Tag Archives: obscenity

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:

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“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.

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UK Obscenity Law Update: Good News for BDSM Fans, Pornhub and Government Censors

Yesterday, the Crown Prosecution Service announced that they would be loosening their obscenity guidelines to formally allow – for the first time – strong fetish material, so long as it features consenting adults. This news was greeted with joy by fetishists and campaigners. But it was also an inevitable step towards stronger censorship of the Internet by the UK government.

Four years ago, the sex worker activist Charlotte Rose organised perhaps the most entertaining protest ever seen in the UK: the face-sitting protest, outside Parliament. I was one of the speakers at the event, which was called in response to a sly act of government censorship. Without even calling a parliamentary vote, the government had extended DVD pornography rules so they were now applied to Internet video.

Among the acts now banned were “dangerous” acts (hence face-sitting, which could in theory suffocate someone – I kid you not), watersports, female ejaculation, and fetish material including most spanking, sado-masochism and bondage. At a stroke, thousands of porn sites (including all of the free “tube” sites) became technically illegal. You probably didn’t notice, as nothing actually happened. The tubes, and many other sites, continued to stream face-sitting, spanking and squirting material into the UK, and British consumers continued to watch it.

The law change was a failed attempt by the media regulator ATVOD to gain the power to close down overseas websites. Their cunning plan was to approach banks, point out that they were clearing payments for content that was illegal in the UK, and ask them to withdraw their services from the offending sites. The banks, however, didn’t see much of a problem. The material was legal in the US, and the new law, having been sneaked in by the back door, didn’t have much standing. The regulator had failed, and porn had won.

ATVOD was later scrapped, and Ofcom, the mighty media regulator (and censor) took over the online remit. This time, there would be no half-measures. In 2017, the Digital Economy Act was passed. For the first time, a British state censor would have the right to order websites to be blocked if they didn’t conform to UK regulations. The Act allowed porn sites to be blocked on two grounds:

  1. If they didn’t verify the ages of visitors, or
  2. If they contained extreme material.

Now, porn businesses based in America or elsewhere would surely have to pay attention. And they did. Mindgeek (the giant owner of Pornhub and other leading tube sites) began to play ball, and announced it would be conforming to the new UK law. This gave them two massive headaches:

  1. How to verify the ages of millions of UK visitors, and
  2. What to do about all the material that was US-legal but UK-illegal.

The first problem has occupied the industry for some time (and set champagne corks popping in the boardrooms of age verification companies). But not much attention has been paid to the second problem.

The problem now was that big porn companies have accepted (albeit reluctantly) that they will enforce age verification for UK customers (hint – you can use a VPN to mask your location). But why would Mindgeek and others bother to enforce the age verification rule if their content is illegal in the UK anyway?

If the new British censor – the BBFC – was unable to bring the porn industry on-board with its new regime, it would lose all credibility. Unless Mindgeek signed up, the new censorship law (due to go live this coming April) would fail. So, just for once, the interests of the porn industry and the British government coincided with those of the fetish community. In a nutshell, the change to the law transformed an unworkable system of censorship into a viable one.

So the timing of yesterday’s announcement is little surprise: unless UK obscenity laws were brought into line with American ones before April, the new censorship system would be a flop. It is of course wonderful (and long overdue) news that UK porn users will no longer be criminalised for enjoying a bit of face-sitting porn in the privacy of their own homes. But like much good news from the British authorities, it came with a catch.

Censorship Laws Used To Attack Homosexuals

In September 2011, a man accessed a legal gay porn site from a hotel room’s computer. A subsequent guest saw the site listed in the browser history and (for reasons best known to herself) complained to the hotel management. Six months later, the man was arrested and his computer seized. Police later charged him with making indecent images of children and possession of an image of a child being abused.

This week, the charges were dropped. The images were all found to come from legal web sites and were of young-looking men, but not of children. What is truly bizarre is that the police had not bothered to carry out the most basic checks on their evidence before presenting the case to the Crown Prosecution Service (CPS). Neither had the CPS questioned the poor state of the evidence before deciding to take the case to court. Meanwhile, a man had been publicly linked to child abuse – a slur that ruins lives, whether or not it has any substance.

The case collapsed because the man’s lawyer, Myles Jackman, carried out the basic evidence-checking that the authorities had failed to do, and found that the images came from a site that had retained model identification information under America’s USC 2257 law. Even when he presented this evidence to the CPS, they failed to drop charges for several more months. After two years of having his name dragged through the mud (during which time his father died, never seeing the outcome of the case), the man was exonerated.

Jackman believes there is strong evidence that the CPS uses its powers to persecute gay men. The same appears to apply to the police. Indeed, after homosexuality was legalised, the police continued to raid gay venues, using the Obscene Publications Act (OPA) rather than the previous laws that had allowed them to directly target homosexuals.

In the infamous Spanner case of 1987, police prosecuted gay men who had videoed their sadomasochistic parties. Although their acts all took place in private, and between consenting adults, they were convicted of causing wounding and actual bodily harm; the judge ruled that a person had no right to consent be assaulted (although this ruling doesn’t seem to apply in TV shows like Jackass, which are deemed suitable for UK TV broadcast).

In the 2012 Michael Peacock case, another gay man was prosecuted, this time under the OPA, for distributing “obscene” gay S&M videos. OPA prosecutions usually result in a guilty plea to avoid the publicity and cost of a trial, but Peacock chose to defend himself (Jackman was his solicitor), and was found not guilty by a jury, in a decision that left the very basis of UK obscenity law in tatters.

Also in 2012, Simon Walsh (who is, you might have guessed, a gay man) was charged under the ridiculous 2008 “extreme porn” law, for possession of images of sex between consenting gay men; again, he was found not guilty, but only at the cost of his career and at huge personal expense.

The state, it appears, has not yet accepted that homosexuality is legal. Furthermore, the existence of a series of badly written censorship laws has given the police and CPS the power to harass people at will, whether for homophobic or other reasons. Laws drafted to protect children from abuse,  and to “protect” the public from obscene material (whether or not the public needs or wants such protection) are used as tools of persecution.

The original British censorship law, the OPA, seems to serve no useful purpose. Denmark scrapped its obscenity laws in 1969, yet Danish society failed to collapse. But in recent decades, an endless stream of new censorship laws have been added to the statute books, most of them more illiberal than the OPA, which at least allows the accused to request a trial by jury.

Somehow, most democracies survive without the weight of state censorship power that the British authorities have at their disposal. Indeed, some of these laws would be unconstitutional in the United States. Perhaps it is time to join the dots: Spanner, Peacock, Walsh, as well as this week’s events, as well as many others. Censorship appears to gain us nothing as a society, but it erodes the rights of law-abiding citizens, and especially those of sexual minorities.