Readers of this blog will remember the December law (aka AVMS 2014) which outlaws content on UK adult websites stronger than the BBFC’s R18 certificate. This is the law that prompted the facesitting protest outside Parliament – how could you forget?
The regulator appointed by the government responsible for checking whether someone has sat on someone’s face a bit too long, or spanked someone a bit too hard (yes, it really exists) is known as ATVOD. ATVOD has now taken its first actions under the new law, serving notice on two dominatrices that their sites contain illegal content. One of the dommes closed her site after being approached by ATVOD, but the other is challenging the validity of AVMS 2014.
The ATVOD ruling makes clear the state’s squeamish and censorious approach to fetish pornography, stating:
Banned pornographic material made available on the UK based services included videos of heavy whipping likely to cause lasting physical harm, the infliction of pain on a person who appears unable to withdraw consent, and repeated strong kicks to the genitals which appear to draw blood. Such material has been prohibited on UK based VOD services since 1 December 2014 under new statutory regulations designed to bring online rules into line with those that operate offline. Other videos featuring explicit images of real sex and BDSM material could also be accessed by children on the internet services, in breach of further statutory requirements.
For a regulator whose remit is supposed to cover all forms of video entertainment, ATVOD’s CEO Pete Johnson appears to spend a high proportion of his time chasing down dommes. Approached for comment, Obscenity law specialist Myles Jackman pondered:
“The appropriately named Mr Johnson appears to have a particular fixation for slapping Female Dominatrixes’ websites with adverse determinations. Only he can answer if he enjoys singling out female-owned cottage-industry producers over global industry players.”
Shockingly, the new law was pushed through without a parliamentary vote, using a parliamentary procedure designed for rubber-stamping EU legislation into UK law. But the ban on fetish porn does not appear to be justified by EU legislation, and currently the UK is the only EU country to take such an action. Campaigners believe that the new law should have been subject to a full debate and vote by MPs.
Mistress R’eal has appealed against ATVOD’s ruling that her site is in breach of regulations on the basis that the December law is not valid. We wish her luck in defending her right to free expression. Her full appeal is as follows:
“I submit that the Audiovisual Media Services Regulations 2014, which introduced sections 368E(2) and (3) into the Communications Act 2003, were made ultra vires the Secretary of State’s power to pass secondary legislation under section 2(2) of the European Communities Act 1972. Section 2(2) gives the Secretary of State the power to pass secondary legislation for the purpose of implementing any EU obligation or for the purpose of dealing with matters arising out of or related to EU obligations. I note that the Audiovisual Media Services Directive (2010/13/EU) imposes an obligation on Member States to prohibit hate speech on ODPS (Art. 6); by contrast, it does not contain any obligation to ban content that may be harmful to minors from ODPS, only an obligation to ensure that access to such content is appropriately restricted (Article 12). In the premises, I fail to see how the 2014 Regulations (and, by extension, section 368E(2) & (3) of the 2003 Act), could be said to implement an obligation in the AVMS Directive or to deal with matters arising out of related to that Directive. The 2014 Regulations plainly go well beyond the scope of the directive – and, in doing so, subvert the appropriate democratic process for dealing with an important human rights (free speech) issue. In light of the foregoing, I submit that the 2014 Regulations and sections 368E(2)-(3), CA2003 are void – as so, by extension, is ATVOD’s Rule 14, which is based solely on the aforementioned sections of the Communications Act 2003.”