Rechtsanwältin, Senior Associate
Out-Law News | 08 Dec 2008 | 5:25 pm | 4 min. read
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.
Rechtsanwältin, Senior Associate