Censored! Navigating the rules on obscenity.
There’s an interesting thing going on at the moment between Smashwords – the online seller of independently authored ebooks, and the payment facilitating company, Paypal. Paypal, themselves under pressure from the major credit card companies who underpin Paypal’s business, have asked Smashwords to pull every title from its files that contains anything they (Paypal) consider to be obscene. In particular they’re talking about (deep breath and close one’s eyes) bestiality, incest, rape or underaged sex.
If Smashwords doesn’t comply then Paypal will sever all links with Smashwords. Smashwords uses Paypal as a means of paying its authors their download royalties. Smashwords is understandably concerned by this as it will mean they can no longer process payments to any authors – even the ones who don’t write the smutty stuff. It’s argued by Smashwords that while the topics highlighted are unpleasant and socially unacceptable, this is effectively a form of censorship, and to be honest, though it troubles me that such material is available through outlets like Smashwords, it’s difficult to see it any other way.
Credit card companies, and Paypal are privately owned financial institutions and have, in modern times, risen to become the life-blood of online international commerce. But that doesn’t mean they, and their shareholders, are qualified to decide what is obscene. That’s for elected governments and their legislators. Every country has its local laws defining what you can and cannot write, and it is these legal standards that should be our guidelines. However obscenity laws are always open to interpretation, and also seem increasingly ineffective in our globalised online world. But we cannot allow corporate culture to become the guardians of human culture, or we forfeit our souls. The difficulty is that what constitutes “obscene” changes with the times and the shifting social mores – which are arguably shaped by what people see, hear and read in the first place. It’s a complex equation, iterative and probably non-linear, verging on the chaotic – definitely not the sort of thing that can be modelled by the simplistic algorithms of the business world.
D. H. Lawrence’s Lady Chatterley’s lover was famously banned for obscenity in 1928, and only released in 1960 after a landmark trial in which one of one of the prosecution’s arguments was: would you like your wife or servants to read such a book? The implication was that a reading of Lady Chatterly would encourage wives and servants to cross the social divide and make love to each other more often – clearly something that was unacceptable in those days, but a little outdated now. If you read it now, you’ll perhaps agree that the language and the sexual acts depicted in this story were certainly daring for the times, but those acts were between consenting adults involved in a powerfully emotional relationship, and wouldn’t cause any problems with the censor now.
Perhaps that’s the safest way forward then: only write about what’s legal, according to your local laws. If in doubt, check it out, or leave it out. But is that good enough?
No, it’s not.
Many books rely on a crime being committed in order to kick start the plot – like detective fiction for example. Murder is a nasty business and not something we’d want to encourage, but it’s depicted all the time in seemingly ever more grizzly detail – both the act of killing itself and the subsequent probing analysis on the mortuary slab. Yuk! If you’re watching TV tonight – count how many murders there are.
Clearly the test of criminality is insufficient.
Is it just a question of sexual crimes then?
Themes of rape are unfortunately also a regular feature of even pre-watershed soap opera. The writers of these dramas claim they wish to depict real life issues, of which sadly, rape is one. But why don’t soap operas also deal regularly with themes of bestiality, incest or underage non-consensual sex – which are also real life issues? Why should these be hidden away in a dark cupboard?
Is it a question of how they’re portrayed then? Must the perpetrator always get their come-uppance? Is it the apparent glorification of bad things that’s the problem?
Ah! Now we’re getting somewhere.
There’s clearly a social dynamic here – certain things are still on the back burner, waiting their time before people are generally comfortable discussing them. Rape is in the open, but the other taboos are not. And if you’re an independent author who wants to push these things into the public eye, then it’s how you treat them that’s the important thing in determining the kind of reception you’ll get.
I think the key phrase here is “prurient interest”. Is your treatment of the subject matter aimed solely at sexually arousing the reader? If this is the case then it might be said you’re trying to convert someone to your way of thinking by engaging their emotions. And if your way of thinking is to condone illegal acts by making them look in any way pleasurable, or acceptable, you’re straying into dangerous territory and you should think very seriously about what you’re doing.
In the UK the law on obscenity is covered by the Obscene Publications Act of 1959. This is the same act that was used to challenge Penguin books, who were determined to publish the unexpurgated version of Lady Chatterly in 1960. The Act isn’t an easy one to read. It speaks in a convoluted legalese about the likelihood of a reader being corrupted, and balances this against the literary merit of the work. To a layman it seems very much open to interpretation. It does however try to focus on the intent of the work and its likely effect, then leaves it to a jury to decide. I have to say though, for a writer trying to explore what he can or cannot write, it’s not very helpful.
What then are we poor indies, intent on pushing the edgy boundaries, to do?
Well, in America there’s a legal mechanism called the Miller Test. This is a test applied in three parts and asks: Is the material aimed solely at the prurient interest? Does the material contain anything that a normal person is likely to find offensive? And finally, is the work without any literary or artistic merit? Material answering “yes” to all three parts is considered obscene and you can probably be burned for it. If it answers “no” to any one of the three parts, then you’ll probably get away with it. Although a little easier to follow than the UK law, in practice the Miller Test is still open to interpretation, and relies on a jury at the end of the day to provide the input on what is and is not socially acceptable.
I sometimes find my own stories listed on Feedbooks, side by side with books whose covers depict nude ladies in provocative poses. Their titles are unambiguously pornographic. Now, I’m not a prude and my only real concern here is they probably make my own work look lame and tame and uninteresting. But how does this material get past the Miller Test? And what about my own work? How does that compare? What about that final love scene in the Lavender and the Rose? Gulp!
All right – so I had to download and read one of Feedbook’s free “erotic” titles for research purposes. Let’s call it Young Ladies in Love, by Tessa Tuttle – it being an account of the seduction of a straight girl by a Lesbian girl, both contemporary consenting American adults in their twenties. The plot consisted of a series of loosely linked and explicitly depicted encounters between the protagonists and ended, somewhat abruptly, with a message from the author directing you to their paid website where you could download the full story for a fee. (I didn’t bother) There wasn’t any character development to speak of, other than the straight girl becoming more Sapphically inclined.
On the other hand, in the Lavender and the Rose – well, it’s a complicated story,… some might say incomprehensible,… but there are some love scenes in it – of the consenting heterosexual kind, also some Tantric stuff, and a climactic (is that the best word?) bisexual denouement between the three main characters – two women and a guy. Strewth!
Okay – to the Miller test: Michael Graeme and Tessa Tuttle in the dock.
Part one: Does the work cater purely to the prurient interest? Tessa Tuttle’s Young Ladies in Love? Self evidently, yes.
Michael Graeme, how plead you regarding the Lavender and the Rose? Not guilty your honour. Explain? The Lavender and the Rose is two hundred thousand words long, the descriptive sexual content less than five percent. My readers would most likely nod off between love scenes.
Michael Graeme you are released. Phew.
Tessa Tuttle you remain in the dock.
Tessa Tuttle. Does your work contain scenes that a normal person would find offensive? Chief witness for the prosecution: Michael Graeme – well, em,.. no your honour. I found nothing offensive – just frank descriptions of girls making love. Counsel for the prosecution: But what makes you think you’re normal, Michael Graeme? It sounds pretty filthy to me. Are you not simply a dangerous libertarian? I’m sure some people would find the thought of two ladies making love repulsive.
Tessa Tuttle, you’re not out of the woods yet, and remain in the dock. We’d better move on to test three in order to settle the matter.
Tessa Tuttle, is your work entirely without literary merit? Witness for the prosecution, Michael Graeme: Absolutely without any merit whatsoever, your honour. Tessa Tuttle protests: Michael Graeme, you’re a highbrow snob. I claim my work is very artistic. Is the act of any form of imaginative creation not in itself artistic?
Tessa Tuttle,… you argue your case very well. And you’ve convinced the jury of your artistic integrity. You are released.
So, my own work doesn’t disturb the ripples on the Miller Test pond very much, thank goodness. Even Tessa Tuttle, purveyor of charmingly low grade prurient smut escapes. But clearly there are other works that wouldn’t. Test two would be most open to interpretation by a jury, representing a cross section of society, who would be capable of reaching a consensus on what was considered obscene. I think Paypal’s proscribed bestiality, rape, incest and underage sex would all fare very badly here, especially if the overall work also catered solely to the prurient interest. But test three, the question of what constitutes art is still troubling. It’s like asking someone the meaning of life? Can any one of us reasonably answer?
Having said that, I quite like the Miller Test, but obviously most of us would rather not end up in court in order to be subjected to its rigour, or to have our rude scenes read out to our faces, in public. Blush!
My advice to independent authors then is not to write anything you’d be ashamed to let your mother read. That goes for your blogs as well as your books. But since I don’t follow my own advice on this I have to go a stage further. When writing your love scenes make sure that what your fictional protagonists get up to is within the law in your local area, and if it isn’t, make sure any sex and violence you depict isn’t glorified, and isn’t the raison d’etre of your whole book – thereby appealing purely to the prurient interest of your reader. If you want to write prurient stuff – and many do – then that’s okay too, but definitely don’t have your characters doing anything you could get arrested for in real life – according to your local laws.
But to return to the question: should we indys or even bloggers not be allowed to write what we want online? The answer has to be no. The online world twenty years ago was anarchic, and peopled by bright techy characters who generally knew what they were doing, policed by people who didn’t and were running to catch up. That’s changing now. We’re trying to connect the entire world. It’s a social experiment, and some of that anarchy is going to get smoothed out in the cause of the greater good. No matter what we feel as individual authors, we have to subordinate ourselves to the law, and stop thinking we can hide behind the apparent anonymity of the internet. Because we can’t. Write something that fails the Miller Test, or which the Crown Proscution Service thinks it can successfully challenge under the Obscene Publications Act, and they will find you, and they will drag you before a jury of your peers.
Jung tells us we all have a darker side, dark corners of the unconscious wherin we hide all those things we’d perhaps be ashamed of airing in public. Jung tells us it’s better to have those things in the light, where we can look them in the eye and acknowledge them as part of ourselves. That way they lose their power to make us act in socially unacceptable ways. But he wasn’t talking about publishing our demons for all the world to see. If you’re plagued by dark demons doing unspeakable things to animals or non-consenting human beings, then by all means write about them, but keep your musings private. Don’t put them online where your demons might damage someone else. Obscenity is like a penis. (Michael blushes) We all know that half the population has one, but it’s socially unacceptable to go waving it about in public. If it’s something you feel you really must do in order to preserve your creative integrity, then seriously, you have to be very careful who you show it to.