A Swanscombe man named Gavin Smith has been charged under the UK’s Obscene Publications Act based on a private chat he had with one other individual. According to an article this week in The Register titled “‘Pervy’ Private Chat Case Springs Back to Life,” the case was originally filed in May, but was discharged by the court as being unfit for prosecution.
Since then, “new evidence” has been introduced allowing the Crown Prosecution Service to re-file against the defendant under the Obscene Publications Act.
In May, the Register’s Jane Fae Osimek (who also reported on the recent re-filing) wrote:
What is beyond dispute is that this case marks an extension of the OPA into an area that its originators could never have envisaged – to wit, text chat or, as most internet users would regard it, person-to-person conversation.
The legal principle at stake here is whether internet chat constitutes “publication” in the ordinary sense of the word, or can be treated as private conversation. If the former is the conclusion, then anyone with even a passing interest in more extreme fantasies (not just underage, but also BDSM, rape and other matters currently covered by the extreme porn laws) may need to be very careful in respect of any online conversations they have in future. IRC will no longer be quite the refuge of the bizarre and the outlandish it once was.
The extreme porn law referred to by Osimek is Section 63 of the Criminial Justice and Immigration Act of 2008, which took effect in January, 2009 and criminalized the possession of the what it calls (and defines as) “extreme pornographic images.”
By the way, Osimek’s May article is titled “Mucky Private Chat Could Be Illegal Soon.” Do I love the British or what?
The Register’s “reporting restrictions” prevented Osimek from discussing the contents of the chat, but a News Shopper article from July said the comments Smith is being prosecuted for involved children, and that he was charged with “eight counts of publishing an obscene article under the Obscene Publications Act 1959.”
That article also said that Smith had been charged with four counts of possessing indecent images of children, and two counts of taking indecent images of children. Additionally, a Kent News article from May said that “It is believed forensics officers discovered the alleged obscene conversation while searching through the hard drive of the accused’s computer.”
What wasn’t addressed by any news article I could find was whether that occurred while the computer was in possession of the police following the arrest for indecent images (implying that the Obscene Publications Act charge was merely an add-on), or whether the text chat was a result of an initial investigation (implying that the chat itself provided the incident that led to arrest).
The distinction there in free speech terms is important.
In the US, someone arrested for engaging in an action that turns out to be perfectly legal and then discovered with prohibited items or with evidence linking them to illegal activity can argue that arresting officers did not have probable cause to obtain access to the evidence in the first place.
Not being a lawyer, and in any event certainly not a barrister, I haven’t the foggiest idea what the probable cause statutes are in the UK.
But since the social climate of this prosecution (…at least, to hear the Register tell it) potentially affects the right of anyone in the UK to engage in online chat on certain topics, the manner in which Smith came to police attention seems almost as important as whether he’s charged with “publishing” obscenity for transmitting a private chat.
Private chat and private telephone conversation seem de facto identical in legal terms. Would that mean if the court allows prosecution to proceed in the Obscene Publications Act charges against Smith, is it therefore a violation of the Act to discuss certain topics on the phone — and suspicion that you have done so provides sufficient probable cause for investigation and arrest?
And if not, how is that possible? Why would a book be more obscene than an audiobook? Why would an email be more obscene than a voice mail?
Whatever Smith did with regard to images, the prosecution under the OPA has potentially enormous legal consequences in the UK.
[Via the Free Speech Coalition’s Twitter account.]
[Image: Techyum, from a public domain image of a BBC Micro.]