The upcoming UK internet porn censorship regime being introduced later this year has set the UK authorities to thinking about a more rational set of laws governing what porn is legal and what porn is illegal in the UK. It makes a lot of sense to get the
UK stall straight before the commencement of the new censorship regime.
The most contradictory area of porn law is that often referred to as 'beyond R18 porn'. This includes material historically banned by the Crown Prosecution Service (CPS) claiming
obscenity, ie fisting, golden showers, BDSM, female ejaculation, and famously from a recent anti censorship campaign, face sitting/breath play. Such material is currently cut from R18s, as censored and approved by the BBFC.
When the age
verification law first came before parliament, 'beyond R18' porn was set to be banned outright. However as some of these categories are commonplace in worldwide porn, then the BBFC would have had to block practically all the porn websites in the world,
leaving hardly any that stuck to R18 guidelines that would be acceptable for viewing after age verification. So the lawmakers dropped the prohibition, and this 'beyond R18' material will now be acceptable for viewing after age verification. This leaves
the rather clear contradiction that the likes of fisting and female ejaculation would be banned or cut by the BBFC for sale in UK sex shops, but would have to be allowed by the BBFC for viewing online.
This contradiction has now been squared by
the government deciding that 'beyond R18' pornography is now legal for sale in the UK. So the BBFC will now have a unified set of rules, specified by the CPS, covering both the censorship of porn sales in the UK and the blocking of foreign websites.
This legalisation of 'beyond R18' porn will surely disappoint a few censorial politicians in the House of Lords, notably Elspeth Howe. She has already tabled a private members bill to restore the ban on any foreign websites including 'beyond R18'
porn. Her bill has now been rendered mostly irrelevant.
However there is still one genre of pornography that is sticking out of line, and that is cartoon porn featuring under age characters. Such porn is widespread in anime but strictly banned
under UK law. So given the large amounts of Japanese Hentai porn on the most popular tube sites in the world, then those videos could still be an issue for the viability of the age classification regime and could still end up with all the major porn
sites in the world banned.
The new CPS censorship rules
The new rules have already come into force, they started on 28th January 2019.
A CPS spokesperson confirmed the change saying
It is not for the CPS to decide what is considered good taste or objectionable. We do not propose to bring charges based on material that depicts consensual and legal activity between adults, where no serious harm is caused and the
likely audience is over the age of 18.
The CPS will, however, continue to robustly apply the law to anything which crosses the line into criminal conduct and serious harm.
It seems a little bit rich for the CPS
to claim that It is not for the CPS to decide what is considered good taste or objectionable, when they have happily been doing exactly that for the last 30 years.
The CPS originally outlined the new rules in a public consultation that
started in July 2018. The key proposals read:
When considering whether the content of an article is “obscene”, prosecutors
should distinguish between:
- Content showing or realistically depicting criminal conduct (whether
non-consensual activity, or consensual activity where serious harm is
caused), which is likely to be obscene;
- Content showing or realistically depicting other conduct which is lawful,
which is unlikely to be obscene.
Do consultees agree or disagree with the guidance that prosecutors must exercise real caution when dealing with the moral nature of acts not criminalized by law, and that the showing or realistic
depiction of sexual activity / pornography which does not constitute acts or conduct contrary to the criminal law is unlikely to be obscene?
The following conduct (notwithstanding previous guidance indicating
otherwise) will not likely fall to be prosecuted under the Act:
- Activity involving bodily substances (including urine, vomit, blood and faeces)
- Infliction of pain / torture
Bondage / restraint
- Placing objects into the urethra
- Any other sexual activity not prohibited by law
- It is consensual;
- No serious harm is caused;
- It is not otherwise inextricably linked with other criminality; and
- The likely audience is not under 18 or otherwise vulnerable.
The CPS has now issued a
the responses received and how the CPS has taken some of these responses onboard.
The CPS has already updated its rules in Revised Legal
Guidance from cps.gov.uk . The key rules are now:
When considering whether the content of an article is "obscene", prosecutors should distinguish between:
Content relating to criminal conduct (whether non-consensual activity, or consensual activity where serious harm is caused, or otherwise inextricably linked to criminality), which is likely to be obscene;
Content relating to other non-criminal conduct, which is unlikely to be obscene, provided the audience is not young or otherwise vulnerable.
Conduct will not likely fall to be prosecuted under the Act provided that:
It is consensual (focusing on full and freely exercised consent, and also where the provision of consent is made clear where such consent may not be easily determined from the material itself); and
serious harm is caused (whether physical or other, and applying the guidance above at paragraph 17); and
It is not otherwise inextricably linked with other criminality (so as to encourage emulation or fuelling interest or
normalisation of criminality); and
The likely audience is not under 18 (having particular regard to where measures have been taken to ensure that the audience is not under 18) or otherwise vulnerable (as a result of their
physical or mental health, the circumstances in which they may come to view the material, the circumstances which may cause the subject matter to have a particular impact or resonance or any other relevant circumstance).
Note that extreme pornography is considered illegal so will likely be considered obscene too. But the CPS adds a few additional notes of harmful porn that will continue to be illegal:
show or depict the infliction of serious harm may be considered to be obscene publications because they show criminal assault notwithstanding the consent of the victim. This includes dismemberment and graphic mutilation. It includes asphyxiation causing
unconsciousness, which is more than transient and trifling, and given its danger is serious.
So it seems that breath play will be allowed as long as it doesn't lead to unconsciousness. Another specific rule is that gags do not in
themselves imply a lack of consent:
Non-consent for adults must be distinguished from consent to relinquish control. The presence of a gag or other forms of bondage does not, without more, suffice to confirm that
sexual activity was non-consensual.
The BBFC changes its R18 rules
The BBFC has several roles, it works in an advisory role when classifying cinema films, it works as an independent and mandatory censor when
classifying mainstream videos, but it works directly under government rules when censoring pornographic films. And in this last role, it uses unpublished guidelines based on rules provided by the CPS.
The BBFC has informed BBC News that it will
indeed use the updated CPS guidelines when censoring porn. The BBC explains:
The BBFC's guidelines forbid material judged to be obscene under the current interpretation of the Obscene Publications Act.
A spokeswoman told the BBC: Because the Obscene Publications Act does not define what types of
material are likely to be considered obscene, we rely upon guidance from the Crown Prosecution Service (CPS) as to what classes of material they consider likely to be suitable for prosecution.
We are aware that the CPS have
updated their guidance on Obscene Publications today and we have now adjusted our own internal policies to reflect that revised guidance.
Myles Jackman And Pandora Blake
And a thank you to two of the leading
campaigners calling for the CPS to lighten up on its censorship rules.
Obscenity lawyer Myles Jackman, who has campaigned for these changes for a number of years, told Yahoo News UK that the change had wider
implications for the law. He said:
"It is a very impressive that they've introduced the idea of full and freely exercised consent in the law.
"Even for people with no interest in
pornography this is very important for consent and bodily autonomy."
Activist and queer porn filmmaker Pandora Blake, who also campaigned to have the ban on the depiction of certain sex acts overturned, called
the news a 'welcome improvement'. They said:
"This is a happy day for queer, feminist and fetish porn."
Acts that were banned that can now be depicted include: