UK Law: Internet Porn Censorship

It's not just state censorship rules that control adult companies, but there are also rules imposed by other organisations for their own reasons. And in this case it is the banking industry that is controlling adult content.

Video sharing site OnlyFans, best known for its creators' adult videos and photos, will prohibit sexually explicit content starting October 1st. The company says it is making the changes because of pressure from its banking and payment providers.

OnlyFans said in a statement emailed to The Verge:

In order to ensure the long-term sustainability of our platform, and to continue to host an inclusive community of creators and fans, we must evolve our content guidelines,.

Creators on the platform will still be allowed to post nude images as long as they comply with the site's acceptable use policy. More information will be available in the coming days. OnlyFans remains committed to the highest levels of safety and content moderation of any social platform.

 

Update: Will OnlyFans censorship pave the way for Bitcoin to become the coinage of online porn

22nd August 2021. See article from newsweek.com

OnlyFans has been effectively banned by moralistic bankers, so will this in turn be an opportunity for the crypto industry to capitalise by offering platforms that are not held to ransom by financial institutions.

Crypto analyst Christina Rud told Newsweek:

What's essentially happening here is that you have payment providers deciding what's right or wrong which is really scary, and definitely not the kind of society that would champion democratic values.

Rud explains that using blockchain-enabled technology is the way forward for the porn industry because content cannot be censored. The technology also has no central entity controlling it. Therefore crypto-led pornography platforms would be immune to the moralizing whims of boardroom politics.

The porn industry has already begun embracing the blockchain. Pornhub first announced it would be accepting cryptocurrency payments in 2018. Then, after it was axed by Visa and Mastercard in 2020, the platform moved to only accepting cryptocurrency for its premium service.

 

Update: Naming names of the disgraceful bankers

24th August 2021. See article from variety.com

The OnlyFans CEO names names of the disgraceful bankers that sought to impose their morality on their customers and have trashed the livelihoods of so many.

OnlyFans founder and chief exec Tim Stokely placed the blame for the U.K. company's move to ban sexually explicit content as of Oct. 1, announced last week, on several major banks in an interview with the Financial Times published Tuesday. He said:

The change in policy, we had no choice -- the short answer is banks, Stokely said. Banks including JP Morgan Chase, Bank of New York Mellon and the U.K.'s Metro Bank cite reputational risk and refuse our business

We pay over 1 million creators over $300 million every month, and making sure that these funds get to creators involves using the banking sector. Because several banks have cut off OnlyFans from making wire transfers, that has made it difficult to pay creators, he said.

Stokely also said that OnlyFans is fully compliant with new Mastercard rules, so that had no bearing on the decision to ban porn. He also said the change was not made to appease investors.

 

Update: A change of heart

24th August 2021. See article from tmz.com

OnlyFans has reversed course and will no longer be banning sexually explicit content on its platform starting October 1 ... after outcry from its creators and the general public. OnlyFans announced:

Thank you to everyone for making your voices heard. We have secured assurances necessary to support our diverse creator community and have suspended the planned October 1 policy change.

As we reported ... OnlyFans blamed its planned porn ban on conflicts with banking partners and payout providers -- suggesting they'd no longer do business with the site due to the sexual content -- but it seems those issues have been resolved.

 

Update: Mastercard censorship rules

28th August 2021. See article from mastercard.com

Mastercard updated its censorship rules for their customers in April 2021. Mastercard wrote:

Enhancing requirements for adult content, preventing anonymous content

This month, we are extending our existing Specialty Merchant Registration requirements. The banks that connect merchants to our network will need to certify that the seller of adult content has effective controls in place to monitor, block and, where necessary, take down all illegal content.

Now, our requirements address the risks associated with this activity. And that starts with strong content control measures and clear, unambiguous and documented consent.

Other updated requirements include:

• Documented age and identity verification for all people depicted and those uploading the content

• Content review process prior to publication

• Complaint resolution process that addresses illegal or nonconsensual content within seven business days

• Appeals process allowing for any person depicted to request their content be removed

 

Update: A good summary from the Guardian

28th August 2021. See article from theguardian.com

Why OnlyFans had second thoughts on banning sexually explicit content. Homegrown adult content site announced last week it was suspending adult content, only to quickly change its mind

The focus of Age Verification has been on the censorship of general porn websites since the Digital Economy Act was passed in April 2017. However there is a smaller subset of adult Video on Demand websites that have been under the cosh, under the auspices of the EU's Audio Visual Media Services directive, since several years earlier. 

Don't ask what's difference between a general porn website and a Video on Demand website subjected to AVMS Rules. The EU law governing this is pitiful and it is impossible to determine this difference from the law as written. ATVOD, the first official porn censor to have addressed this issue, must have wasted thousands of pounds trying to refine the laws into something that may make sense to the business affected. They failed, and so then Ofcom wasted thousands more arbitrating on this impossible task and writing some incredibly long explanations to justify their decisions.

Peter Johnson was the chief censor at ATVOD and he put in motion the morality campaign against porn in the name of age verification. He put in place onerous rules, requiring strict age verification for access to porn. The rub was that the rules only applied to British business, and this effectively put an end to the British adult internet trade. UK companies simply could not compete with overseas websites that are free and open to access. Nearly all British businesses had to either close, move their operations abroad, or sell out to foreign companies.

For example Simply Broadband was very successful up and coming business that could have become a major competitor with its knowledge of British pron favourites. The company was promptly sold abroad. Another major loss was the European branch of Playboy TV that operated from the UK at the time. The company simply moved somewhere else.

Eventually Ofcom saw where this was going, Ofcom sacked ATVOD and took on the censorship role itself. A few small niche websites were saved, but the vast majority of the UK business had already been lost to foreign interests.

And of course no kids were being protected by the AVMS rules. Foreign tube sites rules the roost, and if anything they gained from British competitors being snuffed out.

Presumably it was this observation that led to the introduction of porn censorship via age verification in the Digital Economy Act. This time round the Age Verification would also apply to foreign companies.

Recalling that there still a few British businesses that are still subject to age verification requirements via Ofcom's AVMS regime, Ofcom decided that it needed to update the AVMS rules to reflect the changes expected through the Digital Economy Act. Ofcom more or less proposed to adopt the DEA rules into its own codes. Ofcom launched a public consultation in September 2018 to square away its proposed rules with the remnants of the British adult trade.

In fact, rather confirming the mass extinction of British business, only two VoD companies responded to the the consultation. Portland TV (who run the softcore Television X channel) and Virgin Media who runs a Video on Demand service which includes a few 18 rated softcore porn films.

In fact Virgin Media was pretty miffed that the new rules meant that 18 rated porn material had to be brought into the age verification regime. In particular it noted that it was not easy for set top boxes to be adapted for age verification, not to mention the fact that customers electing to use such boxes were probably not those most computer literate types who would be happy to mess round with apps to get their age verified.

Ofcom decided to more or less rewrite the AVMS rules to reflect the BBFC censorship regime, and the updated rules are given below. However thankfully Ofcom made it clear that the rules would not come into force until the Digital Economy Act rules came into force. So presumably these updated rules are now also canned.

So the few remaining British porn companies can heave a sigh of relief, at least until the next moral panic, maybe the Information Commissioner's Age Appropriate Design rules to be announced towards the end of next month (November 2019).

Ofcom's censorship proposed rules for British Video on Demand services

Rule 11: Harmful Material: Protection of Under-18s (Specially Restricted Material)

An ODPS must not contain any specially restricted material unless the material is made available in a manner which secures that persons under the age of 18 will not normally see or hear it.

“Specially restricted material” means—

(a) a video work in respect of which the video works authority has issued a R18 classification certificate;
(b) material whose nature is such that it is reasonable to expect that, if the material were contained in a video work submitted to the video works authority for a classification certificate, the video works authority would issue a R18 classification certificate; or
(c) other material that might seriously impair the physical, mental or moral
development of persons under the age of 18;
(d) a video work—

• (i) in respect of which the video works authority has issued an 18 certificate, and

• (ii) whose nature is such that it is reasonable to assume that its principal purpose is to cause sexual arousal, or

(e) material whose nature is such that it is reasonable—

• (i) to assume that its principal purpose is to cause sexual arousal, and

• (ii) to expect that, if the material were contained in a video work submitted to the video works authority for a classification certificate, the video works authority would issue an 18 certificate.

In determining whether any material falls within (b) or (e), regard must be had to any guidelines issued by the video works authority as to its policy in relation to the issue of classification certificates.

Guidance on ‘Specially restricted material’:

In considering any particular case, Ofcom’s approach in the first instance will be to determine whether the content in question falls within the definition of ‘specially restricted material’.

Content which complies with the Ofcom Broadcasting Code, or that has been classified by the British Board of Film Classification (BBFC) in any category except ‘R18’ or as a ‘sex work’ at ‘18’, would not normally be considered as material that “might seriously impair” and would not normally be subject to the requirements of Rule 11.

R18 and R18-equivalent material, sex works at 18 and material equivalent to sex works at 18, and any other material which might seriously impair under 18s is subject to the requirements of Rule 11. All ‘material’ in the ODPS, including still images and other non-video content is subject to this requirement.

By ‘sex works’ we mean works whose primary purpose is sexual arousal or stimulation. Sex works at ‘18’ includes sex works that contain only sexual material which may be simulated. The R18 certificate is primarily for explicit works of consenting sex (including non-simulated sexual activity) or strong fetish material involving adults.

The R18 certificate and the 18 certificate are issued by the British Board of Film Classification in respect of video works being supplied on a physical video recording such as a DVD. There is no requirement for material being provided on an ODPS to be classified by the BBFC, but Ofcom must have regard to the BBFC Classification Guidelines when determining whether material on an ODPS is R18-equivalent (i.e. if it was contained in a video work submitted for classification it is reasonable to assume that the BBFC would issue an R18 certificate). Ofcom must also have regard to the BBFC Classification Guidelines when determining whether material on an ODPS is equivalent to sex work material at 18 (i.e. it is reasonable to assume that its principal purpose is to cause sexual arousal and if it was contained in a video work for classification the BBFC would issue an 18 certificate).

For more information on the R18 certificate and the 18 certificate for sex works, and the type of content likely to be awarded  these certificates, see the British Board of Film Classification’s website: www.bbfc.co.uk .

We note that the BBFC has regulatory duties to assess whether ‘pornographic material’ is not normally accessible by under 18s on online commercial services available in the UK (excluding the ODPS regulated by Ofcom). In outline, ‘pornographic material’ includes both R18 equivalent material, and 18-equivalent material with a principal purpose of sexual arousal. In assessing whether content falls within the definition of ‘specially restricted material’ under Rule 11, Ofcom will have regard to any advice issued by the BBFC on its approach to assessing whether content is ‘pornographic material’, including advice on what content can be displayed without age-verification.

Guidance on Age Verification:

Provided the material is not illegal or otherwise prohibited (see Rule 14), content which Ofcom considers to fall under this Rule (i.e. ‘specially restricted material’) may be made available on an ODPS, provided access is controlled in a manner which secures that people aged under eighteen ‘will not normally see or hear’ such material.

In assessing age-verification arrangements under Rule 11, Ofcom will follow the BBFC’s principle-based approach for assessing the compliance of age-verification solutions on online commercial services available in the UK. Ofcom recognises that the BBFC’s principles were designed in relation to online services, and that age-verification solutions on ODPS in practice may vary across different platforms. However, the same principles apply on ODPS regardless of the platform on which the service is delivered.

The criteria against which Ofcom will assess whether an age-verification solution secures that ‘specially restricted material’ is not normally seen or heard by those under 18 are set out below:

• a. An effective control mechanism at the point of registration or access to the specially restricted material by the end-user which verifies that the user is aged 18 or over at the point of registration or access

• a. [note repeated (a) is in original document] Use of age-verification data that cannot be reasonably known by another person, without theft or fraudulent use of data or identification documents or be readily obtained or predicted by another person

• b. A requirement that either a user age-verify each visit or access is restricted by controls, manual or electronic, such as, but not limited to, password or personal identification numbers. A consumer must be logged out by default unless they positively opt-in for their log in information to be remembered

• c. The inclusion of measures which authenticate age-verification data and measures which are effective at preventing use by non-human operators including algorithms

The following are features which Ofcom does not consider, in isolation, comply with the age-verification requirement under this Rule:

• a. relying solely on the user to confirm their age with no cross-checking of information, for example by using a 'tick box' system or requiring the user to only input their date of birth

• b. using a general disclaimer such as 'anyone using this website will be deemed to be over 18'

• c. accepting age-verification through the use of online payment methods which may not require a user to be over 18. (For example, Ofcom will not regard confirmation of ownership of a Debit, Solo or Electron card or any other card where the card holder is not required to be 18 or over to be verification that a user of a service is aged 18 or over.)

• d. checking against publicly available or otherwise easily known information such as name, address and date of birth

When considering the compliance of age-verification solutions with Rule 11, we will have regard to the BBFC’s assessments of age-verification used by online adult services to ensure compliance with the regulatory requirements, as published on its website.
Ofcom recommends that ODPS providers adopt good practice regarding data protection in the design and implementation of age-verification solutions. The Information Commissioner’s Office (ICO) is responsible for enforcing data protection legislation and providers should have regard to its guidance in this area.

Where they are required, age-verification solutions must be fit for purpose and effectively managed so as to ensure that people aged under eighteen will not normally see or hear specially restricted material. Ofcom will consider the adequacy and effectiveness of age-verification solutions on a case by case basis and keep them under review in the context of ODPS. Responsibility for ensuring that any required age-verification solution is in place and is operating effectively rests at all times with the person with editorial responsibility for the ODPS. The ‘Guidance on who needs to notify’ document explains how to determine the person with ‘editorial responsibility’ for the ODPS.

The Digital Economy Bill was enacted  on 27th April 2017. It contains two provisions enabling the censorship of all online adult pornography viewed in the UK, whether it be from  the UK or from abroad.

• Material considered 'extreme' under previous UK laws will be banned from being published on UK sites, and blocked by ISPs if originating from abroad.
• Pornography, except the 'extreme' content mentioned above, will only be made available by UK ISPs if it implements strict age verification of viewer to ensure that they are provably 18 years old. This requirement applies to both foreign and domestic websites and applies to both hardcore and softcore porn.

Internet censors will be appointed by the government to: identify websites publishing extreme content; identify websites requiring age verification; and to approve age verification methods.

The censors will be able to enforce the banning of websites with large fines for the offending websites and for companies providing services such as hosting, advertisement, or payment facilities. Foreign websites out of the reach of these enforcement actions will be blocked by ISPs.

The Definition of extreme porn banned under the act

Firstly, it must be pornographic . The definition of pornography in the CJIA isn't terrible: it's an image "of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal". I think that's fair enough. However it's not down to the intention of the creator, but the interpretation of the court.

Secondly, it must be extreme . This means it is (interpreted as being) "grossly offensive, disgusting or otherwise of an obscene character" and it portrays "in an explicit and realistic way" any of the following:

• An act threatening a person's life
• An act which results (or is likely to result) in serious injury to a person's anus, breasts or genitals
• An act which involves (or appears to involve) sexual interference with a human corpse
• A person performing (or appearing to perform) an act of intercourse (or oral sex) with an animal (whether dead or alive).
• An act which involves the non-consensual penetration of a person's vagina, anus or mouth by another with the other person's penis, a part of the other person's body, or anything else.

The Definition of legal porn requiring age verification

The overarching definition of pornographic material that requires age verification is material that ' was produced solely or principally for the purposes of sexual arousal'.

The material covered by the act is limited to audio, still pictures and video. Text content is notably not coveredd by this act .

The Act specifies that both softcore and hardcore material is covered by the act. It specifically includes:

• Softcore 18 rated material, or material that would be classed 18 if submitted to the BBFC
• Hardcore R18 rated material, or material that would be classed R18 if submitted to the BBFC
• Beyond R18 material that would be cut by the BBFC but does not go as far as 'extreme porn' which is banned under this act. This means that fisting, choking, squirting, wet sex, are now all considered legal for sale online as long as age verification is in place.

Note that not all 18 rated material related to sex or nudity may be caught by these definitions. Eg glamour photography may be sexy and nude, but it may be a step too far to claim that it was produced solely or principally for the purposes of sexual arousal'.

Privacy and the use of personal data provided in the age verification process.

The act disgracefully provides no protection for porn viewers and any data that they may provide in the age verification process.

There is a wishy washy paragraph in the guidance for the bill:

The process of age verifying for adults should be concerned only with the need to establish that the user is aged 18 or above, rather than seeking to identify the user. The privacy of adult users of pornographic sites should be maintained and the potential for fraud or misuse of personal data should be safeguarded 206 The role of the Regulator should be to focus on the ability of arrangements to verify whether someone is over 18 and should be assured that age verification arrangements will protect a user's privacy.

As Lord Paddick replied in a Lords debate, this is not reassuring; it is only guidance and does not have teeth at all. The vague wording does not go into enough detail. If an age verification provider did not comply with this advice the regulator would have little power to force them.

Pandora Blake concludes:

So, the Digital Economy Bill contains no requirement that the age verification solutions themselves be regulated. They can retain and share your data, and there's no limit on how much (or what sort of) data they ask for.

My conclusion? The Lords don't care about user privacy or cyber security. In the end, despite months of expert campaigning by the Open Rights Group and others, the Bill contains no safeguards against AV providers compiling databases of our porn browing histories which will be deeply vulnerable to leaks, hacks and data breaches.

Implementation and the role of the BBFC

Pandora Blake has summarised current speculation on how implementation is likely to pan out. She writes:

The BBFC has been nominated by Government as the new notification regulator for online porn. Their job will be to find sites that don't have age verification in place, and notify them that they need to become compliant. If the site doesn't comply, the BBFC can then notify any ancillary service providers - i.e. billing processors, advertisers, sources of funding, internet hosts and others that facilitate the site serving pornographic content - and ask them to withdraw services from the non-compliant website. If the ancillary service providers also refuse to co-operate, the BBFC's final recourse is to notify Internet Service Providers and get them to refuse to serve the site, so that no-one in the UK will be able to view it (unless they're using Tor or another proxy/VPN).

It has been said that another regulator will also be chosen, separate from the BBFC, with power to impose financial penalties to non-compliant websites in the UK. Fines are supposed to be the next step up from notifying ancillary service providers, leaving ISP blocking as a last resort. But the enforcement regulator hasn't been designated yet, and no-one knows who it's going to be.

For the BBFC to take on responsibility for ISP blocking happen represents a significant mission creep of their duties. When they were initially selected they were not originally meant to have any enforcement duties at all; and yet the BBFC is now very close to becoming the sole regulator, removing the need for a separate enforcement body.

The BBFC have previously expressed uncertainty that they had the resources to handle enforcement, as it seemed that the task of notification was already going to stretch their capacity. But following an exchange of letters with the Minister they have agreed to take on the additional task of notifying ISPs. So the BBFC are now handling the lion's share of the work of enforcement, and the theoretical other regulator has still not been selected.

The draconian penalty of ISP blocking threatens to be liberally applied. In the case of UK websites, fines might provide some incentive to comply, but few site owners in other countries will respect financial penalties imposed on them by the BBFC. It's not even clear that fines will be an option when the regime first comes into effect: I was alarmed by the Minister's statement that we will continue to consider the appropriate timing for introducing financial penalties for non-compliant providers and decide who the regulator for this will be, which makes it sound an awful lot like age verification could start being enforced by the BBFC with ISP blocking as the main available sanction, without any enforcement regulator or system for financial penalties yet in place.

In terms of the BBFC's powers, it's entirely possible that ancillary service providers based overseas won't respect their authority. Billing companies probably will, but overseas web hosts and advertisers are less likely to co-operate. The Earl of Erroll, who has been working closely with the Digital Policy Alliance throughout the drafting of this Bill, said in the third debate that I think that the notice and take-down -- the blocking -- is the only thing that will work. Fines will not work; it is probably a waste of time even trying them. It therefore seems as though ISP blocking is turning from a last resort into the most likely penalty - creating a hugely disproportionate regime of national censorship.

At the time of write these censorship provisions are scheduled to come into force in May 2018.

This was published some time ago but now just catching up. These are the R18 Guidelines as presented to producers in November 2014.

A BBFC/ATVOD seminar was held just before the guidelines were extended to internet Video on Demand published on UK websites.

The BBFC presented their current guidelines as outlined below The guidelines have been produced from notes created by producer Nikki Whiplash and published in an article from obscenitylawyer.blogspot.co.uk .

Watersports and Squirting	Peeing and squirting are acceptable if not performed onto another person and/or then consumed. Squirting during sex or masturbation is acceptable if fairly brief, isolated and not deliberately consumed or put onto a body. It would be acceptable to imply that it was licked up if could be deemed as to be simulated.
Fisting	Fisting is not acceptable. Penetration with all five digits beyond last knuckle is not acceptable; but all five digits of two or more hands would be acceptable as long as not past last knuckle. Ofcom have sought medical guidance on fisting and don't believe it to be a dangerous act to perform. However, as the CPS' Guidelines specifically cite fisting as obscene the BBFC can't pass fisting for classification. The BBFC acknowledge that they are well aware of the decision in R v Peacock but are obliged to have regard to CPS' OPA Guidelines.
Amputee Insertion	Since the BBFC haven't ever needed to consider amputee insertion, they reserve their position on the matter.
Enemas	Enemas are acceptable if once they are squirted out they don't hit anyone else and does not contain feces. It is not acceptable to subsequently lick up what has been expelled; unless this is simulated (for example switched for another substance).
Catheters	Catheterisation is acceptable, even if catheter connected to mouth; presuming that the tube is not transparent so that the liquid moving through cannot be seen.
Eating ejaculate	Any form of consumption of (male) ejaculate is acceptable.
Vomiting	Vomiting may be acceptable if it is not performed as part of a sexual act; and is not visibly enjoyed by the participants.
'Public' Sex	Should the content features any nudity or other activity which might outrage the public decency, then the BBFC must be assured that the material in question was shot on private land with no public access or shot abroad. However, simulating the impression that it is in public is acceptable, fir example a vehicle with tinted windows. The key consideration that the material has not been created in the public eye.
'Age Play'	Anything which might 'encourage' incest or sex with children under the age of eighteen is absolutely unacceptable. However school uniforms are acceptable presuming that there are no references to the performer pretending to be under eighteen; and participants clearly 'of legal age' and participating in a consensual adult role play
Weapons	Sexual activities performed at gunpoint are unacceptable if it is "believable". This will depend on tone and believability. Basically if it looks like it could be a non-consensual activity then it is not acceptable.
Bondage and Restraint	Full bondage in conjunction with a gag is unacceptable, since there needs to be an obvious (to the viewer) means to signal to stop. Hence it is acceptable if not all four limbs are tied. Thus a means to indicate the withdrawal of consent must be visible to the viewer. For example full bondage and gagging would be acceptable if there is a safe signal which is defined as part of the scene. Thus elements like artistic license, storyline and context become important. Hence a straightforward bondage scenario with no surrounding context is less likely to be acceptable than something with features a clearly signaled role play component.
BDSM Pain play	Acts which if copied by the uninitiated have the potential to cause injuries more than transient and trifling are extremely unlikely to be acceptable. Only "moderate" pain play is acceptable. Thus reddening of the skin acceptable but no raised welts, blood and bruising are not.
Needle-Play	Needles are more likely to be considered acceptable as they only cause transient and trifling injury similar to legal tattooing.
Facesitting as Breathing Restriction	Facesitting employed as a breathing restriction or any other form of smothering is unacceptable. However, facesitting without breathing restriction is acceptable. There is no flexibility on this. The airways must remain open. Apparently the rationale for this distinction is that men trying this at home might die.
Ballbusting	Ballbusting may be acceptable, depending on the level. OFCOM recommend submitting clips in question for review. It will come down to definition of moderate pain and whether viewers at home are likely to sustain serious injury if they try it at home. Hence ball-yanking is not acceptable; whereas controlled ball stretching is acceptable.
Trampling	This will depend on the surface upon which the person is being trampled on.
Urethral Sounds	The insertion of urethral sounds is acceptable presuming that they are not inserted so far in as to enter the bladder; and that appropriate sterile and safety considerations are taken such as the use of lubricant and gloves.
Insertion of objects like buttplugs	The insertion of other objects is acceptable presuming that it is clear that they couldn't get stuck. Hence the use of buttplugs is acceptable. Hence a clip of a mobile phone vanishing up an anus would not be acceptable, despite being a spoof, on the basis that people might try it at home.
Power Tools	The use of power tools is unacceptable, since most people have one lying around at home. However purpose designed "fucking-machines" are acceptable. The test in question is the 'association with violence'.
Head-Scissoring	Head-scissoring is acceptable, presuming that it is gentle. However, if it is seen to be pushing on the carotid restricting blood flow then it is not acceptable. Hence, choking sounds or reddening of face as a result are not acceptable. As soon as any pressure is exerted it would be considered a choke hold and therefore not acceptable.
Wrestling	Wrestling is acceptable only if knockout moves are not deployed. Facesitting and seemingly non gentle scissoring are not acceptable.
Gagging	Gagging on cock and deep throat are acceptable if not for the whole scene. However, language of the 'gag on my cock' variety is unacceptable due to the reference to choking.

The European Audio Visual Media Services Directive provides a justification for censorship that was implemented in UK law in the Communications Act 2003:

If an on-demand programme service contains material which might seriously impair the physical, mental or moral development of persons under the age of eighteen, the material must be made available in a manner which secures that such persons will not normally see or hear it.

Unfortunately for the censorial government, there is no particular evidence that hardcore porn seriously impairs children. In fact all the kids are already watching porn and they don't seem to be ending up being seriously harmed, at least any more than any other generation.

So the legal underpinning for ATVOD's onerous suffocating age verification rules for British adult websites seems somewhat shaky and open to challenge. Therefore the government are changing the law so as to explicitly make age verification a requirement without having to rely on mythical serious harm. The government has introduced the following statutory instrument which means that it will not be debated in parliament, just nodded through.

The Audiovisual Media Services Regulations 2014

These Regulations may be cited as the Audiovisual Media Services Regulations 2014.

• Laid before Parliament on 6th November 2014

• Coming into force on 1st December 2014.

Amendment of section 368E of the 2003 Act (harmful material) .

In section 368E(4) of the 2003 Act (harmful material), for subsection (2) substitute:

(2) An on-demand programme service must not contain any prohibited material.

(3) Prohibited material means:

• (a) a video work which the video works authority has determined for the purposes of the 1984 Act not to be suitable for a classification certificate to be issued in respect of it, or
• (b) material whose nature is such that it is reasonable to expect that, if the material were contained in a video work submitted to the video works authority for a classification certificate, the video works authority would determine for those purposes that the video work was not suitable for a classification certificate to be issued in respect of it.

(4) An on-demand programme service must not contain any specially restricted material unless the material is made available in a manner which secures that persons under the age of 18 will not normally see or hear it.

(5) Specially restricted material means:

• (a) a video work in respect of which the video works authority has issued a R18classification certificate,
• (b) material whose nature is such that it is reasonable to expect that, if the material were contained in a video work submitted to the video works authority for a classification certificate, the video works authority would issue a R18classification certificate, or
• (c) other material that might seriously impair the physical, mental or moral development of persons under the age of 18.

(6) In determining whether any material falls within subsection (3)(b) or (5)(b), regard must be had to any guidelines issued by the video works authority as to its policy in relation to the issue of classification certificates.

(7) In this section:

• the 1984 Act means the Video Recordings Act 1984;
• classification certificate has the same meaning as in the 1984 Act (see section 7 of that Act);
• R18 classification certificate means a classification certificate containing the statement mentioned in section 7(2)(c) of the 1984 Act that no video recording containing the video work is to be supplied other than in a licensed sex shop;
• the video works authority [BBFC] means the person or persons designated under section 4(1)of the 1984 Act as the authority responsible for making arrangements in respect of video works other than video games; video work has the same meaning as in the 1984 Act (see section 1(2) of that Act).

Amendment of section 368B of the 2003 Act (supply of information)

Insert:

(d) OFCOM may supply information to the video works authority, within the meaning of section 368E, for use by the video works authority in connection with functions of OFCOM as the appropriate regulatory authority;

(e) a designated body may supply information to the video works authority, within the meaning of section 368E, for use by the video works authority in connection with functions of the designated body as the appropriate regulatory authority.

[This looks like a measure to stop the BBFC effectively changing the law by changing its own guidelines. It looks like Ofcom and ATVOD will be able to step in should the BBFC change its rules].

BBFC R18 Guidelines

For reference the current BBFC Guidelines for R18 takes the form of a list of material prohibited from R18:

The following is a list of prohibited material:

• material which is in breach of the criminal law, including material judged to be obscene under the current interpretation of the Obscene Publications Act 1959
• material (including dialogue) likely to encourage an interest in sexually abusive activity which may include adults role-playing as non-adults
• the portrayal of sexual activity which involves real or apparent lack of consent. Any form of physical restraint which prevents participants from indicating a withdrawal of consent
• the infliction of pain or acts which may cause lasting physical harm, whether real or (in a sexual context) simulated. Some allowance may be made for moderate, non-abusive, consensual activity
• penetration by any object associated with violence or likely to cause physical harm
• sexual threats, humiliation or abuse which do not form part of a clearly consenting role-playing game.
• Strong physical or verbal abuse, even if consensual, is unlikely to be acceptable

These Guidelines will be applied to the same standard regardless of sexual orientation of the activity portrayed

CPS Obscenity Guidelines

Of course the guidelines don't fully define what is 'judged to be obscene under the current interpretation of the Obscene Publications Act 1959', but the CPS does offer some guidance. See charging practice from cps.gov.uk :

It is impossible to define all types of activity which may be suitable for prosecution. The following is not an exhaustive list but indicates the categories of material most commonly prosecuted:

• sexual act with an animal
• realistic portrayals of rape
• sadomasochistic material which goes beyond trifling and transient infliction of injury
• torture with instruments
• bondage (especially where gags are used with no apparent means of withdrawing consent)
• dismemberment or graphic mutilation
• activities involving perversion or degradation (such as drinking urine, urination or vomiting on to the body, or excretion or use of excreta)
• fisting

The Guidelines are still insufficient for VoD providers to judge the legality of their catalogue

The most immediate issue with the new law is how commonplace 'rough sex' will be treated. There are many films that suffer a few cuts for hair pulling, gagging, retching, spitting etc. Will a film that would be R18 after a few cuts now become illegal? If so, there are thousands of them. It is not clear how these cuts correlate to the guidelines. The guidelines are clearly produced for interpretation by the BBFC rather than the public and will effectively leave VoD service providers unable to judge the legality of films without a BBFC certificate. Perhaps that is the idea. But then again it will leave British websites with a tiny fraction of the range of choice to that of foreign competitors.

Comment: Scrapping red tape

18th November 2014. From the Melon Farmers

Coincidently I got a circular emall from David Cameron yesterday claiming:

"we will carry on backing businesses by scrapping red tape, cutting taxes - and continuing to invest in the infrastructure that is vital to create jobs and enable Britain to compete successfully in the global race".

Well if Cameron considers this new law as `backing businesses` and `scrapping red tape` then Britain is doooomed.