Obscene Private Chat

According to the Court of Appeal's Judgment in the recent case of R v GS [2012] private one to one text chat on the internet can be subject to the Obscene Publications Act 1959 (OPA).

This means that anyone using the internet to discuss sexual fantasies may be at risk of committing a criminal offence.

Prior to this judgment it was presumed that the OPA did not apply to one to one conversations between individuals. This position was clearly overturned by paragraph 21 of Lord Justice Richards' lead Judgment wherein it was stated that:

In our judgment, to publish an article to an individual is plainly to publish it within the meaning of the Act.

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You could be committing a criminal offence next time you discuss your deepest fantasies with someone online. Alarmist? Only slightly.

A ruling slipped out quietly by the Appeal Court earlier this year, and lurking in the background while the substantive case to which it applied came to court, makes it plain: the act of publishing as defined within the Obscene Publications Act can take place with an audience of just one individual.

That means it is therefore perfectly possible for the content of online chat, should a jury decide that it is capable of depraving or corrupting , to be judged obscene - and as such for one or both participants in that conversation to be guilty of a criminal offence that carries a sentence of up to five years in prison, and a stint on the sex offenders' register.

This is legal dynamite - and in one single judgment catapults the UK to the back of the queue on a range of international indices on freedom of speech.

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Kent Police have set a legal precedent after successfully prosecuting a man for making lewd comments about children during a private online conversation.

Gavin Smith was charged in 2010 with nine offences of publishing an obscene article. Under the Obscene Publications Act, it is an offence to supply material ( interpreted as distribute, circulate, sell, hire, give, or lend) , that tends to deprave and corrupt those view it.

When the case first came before magistrates, it was discharged on arguments of no case to answer. However the CPS said they had received new evidence in this matter and, following a review, decided to re-charge Smith.

At his first trial at Maidstone Crown Court in November last year, the court heard that Smith had online conversations in which he spoke about molesting and spanking children. His counsel claimed Kent Police were on a moral crusade by prosecuting Smith under the Obscene Publications Act 1959. The jury in the trial was discharged by Judge Charles Macdonald QC after hearing legal arguments.

His barrister Roger Daniells-Smith told the court on that occasion: This is a test case. We say it is part of a political campaign by Kent Police. We say this is a moral crusade by Kent Police to extend the law, to try to get this material included as extreme pornography. But their arguments to have online conversations included fell on stony ground , he said: They therefore had nothing other than to try (to prosecute) under this act.

But the court decision was subsequently appealed by the Crown Prosecution Service, with the Court of Appeal ruling in their favour.

Smith was due to go on trial for a second time this week. But after being given a Goodyear direction , in which a judge indicates what the likely sentence would be if a defendant pleads guilty, Smith admitted all nine offences after being told that the sentence would likely be a suspended jail term or community order.

Adjourning sentence for reports, Judge Philip St.John-Stevens described the case as unusual .

The case could now open the doors for police forces across the country to charge suspected offenders for online conversations.

Comment: Private conversations considered publication

12th July 2012. Thanks to Angelus

Disclaimer: I am not a legal professional, but...

> Kent Police have set a legal precedent...

Kent Police have not set a legal precedent - to my understanding, only a judge in a Crown Court or higher can set a binding legal precedent.

>...after successfully prosecuting a man...

They did not successfully prosecute anyone in this case - the accused pleaded guilty, which is a very different thing.

This case mirrors very closely recent cases in the USA, where despite strong constitutional protection of freedom of speech, people are regularly threatened with ridiculous sentences unless they plead guilty.

A private conversation is just that - private - and should in no wise be considered publication . To say that such a conversation could constitute the giving of obscene materials is outrageous, and this approach should have been stamped on by any half-competent counsel.

Comment: A private telephone conversation may now also be regarded as a publication

29th July 2012. Thanks to Angelus

Well, it seems I have been completely wrong-footed by this latest judgement, which does set a legal precedent. The section of the OPA in question, 1(3)(b), For the purposes of this Act a person publishes an article who ... in the case of an article containing or embodying matter to be looked at or a record, shows, plays or projects it or, where the matter is data stored electronically, transmits that data is clearly and unambiguously intended to apply to audiovisual material ( record meaning a gramophone record), not text. In order to be able to apply this section to online chat, a chat session must effectively be treated as an audiovisual experience, which given its capability of exchanging audiovisual data (even something as simple as a smiley) is perhaps not too much of a stretch for a legal mind.

However, online chat did not exist when the OPA was first enacted. So, in cases like this, it is part of the duty of the higher courts to examine laws to determine Parliament's clear intention when the legislation was first enacted and reinterpret it for the current situation. Although the OPA's definition of publishing is drawn very widely, it was clearly and obviously never intended to apply to private, interpersonal behaviour, and in this respect the Court of Appeal has now committed a grave error. So grave that it now raises the possibility that, because telephone systems are now all digital and store audio data (albeit temporarily) at several points along the signal route, a private telephone conversation may now also be regarded as a publication .

The prospect of a dramatic extension of the Obscene Publications Act is once more back on the agenda, as the Crown Prosecution Service last week re-opened a case in which an individual is accused of obscene publishing in respect of a private online chat.

A prosecution was originally brought in May of this year against Gavin Smith whose log of a private online chat he had with another individual was deemed by Kent Police to be obscene.

When the case first came before magistrates, it was discharged on arguments of no case to answer.

The CPS have since received new evidence in this matter and, following a review, have decided to re-charge Smith. There will now be a hearing on 30 November.

As already reported by The Register, Kent Police are in the process of using the Obscene Publications Act as a means to prosecute an individual, Gavin Smith, of Swanscombe for publishing obscenity in respect of a log of a private online chat he had with another individual.

This case has now been given the green light to proceed.

Due to reporting restrictions, theregister.co.uk are unable to give any further details of the alleged content of the conversation at this point in time.

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.

Yesterday's hearing, before magistrates in Gravesend (the date was moved from May 6) resulted in the date of a committal hearing being agreed for 9 July. At that time, a judge may decide that the case has no legal merit. Otherwise, a date will then be set for trial, and the seriousness of this matter will escalate another notch.

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Gavin Smith has been charged with two counts of making indecent images of children, four counts of possessing indecent images of children, and nine offences under the Obscene Publications Act.

Kent Police have charged an individual with nine offences under the Obscene Publications Act 1959 (OPA) in a case that could potentially see online chat in the UK subjected to a much stricter regulation regime.

A Kent Police spokeswoman confirmed to The Register it had brought the charges against the individual, and that these charges relate to online chat.

The individual is also charged with two offences of making indecent images of children and four of possessing indecent images of children. They have been bailed pending their next court appearance at Dartford magistrates on 6 May.

The implications of this case, if it proceeds, could be legal dynamite. At present, under the Obscene Publications Act, a publication is obscene if its overall effect is to tend to deprave and corrupt persons who are likely ... to read, see or hear it. For the purposes of the law, publication appears to involve distribution, circulation, selling or giving an article to a third party.

The idea that a conversation – albeit one embodied in text chat – can be considered to be published would be fairly radical.

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