Last Thursday, the IWF received a complaint from a member of the
public about an image that appeared on a Wikipedia entry for German
rock band Scorpions. The image was the original sleeve design for
the band's 1976 album 'Virgin Killer' and featured a young naked
girl. The sleeve was banned in many countries when the album was
released.
The IWF assessed the image, agreed that it may be illegal, and
added the page on which it featured to a blacklist of URLs. That
blacklist is updated twice each day and is used by many ISPs in the
UK to block their customers' access to illegal images. They are not
legally required to follow the blacklist – but many choose to do
so.
As of Saturday, customers of affected ISPs could no longer
access the page featuring the image; but nor could they edit any
page of Wikipedia. The site is written by a network of 75,000
editors, many of them from the UK.
The Wikimedia Foundation, the non-profit operator of Wikipedia,
appears to blame the IWF for this. It has issued a
press release entitled "Censorship in the United Kingdom
disenfranchises tens of thousands of Wikipedia editors".
It has also published an
FAQ that says this is the first time Wikipedia has been
censored in the UK – and it notes that it has also been censored at
various times in China, Syria and Iran. Wikimedia does not appear
to like the IWF: "It is not a government agency nor does it act
with the authority of the police, and its accountabilities and
responsibilities are unclear," it said.
"We are frankly baffled as to why the IWF would choose to target
Wikipedia – an encyclopedia, run by a charitable organization,
which has been repeatedly gauged as equivalent in quality to
conventional encyclopedias – for censorship," it said.
The blocking of the image is a very different issue from the
blocking of editors, though. The former is within the control of
the IWF, the latter is not. The blocking of editors is a
consequence of the technical means used by ISPs to block pages and
the approach that Wikipedia takes to regulating its army of
editors.
All traffic from affected ISPs now looks to Wikipedia like it
comes from the same IP address. That causes a problem for
Wikipedia. It doesn't mind who looks at its pages – but it wants to
control who can change them. It has its own blacklist, a list of
people from certain IP addresses who are forbidden from changing
Wikipedia's pages. Wikimedia does this because it does not like
what they write. So its criticism of the IWF is hypocritical.
Wikimedia has attacked the IWF for censorship but the focus of
its complaint – the impact on its own editors – is a direct result
of Wikimedia's own censorship policy.
Wikimedia's policy is a sensible one. Without it, the quality of
Wikipedia will deteriorate. Simply put, censorship is necessary
sometimes.
The law has always recognised the need for some censorship. Our
freedom of speech is qualified by laws that control defamation and
copyright infringement, for example. Controls on indecent images of
children are surely the least controversial form of censorship on
the web.
Wikimedia General Counsel Mike Godwin said: "We have no reason
to believe the article, or the image contained in the article, has
been held to be illegal in any jurisdiction anywhere in the world"
– but Godwin's argument misses the point.
Web hosts must not wait for an image to be declared unlawful by
a court when they receive a complaint, albeit only a court can
declare an image unlawful. If they wait, there is every chance that
the declaration will come at their own trial.
The Protection of Children Act 1978 bans indecent images of
children (under 18s). A sexually provocative pose will constitute
an indecent image. (It's also worth noting that the law covers
only photographs and 'pseudo photographs' – so the IWF will not
censor, as one contributor to a
BBC blog fears, Michelangelo's David.)
Providing an illegal image on a website can be punished by 10
years in prison; possessing such an image carries a maximum
sentence of five years' imprisonment.
Godwin also points out, "it's worth noting that the image is
currently visible on Amazon, where the album can be freely
purchased by UK residents." Yet that is no defence. Amazon should
get rid of it too, or, at the very least, block the image from UK
visitors. (I don't know how US laws would interpret the Scorpions'
image.)
The IWF is also criticised for blocking the whole page, not just
the image. The IWF says that its system cannot ban individual JPEG
files, though. It says that its system is designed to be simple,
because that is what the ISPs want. So it bans pages on which
images appear, not the images themselves. That is not an
over-reaction, in my view. An over-reaction would be banning all
pages on Wikipedia when it could ban just one of its pages.
The IWF is funded in part by the ISPs that use its blacklist. It
serves an important function as a hotline for people to report
potentially illegal online content. Without such an intermediary,
the UK would have a less effective means of controlling images of
child abuse on the internet. Yes, that is a form of censorship; but
not all censorship is evil. Wikimedia should know that.
By Struan Robertson, Editor of OUT-LAW. These are the
personal views of the author and do not necessarily represent the
views of Pinsent Masons.
Disclaimer: We hope you find OUT-LAW’s content useful. It’s prepared by the lawyers at Pinsent Masons. Please remember, though, that it’s intended as general information only. It’s not legal advice. If that’s what you’re seeking, please
contact us. See also: our
full disclaimer
