Brief comments on two proposed new criminal offences relating to pornography: strangulation / suffocation, and sex (actually or purportedly) between relatives
As published on: by Neil Brown
A couple of people have asked me about some of the proposed amendments to the UKs Crime and Policing Bill , which is
currently going through Parliament.
Please note that these are proposed amendments and, as such they are not (yet) law. They may never become law, or may be changed, materially or otherwise, before they become law.
This blogpost contains sexual themes
As the title of this blogpost suggests, this blogpost is about legislation which has sexual themes. In particular:
strangulation / suffocation
sex between relatives
These offences relate to images, not acts
The proposed new offences which I discuss below relate to images of acts, and not the acts themselves.
They do not impact ostensibly
the legality (or otherwise) of doing the things depicted in the images.
Pornographic images of strangulation or suffocation Background
media sources such as pornography have effectively established strangulation during sex as a sexual norm, and a belief that strangling a partner during sex is safe because it is believed to be
non-fatal despite overwhelming evidence that is is believed there is no safe way to strangle a person.
It is an offence for a person to be in possession of an image if--
the image is pornographic, within the meaning of section 63 (i.e. that 'it is of such a nature that it must reasonably be assumed
to have been produced solely or principally for the purpose of sexual arousal'),
the image portrays, in an explicit and realistic way, a person strangling or suffocating another person, and
a
reasonable person looking at the image would think that the persons were real.
Neither 'strangling' nor 'suffocating' is defined.
My working assumption is that 'strangulation' entails a depiction of putting something (hands or otherwise) around another persons neck which
applies pressure or compression to the throat.
Strangulation does not require a particular level of pressure or force within its ordinary meaning, it does not require any injury and it does not require proof of
a consequence such as impeded breathing or circulation.
My feeling is that 'suffocation' covers any means of adversely impacting someones breathing, or depriving someone of air, making it wider than 'strangulation',
and encompassing what might be termed 'breath play'. It could entail putting something down someones throat, for instance, or covering their nose and mouth. The CPS guidance suggests - again, in a somewhat different context - a broad interpretation.
Since the offence, as currently posited, requires 'a person strangling or suffocating another person', it would appear that an image of a person strangling / suffocating themselves is not covered. As such, I should be surprised if
this prohibited an image of someone wearing a tie or collar (for instance). This outcome would seem to be consistent with the governments focus on partnered sexual activity and violence against women.
'Image' means both a moving
or still image, and data which is capable of conversion into an image, but the portrayal must be 'realistic', and the people depicted must look 'real' to a reasonable person, for the image to be in scope.
This is an image-based
offence, and does not impact text-based pornography / erotica, although one would still need to be mindful of the law of obscenity .
Note that the existing legislation relating to 'extreme pornography' already covers the 'explicit and realistic' portrayal of 'an act
which threatens a persons life', which could include both strangulation and suffocation. This offence would remain in place.
Proposed defences
Of the proposed defences to the offence of possession,
one is:
that the person directly participated in the act portrayed and the act did not involve the infliction of any non-consensual harm on any person.
It would be a separate
offence to 'publish' such an image, which includes 'giving or making it available to another person by any means'.
One of the proposed defences to the 'publication' offence is:
that the person
directly participated in the act portrayed, the act did not involve the infliction of any non-consensual harm on any person, and the person only published the image to other persons who directly participated.
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.
As far as I know, 'harm' is not, in itself, defined.
While the defence would permit sharing an image with the other participants, it would preclude the private dissemination of such imagery, outside the
(direct) participants to it, and would prohibit the sharing of the image online or with social media groups.
Possession or publication of pornographic images of sex between relatives, and images where one person is pretending
to be under 18
A separate amendment relates to the possession or publication of pornographic images of sex between relatives.
I understand that this is pretty common subject matter of some 'tube' sites.
The first of
these vital measures will ban anyone from possessing or publishing harmful pornography that shows incest between family members, and sex between step or foster relations where one person is pretending to be under 18.
A further
amendment will criminalise the publication and possession of pornography where an adult is roleplaying as a child.
Because of this 'further amendment', there has been a significant change in the amendment between the
House of Lords and the House of Commons.
House of Lords proposed offence
The House of Lords proposed a criminal offence of possession or publication of realistic images depicting sexual penetration
of one person by another (my paraphrasing) where:
In other words, while the image may be acted, if the context - the title, description, language used by participants etc. - indicated that the participants are related or were pretending to be, and there was sexual
penetration of one person by another, it would fall within scope of this offence.
Given the presence of 'pretending to be', it is possible that someone could look to make a case that use of a term like 'daddy' was sufficient to
formulate the offence.
House of Commons proposed offence, including 'under 18'
The House of Commons has objected to this amendment, proposing its own, slightly tweaked, version:
The HoC proposal is for a criminal offence of possession or publication of realistic images depicting sexual penetration of one person by another (again, my paraphrasing) where:
a reasonable
person--
looking at the image, and
taking into account any sound or information associated with the image,
would think what is set out in subsection (1A) or (1B).
1A is:
That A and B were related, or pretending to be related, such that A was related to B as parent
[(including adoptive parent)], grandparent, child, grandchild, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece.
1B is entirely new, and covers separate subject matter:
That A and B were related or had been related, or were pretending to be related or to have been related, such that A was or had been related to B as step-parent, step-child, stepbrother, stepsister, foster parent or foster child,
and
at least one of A and B was, or was pretending to be, under 18.
As with the offence relating to images of strangulation / suffocation, this is an image-based offence, and does not impact text-based pornography / erotica.
Because of the requirement of multiple
participants ('another person'), images of one person, alone, would appear not to be covered, nor would images (of one or multiple people) which do not depict realistic and explicit penetrative sex.
The comments above about 'non-consensual harm' apply here.
It would appear that, as long as the participants were not actually related, a participant may possess an image in which they pretend
to be related.
In respect of publication, there is an additional proposed limb, that:
the person only published the image to person B or A (as the case may be).
Unlike the drafting in respect of the offences relating to images of strangulation / suffocation, which appear to cater for images depicting more than two participants, I am not sure how the defence proposed here works where there are
multiple simultaneous participants: distribution to all participants, as opposed to one particular participant, could be problematic.
In any case, this too would preclude the private dissemination of such imagery to
non-participants, and would prohibit the sharing of the image online or with social media groups.
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
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.
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.
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.
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
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
Ofcom rewrote its Rule 11 censorship rules on for VoD services in line with BBFC censorship laws applying more generally to porn websites. Presumably it will now cancel the changes
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.
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.
