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Last Updated: Friday, 28 September 2007, 10:30 GMT 11:30 UK
What's the difference between art and porn?
The Magazine answers...

Nan Goldin
Nan Goldin, the artist whose picture has been seized by police

Sir Elton John has defended a photograph he owns after it was seized from an art gallery amid claims it could breach child pornography laws. When does a nude picture become a salacious artefact?

The picture, Klare and Edda belly-dancing, is part of a 139-image collection by the American photographer Nan Goldin. It had been on display in the Baltic Centre for Contemporary Art in Gateshead and shows young girls, one of them naked.

Removed from the gallery by police, it is up to the Crown Prosecution Service (CPS) to decide whether to prosecute. If it were to press charges, it would be under the 1978 Protection of Children Act which prohibits showing "indecent" photographs of children.

Context is key
If it's a picture of a child, age matters
Has the child been exploited?

Sir Elton has rejected any suggestion of illegality. On his website he describes Goldin as a "renowned photographer" and says the picture is part of a wider collection which has been exhibited worldwide since 2002. No-one has ever complained before, he says.

The controversy resurrects a familiar debate about censorship: does the context of an image determine whether or not it breaks the law? In other words, does it matter that a photograph of a naked child is in a respectable art gallery - rather than in a seedy magazine or on an illegal website?

Or is explicit child nudity - which is how many would categorise Goldin's picture - unacceptable and illegal, per se?

As might be expected opinions in the argument are divided.

Gut instinct

Just because an image is located in a respectable location doesn't make it automatically immune from the law, says a spokeswoman for the anti-child pornography group, the CEOP Centre.

Question mark
A regular part of the BBC News Magazine, Who, What, Why? aims to answer some of the questions behind the headlines

"People who have sexual interest in children come from all walks of life, " she says. "You can't tell who is in your gallery and why they are looking at images."

Gut-instinct, she added, was also crucial.

"There are some images which just don't feel right. What is important is the lasting impression you get once you have viewed the image. If it leaves you with the lasting impression that what you are viewing is child abuse, then it probably is."

But campaigners for artistic freedom disagree.

Mary Hayward of the Campaign Against Censorship says the gut instinct of one person is "entirely subjective". She calls for a statutory defence of "artistic merit" to be made available to people prosecuted under the 1978 Act.

And Ms Hayward argues the wider context of an image should always be taken into account when it was being judged as illegal pornography."

Two main questions

"What matters is not only where the picture is being exhibited, but who took it; why they took it; and all the circumstances surrounding it.

It's an offence to take, or permit to be taken or to make, any indecent photograph of a child
It's also an offence to distribute or show such indecent photographs
"If you don't consider all these things, then you might get into a situation where a parent risks arrest by taking innocent bath-time pictures."

However, the question of whether Goldin's picture breaks the law rests with lawyers.

A leading criminal barrister says the decision will come down to two main questions:

  • does the prosecution have a realistic chance of success?
  • is prosecution in the public interest?

John Cooper QC says the public interest test looks at a number of factors.

"In the case of photographs of children it's important to look at the circumstances surrounding the images," says Mr Cooper. "For instance: how old is the child? Have the photos been taken in vulnerable circumstances - in other words was there an element of exploitation involved?

"Sometimes it's relevant whether there is a whole series of photographs of children. The police might press for prosecution on the grounds that they might want to make an example of the offender.

"Another factor could be what kind of photographer took the pictures. If they are known to have a good reputation then this will be relevant too."

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