Why Has Facebook Banned Me Three Times For “Hate Speech”?

On Wednesday, I celebrated my return to Facebook after a one week ban. If you haven’t been banned from posting to Facebook yet, you should try, at least once, to get the feel for what it may be like to live in a techno-totalitarian state. While I could still see what was going on, I could not post – either to my personal page or to pages I manage, such as the Sex & Censorship page. Furthermore, I could not reply to messages in Facebook messenger, reply to comments on posts, or even Like them.

The ban was my third, and all three were done on the basis that I had posted “hate speech”. While I was banned, I noticed that two other Facebook friends posted that they were also returning from being banned. Here are the details of my three bans.

1) Responding to the “racist vans”

In 2013, the Home Office (headed by that charming lady, Theresa May), signalled a rising state intolerance towards migration by sending out “racist vans” which carried the charming slogan “In the UK illegally? Go home or face arrest”. I was on the way on the way to celebrate Jamaican Independence Day in Brixton, and I had an idea for a satirical, anti-racist post. Which went something like… ‘Happy Jamaican Independence Day! Or “fuck off w*gs day”, as it’s known in the Home Office.” I was quite proud of this, which gives you an indication of my sense of humour.

Note: firstly, I didn’t censor the w- word in my original post. It being 2013, I naively assumed that Facebook would understand the difference between a potentially racist word used in a racist context, and the same word used in a satirical, anti-racist context. I was wrong. The reason I censor the word in this article is that Facebook-style censorship will soon be applied to the entire web. There is every chance that blogs using such words will soon be blocked by a state-managed censorship system (the one being introduced in April under the pretext of blocking bad porn sites). Secondly, Facebook doesn’t seem to provide me a record of my banned posts. So I have to repost from memory.

I was banned for “hate speech” (from memory) for five days. This was the shape of things to come: not only is racism seen as problematic, but discussion of racism has also become problematic.

2) Sharing a white supremacist flyer

A (black) Facebook friend shared a flyer advertising a white supremacist rally in Wales a few days later. Her point in sharing it, obviously, wasn’t to promote the white supremacist cause, but to alert anti-racists of the event. I shared it, with a comment along the lines of “Calling Welsh anti-racists!”

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I was banned again for “hate speech”. My black friend also had her post removed, but was not banned.

3) Appalling misogyny

In the latest episode, a female friend posted to Facebook “Women are psychos”. I’m not sure why she posted this, and I never saw the original post anyway. The post was removed, but she posted a screenshot of the conversation with Facebook support, which included the original post. I felt this was worthy of discussion, so I shared the image to the Sex & Censorship Facebook page. Not only was the post banned, but I received a seven-day ban from Facebook, again for “hate speech”.

There are various lessons that arise here, but the worrying aspect is that discussion about censorship is also censored. When a person is arrested for hate speech, the media coverage tends not to mention what the speech was – because, of course, the article itself might then be reported as hate speech. So the public gets no opportunity to discuss whether the punishment fits the crime, or even to know what the crime was.

Note that a murder can be described in vivid detail by the press, but “hate speech” cannot. Since justice must be “seen to be done”, it seems that justice is not possible in the case of hate speech.

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Obscenity law liberalised

This is a cross-post from my contribution to the Adam Smith Institute blog.

Last week the Crown Prosecution Service published updated guidance for prosecutions under the Obscene Publications Act (1959). Legal campaigning has brought about a big change: the liberal tests of harm, consent and legality of real acts are now key parts of their working definition of obscenity. The CPS explain:

… conduct will not likely fall to be prosecuted under the Act provided that:

  • It is consensual (focusing on full and freely exercised consent, and also where the provision of consent is made clear where such consent may not be easily determined from the material itself); and
  • No serious harm is caused
  • It is not otherwise inextricably linked with other criminality (so as to encourage emulation or fuelling interest or normalisation of criminality); and
  • The likely audience is not under 18 (having particular regard to where measures have been taken to ensure that the audience is not under 18) or otherwise vulnerable (as a result of their physical or mental health, the circumstances in which they may come to view the material, the circumstances which may cause the subject matter to have a particular impact or resonance or any other relevant circumstance).

The guidance supports a realistic notion of consent which means that depictions of most safe, consensual activities under the umbrella of BDSM are unlikely to be subject to prosecution:

“Non-consent for adults must be distinguished from consent to relinquish control. The presence of a “gag” or other forms of bondage does not, without more, suffice to confirm that sexual activity was non-consensual.”

The CPS acknowledge the damaging impact on the rule of law when prosecutors rely on subjective notions when making charging decisions:

“An ill-defined concept of moral depravity or corruption does not provide for legal demarcation of sufficient precision to enable a citizen to regulate his or her conduct. However, where conduct or an activity is itself criminalised, that may be a clear indication as to its tendency to deprave or corrupt.” 

This is a substantial improvement for the OPA which has previously been used to prosecute consensual sexual expression, including publications depicting and defending LGBTQ sexual practices.

For now, the guidelines relate only indirectly to decisions to prosecute for possession of Extreme Pornography (Section 63 of the Criminal Justice and Immigration Act 2008). They appear to clarify that prosecutors should not normally be targeting depictions or records of legal acts between consenting adults. This avoids the logical incoherence at the heart of previous obscenity definitions that meant people could be prosecuted for publishing or possessing visual records of practices that were perfectly legal to conduct, such as fisting.

This is good news for liberals and anyone with an interest in freedom of sexual expression. We have to remain vigilant to see how prosecutors use these guidelines in practice. But this is at least a substantial improvement on past definitions that provided little guidance for citizens, producers or prosecutors.

What is responsible for this surprisingly liberal turn? There is little we can say with absolute certainty other than that the CPS has wisely chosen to adjust its prosecution practice to better reflect contemporary public attitudes towards minority sexual practices and porn producers.

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There are a few likely contributors to this reform. Various, sometimes overlapping, strategies formed an ecology of activism and advocacy that changed the legal and policy environment. Central to the story is the civil liberties group Backlash (declaration of interest: I have volunteered my research expertise at Backlash). It began as an advocacy group, campaigning against the extension of obscenity law to include possession of extreme images that the Home Office presumed to be a necessity in the Internet age.

After the law was passed despite well-informed opposition, obscenity lawyer Myles Jackman joined Backlash as legal advisor. In a switch in strategy, Backlash started providing legal advice and financial support to defend some criminal allegations that involved consenting acts between adults.

Juries tended to favor the defence in these cases that Backlash identified as consensual. Juries rejected prosecutions for the possession of erotic horror images, possession of fisting and urethral soundings, ‘twink’ porn, as well as the sale of fisting videos. These criminal cases couldn’t set legal precedents as they never got to the stage of appeal. Nonetheless, these failed prosecutions probably deterred the CPS from pursuing many future cases.

Meanwhile, other campaigners brought this issue to wider public attention. Jerry Barnett’s website Sex and Censorship and book Porn Panic helped to link the anti-porn agenda to a wider pro-censorship movement that is now prominent in some Internet political movements. Sexual freedom campaigner, Charlotte Rose, organized a ‘face-sitting’ protest outside Parliament aimed specifically at new media regulations and helped to raise the profile of sexual freedom more generally.

The protest attracted mainstream media attention. Pandora Blake used regulatory action against her website as a test case to quash some of the more subjective regulations. Blake then ran a campaign to show that it was the Obscene Publications Act, underlying these new inconsistent and censorious regulatory practices, that needed reform. The lost cases and reaction from vulnerable parties together prompted the CPS to consult on adjusting their guidelines to better represent what the general public evidently thought to be worthy of criminalization and censorship.

Obscenity and pornography regulation has attracted a great deal of scholarly interest. Initially, from critical supporters of the ban on extreme pornography from the field of feminist legal theory. Media communications scholars, especially Feona Attwood and Clarissa Smith, in the nascent porn studies sub-discipline, challenged the idea that porn had systematically negative impacts on culture, society and the status of women.

My article, ‘Millian Liberalism and Extreme Pornography’ showed that there was a surprising overlap between the interests of queer sexual politics, including the freedom to engage in transgressive expression and a right to establish safe spaces for minorities to support and cultivate their identities, and the classical liberal approach to freedom of expression and association. My Adam Smith Institute report, ‘Nothing to Hide’ argued for making consent to legal acts the primary way of judging the legality of sexually explicit images. It prompted LGBTQ media to highlight the risks of the law for their audience, and to start quizzing the Home Office about how they intended the law to be used.

Initially, academic feminist proponents of the extreme porn ban, including Clare McGlynn, sought quite a broad application.  They argued explicitly that the law should not apply to a narrow notion of harm but also to ‘cultural harm’ or the imputed indirect, social impact of the availability of pornography, not just those participating in the acts themselves). More recently, these proponents have accepted a greater role for consent in defining the limits of image prohibition.

They now focus on the problem of ‘revenge pornography’ (the non-consensual sharing of sexually explicit private images). In contrast to ‘extreme pornography’ and obscene publications in general, ‘revenge porn’ constitutes a personal violation and severe social problem that both liberals and feminists agree requires civil and criminal remedies. Fortunately, there has been some degree of agreement on where future criminal justice activity needs to be directed.

Criminal obscenity law is just one strand in a tangle of issues threatening sexual expression and freedom of expression in the UK. This change doesn’t do very much to make the government’s age verification system and broader surveillance of Internet access safe. It only marginally improves the legal protection of sex workers who use or offer online services. So there are a great deal more liberal reforms needed. Nevertheless, this success shows that campaigning, through legal challenges, protests and informed scholarship, can lead to genuine reform. I see this as a model for future campaigns aiming for greater personal liberty.

Antifa: A Betrayal of Anti-Fascism

I recently contributed to Poliquads, an interesting new political publication with a unique approach. Each edition focuses on one subject, and includes articles, as well as responses, from commentators on various points of the political spectrum. I contributed as a “left-libertarian” (though in practise I don’t see political labels as very useful any more).

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You can read my thoughts on Antifa at Poliquads – and you can expect more in future editions.

UK Obscenity Law Update: Good News for BDSM Fans, Pornhub and Government Censors

Yesterday, the Crown Prosecution Service announced that they would be loosening their obscenity guidelines to formally allow – for the first time – strong fetish material, so long as it features consenting adults. This news was greeted with joy by fetishists and campaigners. But it was also an inevitable step towards stronger censorship of the Internet by the UK government.

Four years ago, the sex worker activist Charlotte Rose organised perhaps the most entertaining protest ever seen in the UK: the face-sitting protest, outside Parliament. I was one of the speakers at the event, which was called in response to a sly act of government censorship. Without even calling a parliamentary vote, the government had extended DVD pornography rules so they were now applied to Internet video.

Among the acts now banned were “dangerous” acts (hence face-sitting, which could in theory suffocate someone – I kid you not), watersports, female ejaculation, and fetish material including most spanking, sado-masochism and bondage. At a stroke, thousands of porn sites (including all of the free “tube” sites) became technically illegal. You probably didn’t notice, as nothing actually happened. The tubes, and many other sites, continued to stream face-sitting, spanking and squirting material into the UK, and British consumers continued to watch it.

The law change was a failed attempt by the media regulator ATVOD to gain the power to close down overseas websites. Their cunning plan was to approach banks, point out that they were clearing payments for content that was illegal in the UK, and ask them to withdraw their services from the offending sites. The banks, however, didn’t see much of a problem. The material was legal in the US, and the new law, having been sneaked in by the back door, didn’t have much standing. The regulator had failed, and porn had won.

ATVOD was later scrapped, and Ofcom, the mighty media regulator (and censor) took over the online remit. This time, there would be no half-measures. In 2017, the Digital Economy Act was passed. For the first time, a British state censor would have the right to order websites to be blocked if they didn’t conform to UK regulations. The Act allowed porn sites to be blocked on two grounds:

  1. If they didn’t verify the ages of visitors, or
  2. If they contained extreme material.

Now, porn businesses based in America or elsewhere would surely have to pay attention. And they did. Mindgeek (the giant owner of Pornhub and other leading tube sites) began to play ball, and announced it would be conforming to the new UK law. This gave them two massive headaches:

  1. How to verify the ages of millions of UK visitors, and
  2. What to do about all the material that was US-legal but UK-illegal.

The first problem has occupied the industry for some time (and set champagne corks popping in the boardrooms of age verification companies). But not much attention has been paid to the second problem.

The problem now was that big porn companies have accepted (albeit reluctantly) that they will enforce age verification for UK customers (hint – you can use a VPN to mask your location). But why would Mindgeek and others bother to enforce the age verification rule if their content is illegal in the UK anyway?

If the new British censor – the BBFC – was unable to bring the porn industry on-board with its new regime, it would lose all credibility. Unless Mindgeek signed up, the new censorship law (due to go live this coming April) would fail. So, just for once, the interests of the porn industry and the British government coincided with those of the fetish community. In a nutshell, the change to the law transformed an unworkable system of censorship into a viable one.

So the timing of yesterday’s announcement is little surprise: unless UK obscenity laws were brought into line with American ones before April, the new censorship system would be a flop. It is of course wonderful (and long overdue) news that UK porn users will no longer be criminalised for enjoying a bit of face-sitting porn in the privacy of their own homes. But like much good news from the British authorities, it came with a catch.