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Age verification: Problems with classification

Posted at 20:01 on 20 May 2016 by Pandora / Blake

Tags: age verification, AV consultation, AVMS, BBFC guidelines, British Fetish Film Festival, CPS, ethical porn, feminist porn, fetish porn, freedom of expression, freedom of speech, media, Myles Jackman, obscenity, politics, porn

Response to the Government consultation on Child Safety Online: Age Verification for Pornography

1: Evidence of Harm

2: Sex education

3: Privacy, surveillance and freedom of speech

4. Credit cards, classism and social exclusion

5. Problems with the existing classification system

The proposals assume a straightforward definition of “pornography” which is not workable in practice. During the second reading of the Online Safety Bill in the House of Lords Baroness Brinton argued that:

“A simplistic definition of pornography will cause immense problems in our courts. How do you define arousal and to what level of arousal - partial, full? Is that arousal the view of the average person on the Clapham omnibus, or should the definition cover the various fetishes that people may have? The famous film director Quentin Tarantino is a foot fetishist. There are a number of people who have assessed his use of bare feet in all his films. Clearly they arouse people with the said fetish.”

If a website calls itself “porn” or “erotica” but none of its contents depict nudity, staged violence or sexual acts - a foot fetish website is a perfect example - should it be categorised as a “sex work” for classification purposes? What harm could a young person possibly come to, looking at artistically lit videos of bare feet?

It is impossible to restrict access to porn when it is impossible to define it. Human fetishism encompasses a myriad of objects, themes and body parts that are not commonly associated with sex - in fact for a fetishist, this disconnect is often part of the appeal. Human eroticism is so varied and subjective that any act can be sexually charged for the right person. In theory any image or video found online might be porn for someone, regardless of the spirit in which it was published; and likewise much of the material published for purposes of sexual arousal will leave many people completely cold. Any attempt to categorise some works as definitively sexual and others as non-sexual is therefore fundamentally misguided.

As Baroness Brinton went on to explain, the relationship between art and pornography is not straightforward:

“This limited definition of pornography would exclude much of the world's classic works of art. Thirty years ago I was working with Jonathan Miller on the BBC production of "Troilus and Cressida", which we had set in the Hundred Years War. We used some of the delightful pictures of Cranach the Elder, showing nudes of young women with the barest film of gossamer material across their bodies. Groundbreaking in Cranach's day, this nudity still arouses passion in many who view them, as have thousands of artists over the subsequent seven centuries. Are these images pornographic?”

The lines between art, entertainment and pornography are complex, shifting and subjective. Many web sites that are "intended to arouse" are artistic, political, and have cultural value; others do not include any nudity or graphic sexual acts. Imposing strict controls on online media judged "pornographic", but not on mass media entertainment that is just as explicit, is a stigmatising and unjustifiable double standard.

Despite this, the current classification guidelines presume to clearly distinguish between a “sex work” and other forms of media entertainment. For instance, the BBFC guideline which refuses R18 classification to depictions of a person wearing a gag in their mouth with all four limbs bound only applies to “sex works”, and does not apply to mainstream media entertainment such as Hollywood films. A scene of this nature can, for instance, perfectly legally be viewed in the 18-rated cult classic Pulp Fiction. Similar inconsistencies can be found for many of the restricted acts which the BBFC highlight as being too ‘extreme’ for R18 classification, but which are nonetheless available to view in high budget films that have not been identified as “sex works”.

There is often no functional difference between media which would be legally categorised as a "sex work" and that which is considered mainstream entertainment except that the latter has a higher budget. It is inconsistent to the point of hypocrisy to ban depictions of certain acts, real or simulated, from online pornography - much of which is hosted on niche independent sites, and only accessed by a small number of viewers with a pre-existing interest in the topic depicted - and not from mass media entertainment, which is viewed in cinemas, available in high street stores, and viewed by large numbers of people.

The BBFC guidelines restricting what content can and can’t be classified for as R18 are out-dated, and do not reflect current social standards of obscenity in the UK. Many of the restricted acts, such as fisting, urolagnia and full bondage with gags, are common consensual practices, easily made completely safe with prior negotiation and common sense safety procedures. Others, such as ejaculation by vulva-owners, are in reality impossible to control - it is simply the way that some bodies respond to orgasm - and attempting to ban their depiction can be seen as a regressive and sexist crusade to control the bodies, autonomy and sexual enjoyment of porn performers.

BDSM activities such as those banned from R18 classification are becoming increasingly normalised and accepted as valid aspects of healthy sexuality. Globally, BDSM is a huge part of the adult pornography market, as indicated by the success of fetish sites such as Clips4Sale, and the inclusion of a large amount of fetish material (including much that would be classified as illegal and “extreme” in the UK) at public erotica screenings such as the Feminist Porn Awards in Toronto and the Porn Film Festival Berlin. Events like these seek to publicise ethical pornography by directors of all genders, including queer and trans people, people of colour, people with disabilities, and others commonly marginalised by the mainstream adult industry. Film festivals screening similar works take place across the world, including in many European countries, the US and Australia. The UK stands out in banning the depiction of acts such as fisting, vulva ejaculation, watersports and consensual BDSM which are recognised and celebrated by international film festivals, and by the global feminist, queer and ethical porn movements.

Current UK law controlling online pornography is based on the BBFC guidelines, provided by the British Board of Film Classification to regulate DVDs published in the UK, and extended to control online distribution in 2014. That means that any act which is deemed too "extreme" for classification cannot legally be shown online in the UK; and if the proposed framework is introduced, it won't be legal to view them in the UK either, even if the content originates overseas.

The proposal document claims that “Material that would previously have been considered extreme has become part of mainstream online pornography.” (p4) This is disingenuous. Social standards have always changed and evolved around sex; and this evolution was worked into UK law in the wording of the Obscene Publications Act, which defines works as obscene only if they would “deprave or corrupt” the average member of the public. This allows for a changing standard of obscenity as social standards shift over time. In 1955 when the OPA became law, homosexual sex was illegal, as was any depiction of intercourse on film. The mere fact that social standards are changing is not evidence of harm. Sometimes, social standards need to change to reflect growing attitudes of tolerance and acceptance.

When I investigated this in 2015 I found that no UK agency was willing to take responsibility for the content of the R18 guidelines. ATVOD and Ofcom both passed the buck to the BBFC, claiming “We didn't come up with the guidelines, we just enforce them.” The BBFC in turn referred to the CPS Guidance on the Obscene Publications Act. But the Crown Prosecution Service have not kept this Guidance up to date. (A representative at the ATVOD Roundtable on age verification in 2015 informed me that the group responsible for doing this had had their funding cut.) There have been recent cases under the OPA - for instance R v Peacock (2012), in which the defendant was tried under the OPA for publication of DVDs showing male fisting, urination and hardcore BDSM, and was found Not Guilty by the jury. And yet fisting, urination and hardcore BDSM are still banned under the R18 guidelines. It is unreasonable to expect UK fetish producers to comply with guidelines that are demonstrably out of touch with both current social standards, and with UK obscenity law.

What was considered "obscene" decades ago is now considered harmless and uninteresting. Few modern UK juries would deem most of the acts on the R18 list “likely to deprave or corrupt” - as demonstrated by R vs Peacock, and another 2012 trial, that of Simon Walsh under the "extreme porn" legislation. The BBFC Guidelines are out of touch, and the verdicts of these juries proves it. Since the BBFC guidelines ultimately derive from the Obscene Publications Act, in the spirit of that Act they should reflect current standards of social acceptability, and if UK businesses and creative works are going to be regulated according to these guidelines, they must be be reviewed and brought up to date.

BDSM practitioners and porn performers such as myself are the experts in our own lives, and consensual fetish activities of the type banned by the BBFC guidelines are in reality undertaken carefully and considerately, with strong community standards for safe behaviour and best practice. The films screened at the 2016 British Fetish Film Festival, for instance, provide good examples of safe, conscientious BDSM practice with which legislators would be advised to familiarise themselves. Since the BBFC guidelines are allegedly concerned with the safety and consent of participants, they should be developed in consultation with specialists, who know better than non-practitioners how different BDSM activities can be undertaken safely and responsibly, preserving the full ability of all participants to withdraw consent at any time. I and other members of the UK fetish community would be happy to help Ofcom, the CPS and the BBFC develop realistic, sensible guidelines for classifying our content.

The proposed age verification framework expects UK pornographers to willingly comply with legislation that repeatedly misunderstands and misrepresents the nature of our work, while maintaining a stigmatising double standard between it and mainstream film. It is unreasonable for the Government to expect UK business owners to voluntarily comply with implementing additional access controls while safe, consensual fetish pornography is still criminalised in this unnecessary and hypocritical way.

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