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
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
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 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.
Since the BBFC haven't ever needed to consider amputee insertion, they reserve their position on the matter.
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).
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.
Any form of consumption of (male) ejaculate is acceptable.
Vomiting may be acceptable if it is not performed as part of a sexual act; and is not visibly enjoyed by the participants.
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.
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
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.
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 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.
This will depend on the surface upon which the person is being trampled on.
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.
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 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 is acceptable only if knockout moves are not deployed. Facesitting and seemingly non gentle scissoring are not acceptable.
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)
(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
[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
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)
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.