Adam Smith Institute Questions “Extreme Porn” Law

This blog recently published a paper by Nick Cowen on the UK’s extreme porn law. This paper now forms the basis of a briefing from the Adam Smith Institute (ASI), which is available here.

The UK Will Block Millions of Sites
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As someone who, until recently, considered myself left-wing, I am ever bewildered and anguished by the fact that the defence of individual liberty, once a cornerstone of the left, is now the preserve of the free-market right: the Adam Smith Institute being a good example. Meanwhile, the left has become increasingly intolerant to free expression in many forms, of which porn is merely the most obvious: I document this strange reversal in political polarities in my book Porn Panic.

The word “extreme” in “extreme porn law” refers to the porn, though may be better used to describe the law. The law is odd for at least two reasons: first that it outlaws the depiction of acts that are popular between consenting couples; second that it targets the consumer rather than the producer.

The first aspect is strange: numerous acts such as whipping and fisting are perfectly legal to do in the privacy of one’s own bedroom. Yet the moment they are recorded, the video becomes illegal to possess.

The second aspect is dangerous: millions of people (including, probably, you) have broken the law and risk being imprisoned and listed as sex offenders. If you have looked at porn without using your browser’s incognito mode, your browser cache will be full of images from the pages you looked at. To merely have an “extreme” image on one’s phone or PC, or stored somewhere in a cloud email or storage account that you own, makes you a possessor of extreme porn. And who knows what constitutes extreme? Nick Cowen does, I do, and possibly a couple of thousand other people in the UK. To create a law that most people will never understand, yet carries heavy penalties, is draconian.

The law originated with a moral panic following the killing of a teacher, Jane Longhurst, by a man who had an interest in BDSM pornography. Clearly, nobody had explained to the government that correlation does not equate to causation: that the fact that a violent person might watch violent porn doesn’t mean that porn causes violence.

The Home Secretary who signed the law into force was Jacqui Smith; yet when I interviewed her, she was unaware of the law’s detail, or of its consequences (over a thousand people a year are now arrested for possessing extreme porn). To find that such a dangerous and unnecessary law could come into being without any serious political opposition or thought was a depressing realisation as to the nature of politics.

Nick’s ASI paper is worth reading; for those short on time, here is its executive summary:

  • The ban on possession of ‘extreme pornography’ was introduced in 2009 and extended in 2015. The law, as drafted, bans depictions of some sex acts that can be conducted safely and consensually between adults, with a specific risk of prosecution posed to LGBT minorities.
  • The Crown Prosecution Service reports more than a thousand offences prosecuted each year, implying significant enforcement costs that could be deployed effectively elsewhere.
  • A significant minority of the British population enjoy sexually aggressive fantasy scenarios but do not pose a specific risk of committing violent or sexual offences.
  • Access to pornography has increased dramatically in recent years, yet social harms imputed to pornography (especially violence against women) have reduced moderately but significantly.
  • While some survey evidence claims a correlation between individual use of pornography and sexual aggression, econometric evidence suggests this is not a causal relationship and that, if anything, increased access to pornography can reduce measurable social harms.
  • The ban itself represents a potential risk to political integrity. Like the ban on homosexuality in much of the 20th century, prohibitions on private sexual conduct can be used to silence, blackmail and corrupt individuals in positions of authority and responsibility.
  • There are better policies for reducing violence against women in the dimensions of criminal justice, education and economic reform.
  • The prevailing free speech doctrine in the United States shows that it is realistically possible to simultaneously tackle damaging forms of expression and maintain strong protections for innocuous forms
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The Queen’s Speech 2016: Online Censorship Now Official Policy

Since 2010, when the government empowered ATVOD to regulate video-on-demand services, the direction of travel has been clear: there would little point in enforcing tough regulations on UK content providers, without also the power to block overseas services. Last Wednesday, the Queen’s Speech to Parliament finally confirmed what has been looming for several years. The huge and unelected communications regulator Ofcom is to be given extra powers over Internet content. This announcement was tucked innocuously away within the plans for the Digital Economy Bill, as follows:

“All websites containing pornographic images to require age verification for access”.

On its own, this is an odd announcement. After all, this provision has already been a UK regulation enforced by Ofcom since 2010, and was strengthened in the AVMS 2014 law (which prompted the famous face-sitting protest outside Parliament).So why is the government repeatedly announcing the same measure? It isn’t, really: it just reuses the “child protection” justification for different actions. This time, Ofcom is to be given powers to disrupt overseas providers that provide “adult” content without first verifying users’ ages. If this seems reasonable, keep in mind the following:

  • The government consultation on online pornography, which closed only last month, has not yet even reported. What was its purpose then?
  • When government talks about “pornography”, this is shorthand for any content it considers unsuitable for children, which (as long experience has shown) includes anything from sex education to drug information; from “extreme” political speech to self-harm support sites.
  • Age verification is, in practise, riddled with problems, as I previously outlined here.
  • The powers assigned to Ofcom, as yet not specified, are likely to be open-ended. So although the talk is of pursuing adult payment and advertising services, it seems a certainty that site blocking will be on the table soon.

What does this mean?

The Internet as we know it is going to change fundamentally. Mindgeek, owner of the largest porn services, has signalled that it will comply with the UK law, which means that sites like Pornhub and Youporn will no longer be freely available. Most major providers will doubtless follow. And sites featuring strong fetish content – even that which is legal in the United States and much of Europe – will not be able to comply with UK regulations at all, even if they implement age verification. But porn represents the tip of the iceberg.

In 2014, the major ISPs implemented optional “porn filters” in response to arm-twisting by David Cameron. The result was that about 20% of all websites became unavailable to users that switched on their “child protection” at home: a reminder that “porn” is a shorthand for a very broad range of content. Most users simply switched the filters off: this new regime will be far harder to circumvent.

Many services that allow user-contributed content will be classed as “adult”: Twitter will, unless it heavily self-censors its adult content. So, no doubt, will its live streaming service, Periscope, which could well be used to stream sexual material.

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We will be watching as the Digital Economy Bill progresses. The wording of Ofcom’s new powers will be important to the future of free speech in the UK. Join our mailing list or Facebook page to keep track of events. This campaign is entirely funded by donations from supporters – you can donate here.

Brooke Magnanti and Paris Lees Appear at Parliamentary Sex Work Inquiry

An inquiry is currently under-way in the British Parliament into the laws governing prostitution, and last week Dr Brooke Magnanti (aka Belle de Jour) and Paris Lees – both former sex workers – gave evidence.

There are two broad forms that a change in the law might take: either towards full decriminalisation – as has been the case in New Zealand since 2003 – or towards the criminalisation of clients (the so-called Nordic model). While the vast majority of sex workers favour decriminalisation (96% according to a recent survey), the inquiry made clear from the start that it is inclined towards the Nordic model:

“The Home Affairs Committee is looking at the way prostitution is treated in legislation. In particular, the inquiry will assess whether the balance in the burden of criminality should shift to those who pay for sex rather than those who sell it.”

So from the outset, the inquiry appears to be slanted towards a legislative model that is opposed by sex workers: an approach that signals moralistic goals, rather than a desire to reduce harm.

Judging by The Mirror’s account, the discussion was somewhat surreal. Labour MP Keith Vaz, who seems to have a particular, long-term issue with sex work, appeared reluctant to believe the accounts of women who had actually been sex workers:

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“Mr Vaz expressed disbelief at when Ms Lees said she’d never met anyone who had felt pressured into becoming a sex worker.”

It is well-known that prohibitionists claim to have met countless women who have been forced into prostitution, but these victims tend to remain invisible, and are apparently never able to speak for themselves. As Lees responded:

“It seems to me you’ve had people at this inquiry who’ve got absolutely no business talking about sex work. Whose only qualification seems to be that they write for the Observer.”

This experience is very similar to my own when debating against anti-porn campaigners. As I wrote in my open letter to the anti-sex Object some months ago:

“It has long troubled me that Object are prepared to make endless claims of rape and sexual abuse against the sex entertainment industries; and yet, to my knowledge, you have filed no police reports.”

Those interested in the issue should carefully watch the inquiry unfold in Parliament. Any truly open-minded exercise would doubtless come to the same conclusion as Amnesty International did last year: full decriminalisation is the only way forward that is backed by evidence. But, I suspect, this is not the recommendation that this particular inquiry will reach.