Another victim of an archaic law
Darryn Walker has suffered unemployment and vilification for writing a pornographic story. The censorious obscenity law that allows this to happen must be scrapped, say John Ozimek and Julian Petley Authors across the UK breathed a sigh of relief on Monday, as a landmark prosecution for obscenity was dropped at the eleventh hour. The importance […]
01 Jul 09

darryn-walkerDarryn Walker has suffered unemployment and vilification for writing a pornographic story. The censorious obscenity law that allows this to happen must be scrapped, say John Ozimek and Julian Petley

Authors across the UK breathed a sigh of relief on Monday, as a landmark prosecution for obscenity was dropped at the eleventh hour. The importance of this case cannot be underestimated. The alternative, a world in which this prosecution had gone ahead and succeeded, would have changed the nature of the Internet (and publishing) in the UK for years to come.

Newcastle civil servant Darryn Walker was charged with publishing “obscene material” — namely a story called Girls (Scream) Aloud — which he had posted nearly two years ago on the Alt Sex Stories Text Repository, an Internet archive based in the US and dedicated to hosting stories of an erotic nature.

Walker’s blog was seriously questionable both on grounds of literary merit and taste: a work of violent sexual fantasy involving the mutilation and murder of each member of the pop group Girls Aloud, whose body parts are then sold on eBay.

The Daily Star drew it to the attention of the Internet Watch Foundation (IWF), which is responsible for policing certain categories of material found on the Internet in the UK (primarily child abuse-related materials, but also the ‘criminally obscene’). The IWF reported the story to the police and, after an investigation, charges followed.

The significance of this case lay in the fact that the matter in question was wholly written. When it comes to obscenity, the law that has to be taken into account (in England and Wales) is the Obscene Publications Act 1959. When prosecuted under this Act in 1960, the publishers of Lady Chatterley’s Lover were found not guilty, and subsequent guilty verdicts on Last Exit to Brooklyn and Inside Linda Lovelace were overturned on appeal in 1966 and 1976 respectively. Given the extreme difficulty of achieving a successful prosecution of the written word under the Act, the prosecuting authorities have for many years fought shy of bringing such a case. Since the Linda Lovelace case in 1976, after which the Metropolitan Police were reported as saying that if this was not obscene “nothing was”, it has come to be assumed that the written word to all intents and purposes falls outside the scope of the Act.

What then might have been the consequence of a successful prosecution in this case? If Girls (Scream) Aloud were to be judged obscene, then so could works by J G Ballard, Georges Bataille, William Burroughs and the Marquis de Sade.

Of course, it could be argued that the works cited possess certain literary qualities and would thus escape prosecution (much as, no doubt, there are those who would like to see them banned). But this assumes that there exist literary standards upon which everyone is agreed and that there is an absolute and watertight distinction between works of high and low culture.

The popularity of the “crime procedural” means that a very great deal of mainstream fiction is nowadays focused on the most gory aspects of homicide and sexual crime — often combined. Had this prosecution succeeded, the authors of such works would have had to be constantly looking over their shoulders.

A further argument which appeared in the popular press was that the focus on the real living members of Girls Aloud meant that the story was tantamount to harassment or evidence of other darker motives. But if that was the case, why not prosecute for harassment?

One of the key grounds for prosecution was that because of Girls Aloud’s young fanbase, the blog was very likely to be chanced upon by people who would be seriously disturbed by it. However, a simple Google search for “Girls Aloud” will reveal millions of web pages dedicated to these individuals. You would need to focus the search terms much more closely (adding words such as “rape” and “murder”) before you would be likely to “chance” upon this story — and even then, we are still talking odds of one in one hundred thousand. This was the key factor that led to the CPS dropping the case: Darryn Walker’s fantasy was not in fact easily accessible to the general public.

Had this prosecution succeeded, we might have been looking forward to a world in which bookshops were stripped of titles deemed obscene by the police and the prosecuting authorities, and in which anyone based in the UK and seeking to publish an erotic story on the Internet would now be doing so in a state of considerable anxiety.

So why was the case brought in the first place? In particular, why did the Internet Watch Foundation report it to the police when it involved only the written word, which, as we have seen, has not been successfully prosecuted under the Obscene Publications Act for over 30 years. And, in these circumstances, why did the CPS press ahead with the case?

The answer to the latter question lies, we believe, in the differing views of different factions within the CPS. Our understanding is that the head of the Crown Prosecution Service in the North-East, at the time of Darryn Walker’s arrest, had pressed for it to go forward, but that, at the national level, the CPS ultimately decided to abandon the trial.

Obscenity prosecutions do not require the oversight of the director of public prosecutions (DPP). This is a particular concern given that the end result of this case could have impacted seriously on the rights of every individual in the UK in terms of how they express themselves.

It may well be that parliament has created an odd little loophole, allowing prosecution under the Obscene Publications Act, which covers publication of obscene material, without involvement of the DPP, whilst the more recently legislated extreme porn law, covering mere possession, does require DPP consent to proceed.

Some thought should go to the defendant in this case. Darryn Walker has lost his job. He has been pilloried in the press. His reputation is in tatters. He has spent a year in limbo, unable to get on with his life, and undoubtedly under great stress. Although found not guilty, this delay means he has suffered a form of extra-legal punishment — of a form that seems all too frequently to be associated with obscenity cases — presumably “pour encourager les autres”. Doubtless he won’t be receiving any apologies, either.

If the Obscene Publications Act is once again in trouble, one obvious solution would be simply to abolish it.

John Ozimek and Julian Petley were expert witnesses for Darryn Walker’s defence

A version of this article is published at Liberty Central