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Meet the Lawyer Defending Your Right to Sext

Myles Jackman is trying to make sure you can share porn without being prosecuted.

by Frankie Mullin
14 October 2015, 9:42am

Photo via Flickr user jhaymesisvip

As the UK's leading obscenity lawyer, Myles Jackman has made it his life's work to reshape the legal landscape around what we can and can't wank off to. This is a man who is always good for an anecdote. Recently, Jackman tells me, he was in the rural West Midlands with a client accused of possessing bestiality images.

"The images in question appeared to depict horses urinating on humans and, in one particular instance, a human urinating on a horse's vagina," he started. For once, Jackman was stumped ("unusual, given my job"). "For an image to be illegal to possess in regards to bestiality, there has to be some penetration – vaginal, anal or oral – of a penis by either species. Therefore, it is legal not only to have an image of a horse micturating on you, but it is legal for a horse to micturate on you in real life."

Jackman has no problem with bestiality being illegal (animals can't give consent), but not all pornography laws are as logical. If they were, his crusade might be different. "Thousands" of Brits, he says, now have criminal records for being in possession of "extreme" porn images that are far murkier to clarify. We're not talking about images of abuse here, but consensually-made material depicting acts deemed by law as "grossly offensive, disgusting, or otherwise of an obscene character". This could simply mean receiving an image of a BDSM act. Hell, even sending a naked selfie on Snapchat can be recorded as a criminal offence, as one teenager found out recently.

Becoming an obscenity expert may bring certain benefits – niche glory, great party chat, unusual insight into the human psyche – but it certainly won't make you rich. Despite a string of famous cases – including that of Andrew Holland, a bus driver from Wales who was prosecuted for owning "tiger porn", which was, in fact, a video of a man in a tiger costume – he estimates that, last year, 75 percent of his work was unpaid.

So now he's appealing to the public for help, via crowdfunding site Patreon, asking for donations to fund a judicial review into extreme porn and obscenity legislation in the UK.

I caught up with him for a chat about what he wants to spend the cash on.

Myles Jackman: Obscenity lawyer

VICE: Not many of us identify with the horse piss guy. If your taste in porn is pretty basic, does that mean you don't have to worry?
Myles Jackman: A problem is that lots of people look at things for a laugh. Suppose your mate sends a picture to a group on WhatsApp, or similar. None of you have asked for it or in any way given your consent to receive this image, but now you're all in possession of it. Imagine you get arrested on an allegation of fraud. Police take your electronic equipment to check for financial information. They find nothing, however they do find illegal porn on your phone. How can you prove that you didn't ask for that picture? You could end up with a criminal record. Suddenly you can't work in America, can't get visas, all for something you thought was a joke. Is that fair?

Is this happening a lot? How many people in the UK have ended up with a criminal record for an image on their phone?
Thousands. Literally thousands. That's what happened to the "tiger porn" man. He got sent two images as jokes, ended up in court and became an international laughing stock. For most people this happens to, the chances of them not getting a criminal record is low.

What else could get you in trouble?
In term of possession, anything BDSM-orientated that's likely to cause serious harm to [the] anus, breasts and genitals, or anything that's likely to cause death. That's a very broad definition, though. As a smoker, I like smoking fetish porn. Does looking at pictures of someone smoking a cigarette – indulging in an activity that causes death – mean I should get a criminal record and potentially go to prison? One of the problems is that the law around extreme pornography possession is incredibly difficult to understand. I'm the leading lawyer on the subject in the country and I don't understand it.

So what will your proposed judicial review into extreme pornography legislation involve?
We're going to challenge the way that the law is interpreted. To do that, you need locus standi – a person or party with the ability to show that the law has or could affect them. The judicial review into extreme porn legislation will be brought by the man at the centre of the tiger porn case, Andrew Holland.

We've made an application, but it's up to the state to decide whether we deserve funding for the challenge. It's gone through the legal aid agency and is now with the independent body that scrutinises its decision. If the state refuses to fund our challenge, we will crowdfund it.

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You're also going to apply for a judicial review of obscenity law, right?
We're looking at judicially reviewing obscene publications guidelines with someone who has locus standi, like Michael Peacock [who, in 2012, was acquitted of a charge under the Obscene Publications Act for publishing gay porn depicting acts "likely to deprave and corrupt", including fisting, urination and staged kidnapping].

In 2012, the Obscene Publications Act was extended to include private communication between individuals. Previously it was considered that the obscene item had to be distributed to a broad number of people – like a pamphlet or novel – but now the act applies to private one-to-one communication like text messages.

For instance, if you sent me a text message, even if I'm the only recipient and no one else is going to see it, that is considered to be "publication" under the act. Say you were to send a text saying, "I've always fantasised about fisting" – even if it's not something you've done – in theory, that could be illegal, and you could go to court for it.

That's how you end up with teenagers getting in trouble for sexting?
The stuff about sexting under 18 is really interesting. The age of consent is 16, but the age of representation is 18. So, in other words, it's legal to have sex at 16, but if you film it you're creating child pornography, and if you send it to your partner, you're distributing child pornography. We have some contradictory laws that are, in my professional opinion, entirely out of date with social values and technology.

Why are you having to crowdfund all of this?
It's a fallacy that all lawyers get paid enormous amounts of money. I estimate my practice is two-thirds pro bono. Last year, I wasn't even making my rent. Legal aid is now only for people whose joint income with their partner is under £21,000, but people can't always afford legal advice or representation. If I think someone needs my advice and experience, I often offer it for free.

Isn't the government trying to make it harder for citizens to judicially review laws?
Yes. The Tory government is desperately trying to reduce judicial review. It's something they don't like because it holds them to account. If the government makes a decision that's potentially incompatible with human rights law – for example, recent DWP stuff around benefits – they don't like being reminded of that.

[As part of his sweeping legal aid reforms, former Lord Chancellor and Secretary of State for Justice Chris Grayling attempted to get rid of legal aid for judicial reviews, although this was found unlawful.]

Interestingly, in America, judicial review is predominantly used by right-wing libertarians to ensure the state is smaller. In this country, it's used by left-wing protesters to hold a right-wing government to account. The principle is the same, though.

The state can make decisions that aren't fully scrutinised. It's essential that citizens have the ability to hold that state accountable for its actions. I fight to protect pornography because it's at the cutting edge of free speech and is one of the first liberties to be curtailed.

Thanks, Myles.

You can support Myles Jackman's work here.

@frankiemullin

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