Banning Images of Criminal Acts Is About Freedom of Expression

In the wake of David Cameron MP’s statement that he intends to make depictions of sexual violence illegal, there has been an outcry about whether this is an infringement of the “Right to Free Speech”. Clearly it is a reduction in what can be said, but that does not automatically mean it is an infringement. However, the commendable intent equally does not prevent it from being an infringement.

The right of free expression (often called “free speech”) in the United Kingdom is currently derived from the European Convention on Human Rights (via statute), which recognises that the general presumption that people can communicate without limitation can be subject to reasonable limitation:

2. The exercise of [the right to freedom of expression], since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 10, European Convention on Human Rights

These limits on speech match pre-existing limitations of speech that have existed in UK law for a considerable period: for example, the Accessories and Abettors Act 1861 defines the statutory offence of Incitement (influencing someone to commit an offence), replacing the existing common law offence.

Therefore it is clear banning something that, in itself, is only communication is a long-standing part of UK and international law.

As the ban is part of a strategy to protect the morals of children Cameron PM’s proposed ban would seem unobjectionable. However, the ECHR limits these constraints to situations where they are “necessary”. Is banning all depictions of sexual violence necessary?

It has been argued that it is not necessary because the depictions do not incite people to commit these acts; as is shown by only the minority of porn viewers committing sexual violence, seeing the image does not cause the act. This however is a weak argument. There is a volume of scientific evidence that repeated exposure to a certain messages can create an underlying culture of minor behaviour without a direct link to specific acts existing.

The case therefore seems clear for this being a necessary limitation on free expression.

However, the proposal does not (as expressed) just cover what the average person would think of as pornography, or even as offensive material. It calls for a ban of depictions of sexual violence. Petronius’ Satyricon and Ovid’s Metamorphoses both include what we might regard as sexual crimes; without careful drafting the proposed law would stop, for example, an academic from posting their paper on negative depictions of women in Classical literature online. So the unnecessary infringement lies not at the core but in liminal zones on the edges.

It would be easy to suggest that this need to permit entirely commendable discussion will be considered. However, the context of the announcement is worrying. At the same time as proposing the ban Cameron PM proposed a mandatory content filter of all pornography with a default setting of active. If, as some supporters of restricting people’s exposure to depictions of crime assert, any exposure to an idea can influence behaviour then this commendable ideal of reducing sexual violence has already been influenced by the idea that a blanket ban of anything someone might find offensive is a good idea.

While the idea of a ban is not a automatically a “free speech” issue, the application is. Just as Incitement does not cover all expressions of negative opinion, so the ban should not cover all depictions of negative action.

Do you think that people should be free to communicate what they want? Do you think academic discussion of sexual violence should be banned?

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