs committee (LIBE) will meet in Strasbourg tomorrow, when it is expected to approve a controversial measure that would compel EU member states to inform publishers of child pornography that their images are to be deleted from the internet or blocked. Child pornographers will also have to be informed of their right to appeal against any removal or blocking


Do you see the problem here? If so, excellent; have a biscuit.

If not, then let’s try this rephrasing:

The European parliament’s civil liberties, justice and home affairs committee (LIBE) will meet in Strasbourg tomorrow, when it is expected to approve a controversial measure that would compel EU member states to inform publishers of libelous material that their articles are to be deleted from the internet or blocked. Libellers will also have to be informed of their right to appeal against any removal or blocking

Yes, that’s right, well done.

Just as with libel laws, the only way of determining whether or not a particular piece of material is child pornography (or, let’s use the correct legal term, “indecent images of children”) is via the judicial system. It completely subverts the rule of law, irrespective of the charge, if you allow extra-judicial bodies to act as judge, jury and executioner without the right to appeal or even notification. And it’s absolutely disgraceful for a reporter – especially one from a nominally-liberal newspaper – to imply in a news piece that people who are accused of an offence are unequivocally guilty of it.

The correct way of phrasing the piece would be:

The European parliament’s civil liberties, justice and home affairs committee (LIBE) will meet in Strasbourg tomorrow, when it is expected to approve a controversial measure that would compel EU member states to inform people accused of publishing indecent images of children that their images are to be deleted from the internet or blocked. People accused of publishing indecent images of children will also have to be informed of their right to appeal against any removal or blocking.

Whether LIBE’s amendments are a good idea is a side note – I was primarily appalled by the Observer’s reporting, as I’m appalled by anyone who conflates “is accused of” with “is guilty of”. I’d note, though, that the practical implications of the changes will be as follows:

1) the procedure for publishers of sites that unequivocally feature child abuse images will not change. They will attempt to remain anonymous, until hopefully some combination of Interpol and their local police force hunt them down and throw them in jail for a very long time. Organisations like the Internet Watch Foundation will not be able to contact them, because they’ll be anonymous, and they certainly won’t appeal against the ban, because duh. Instead, their sites will be blocked and remain blocked just as they are now.

2) the procedure for sites such as art galleries, artists, parents with Flickr albums, Wikipedia, Amazon and suchlike will change. Instead of a legally unaccountable official deciding to block the entire UK population’s access to a respectable website because they think it’s noncey, they’ll have to notify the proprietor of the website of their decision and give them a right to an independent appeal.

This doesn’t strike me as problematic, and I’m perplexed as to why (apart from generic paedo-hysteria under which won’t somebody think of the children? trumps all other concerns) anyone could see it as anything other than a sensible way of balancing the need to prevent child abuse with the right to due process.

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About the author
John Band is a journalist, editor and market analyst, depending on who's asking and how much they're paying. He's also been a content director at a publishing company and a strategy consultant. He is a regular contributor to Liberal Conspiracy and also blogs at Banditry.
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Story Filed Under: Civil liberties ,Crime

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Reader comments


Whenever politicians start shrieking “LOOK OVER THERE child pornography” keep your eyes on what they are really up to.

Censorship of political views they don’t like is what they really want to shut down, but child pornography is always the test run.

Yet another way to phrase it would be: “Peado hysteria types don’t agree with the rule of law”.

I hadn’t previously put the Observer/Guardian into that group but in hindsight it’s pretty obvious, given that they don’t tend to support the rule of law on things like taxation.

Is this any different from any other crime, when the legal authorities can (within reason) confiscate or seal off various pieces of property when only the accusation has been made? It seems pretty in line with that (and therefore will probably not necessitate any legal changes anyway).

I think the reporting is simply poor writing and editing…

Sally – what do you think the European Parliament (this is a European measure) are up to then?

good one falco

5. So Much For Subtlety

Sorry but I think John B has misunderstood the law. British law as it stands is to block potentially pornographic material involving children without telling anyone. The law is not about allowing Britain to do this, or even stopping them doing this. But making them tell the people they are blocking that they have been blocked.

The punishment – the blocking – has occurred. The EU just does not want it to be done in secret. As the Observer says:

“The measure would make the UK’s system for blocking and removing child pornography without informing the publisher illegal.”

I assume this derives from an album cover that was on Wikipedia (although whose cover I forget) but was blocked by the British government. I have just googled it and it was The Scorpion’s Virgin Killer. Never heard of them.

http://en.wikipedia.org/wiki/Internet_Watch_Foundation_and_Wikipedia

So the question is, should the EU allow Britain to punish people without telling them or allowing them to appeal? Actually I think the EU should p!ss off. But it is morally wrong to punish people without telling them or letting them appeal and so we should not do it.

SMFS: confused as to which part you think I’ve got wrong.

Blocking at the moment has nothing to do with British law. The IWF isn’t a statutory body, it’s a independent NGO that the government leans on ISPs to ‘voluntarily’ use (by, for example, refusing to award government contracts to ISPs who don’t use it).

The measures currently going through the EU are to put this blocking on a statutory footing, rather than the current not-legally-required-but-compulsory-in-practice crap.

The version of this law that the Council of Ministers (ie the Ministers of Justice for every EU state) wanted would have had no right of notification or appeal, because obviously, if you put 27 Ministers of Justice in a room, they’re going to come up with something unspeakably authoritarian and evil.

The LIBE committee, being made up of MEPs with an interest in both justice and civil liberties, has made the sensible amendments that the Observer piece outrageously misreports.

And you must have heard the Scorpions’ Winds Of Change, surely? Frightful dirge, but very popular around the time the USSR collapsed: here.

7. So Much For Subtlety

6. John B – “confused as to which part you think I’ve got wrong.”

Well everything. The EU has not interfered to stop Britain punishing people who have put up child porn, with or without a trial. The Observer in criticising the law is not taking a stand on punishing people with or without a trial. The EU’s law is just saying that before Britain does it, it has to tell the people who own the pictures that they are going to be blocked and give them a chance to appeal.

“Blocking at the moment has nothing to do with British law. The IWF isn’t a statutory body, it’s a independent NGO that the government leans on ISPs to ‘voluntarily’ use (by, for example, refusing to award government contracts to ISPs who don’t use it).”

Well this distinction is spurious. We all know that people who cross the IWF find themselves suffering serious consequences. The government is out sourcing policing the net, but the government’s fist is behind the IWF’s power.

“The measures currently going through the EU are to put this blocking on a statutory footing, rather than the current not-legally-required-but-compulsory-in-practice crap.”

Well perhaps but the Observer is criticising a very narrow and specific area – “The measure would make the UK’s system for blocking and removing child pornography without informing the publisher illegal.” So they could continue to block. They just have to inform and give them a chance to appeal.

“The LIBE committee, being made up of MEPs with an interest in both justice and civil liberties, has made the sensible amendments that the Observer piece outrageously misreports.”

Well I agree with that, but the Observer is not standing up for punishment without trial, they are standing up for punishment without trial and without even knowing what is going on.

“And you must have heard the Scorpions’ Winds Of Change, surely? Frightful dirge, but very popular around the time the USSR collapsed: here.”

Afraid not. I spent the decade before the collapse of the Soviet Union outside the North – is Japan in the North? – as I did the decade after. The Scorpions passed me by completely.

The EU has not interfered to stop Britain punishing people who have put up child porn, with or without a trial.

Which I’ve claimed where? (clue: nowhere).

The Observer in criticising the law is not taking a stand on punishing people with or without a trial.

The Observer is labelling people who haven’t been convicted of making obscene images of children as ‘child pornographers’. Whereas the whole point of the LIBE’s process is to ensure that only child pornographers get their pictures taken down, whilst people who aren’t child pornographers don’t.

Well this distinction is spurious.

No it bloody isn’t. I don’t think we disagree here on the substance, but I’m *very very strongly opposed* to the government making people do things by means that don’t involve passing a law that says they must do said things. If a government wants to make stuff compulsory, it should pass a law saying that stuff is compulsory, that’s clear, debated in Parliament, and is published in the statute books. Totalitarian regimes say “we’d like you to do this thing which isn’t mandated by law or “; liberal democracies don’t.

Pseudo-HTML fail. Totalitarian regimes say “we’d like you to do this thing which isn’t mandated by law or {dark hints}”; liberal democracies don’t.


Reactions: Twitter, blogs
  1. Liberal Conspiracy

    The Observer bravely stands up for punishment without trial http://bit.ly/hiFRVn

  2. Ferret Dave

    RT @libcon: The Observer bravely stands up for punishment without trial http://bit.ly/hiFRVn

  3. Aegir Hallmundur

    Indeed, not good, Observer. RT @libcon The Observer bravely stands up for punishment without trial http://bit.ly/hiFRVn

  4. Greg Sheppard

    RT @libcon The Observer bravely stands up for punishment without trial http://bit.ly/hiFRVn

  5. John Band

    @EDRi_org @Indoncensorship My take on the Observer's ridiculous attempt to smear the Europarl's decision as pro-paedo: http://bit.ly/hiFRVn





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