The IWF exists primarily to minimise the availability of
indecent images of children on the internet. Its existence is now
being challenged. For those who don't know the background, the IWF
received a complaint last Thursday about an image that appeared on
the Wikipedia entry for an album by German rock band Scorpions. The
image featured a naked young girl in an erotic pose. It was the
original sleeve design for the band's 1976 album 'Virgin
Killer'.
The IWF deemed the image potentially illegal and added the page
on which it featured to a blacklist that is enforced by all of the
UK's major internet service providers (ISPs). That action prevented
most UK internet users from accessing the Wikipedia page and it had
the unintended side-effect of stopping those users from editing any
of the millions of Wikipedia pages.
The web community reacted by erupting in fury. Comments on blogs
were overwhelmingly anti-IWF. On Tuesday night, the IWF gave in to
some of the criticism. It removed the image from its blacklist,
though, after consulting with senior police officers, reiterated
its view that the image is potentially illegal.
The IWF was right to put the image on its blacklist. It was
wrong to remove it.
Many people were alarmed to learn this week that there are
restrictions on their freedom to surf the internet. Wikimedia, the
non-profit operator of Wikipedia, said that this was the first time
its site has been censored in the UK. It noted that it has been
censored at various times in China, Syria and Iran.
Like it or not, censorship exists in the UK. Our right to
freedom of expression is a qualified right. The European Convention
of Human Rights provides that it can be restricted by laws to
protect morals, the reputation or rights of others or laws to
prevent the leak of confidential information. Our laws of child
protection, defamation, intellectual property and confidence all
contain a right to suppress online material – which falls within
Wikipedia's own definition of censorship.
Other critics dislike that the IWF decides what to censor. They
are right that it should not make that decision if it fails to
perform that duty well. But do not judge it on the basis of one
decision. It assessed 35,000 complaints in the course of last year
alone (and in two-thirds of cases the image was deemed lawful).
The blacklist is kept secret for obvious reasons, but internet
users who try to visit the pages on it will be oblivious to the
censorship – and that is a mistake, I think. ISPs present an error
message that does not disclose the censorship. While the IWF can't
control that message, it could encourage transparency.
There is another problem with the IWF's model: it bans pages,
not the images themselves. It says this approach is simpler and
more effective, though I confess that I don't understand why.
Still, if that policy is disproportionate it is only slightly so:
it did not blacklist an entire site.
The IWF was set up by the UK's internet industry. It began as a
'notice and takedown' body for images of child abuse that are
hosted in the UK, giving the public a hotline for reporting illegal
images. Web hosts do not know what images are on their customers'
sites and do not need to, provided they react quickly when alerted
to potentially illegal content. Only a court can officially declare
an image illegal – and that is why the IWF always refers to
'potentially illegal' images.
Hosts cannot afford to await a court's declaration that an image
is illegal – otherwise it may come at their own trial on charges
that carry a maximum 10-year sentence. And they don't want to give
their own staff the job of receiving complaints with images of
child abuse attached. So they outsourced the bulk of the work of
receiving and assessing complaints and the IWF was born.
When child abuse images are hosted in the UK, the IWF can
identify and notify the host and the host removes them. Its work
has cut dramatically the volume of illegal images hosted in the
UK.
The IWF's more controversial operation is the maintenance of its
blacklist. When images are found to be hosted outside the UK, the
IWF cannot ensure takedown. It reports the image to equivalent
bodies and law enforcement in the hosting country and adds the URL
to its blacklist, a list it updates twice a day. That list is
followed by most ISPs in the UK, mainly to prevent their customers
stumbling upon illegal images, images which are illegal to
view.
Some have pointed out that the blacklist only stops one means of
accessing illegal images. It does not stop exchanges by
file-sharing, for example. Yet some proponents of this argument
also maintain that the IWF is wrong to interfere. Surely an
argument that the IWF does not go far enough to meet its objectives
is incompatible with one that says it goes too far?
Many people don't like that ISPs use the IWF's blacklist to
censor their surfing. But ISPs do this voluntarily in the knowledge
that if they don't, the government will intervene. Vernon Coaker,
Minister of State for policing, security and crime, said so. He set
a target for the end of 2007 for all ISPs to put in place technical
measures "that prevent their customers accessing websites
containing illegal images of child abuse identified by the
IWF."
"If it appears that we are not going to meet our target through
co-operation," Coaker warned, "we will review the options for
stopping UK residents accessing websites on the IWF list."
The IWF does not write laws or lobby for legal reform – it just
interprets the legislation and court rulings that exist. It has a
small team of analysts who train with the police and are experts in
assessing content in line with those laws. The government trusts it
to do this job.
Other industries have their own self-regulatory bodies staffed
by experts in the field. The Advertising Standards Authority can
ban adverts from TV without a court ruling. Spamhaus blacklists
spammers to protect our email inboxes. Such bodies are accountable
to their industries and the IWF is no different. If it fails in its
duty, ISPs can kill it. If they do, they can either replace it or
the government will replace it for them.
Some people have said that the Scorpions' image is harmless. My
advice: consider it illegal because the IWF's opinion is likely to
be, in legal terms, better informed – and therefore more
influential in the mind of a judge.
It was blacklisted because, in the IWF's view, it is likely
to fail a test of the Protection of Children Act (a law that did
not exist at the time of the album's release). The Act refers to
"indecent photographs" of children (under-18s) and what is
indecent is, according to case law, for a jury to decide
"based on the recognised standards of propriety."
Sentencing guidelines from the Sentencing Guidelines
Council (see Part 6A of this
144-page PDF) provide guidance on the mode of trial and
sentence that should apply. Every court must have regard to
these guidelines. They describe five levels of seriousness, level
one being "images of erotic posing, with no sexual activity".
The test will not censor Michelangelo's David or a cartoon, as
some have feared, because it is limited to photographs and
pseudo-photographs. Some have suggested that the album cover of
Nirvana's Nevermind, on which a naked baby swims towards a
dollar bill, is also at risk of a ban. That is unlikely because
courts have never interpreted such images as erotically posed.
The IWF invoked its appeals procedure, carried out with senior
police officers, after Wikimedia complained about the blacklisting.
It upheld its original ruling. But the IWF decided to remove the
page from its blacklist "in light of the length of time the image
has existed and its wide availability," it said. Further reports of
the image being hosted abroad will not be added to its blacklist,
though if the image is found to be hosted in the UK, it "will be
assessed in line with IWF procedures."
"IWF's overriding objective is to minimise the availability of
indecent images of children on the internet, however, on this
occasion our efforts have had the opposite effect," it said.
I think it was right to blacklist the image after it deemed the
image illegal. But a dangerous message is sent by the decision to
remove the image from its blacklist. If an image is illegal, should
its age or wide dissemination excuse repeated publication? The
image cannot be erased from every corner of the internet and
prosecutors will not be taking action against all those who own a
copy on either album sleeve or hard drive. But the IWF's job is to
minimise exposure to illegal images – not to eliminate it. Under
enormous pressure I think it lost sight of the distinction.
Censorship takes place in Britain every day, for legal, moral
and commercial reasons. When Wikipedia blocks those who vandalise
its pages or deletes their hateful comments, it too engages in
censorship. Internet companies engage in censorship because they
have to –and they outsource part of that burden to the IWF. This
incident has focused attention not just on a 1970s album cover.
Clearly some people dislike our laws, our industry's preference for
self-regulation and/or the operation of the IWF. If the critics
seek reform they should suggest a credible alternative, one that
the industry and government would support.
Balancing our freedom of expression with the protection of
children is difficult and important. It is a healthy issue to
debate. But like any Wikipedia article, that debate needs some
balance. This week that balance was missing.
This is a variation of a piece by Struan
Robertson, Editor of OUT-LAW, which appeared earlier
today on
FT.com. These are the personal views of the author
and do not necessarily represent the views of Pinsent
Masons.
UPDATES, 15/12/2008:
- This article initially said that the Government had rejected
plans to extend the law to cover cartoons. In fact, it proposed
such an extension this year, albeit the law has not yet
changed.
- The article also implied that the 'sentencing guidelines'
contain the test of indecency. A reader rightly pointed out that it
is for the jury to decide what is or is not indecent, based on
the test laid down in the 1972 case of R v Stamford
("recognised standards of propriety").
I have updated this article and I apologise for these
errors.
