Tag Archives: censored uk

BREAKING: Ofcom Signals Switch to Stronger TV and Streaming Censorship in Leaked Email

Yesterday, Ofcom circulated a confidential email to broadcasters signalling its intention to increase the strength of its censorship regime. This has been provided anonymously to Sex & Censorship, and is published in the public interest.

Ofcom is better known as the UK’s media and communications regulator, but it is also the UK’s media censor. It is hugely powerful and well funded, formed by the merger of multiple earlier regulators covering various sectors of TV and radio. It has always applied ludicrously stringent censorship, often driven by compaints from a handful of individuals, and it throws out huge fines for the smallest of infringements. Its power began to be eroded by the rise of the internet, broadband, and streaming services, but it has long signalled that it intends to extend it remit over all forms of communication.

Ofcom not only censors the British media, but actually writes its own censorship policy – surely something that should be done by government with parliamentary oversight, rather than an unelected body. British (small-L) liberals have long worried about Ofcom’s power. David Cameron, possibly the most liberal of all Tory leaders, signalled his intention to drastically reduce Ofcom’s power before the 2010 election. Presumably, his wrist was slapped by the establishment, and his pledge was never heard of again.

Yesterday’s email reads as follows:

From: Ofcom Standards Team <[email protected]>
Sent: 18 November 2019
Subject: Note to Broadcasters – Daytime chat and adult chat television services

Classification: CONFIDENTIAL

Dear Licensee

We would like to draw your attention to the Note to Broadcasters featured in Issue 391 of Ofcom’s Broadcast and On Demand Bulletin which was published today.

The note reminds broadcasters of daytime chat and adult chat services of Ofcom’s guidance in this area and puts these broadcasters on notice that it will be commencing a targeted monitoring exercise of these services. [my highlight]

Yours sincerely

Standards and Audience Protection team

The linked document is worth reading, because it gives an insight into the tight level of monitoring to which broadcasters are subject. Ofcom has the power to levy fines of hundreds of thousands of pounds, without recourse to the courts. For smaller broadcasters (and streaming companies), these would be impossible to bear. Broadcasters have no option but to tightly self-censor, or be put out of business.

As an afterthought, consider in this context the Labour Party’s recently announced plans for a state-owned, free broadband service. It is unimaginable that the government-run broadband service would allow this to function like a normal ISP that allows full access to the internet, including sexual material or open discussion of difficult issues related to race, sexuality or gender. Given the Tories’ recent attempts to censor the internet, I am deeply distrustful of both major parties with regard to civil liberties, and am keeping my fingers crossed for a hung Parliament.

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Obscenity law liberalised

This is a cross-post from my contribution to the Adam Smith Institute blog.

Last week the Crown Prosecution Service published updated guidance for prosecutions under the Obscene Publications Act (1959). Legal campaigning has brought about a big change: the liberal tests of harm, consent and legality of real acts are now key parts of their working definition of obscenity. The CPS explain:

… 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
  • No serious harm is caused
  • 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).

The guidance supports a realistic notion of consent which means that depictions of most safe, consensual activities under the umbrella of BDSM are unlikely to be subject to prosecution:

“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 CPS acknowledge the damaging impact on the rule of law when prosecutors rely on subjective notions when making charging decisions:

“An ill-defined concept of moral depravity or corruption does not provide for legal demarcation of sufficient precision to enable a citizen to regulate his or her conduct. However, where conduct or an activity is itself criminalised, that may be a clear indication as to its tendency to deprave or corrupt.” 

This is a substantial improvement for the OPA which has previously been used to prosecute consensual sexual expression, including publications depicting and defending LGBTQ sexual practices.

For now, the guidelines relate only indirectly to decisions to prosecute for possession of Extreme Pornography (Section 63 of the Criminal Justice and Immigration Act 2008). They appear to clarify that prosecutors should not normally be targeting depictions or records of legal acts between consenting adults. This avoids the logical incoherence at the heart of previous obscenity definitions that meant people could be prosecuted for publishing or possessing visual records of practices that were perfectly legal to conduct, such as fisting.

This is good news for liberals and anyone with an interest in freedom of sexual expression. We have to remain vigilant to see how prosecutors use these guidelines in practice. But this is at least a substantial improvement on past definitions that provided little guidance for citizens, producers or prosecutors.

What is responsible for this surprisingly liberal turn? There is little we can say with absolute certainty other than that the CPS has wisely chosen to adjust its prosecution practice to better reflect contemporary public attitudes towards minority sexual practices and porn producers.

There are a few likely contributors to this reform. Various, sometimes overlapping, strategies formed an ecology of activism and advocacy that changed the legal and policy environment. Central to the story is the civil liberties group Backlash (declaration of interest: I have volunteered my research expertise at Backlash). It began as an advocacy group, campaigning against the extension of obscenity law to include possession of extreme images that the Home Office presumed to be a necessity in the Internet age.

After the law was passed despite well-informed opposition, obscenity lawyer Myles Jackman joined Backlash as legal advisor. In a switch in strategy, Backlash started providing legal advice and financial support to defend some criminal allegations that involved consenting acts between adults.

Juries tended to favor the defence in these cases that Backlash identified as consensual. Juries rejected prosecutions for the possession of erotic horror images, possession of fisting and urethral soundings, ‘twink’ porn, as well as the sale of fisting videos. These criminal cases couldn’t set legal precedents as they never got to the stage of appeal. Nonetheless, these failed prosecutions probably deterred the CPS from pursuing many future cases.

Meanwhile, other campaigners brought this issue to wider public attention. Jerry Barnett’s website Sex and Censorship and book Porn Panic helped to link the anti-porn agenda to a wider pro-censorship movement that is now prominent in some Internet political movements. Sexual freedom campaigner, Charlotte Rose, organized a ‘face-sitting’ protest outside Parliament aimed specifically at new media regulations and helped to raise the profile of sexual freedom more generally.

The protest attracted mainstream media attention. Pandora Blake used regulatory action against her website as a test case to quash some of the more subjective regulations. Blake then ran a campaign to show that it was the Obscene Publications Act, underlying these new inconsistent and censorious regulatory practices, that needed reform. The lost cases and reaction from vulnerable parties together prompted the CPS to consult on adjusting their guidelines to better represent what the general public evidently thought to be worthy of criminalization and censorship.

Obscenity and pornography regulation has attracted a great deal of scholarly interest. Initially, from critical supporters of the ban on extreme pornography from the field of feminist legal theory. Media communications scholars, especially Feona Attwood and Clarissa Smith, in the nascent porn studies sub-discipline, challenged the idea that porn had systematically negative impacts on culture, society and the status of women.

My article, ‘Millian Liberalism and Extreme Pornography’ showed that there was a surprising overlap between the interests of queer sexual politics, including the freedom to engage in transgressive expression and a right to establish safe spaces for minorities to support and cultivate their identities, and the classical liberal approach to freedom of expression and association. My Adam Smith Institute report, ‘Nothing to Hide’ argued for making consent to legal acts the primary way of judging the legality of sexually explicit images. It prompted LGBTQ media to highlight the risks of the law for their audience, and to start quizzing the Home Office about how they intended the law to be used.

Initially, academic feminist proponents of the extreme porn ban, including Clare McGlynn, sought quite a broad application.  They argued explicitly that the law should not apply to a narrow notion of harm but also to ‘cultural harm’ or the imputed indirect, social impact of the availability of pornography, not just those participating in the acts themselves). More recently, these proponents have accepted a greater role for consent in defining the limits of image prohibition.

They now focus on the problem of ‘revenge pornography’ (the non-consensual sharing of sexually explicit private images). In contrast to ‘extreme pornography’ and obscene publications in general, ‘revenge porn’ constitutes a personal violation and severe social problem that both liberals and feminists agree requires civil and criminal remedies. Fortunately, there has been some degree of agreement on where future criminal justice activity needs to be directed.

Criminal obscenity law is just one strand in a tangle of issues threatening sexual expression and freedom of expression in the UK. This change doesn’t do very much to make the government’s age verification system and broader surveillance of Internet access safe. It only marginally improves the legal protection of sex workers who use or offer online services. So there are a great deal more liberal reforms needed. Nevertheless, this success shows that campaigning, through legal challenges, protests and informed scholarship, can lead to genuine reform. I see this as a model for future campaigns aiming for greater personal liberty.

Male Stripper

Male Strippers Rescued from East London Venue

We welcome back stripper, activist and blogger Stacey Clare, who reports that Islington council has bravely “rescued” some male strippers from being objectified and exploited in a London venue.

The men of Adonis Cabaret have been saved from a lifetime of exploitation at Club Aquarium!

Last weekend, on Saturday 23rd of September, licensing officials from Islington Council attended a male strip show, which was found to be in breach of local by-laws. The Adonis Cabaret, a “male stripper troupe”, who were resident at a well-know nightclub on Old St. in London for several years, were found to have been exploiting men every weekend, forcing them to flash their genitals for the titillation of hundreds of women.

Men have been earning thousands of pounds from stripping, often using the money to support their steroid and cosmetic surgery addictions. Others have been spending their earnings on lavish lifestyles, posting photos from luxury holidays and expensive shopping trips on social media. One male stripper posed with his mum on a yacht, drinking champagne. It is estimated that male strippers earn on average £2k from gyrating their hips.

During their premises inspection, the licensing officials sat all the way through a two-hour long performance, right up to the very end, in order to catch the ensemble flouting a local licensing regime that forbids full nudity, as they waved their willies in the direction of the audience. Licensing laws were changed in 2009 to protect the public from the spread of an industry that is responsible for modern slavery and human trafficking.

Club Aquarium, famous for it’s indoor swimming pool and late license, may seem like any other conventional venue, but within it’s subterranean walls it hid a dark secret. Just as one would stare at underwater creatures on a trip to SeaWorld, customers at Club Aquarium are encouraged to view men’s bodies as a commodity. There is nothing to alert unsuspecting passers-by to the nature of this seedy underworld; any normal, healthy person on foot would be fooled into thinking it was a regular discotheque. But every Saturday night drunken hoards of women arrived in their hundreds, joining parties of gay men to queue up for their seats at the so-called cabaret.

The Adonis Cabaret website is a lurid display of oiled up flesh, men pose in degrading outfits to be sexually objectified by the female gaze and gays. “The UK’s Hottest Ladies night” is how the men, aged between 18 and 50, are touted online. Their “unbeatable fun party package” includes “free yummy buffet…the sexiest lads…interactive variety acts…Sing-a-long”. Commercial sexual exploitation of men has become as normal as a Karaoke bar or All-You-Can-Eat smorgasbord. On arrival to the venue young frightened looking men with rippling chests provide a meet-and-greet; a chance for the consumers of these so-called “services” to grope and fondle the “entertainers”, all under the guise of taking a selfie.

When the show starts the mood among the audience turns to a more predatory atmosphere. Where the men were earlier viewed as sex-objects, they now become veritable pieces of meat, to whom the women in the rows of seats feel entitled. Men are pushed onstage by a thuggish, so-called drag queen, and are made to perform sexualized dance routines, entirely for the pleasure of the onlookers. The finale of each show, a flash of engorged genitals, is the ultimate form of sexual objectification – a spectator sport for the mostly female viewers of this so-called entertainment.

For the attendees it’s all bit of light-hearted fun right? An excuse to ogle at fit blokes while they appease the audience with a tantalising striptease. But the human cost of this type of entertainment goes largely ignored. New evidence revealed recently found that more than a half a million men, mainly immigrants, are working in the sex industry and in brothels and have been trafficked or coerced in some way or other.

One Eastern European man using the name ‘Mike’ said, in broken English “I was working out in the gym one day, when a nice friendly guy approached me. He said I could get work as a dancer in the UK and earn thousands. He was really nice to me, and I trusted him. He paid for my flights and brought me to the country, it was really like a dream. Next thing I knew I was put in a room with all these massive guys in thongs. Their muscles were bulging. They gave me some fake tan and some porn, and told me to get myself hard; showed me how to use a rubber band as a cock-ring to keep myself erect. Suddenly I was on stage, about a thousand women were screaming and grabbing at me, tearing my clothes off. My life is ruined. Things will never be the same now.”

The normalisation of viewing men as sex objects has had a devastating affect on the locality as women leaving the show have sexually harassed normal, healthy men passing by the club. “I’m too afraid to walk down Old St. now” said one 26 year-old man, who preferred not to be named. “I feel intimidated and fearful at night, it’s like the streets are not safe for me anymore”.

The male strip clubs are a growth industry in the UK, worth an estimated £10bn. However, researchers say that the cost to our so-called economy is probably greater. For now, the men of Adonis Cabaret can breathe a sigh of relief; having been released from their gruelling routine of working one day per week, they now have the freedom to figure out how to pay next months rent by going back to normal lives, working a 60 hour week on minimum wage. 

BBFC Internet censorship

Britain’s First Official Internet Censor Is… The BBFC

Today’s news, that the British Board of Film Classification (BBFC) will become an official Internet censor, is not so surprising, if you’ve followed the long saga of British state attempts to censor the mass media. The story is long and convoluted, begins in the 1970s, and is summarised in part in my book Porn Panic!

The creation of the new censorship function is part of the “anti-porn” measures in the Digital Economy Bill, which is currently in Parliament. So here’s the first weird thing – the action of appointing the BBFC has taken place before the law is passed. Cart-before-horse, much? But this abuse of process is minor, compared to what has come before. The bill will, no doubt, be passed with little scrutiny, because the UK’s first great step into Internet censorship has been sold under the banner (as I’ve long predicted) of “protecting children from pornography”.

Let’s remind ourselves that, in regulator-speak, “pornography” means “anything we want to censor”. Remember David Cameron’s optional “porn filters” which block 19% of the Internet, for example? In the current draft of the Bill, the definition of porn has been hugely extended from hardcore material to any sexual/nude/erotic material. The old regulations have been extended from covering just video to including still imagery and even audio. Audio porn? you ask… what’s that? Well, exactly. This bill will begin broad and get broader.

As I’ve repeatedly pointed out in the three years since I started this blog and campaign, this isn’t about BDSM, or kink, or porn, or even sex. It’s about everything.

The BBFC was an film industry body until (suitably) 1984, when it was given government-approved powers to censor (as well as classify) video. Ironically, just as it was given this draconian censorship power, it changed the C in its name from Censorship to Classification. George Orwell would be proud. One of the results of the 1984 change in law was an immediate ban by the BBFC (a private organisation) on hardcore pornography, without a debate or discussion in Parliament. Our censorship laws are written by unelected officials with minimal accountability to our elected government. This should deeply worry anybody who cares about democracy.

In 2007, I went to meet a certain Pete Johnson, the BBFC’s Head of Online, who was attempting to set up a programme for regulating online video. Johnson’s scheme failed to get approval, but he was instead appointed head of ATVOD, the video-on-demand regulator, reporting to Ofcom, which (heavily) censors TV and radio. I campaigned against ATVOD’s bullying and arbitrary behaviour for some years.

A year ago, it was announced that ATVOD would be dissolved, and powers returned to Ofcom. This was greeted with applause by campaigners, but as I pointed out at the time – this was a case of jumping from the frying pan into the fire. Now, the new law will give the new regulator (which, we now know, is the BBFC) far stronger powers than ATVOD had. The scope of the regulator (as mentioned above) will be far broader than ATVOD’s “TV-like content”. Any commercial site carrying “porn” (i.e. nude video/imagery/audio…) and not properly verifying the age of its visitors will face sanctions from the BBFC. Furthermore, unlike ATVOD, the BBFC will have powers to sanction overseas providers. (Note – the age verification requirement is onerous, and has been banned by the US Supreme Court as censorship. I previously explained this issue in a post).

For what it’s worth, here’s a little guess: could Pete Johnson, a well known anti-porn activist regulator when he ran ATVOD, be about to make a triumphal return to the BBFC?

Until now, those backing this law have insisted that the sanctions will relate to withholding payment services, and similar. But in Parliament yesterday, the (presumably jubilant) BBFC director David Austin said that “sanctioned sites could find web properties blocked by IP address and de-indexed from search engines”.

I’ve been following the porn panic for almost ten years. For almost that long, it has been crystal-clear where all this is leading, though it has moved like treacle. Cleverly, the introduction of Britain’s first Internet censor has been justified, from start to end, by pornography.

Our cause isn’t helped by sexual freedom campaigners who still think this is about “kinkphobia” or “sexist porn censorship”. It really isn’t, it’s about our most fundamental rights of free expression. We’re witnessing the greatest attack on free speech in generations, and our press and politicians are still asleep on the job. Please help me wake them up.

Please buy my book or make a donation to this campaign. Every little helps. Thank you.

Ofcom

Ofcom’s Internet Power Grab is Finally Underway

Yesterday, the UK government released the result of its consultation into (yet again) protecting children from online pornography. Predictably, the finding was that children DO need even more protection, and so Ofcom must be granted additional powers to censor online content.

This process has been so long and treacle-slow that it’s been clear for many years where it is leading. Stripping away the various convoluted steps that brought us here, one simple fact has always been obvious: Ofcom and the government were always going to act against a free Internet which undermined their powerful censorship controls over the mass media, and especially over sexual content.

So what will the new law – the Digital Economy Bill – say? It cements and the significantly extends the existing AVMS regulations which have been in place since 2010. So, as before, adult video-on-demand sites based in the UK are required to verify the ages of their visitors before revealing adult content to them. Failure to do so can (as before) result in a fine of up to £250,000. This regulation is the reason the UK adult industry has been decimated in the past few years.

Here’s the new stuff:

  1. The law no longer applies to “TV-like” video-on-demand services, but to all content, including still photography. This will close the loophole which a handful of websites have used to evade the regulations.
  2. Apps are to be included as well as websites.
  3. Ofcom will put pressure on payment companies as well as “advertising companies, web hosting services and others” to ensure that “the business models and profits of companies that do not comply with the new regulations can be undermined”. This enables Ofcom to target overseas content that breaches UK regulations.

Note the vagueness in this last point: this could easily include, in future, requiring ISPs to block services. So here is the law that I’ve warned of for some years: one that will allow Ofcom to manage – and close – our digital borders. The great firewall of Britain is coming.

Unless I’ve missed it, I can’t find any definition of “porn” in the report. The consultation hinted that soft content – non-explicit nudity and erotica – may be included, at Ofcom’s discretion.

It’s Not About Porn

Here’s a point I’ve made repeatedly. In my book Porn Panic!, I argue that the war on porn has been merely a symptom of a deeper intolerance to free speech that has long been rising in British society. Ofcom will not, of course, stop at targeting commercial porn sites, or even all sexual content. The British state considers myriad forms of content to be unsuitable for under-18s, and will now grant itself the powers to deal with it.

Brexit

And finally, a note on Brexit. It is likely that “undermining” (i.e. blocking or forcing to close) a legal, EU-based adult service would breach EU trade regulations. Sadly, should we leave the EU (as looks likely), we lose any legal recourse against this rising state censorship. Here, as in so many other ways, the EU has protected the British people against the excesses of our own government. Just as we will lose the free movement of people across borders, so we are beginning to lose the free transmission of information across borders.

extreme porn law

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.

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
Queen's Speech Promises State Censorship

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.

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.

Podcast #4: Response to Government Consultation

There’s no interview this week. Instead, our response to a government consultation on “protecting children”, which is, we believe, an attempt to push more power to Ofcom to be able to censor online content. The consultation closes on 12th April.

Queen's Speech Promises State Censorship

What’s the Problem With Age Verification?

Last December, a law – known as AVMS 2014 – was snuck into force without a parliamentary debate. This law had two aspects: one of which was largely ignored. The part that wasn’t ignored criminalised the distribution of porn stronger than the BBFC’s tame R18 classification. This effectively outlawed the depiction of acts considered beyond-the-pale by the British establishment, even though these acts are perfectly legal to carry out in private, and provoked the memorable face-sitting protest outside Parliament.

The aspect of AVMS 2014 that the coverage largely overlooked related to age verification, making it mandatory for adult video providers to confirm that each visitor is over 18 before allowing them to see any form of explicit image or video. Arguably, this part of the law was far more significant, but on the surface seemed more reasonable. This regulation has actually been enforced by ATVOD since 2010: the 2014 law merely strengthened the existing rules.

But demanding age verification by adult service providers has far deeper implications than might be immediately obvious, and ones that inevitably have implications for the existence of an uncensored Internet.

Excluding Adults

The first problem is that, whatever the means of age verification, there will be adults that cannot get through it. Current age verification solutions include: using a credit card; providing passport or driving license details; using a mobile phone that has already been age-verified. But many adults cannot provide any of these things, and furthermore many wouldn’t want to, for privacy reasons.

Unfortunately, the UK has no strong protection against censorship, but the US does: and in America, the Supreme Court has ruled repeatedly that onerous age verification is undoubtedly censorship, so cannot be enforced by the state. So in “conservative” America, the legal system has far more problem with adults being prevented from watching porn than in “protecting children” from seeing it. The greater harm (according to the judges) is censorship, not smut: this is as America’s founding fathers intended, as they knew that censorship can be introduced for all manner of spurious reasons, and once initiated, it tends to grow.

It’s Only the UK

The AVMS regulations are laid down by the EU. But here’s the odd part: only the UK has decided that AVMS requires an expensive, activist regulator along ATVOD lines; only the UK has interpreted the AVMS scope to include adult websites (the regulations were originally designed to cover TV catch-up services); and only the UK has interpreted the regulations to mean that adult websites should implement age verification.

The Internet is Global

Here’s the real, huge problem with all this. How can regulations that only cover UK-based web businesses have any meaningful effect? There are two possible interpretations: either, that ATVOD is an expensive but powerless quango, or that the government will introduce blocking of overseas adult websites on a mass scale.

Until recently, the latter option sounded like a conspiracy theory, but during the general election campaign, the Tories announced they would be blocking sites that don’t conform to AVMS. This would require the creation of an official UK Internet censor – the first such thing in any democratic society – and probably entail the blocking of millions of sites that are considered unsuitable for children.

A “Perverts Database”

Aside from censorship, privacy is the other major concern. Age verification providers will know which sites each user is trying to access. Is it acceptable and necessary that one’s credit card provider, mobile provider or other authority could know you tried to access BustySpankedSluts.com last Friday night?

Evangelists for age verification suggest that this problem could be averted by the creation of an “anonymising hub”. This would shield the adult site and the age verification service from each other, so that the site operator need not know your mobile number, and O2 will never know you had a wank to BustySpankedSluts.com.

But potentially, the hub multiplies the privacy issue. Now, there is a central database linking individuals to porn sites. Who would have the right to access, browse and search the database? Would the police ever have reason to request to access it? Would some alliance of hackers steal and publish data, just to prove they could, or use it for blackmail? Once this data is stored in a single place, the privacy implications are astounding.

Is a 17 Year-old a “Minor”?

ATVOD sets the age limit for accessing pornography at 18: it therefore defines 16 and 17 year olds as children, despite the age of consent being 16 in the UK. This means that debit cards can’t be used for age verification, as they can be issued to 16 year olds, and so makes age verification more onerous (many adults don’t own credit cards).

No Evidence of Harm

It’s worth a reminder at this point that the AVMS restrictions are predicated on stopping minors from viewing content that “might seriously impair” them. And yet, research carried out by Ofcom on behalf of the UK government, as well as research carried out across the European Union, is unanimous: no evidence can be found that pornography is capable of “seriously impairing”, and in fact the government’s own evidence suggests that pornography is associated with a reduction in harm. (Ofcom report – key finding is bottom page 15/top page 16).

Think of the Children!

All of this overlooks a simple fact: child protection filters are standard these days on all devices, from tablets and phones to PCs. Family brands like Tesco – which have reputations to maintain – sell their own child-friendly tablets. But such filters don’t empower or enrich regulators. Nor do they help make the case for censorship, or provide the opportunity to snoop on citizens, so they are ignored when the case for age verification is made.

While most EU authorities have thus concluded that there is no need for server-side age verification, Ofcom, ATVOD and the Department of Culture, Media and Sport have decided otherwise, and have implemented a “precautionary” system. This seems akin to fitting expensive locks to all fridges, in order to prevent teenagers freezing to death in the kitchen: it’s never happened, but you can’t prove it never will, can you?

Queen's Speech Promises State Censorship

Breaking: Dominatrix Challenges Anti-Porn ATVOD Law

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.”