2 Oct 2020 | Argentina, China, Japan, News, South Korea
“When old people speak it is not because of the sweetness of words in our mouths; it is because we see something which you do not see.”
– Chinua Achebe, Nigerian novelist
When populist governments rise, or when free speech is threatened, it so often falls to the steely wisdom of older generations to fight for justice.
Every age group has its heroes and, so often, older generations are the champions of the young.
Index has covered a range of groups since its inception in 1972 and elderly protesters have often featured. Here is a look at some of the most significant.
Belarus
Across the country, Belarusians are mass protesting current president Aleksander Lukashenko after elections in August appeared to be rigged.
At the forefront of the ongoing protests is 73-year-old Nina Bahinskaya.
The former geologist has certainly become identifiable with the demonstrations. Index’s Mark Frary spoke to her.
“I decided they [the authorities] would not be so harsh to an old lady, that’s why I decided to organise some activities myself,” said Nina.
Bahinskaya began her protesting after the Chernobyl disaster in 1986, distributing leaflets critical of the Soviet regime, so has experience demonstrating against oppressive governments.
“I don’t want it to continue because I have children, grandchildren and even a great-grandchild.”
President Lukashenko recently met with Vladimir Putin. In a showing of support, Putin agreed to give the Lukashenko government a sizeable loan. It has furthered concern in the country about the increase of Russian influence.
Bahinskaya echoed this worry, she said: “This is quite obvious that some kind of new annexation is happening.”
See Index’s most recent coverage and Bahinskaya’s interview with Mark Frary here.
Argentina
In 1976 the National Reorganization Process seized control of Argentina. The military junta were responsible for a number of atrocities. Backed by the United States as part of a ‘dirty war’, the Argentinian government committed acts of state terrorism upon its own citizens, including the forced disappearances of close to 30,000 people.
A higher value was placed upon young children and babies due to a waiting list for trafficked children. Those hopeful of adopting the trafficked children were military families and supporters of the new regime.
Lucia He spoke to one of Argentina’s ‘famous grandmothers’ for Index in 2017. Buscarita Roa, part of Grandmothers of the Plaza de Mayo, has campaigned since 1977 for disappeared victims to be identified.
She told Index: “Even if you’ve found your own grandchild, you stay because you think of the grandmother who is sick in bed and still hasn’t found hers. To us, the grandchildren we are searching for are all ours.”
The group began protesting at the height of the fear spread by the junta. One of the two founding members of the organisation was disappeared. Its high profile led to infiltration. In 1986, an extract from the book Mothers and Shadows by Marta Traba was published in Index. It spoke of the ‘notorious’ Captain Alfredo Astiz, whose access to the group led to 13 further disappearances.
Despite its reputation, Roa insisted there was little glory in being part of the organisation.
“Being a Grandmother of Plaza de Mayo is not something to be proud of, because having a disappeared grandchild is not something to be proud of.”
Japan
In 2018, Annemarie Luck covered one of Japan’s forgotten scandals: the South Korean ‘comfort women’ or, more accurately, sex slaves.
It took until 1992 for survivors to tell their story
Luck reported that some members of the survivors’ group still meet at the same spot every Wednesday outside the Japanese embassy in Seoul.
They were first issued with a signed apology in 1994 by then Prime Minister Tomiichi Murayama and in 2015, an agreement was reached between Japan and South Korea for the equivalent of $9 million.
Victims, as well as South Korean state officials, viewed the agreement as inadequate and protests have since continued.
239 women had registered with the South Korean government by 2016 as survivors of sexual slavery.
The House of Sharing in the city of Gwanju is home to many of the survivors. Team leader at the facility, Ho-Cheol Jeong, told Index of the impact the women he calls the ‘grandmothers’ have had.
Ho-Cheol said: “In a way, these women could be thought of as the original pioneers of the movement against sexual abuse and harassment that’s spreading throughout the world right now.”
Ukraine & Russia
In 2014, Index reported on the Russian government covering up its own soldiers’ deaths from the conflict in eastern Ukraine. Bereaved families were ‘discouraged’ from talking to media organisations.
Since the conflict broke out in February 2014, an estimated 5,665 soldiers have been killed
73-year-old activist and grandmother Lyudmila Bogatenkova faced a retributive accusation of fraud in response to drawing up a list of military casualties.
Bogatenkova was at the time head of a Soldiers’ Mothers branch in the city of Stavropol. The organisation provides legal advice to soldiers, as well as education programmes.
The allegation threatened Bogatenkova with up to six years in jail, before Russia’s human rights council intervened.
At the time, the BBC reported that local journalists were unable to meet the families of perished soldiers due to threats from ‘groups of aggressive men’.
China
Not all grannies are equally ready to stand up in the face of repression.
In 2013, after Chinese media frequently drew attention to stories of neglected pensioners, a new law was introduced.
The legislation stipulates that adults can face jail time or be sued if they do not visit their parents regularly.
Though brought in to Chinese law, it faced derision from across China and the globe and was not expected to be widely enforced. Many believed it was introduced to serve as an ‘educational message’.
However shortly after it was introduced a 77-year-old woman sued her daughter, who was subsequently ordered to provide financial support as well as bi-monthly visits.
The country struggles with the problem of an ageing population that, as numbers continue to reduce could cause economic growth in the region to fall.
15 Jun 2020 | China, News
[vc_row][vc_column][vc_single_image image=”113563″ img_size=”full” add_caption=”yes”][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]An extraordinary event in the history of not just Hong Kong but of the world took place exactly one year ago. A massive crowd, which according to some estimates was around two million strong, marched through the streets of the most cosmopolitan city on the China coast to call for the withdrawal of a proposed extradition bill that many felt would undermine the rule of law in Hong Kong. They also took action to express their anger at the brutality police had shown in dealing with a protest a few days before. And they demonstrated to show, more generally, that they were concerned that key features of local life that made the city different from its mainland neighbours, including greater freedom of speech and freedom of assembly, were under threat.
The marchers marched because they felt that the Chinese Communist Party leadership was failing to respect the second two words in the “One Country, Two System” framework that was supposed to structure relations between Beijing and Hong Kong for the first 50 years after the 1997 Handover that changed the latter from a British colony to a Special Administrative Region of the People’s Republic of China. Xi Jinping and company were failing to respect the promise that Hong Kong would enjoy a “high degree of autonomy” until 2047. The marchers marched because they felt that Hong Kong’s Chief Executive Carrie Lam, chosen through an election in which fewer than 2,000 local residents were eligible to vote, was aiding and abetting this process. She was, in fact, the one who was championing the hated extradition bill, which would allow activists to be taken over the border to stand trial on the mainland if Beijing wished this to happen.
What made the march extraordinary in world historical terms? Even in an era that is witnessing wave after wave of protest struggles, the size of the crowd was unusual. There are few if any examples of roughly a quarter of the members of a sizeable political community taking to the streets at once. Yet, as Hong Kong is home to fewer than eight million people, that is what happened on 16 June 2019.
To mark that anniversary, we are publishing an excerpt from the closing pages of Vigil: Hong Kong on the Brink, a work written by historian Jeffrey Wasserstrom, with contributions by the journalist Amy Hawkins. Published earlier this year by Columbia Global Reports, it places that massive mid-June march and related 2019 events into historical and comparative perspective.
Vigil – whose lead author has recently contributed both a short story and two commentaries to Index and spoke last year at an Index event on a panel with the Guardian’s Tania Branigan that focused on the 30th anniversary of Tiananmen – makes particularly fitting reading right now. This is because in recent weeks Beijing and its local allies have made their most disturbing moves yet to destroy what little is left of the “autonomy” Hong Kong was promised. Showing disrespect for the Chinese national anthem has been criminalised, for example; highly respected figures in the democracy movement known for consistently advocating moderate tactics have been arrested; and Beijing has announced it will impose a sweeping new anti-sedition law on Hong Kong.
Resistance continues. Activists face greater risks than ever, however, as mass arrests and police brutality have become routine. In line with arguments in Vigil, the Hong Kong democracy movement increasingly resembles the against-long-odds efforts to combat autocratic rule waged in Poland after martial law was imposed there late in 1981 or the protracted anti-colonial struggle against powerful, recalcitrant empires that have been carried out in many parts of the world.
***
Water by Jeffrey Wasserstrom
Hong Kong has long been a place with varied and deep associations with water. “Harbor” is the second term in its two-character name, coming after a word most often translated as “fragrant”. Fish and seafood figure centrally in the storied local cuisine. Hong Kong first gained economic importance due to its role as a hub of trade involving vessels that moved goods across rivers and seas. Humid air, mist, and the torrents of water that lash the city during typhoons are key parts of the local climate. Umbrellas served as protest symbols in 2014. While the city teetered on the brink in 2019, activists striving to create a new alternative world in the streets and in malls and in airport arrival and departure halls in the midst of scenes of destruction, urged one another to “be water,” to adapt their tactics continually to changing circumstances. To resemble “water” means to be flexible in one’s actions, going one place but quickly heading to another if there is too much resistance. The idea can be traced back to longstanding Chinese philosophical traditions, especially Daoism (though metaphors linked to water are important in Confucian texts as well). It has a more specific referent, though, to perhaps the most famous Hong Konger, martial artist and movie star Bruce Lee. “Don’t get set into one form, adapt it and build your own, and let it grow. Be like water,” he said. “Now water can flow, or it can crash! Be water, my friend.”
There’s also the metaphor of the hundred-year flood, the (inaccurate) myth that rivers overflow their banks once a century. Just as the 2019 protest movement was underway in Hong Kong, the author Adam Hochschild published a powerful essay about the parallels of American politics in the years 1919 and 2019. Hochschild conjured up the image of a very particular sort of hundred-year flood: the unleashing of ugly nativist rhetoric in America during the presidency of Woodrow Wilson, and now again during that of Donald Trump. Focusing as I have on the events treated in the preceding chapters on my mind, his essay set me wondering whether there were parallels and imperfect analogies linked to events of a century ago worth considering when trying to make sense of the current Hong Kong crisis. There are, I think—providing that we place the past of Shanghai, once the most cosmopolitan city on the China coast, beside Hong Kong’s present.
What exactly happened in that great port of the Yangzi Delta one hundred years ago? There was a dramatic series of protests in which young people took leading roles. There was a general strike. On the whole, the protesters behaved in peaceful ways, but there were some ugly incidents, during which they roughed up people they viewed as outsiders. One goal of the movement was to stop a widely disliked document from going into effect. The protesters directed much of their ire at government officials they viewed as immoral and too ready to do the bidding of men in a distant capital. They also called for the release of protesters who had been arrested and complained about police using too much force in dealing with demonstrators. The movement became in large part a fight for the right to speak out. The protests in the city were preceded by, built on, and expanded a repertoire of action developed during a series of earlier struggles, as some participants in the 1919 demonstrations had been part of shorter waves of activism in 1915 and 1918 and in some cases even in 1905. New tactics were added to the mix in 1919. So were new symbols: for example, a distinctive type of headwear became associated with the protests, as students eschewed wearing straw hats made in Japan for locally made cotton ones.
This analogy is far from perfect. The Shanghai protests of 1919 were part of a nationwide struggle, known as the May Fourth Movement, in honor of the day of the year’s first major demonstration, which took place in Beijing. The current crisis, by contrast, began and has stayed centered in Hong Kong, as did the 2014 Umbrella Movement before it. There have been many more arrests this year, and there were no paving stones thrown or fires set by activists in Shanghai a century ago. The document the protesters of 1919 disliked was not a local bill but an international accord: The Treaty of Versailles, the post–World War I agreement that they objected to because it passed control of former German possessions in Shandong Province to Japan rather than returning them to Chinese control. While one student died from the injuries he received at the hands of the police during the initial protest on May 4, 1919, many fewer demonstrators and bystanders were injured in any part of China one hundred years ago than have been injured in Hong Kong during 2019.
The protesters of 1919 even succeeded in gaining more concessions from the warlords in control of Beijing than those of 2019 have managed to secure. In the immediate wake of the Shanghai General Strike, which stands out as one of the most important of all May Fourth Movement collective actions, three officials that the students claimed were too cozy with Tokyo were removed from their positions and the protesters arrested in Beijing were released. The Chinese delegation to the Paris Peace Conference, who had a role in the proceedings as both China and Japan had come into World War I on the side of the Allies, refused to sign the Treaty of Versailles. These successes by the protesters help to explain why the May Fourth Movement has long been hailed in China as a triumphant struggle. By contrast, while Carrie Lam withdrew the extradition law in September, there have been no moves toward concession regarding the other key demands of the protesters. The authorities have not released those who have been arrested, appointed an independent commission to investigate allegations of police violence, nor retracted their description of early protests as “riots.” Lam has not resigned. There is no universal suffrage in Hong Kong.
But while the May Fourth Movement has a hallowed place in Chinese history now, it was for decades considered largely a failure. While the Chinese delegation to Paris refused to sign the Treaty of Versailles, the accord went into effect anyway. Former German territories in Shandong fell under Japanese control. The May Fourth activists were no more successful at preventing territory they cared about from going from the control of one colonial power to another. And the Japanese seizure of Shandong, which was preceded by its seizing of Korea and Taiwan, was followed in 1931 by Tokyo taking Manchuria and later moving further into China and other neighboring lands.
Japan asserted in many cases that it was not taking over territories, but freeing them from colonial rule, and allowing them to be governed at last by locals. They made this claim about Shanghai, proclaiming in the early 1940s that it was finally liberated from all forms of foreign control, even as Japanese troops and Chinese puppet officials control the city. They made this claim about Manchuria as they put Pu Yi, the ethnically Manchu former Last Emperor of the Qing Dynasty, on the throne, as a ruler beholden to Tokyo. They did not talk of a single empire with multiple systems, but rather of a Greater East Asian Co-Prosperity Sphere. Beijing, too, does not talk of having an empire, but its handling of Tibet and Xinjiang rhymes with Tokyo’s imperial approach. Beijing’s dreams for Hong Kong, which are nightmares to those on the streets, rhyme with Tokyo’s proclamations about Shanghai. The terms are new— “One Country, Two Systems,” “Greater Bay Area”—but when it comes to fantasies and raw power, there are disturbing echoes.
History does not repeat itself. In 1919, the Western powers actively aided Japan’s move into Shandong. Viewed within a hundred-year framework, the limited international concern about Hong Kong’s fate is deeply worrying. So, too, are the signals some world leaders, including Vladimir Putin and Donald J. Trump, have been sending to Xi Jinping during the current crisis, which convey a sense that whatever he does will be just fine with them, as long as it does not impinge on their plans for their own nations. Hundred-year floods can wreak many different kinds of damage.
Vigil: Hong Kong on the Brink was published in February 2020. To read more about the book click here[/vc_column_text][/vc_column][/vc_row]
22 Jan 2020 | Campaigns -- Featured, Free Speech and the Law, United Kingdom
[vc_row][vc_column][vc_column_text css=”.vc_custom_1579268532812{margin-bottom: 30px !important;background-color: #f5f5f5 !important;}”]Please note: This is part of a series of guides produced by Index on Censorship on the laws related to freedom of expression in England and Wales. They are intended to help understand the protections that exist for free speech and where the law currently permits restrictions.[/vc_column_text][vc_column_text]This guide is available to download as a PDF here.[/vc_column_text][vc_single_image image=”112028″ img_size=”large” add_caption=”yes” alignment=”center”][vc_raw_html]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[/vc_raw_html][vc_custom_heading text=”1. Child protection offences explained” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes” el_id=”ct1″][vc_column_text]Child protection is a sensitive area of law and a deserved focus of public concern.
As there is no clear legal definition of the concept of indecency, and because of the sensitivity of the matter, decisions made by the police and the Crown Prosecution Service (CPS) can be subjective and inconsistent, and in the wrong context can seriously compromise freedom of expression rights. For that reason, it is important to be aware of the legal framework and, if you are concerned that your artistic work, journalistic work or other projects or behaviour will be scrutinised under child protection laws, to take practical preparatory steps at an early stage.
The offences set out in law cover a broad spectrum of behaviour. If someone makes, displays or possesses images of children that could be considered to be indecent, obscene or pornographic, it could be a serious criminal offence. The circumstances or motivation of a defendant are not relevant to determining whether or not the image is indecent. It is for a jury to decide whether or not images are indecent, by asking whether the images offend based on recognised standards of propriety. Information about an investigation, an arrest and a prosecution can be kept and may be legally disclosed to others by police in certain circumstances. Convicted people may be treated as sex offenders depending on the seriousness of the charges.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”cp2″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”2. Overview of UK laws” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]The UK laws that can be used to prosecute people in relation to images of children include:
- Protection of Children Act 1978, which prohibits making, taking, permitting to be taken, distributing or showing indecent photographs (including film or computer data such as scans) or “pseudo-photographs” of children. As defined by the act, “children” are people under 18.
- Criminal Justice Act 1988, which creates an offence of possessing an indecent photograph or “pseudo-photograph” of a child.
- Coroners and Justice Act 2009, which criminalises the possession of non-photographic images of children (including cartoons, paintings and drawings) which are pornographic and grossly offensive, disgusting or otherwise of an obscene character.
- Children and Young Persons (Harmful Publications) Act 1955, which criminalises the printing, publishing, hiring or selling of a book, magazine or similar work, which consists mostly of stories told in pictures and is of a kind likely to fall into the hands of children or young people, and which portrays acts of violence or cruelty, the commission of crimes or repulsive incidents in such a way that it might “tend to corrupt” a child reader. There have been very few prosecutions for this offence.
- Indecent Displays (Control) Act 1981, which criminalises the public display of “indecent matter”.
- Obscene Publications Act 1959, which criminalises the publication of an “obscene article”.
- Police and Criminal Evidence Act 1984, which gives police a range of statutory powers to stop, search, and arrest individuals.
- Serious Crime Act 2015, which created the offence of being “in possession of any item that contains advice or guidance about abusing children sexually”. The crime is called “possession of paedophile manual”. If a defendant has material containing advice or guidance about how to make indecent photographs (but not pseudo-photographs) of children they will likely be committing an offence under this act.
These laws are intended to protect the rights of children. The police and prosecuting authorities should also consider the free-expression rights of alleged perpetrators under the European Convention on Human Rights (ECHR) when making decisions about whether to investigate or prosecute.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”cp3″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”3. Protection of Children Act 1978 – Taking, making, showing and distributing indecent photographs of children” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]Individuals may commit a criminal offence under the Protection of Children Act 1978 in relation to indecent photographic, film and “pseudo-photographic” images (which are defined as non-photographic images that appear to be photographs – these could be computer-generated). Under the legislation, “photograph” includes negatives, tracings of photographs and data stored on a computer or electronically that is capable of being converted into photographs. For a photograph or film to be considered indecent under the law, it must be found by the jury or court to offend recognised standards of propriety. This is an extremely fluid test that changes along with society’s changing expectations.
The criminal offence set out in Section 1 of the 1978 act prohibits the making, taking, permitting to be taken, distributing, or possessing (with a view to distributing) indecent photographs or pseudo-photographs of children. “Making” an indecent image is defined as “to cause [it] to exist, to produce by action, to bring about” (R v Bowden 2000). It includes intentionally opening an email attachment knowing that it contains (or is likely to contain) an indecent photograph of a child.
Equally, accessing a pornographic website and knowing that indecent images of children will automatically be generated as on-screen “pop-ups” amounts to “making” an indecent image of a child (as will knowing the image will be automatically saved to a hard drive, and keeping it there). Downloading an image from a website on to a computer screen and “live-streaming” indecent images also constitute “making” an indecent image (R v Smith and R v Jayson 2002). The making must “be a deliberate and intentional act with knowledge that the image made was, or was likely to be, an indecent photograph of a child (R v Smith and R v Jayson 2002). An unintended copying or storing of an image does not constitute the offence of “making” an indecent image. Consequently, someone who opens a doubtful email attachment that turns out to be an indecent photograph or whose computer automatically saves it in its cache is not guilty of making those photographs (Atkins v DPP and Goodland v DPP 2000).
“Sexting” (the creating, sharing, sending or posting of sexually explicit messages or images via mobile phones or other electronic devices), if it involves someone under the age of 18, may amount to distributing or showing an indecent photograph of a child under Section 1(b) of the Protection of Children Act.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”cp4″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”4. Coroners and Justice Act 2009 – Possession of prohibited non-photographic images of children” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]It is a crime under the Coroners and Justice Act 2009 to possess non-photographic images that are grossly offensive, disgusting or otherwise of an obscene character. Non-photographic images include computer-generated images (CGIs), cartoons, manga images, and drawings. They can be still or moving, and produced by any means. The images must also be pornographic, meaning it can be assumed they were principally or solely produced for the purpose of sexual arousal. The image must also focus solely or principally on the anal or genital region of a child, or show certain specific sexual acts (such as oral sex with, or in the presence of, a child). There is an exclusion from the offence for works classified by the British Board of Film Classification.[/vc_column_text][vc_column_text]
The difference between Protection of Children Act 1978 and Coroners and Justice Act 2009 crimes
Photos and films (and images appearing to be photos)
Protection of Children Act 1978
A photograph of a naked child in a room full of clothed people could be considered indecent under the Protection of Children Act if it offends what the jury considers the “recognised standards of propriety”. This will depend on the context and all the circumstances surrounding the image’s creation.
Drawings, paintings and sculptures
Coroners and Justice Act 2009
Under the Coroners and Justice Act there is a higher test for a drawing, painting or sculpture. It needs to be grossly offensive, disgusting, or obscene and pornographic and it needs to depict certain sexual acts featuring children or certain sexual parts of a child’s body. For example, a drawing of a 14-year-old masturbating could be prohibited because it may be considered pornographic (meaning it can be reasonably assumed to have been produced for the purpose of sexual arousal), and obscene, and it involves the sexual act of a child.[/vc_column_text][vc_column_text css=”.vc_custom_1579691218533{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #21277a !important;}”]
Case study: Obscene manga?
In October 2014, Robul Hoque admitted 10 counts of possessing prohibited images of children at Teesside Crown Court. Police seized Hoque’s computer from his home in June 2012 and found 288 still and 99 moving images. The images were in Japanese manga or anime-style and were not of real people. However, they were classified as prohibited images because they depicted young girls, some in school uniforms and some engaging in sexual activity.
Hoque had been convicted some six years prior of making “indecent pseudo-photographs” for having realistic-seeming “Tomb Raider-style” computer-generated pictures of fictional children.
The conviction was criticised in online media. Spiked magazine pointed out that the material Hoque was looking at did not involve any actual children (only drawings) and he had no convictions for child abuse or possession of actual child pornography, and that he was not a threat to children. His consumption of manga magazines could therefore not be said to result in any exploitation of children or create a market for that exploitation (which are the usual arguments for criminalising possession of indecent images of children). In the writer’s words: “The fact that possessing something in private, which gives a window into your thoughts and nothing else, can now be a crime, shows how insidious and deranged the moral panic over paedophilia has become.”[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”cp5″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”5. Criminal Justice Act 1988 – Possession of an indecent photograph of a child” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]Under the Criminal Justice Act 1988, it is a crime to simply possess an indecent photograph (or pseudo-photograph) of a child. People “possess” a photograph if they are capable of accessing or retrieving it and they are aware that they possess an image or images. Photos are not retrievable if they are located on a hard drive that requires specialist software to access, which the suspect does not have. To possess the photo, the suspect does not need to have opened or scrutinised it. A person receiving unsolicited indecent images on WhatsApp, which automatically download to the phone’s memory, will likely be found to possess indecent photographs. However, if the suspect has not seen the photos, and has no reason to believe they are indecent, then he or she will have a defence under Section 160(2)(b).[/vc_column_text][vc_column_text css=”.vc_custom_1579690479213{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #21277a !important;}”]
Case study: Possession of digital files
The case of R v Cyprian Okoro 2018 concerned London doctor Cyprian Okoro, who received an unsolicited indecent images of children on WhatsApp. It was downloaded on to his phone and found in a vault application, which is a storage area protected by a password. It was impossible to tell whether the video had been viewed.
Okoro said that when he received the message on WhatsApp he did not view it and intended to delete it, but it went into the vault by mistake. He did not realise it was indecent until he viewed it later with his lawyer and the police. The trial judge initially told the jury that Okoro had admitted that he “possessed” the indecent images, and the only question was whether or not he had a defence.
Okoro’s defence lawyer then raised the question of whether “possessing” an indecent photo required the defendant to know he possessed the images and that the images were indecent. The court said that possession required only that the suspect was aware they had the image, and they had the capacity to access and retrieve it. The suspect did not have to know that the image was indecent.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”cp6″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”6. Defences to child-protection crimes” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]If the CPS decides to prosecute, there are limited defences available. In the case of distributing or showing indecent photographs of children prohibited under the Protection of Children Act 1978, and possessing indecent photographs under the Criminal Justice Act 1988, alleged perpetrators have to demonstrate that:
- they had not seen the images and had no reason to suspect they were prohibited;
- or they had a “legitimate reason” for being in possession of them or showing or distributing them.
If the child in the photograph is over 16 and is the spouse or civil partner of the perpetrator, no offence under Section 1 of the Protection of Children Act has been committed. This includes making or taking an indecent photograph. The same is true for the offence of possessing indecent photographs under the Criminal Justice Act.
There is also an additional defence under the Criminal Justice Act that the photo was sent to the defendant without any prior request made by him or her, or on his or her behalf, and that the defendant did not keep it for an unreasonable time. There is very little information available on what amounts to an “unreasonable time”. CPS guidance states that this is a question that will be determined by juries on a case-by-case basis.
The leading case on the concept of “legitimate reason” (Atkins v Director of Public Prosecutions 2000) suggests that the defence applies only in very restricted circumstances, such as when it is necessary to possess the images to conduct forensic tests or for legitimate research. It also suggests that any court should approach such a defence with scepticism. The court in Atkins said that:
“The central question where the defence is legitimate research will be whether the defendant is essentially a person of unhealthy interests in possession of indecent photographs, or by contrast a genuine researcher with no alternative but to have this sort of unpleasant material in his possession. In other cases there will be other categories of legitimate reasons advanced. They will each have to be considered on their own facts.”
As stated above, to a certain extent those who could be considered to have a “legitimate reason” – such as artists and galleries – can rely on their right to freedom of expression under Article 10 of the ECHR: the right to receive and impart opinions, information and ideas, including those which shock disturb and offend. That right is qualified by the need to protect the rights and freedoms of others (in this context, children), and a 2001 case (R v Smethurst 2002) found that the Protection of Children Act 1978 offence was compatible with Article 10 rights to free expression under the ECHR.
In the context of child protection, the rights of children not to be exploited and those of a young audience will be set against the right to freedom of expression. That means the police and courts are permitted in some circumstances to act in ways that will compromise the freedom of expression rights of individuals. Any decision they make will require these competing objectives to be balanced.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”cp7″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”7. The Lanzarote Convention” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]In 2018, the UK ratified the Council of Europe Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse, also known as the “Lanzarote Convention”. It requires the UK to criminalise many offences concerning child pornography, including “knowingly obtaining access, through information and communication technologies, to child pornography”. This may well be covered through the Protection of Children Act 1978 offence of making an indecent image of a child (which can cover downloading such images, or knowingly entering websites where such pop-up images will appear) or the crime of possessing an indecent image under the Criminal Justice Act 1988. Alternatively, the UK may be obliged to create a more specific criminal offence.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”cp8″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”8. Online Harms White Paper” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]The government’s 2019 Online Harms White Paper proposed establishing a statutory duty of care to make companies operating on the internet more responsible for their users’ safety and to “tackle harm caused by content or activity on their services.” An independent regulator would be set up to enforce compliance. The white paper stated that enforcement in respect of activity involving harm to children would be prioritised.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”cp9″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”9. The powers of the police and prosecuting authorities” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]Under Section 4 of the Protection of Children Act 1978, a judge may issue a warrant authorising police to enter and search any premises where they reasonably believe an indecent photograph (or pseudo-photograph) of a child will be found. The warrant can permit the police to seize any articles they reasonably believe are – or include – indecent photographs of children.
Section 67 of the Coroners and Justice Act 2009 applies these powers to the “possession of prohibited images of children” offence. So if police reasonably believe they will find prohibited images of children other than photographs (such as computer-generated images, cartoons, manga images and drawings), they can request a warrant from a judge to search the place and seize any prohibited material.
If the police seize indecent photographs or prohibited images during a search, they may apply to court to “forfeit” them (that is, destroy or condemn them), or they may automatically do so if no one claims the property after the police inform all possible owners of the property of their intention to forfeit the property.
The Indecent Displays (Control) Act 1981 empowers magistrates to issue a warrant to a police officer who has reasonable grounds for suspecting someone is displaying indecent matter to enter premises and seize any articles used in the commission of the indecent-matter crime. The act also empowers a police officer to “seize any article which he has reasonable grounds for believing to be or to contain indecent matter and to have been used in the commission” of the indecent-matter offence.
Prosecutions under the Protection of Children Act 1978, the Criminal Justice Act 1988 and the Coroners and Justice Act 2009 require the consent of the Director of Public Prosecutions. As with all criminal cases, the Crown Prosecution Service (CPS) will consider whether it is in the “public interest” to prosecute, taking into consideration the competing rights of the alleged perpetrator and others, including children. A reading of the CPS code, which governs its decisions and its list of public-interest factors, suggests that there will be a lower threshold for prosecutions involving offences against children.[/vc_column_text][vc_column_text css=”.vc_custom_1579690942191{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #21277a !important;}”]
Convention on the Rights of the Child
The Convention on the Rights of the Child is an international treaty established in 1989 and signed by 196 countries. It sets out the civil, political, educational, health and other rights of children which countries signing up to the treaty agree to respect. For example, with regard to free expression, the treaty says: “States parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.” It also lists a separate free-expression right for children in Article 13. Under Article 34, the signatories agree to “protect the child from all forms of sexual exploitation and sexual abuse”, including the “exploitative use of children in pornographic performances and materials.” The UK ratified the treaty in 1991. The USA has signed but not ratified it, meaning it intends to comply with the treaty but is not bound by it.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Ackowledgements” use_theme_fonts=”yes”][vc_column_text]This guide was produced by Index on Censorship, in partnership with Clifford Chance.[/vc_column_text][/vc_column][/vc_row]
15 May 2019 | Artistic Freedom Case Studies
[vc_row][vc_column][vc_column_text]Name of Art Work: Exhibit B
Artist/s: Brett Bailey
Date: September 2014
Venue: The Vaults, presented by The Barbican Centre
Brief description of the artwork/project: The Barbican’s publicity material described Exhibit B as: “a human installation that charts the colonial histories of various European countries during the nineteenth and twentieth centuries when scientists formulated pseudo-scientific racial theories that continue to warp perceptions with horrific consequences.”[/vc_column_text][vc_single_image image=”94431″ img_size=”full” add_caption=”yes”][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Why was it challenged? ” font_container=”tag:h3|text_align:left” use_theme_fonts=”yes”][vc_column_text]A campaign is formed in response to Exhibit B: Boycott the Human Zoo is a coalition of anti-racism activists, trade unions, artists, arts organisations and community groups. They set up an online petition which is signed by over 22,000 people, calling on the Barbican to decommission the work and withdraw it from their programme. The key objections named in the petition are:
- “[It] is deeply offensive to recreate ‘the Maafa – great suffering’ of African People’s ancestors for a social experiment/process.
- Offers no tangible positive social outcome to challenge racism and oppression.
- Reinforces the negative imagery of African Peoples
- Is not a piece for African Peoples, it is about African Peoples, however it was created with no consultation with African Peoples”
[/vc_column_text][vc_custom_heading text=”What action was taken?” font_container=”tag:h3|text_align:left” use_theme_fonts=”yes”][vc_column_text]The Barbican issues a response to the petition, acknowledging that Exhibit B “has raised significant issues” but commenting that this is not a reason to cancel the performance. They accept the campaigners right to peaceful protest but ask that they “fully respect our performers’ right to perform and our audiences’ right to attend.” Campaigners are in communication with senior management at the Barbican, and they contact the police about their plan to picket the venue. Kieron Vanstone, the director of the Vaults also contacts the British Transport Police – as they have jurisdiction over the Vaults – about the possibility of needing additional policing on the night. nitroBEAT, who had cast the show in London and took a leading role in mediating between the two ‘sides’ organises a debate at Theatre Royal Stratford East the night before the opening.[/vc_column_text][vc_custom_heading text=”What happened next?” font_container=”tag:h3|text_align:left” use_theme_fonts=”yes”][vc_column_text]On the opening night of the installation, just one of the two BTP PCs allocated to the picket attends. Protesters breach the barriers and block the doors to the venue. The PC on duty calls for backup officers. ACC Thomas reports “that ‘about’ 12 BTP officers and 50 Metropolitan Police Service Officers respond to these calls.” Vanstone describes a huge police presence, including riot police, dogs and helicopters overhead. When Inspector Nick Brandon, the BTP senior officer in charge asks what the campaign organisers want, they respond that they want the show to be closed down, or they will picket it every evening. Sara Myers of Boycott the Human Zoo reports that Brandon says “‘we need to be out fighting crime. This is much ado about nothing, and we haven’t got the resources to police it.” The Inspector recommends that Vanstone closes the show. In partnership with the Barbican, Vanstone agrees to do so. When the campaigners request written confirmation, the police officer ensures that the venue provides this. The installation is cancelled.[/vc_column_text][vc_custom_heading text=”Reflections” font_container=”tag:h3|text_align:left” use_theme_fonts=”yes”][vc_column_text]Louise Jeffreys – Artistic Director, Barbican
The Barbican’s experience of Exhibit B was a catalyst for a significant amount of change within the organisation. The protests and eventual cancellations of performances led to us thinking deeply about a number of areas of our work, looking at how we could learn from this situation so we could continue to present challenging work and ensuring the experience we had didn’t contribute to an environment where organisations felt they couldn’t programme artists whose work deals with difficult subjects.
Our starting point was the belief that it was important that we remained an organisation willing to take risks and that we didn’t want to shy away from putting on work that invites discussion and debate. To do this we felt we needed to have the planning processes in place to ensure this kind of work could be presented safely, that we were confident about how it fitted into our wider programme, that we contextualise it in the right way and that we have clear, artistic reasons for programming it.
This work has included formalising our risk review process for our artistic programme; it involved us contributing to the development of What Next’s practical guidance for arts organisations on meeting ethical and reputational challenges; and it continued with the development of the Barbican’s first ethics policy, which we now use as a basis for making ethical decisions across areas such as programming, fundraising and partnerships.
Combined, these measures have all contributed to us becoming more confident in the work we present, encouraging a collaborative, organisation-wide approach to making difficult decisions, dealing with risk and investing in artists and works that deal with potentially controversial issues.
The Exhibit B experience also led to us further interrogating our approach to equality and inclusion. This led to positive changes such as the development of a new Equality and Inclusion strategy and the building of relationships with artists and companies who have added to the creative richness and relevance of our programme as we look to try and represent the widest possible range of human experiences on our stages, in our galleries and on our screens.
The cancellation also led us to think about how we work with the police, and the importance of their role in protecting free expression. At the time of the Exhibit B protests we felt we had no choice but to follow their advice when they recommended we cancel all future performances. I feel we’d question this kind of decision-making more now, with the work we’ve done since the closure making us much better informed on the legal framework around freedom of expression.
Sara Myers – Boycott The Human Zoo Campaign lead
At the time the black community was campaigning against so many things – deaths in police custody, acts of racism – and there never seemed to be any victory. I think the legacy of Exhibit B is that it gave a monumental landmark victory which we hadn’t had. In the last 30 years, this was the one thing that we won, the one time that our voices were heard and taken seriously. I know a lot of people were talking about censorship and not having an understanding of art, and I think all of that is irrelevant. It was about not taking that narrative of our history, that slave narrative and keeping us boxed in there; we are more than that, and you will listen to us.
There were two camps, one called me a reincarnation of Stalin and the other thought I was going to be the new speaker for all things black. But what people failed to realise was [while] I was the face of the campaign, I started the petition and led the campaign it was owned by the whole black community – pan-African, Christian, Muslim, LGBT, young, old, celebrities.
A lot more people began to speak out. In fact it went a bit crazy after Exhibt B, there were petitions about everything and everybody was calling everybody out and we got a lot of things taken down. It birthed a lot of new activists and Exhibit B became a movement. The way [we used] social media, institutions don’t want that, they don’t want to be tagged and dragged for days on social media. Brett was challenged in Paris [where] people were tear-gassed and water-cannoned which was terrible. It went to Ireland, very much on the quiet, but there was not a very large black of mixed race community [where it went]. He tried to take it to Brazil and that got shut down. He tried to take it to Toronto, but it was [challenged} and it didn’t go there.]
Another legacy was that academics were talking about the whole campaign, whether positively or negatively. It was a very controversial campaign and it opened up conversation about so many things – about racism, institutional racism, how an emerging black artist might not get a platform, but a potentially racist guy from South Africa might. Who is censoring what? Who is at the helm of censorship? What about all the exhibitions that they haven’t put on? Is it us campaigning, peacefully protesting. Who owns the story? Also how the media reported it as a violent, angry mob, and yet there wasn’t one arrest. How the Barbican didn’t take responsibility for the whole part they played in this.
For me personally – my claim to fame will be Exhibit B and that’s monumental. To know that I’m part of Black British History. Maybe in Black History Month, they’ll have my picture and talk about what I did. And that’s great because I’ve got grandchildren and they’ll be able to see that.
I’m not saying that Brett isn’t a talented artist. It was the imagery was traumatic for a community because it was not part of [our] ancient history. This is something we live every day, down to deportations – in fact that there was one today people who have lived here all their lives deported back to Jamaica. We are still living the ramifications of that, whereas Brett is quite removed from his colonial past. It also brought up a massive discussion about colonialism and the effects of colonialism today.
A detailed case study of the policing of the picket of Exhibit B is available here.
Stella Odunlami – actor, director, performer in Exhibit B (London, Ireland, South Korea and Estonia)
The piece arrived at a time of change. Those tensions around the idea of race and representation had always been there, but the squeeze of the government cuts to a lot of provision, particularly to black and minority backgrounds, were being felt. The rhetoric around our wonderful multi-cultural society was starting to fall away. It landed on a sore spot, places were pus had been building up under the surface. All these conversations and interactions around the legacy and inherited histories that we are being forced to deal with at the moment – [it] brought all of that to the surface.
It has made me hyper aware of the lack of space and opportunity to have these conversations and how desperately we need them. We don’t speak of what the West did in Africa as a form of genocide. Within the black community, whatever that may mean, people find it really hard to engage with conversations around race in public forums because the conversation always feels dishonest, because the ground zero hasn’t been reached. So when people talk about who makes art, access to art, access to funding and education we are never going back to the beginning to understand why that is.
I still think it’s a beautiful, powerful piece. It opened up conversations; everybody who sees it is automatically implicated in some way or another. You have to begin to confront your own relation to history, and that is something that we don’t do very often. I’m still trying to unpack my ideas around the existing theatre model and what theatres as cultural spaces are aiming to do. Very often the places that present this work are only interested in an economic model and don’t recognise or feel the wider responsibility. It comes down to what are we demanding of our arts and cultural spaces, what we want from them.
Having taken the show to Ireland, to South Korea and Estonia, it surprised me how my concept of the show being linked explicitly to the European history of colonisation, was being refracted through different prisms. At around the time we were in Ireland, the story broke about many women in the early 1900s who had fallen pregnant to black men, had been held, and had their children taken away. Mass burial sites uncovered these children who had been treated appallingly and had passed. This history had been repressed by the state and the church, echoes of that were only starting to be discussed. I was nervous before going to [Tallinn] because I had heard about incidents of violence against black African bodies there. There were a lot of students coming from Africa because there seem to be more scholarships and migration for education seems to be easier. They are having to think about migration, without following the western European model which hasn’t really worked. South Korea’s history with Japan brought those conversations to the fore. They had no idea about what had happened in these parts of the world and people came back with notepads, to take down the names, the places, the dates.
The last performance was in Tallinn, it was very hard, really sad. We all felt such a responsibility for these stories, for them being shared and acknowledged. Whose stories are remembered, whose stories are told. The weight of that responsibility, and the personal investment we all had in that, is huge.[/vc_column_text][three_column_post title=”Case Studies” full_width_heading=”true” category_id=”15471″][/vc_column][/vc_row][vc_row][vc_column][/vc_column][/vc_row]
