Age verification: Piracy, monopoly and industry standards

Posted at 09:59 on 29 Jun 2016 by Pandora Blake

Tags: age verification, AV consultation, civil liberties, decriminalisation, digital rights, piracy, politics, porn, sex workers rights, tube sites, Zahra Stardust

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

6. Piracy, monopoly and industry standards

The age verification proposal observes that free tube sites are the primary route by which under 18s access porn, and yet the proposed regulatory framework fails to adequately differentiate between tube sites - which make money from advertising, and often distribute commercial content without the consent of the producers - and commercial porn sites, where the viewer can purchase content direct from the makers. This distinction is worth emphasising. It is not reasonable to impose identical regulatory controls when the two types of site function in very different ways, and have very different effects on the browsing experience of under 18s.

Adult content redistributed on tube sites (often by a third party rather than the original creator) is usually given new headlines and scene descriptions, utilising very different language. Videos are often re-edited to be more concise, with contextualising dialogue and scene-setting removed. A scene which was originally published as an extended exploration of foreplay, intimacy and sensual affection, described with respectful, humanising language that emphasises the consent and mutual respect of the participants, might be pirated and uploaded to a tube site, cut down to a jerky sequence of out-of-context sexual acts, with the activities and participants described using sexist and offensive language. Moreover, videos on tube sites are redistributed outside the content in which they were originally published, without giving the viewer access to any behind the scenes videos, performer interviews and commentary that were available on the original site.

The impact of viewing porn on tube sites is therefore very different to that of viewing porn on its site of origin. It would likewise be possible to re-edit, truncate and decontextualise excerpts from most films or TV so as to make the contents seem more mindless, violent or unpalatable; but this doesn’t have any bearing on the cultural value (or potential harm) of the original film. If the problems with “online porn” are those of disrespectful language, unrealistic editing, and sexual activity presented in a decontextualised or dehumanised way, then these are problems with piracy, not with pornography itself. Any legal model should therefore distinguish - not just in its application, but in its conceptualisation - between the production of original content, redistribution without consent (piracy), and redistribution with consent (such as affiliate marketing).

Pornographic media should not be judged on the basis of truncated, decontextualised, pirated versions; and content creators should not bear the burden of repressive regulation if their work is misappropriated in this way.

It is a peculiar reality of the modern internet that any individual is unable to anticipate what another individual will see when they view a tube site, as their landing pages use complex algorithms to create highly curated personalized pages based on the user's search history. Shira Tarrant, a professor of women’s, gender, and sexuality studies at Cal State Long Beach, recently explained this as follows:

“It's a lot like Amazon, where you look for a couple of books and they say, “You might also be interested in this.” Then you're being spoon-fed a limited range of pornography based on the keywords you use, based on your geographic location, based on their algorithms and the information that they're processing about time of day. They're doing a lot of data collection. Online-porn users don't necessarily realize that their porn-use patterns are largely molded by a corporation.”

Not only tube sites but also each person’s Google search results are personalised in a way that the UK Council for Child Internet Safety seem completely ignorant of. The landing pages and search results will display different content depending on the viewer’s age, previous browsing history, and other personal information the algorithms have collected. Online content is not static, but responsive to who is looking. It is false to assume that under 18s will see the same internet as adults do.

It is worth noting that even on tube sites, the “degrading” nature of pornography is often overstated. A recent study analysed 400 popular heterosexual pornographic videos available on free tube sites, and found that:

“Objectification was depicted more often for women through instrumentality, but men were more frequently objectified through dehumanization. Regarding power, men and women did not differ in social or professional status, but men were more often shown as dominant and women as submissive during sexual activities. Except for spanking and gagging, violence occurred rather infrequently. Nonconsensual sex was also relatively rare.”

Once we factor in the algorithmic patterns that affect the popularity of particular videos (above others that, perhaps, would be considered less degrading), and the many ways in which the 400 most viewed heterosexual videos on a tube site are not representative of the online porn industry as a whole, we begin to realise that broad claims as to the “objectifying” nature of porn that are based on browsing free sites are merely unsubstantiated personal opinion, and in no way an empirical description of the range of material available.

The proposal argues that “It goes against [our] accepted values that children are able to see free-to-access ‘tube’ sites online, displaying very explicit, High Definition videos that are auto-played on landing pages.” (p4) This description of the problem quite clearly refers only to tube sites, not to independently operated commercial pay sites. And yet, the proposals will affect the whole industry. A lot of the original pornography produced in the UK is created and distributed by small “cottage industry” studios run by individuals or couples. Profit margins are generally low, and many content producers consider their activities a “labour of love”, a hobby based on the owner’s personal interests which attempts to cover its costs, but does not manage much more than that.

Age verification controls will deter many viewers, as many will not want to risk their privacy or credit card details, and reduce traffic to the point where these small businesses will become untenable. Age controls based on credit cards have already shown very low take up, with loss of sales to those producers who install them at a website’s point of entry. Most site visitors are not willing to risk their financial data without knowing what they’re getting - just as most customers on the high street would be unwilling to hand over their credit card details at the shop door, before they’ve even browsed the shelves. The resulting loss of traffic has already destroyed the profit margin of many independent adult businesses in the UK; enforcing these regulations worldwide would destroy many more.

In the proposal it is stated that “The focus of this proposed approach is on commercial pornography providers - we expect those profiting from the growth of online pornography to see the protection of children as a core responsibility of doing business.” (p5) However this is at odds with the earlier observation that tube sites are the primary route by which young people access pornography. Most commercial content producers already have access controls, paywalls, and other hoops for viewers to jump through to verify that they are of age to view porn. If the problem is the free sites, then the focus of the proposed regulatory framework should be free sites, not pay sites.

Many content producers who operate adult paysites could not withstand the loss of business resulting from implementing point-of-entry age verification; whereas the tube sites, which have millions of visitors and high profit margins, could survive. It is nonsensical to impose a legal model that will penalise small businesses more than the tube sites, when the latter have been identified as the primary route by which young people access pornography.

The proposals frequently reference offline age controls on physical goods, for instance; “Offline, there are clear expectations that children will be protected from seeing pornographic material - sexually explicit magazines are put on the top shelf, and pornographic videos can only be sold to over-18s.” (p4) However, adults are not required to enter their credit card details in order to enter a newsagent or supermarket where 18 or R18 material is on sale, which would be the real world equivalent of the sort of age verification controls being proposed. Identifying financial details should only be handed over at the point of sale, not before the customer is allowed to enter the marketplace.

Assuming that online and offline browsing experiences are or should be equivalent indicates a fundamental misunderstanding of the nature of the internet. Digital images and video are not discrete objects which can be locked away; they have no physical existence, and can be endlessly duplicated without loss of value. Throughout the evolution of the internet institutions have attempted to limit and control the free spread of data; these attempts have always failed.

By aiming to control what internet users can see online, these proposals fundamentally misunderstand the nature of the digital age. See the remarks of Foreign Secretary William Hague at the London Conference on Cyberspace on 2 November 2011:

"Governments cannot determine the future of the internet and digital networks alone. In fact, when governments do discuss this subject we are at risk of adopting wrong or dangerous conclusions, or of being out of touch and out of date the minute we sit down. It is vital that we understand our limitations in this area. The founder of Wikipedia described how that organisation bases its moderation of online content on the principle of ‘assuming good faith’. This is an inspiring model that Governments could not have devised and which could not be enforced by them either. The involvement of industry, civil society and internet experts is absolutely essential and any attempt to move forward without their participation will fail.

The second message for governments is do not treat cyberspace as if it belongs to you. We will only be capable of tackling the issues we have discussed at this conference about the future of the internet by using the ideas and ingenuity of people outside government."

Of particular note is his comment that "while working together to defeat threats in cyberspace you should not imagine for an instant that you can resist the growing force of the tide now flowing for transparency, open information and the free exchange of ideas. Those governments that try to do so are bound to fail."

Locking away the digital contents of a commercial pornographic site behind age verification systems will not prevent age-verified viewers from copying those files, re-uploading them, sharing them, reblogging them, and torrenting them. In this new economics of abundance, where tube sites are king and piracy is unstoppable, making content available free of charge is the only way content producers can compete. Piracy has been threatening the paywall business model for over a decade; in 2016, progressive business models for adult content producers involve publishing free content, paid for either by advertising, or by soliciting tips, crowdfunding and donations from regular customers. As Australian academic Zahra Zsuzsanna Stardust writes in The Conversation, "Porn’s move towards free content in return for patronage or advertising is similar to the trend in other creative industries. Porn has moved from subscription sites to video-on-demand, and now towards crowdfunding."

Forcing adult content producers to comply with age verification regulations will not stop the spread of copies (in fact, digital vigilantes will probably apply themselves to the task of “freeing” the controlled data with renewed vigour); the only effect will be to undermine legitimate businesses and destroy the slim profit margins of content producers, without affecting the total quantity of explicit content that is freely available. If age verification is to be mandated, different levels of compliance should be required of tube sites and of adult content producers, and any regulatory framework should make an exception for small businesses with few employees.

In March this year Australian academic and porn expert Zahra Stardust investigated these issues in her Submission 287 to the Senate Committees on Environment and Communications, Inquiry into harm being done to Australian children through acccess to pornography on the Internet, (p16). She writes,

The concerns about the availability of online porn are actually related to a lack of regulation for big business, film piracy, and distribution of free content, alongside extremely tight regulation for independent producers who wish to sell their work. Independent producers face barriers that they say make the sale of porn virtually unviable. These include refusals from banks in processing adult payments, administrative and financial costs in securing billing from Australia, and higher fees due to the assumed risk of adult websites. Platforms such as Vimeo, Paypal and Amazon have all refused adult content. Combined with criminal laws in Australia that prohibit advertising of X18+ material, it is increasingly difficult and expensive to actually sell pornography.

As Ms Stardust notes, piracy and monopoly are not issues that are unique to pornography; similar challenges are faced by the music and television industries, and yet increased regulation of content producers is not being proposed there. Deregulating pornography would challenge the monopoly of the tube sites, increase diversity and create a more egalitarian porn industry by removing the financial and legal obstacles around billing and distribution that currently prevent independent producers from competing in the marketplace.

The porn industry is already self-regulating and enforces community standards. Many pornographers and porn performers are working hard to promote better industry standards, ethical business practices and to reduce piracy and exploitation. See for example: The Center for Sexual Pleasure and Health's guide to sex-positive and feminist-friendly porn, Pink Label's Ethical Porn For Newbies Studio Guide, The Guardian's feature on how Stoya took on James Deen and the porn industry, the BBC's feature on porn stars demanding Google's help to combat piracy, the Pay For Your Porn campaign, this comprehensive online directory of female porn directors, and the Feminist Porn Guide. Rather than increase the criminalisation of this community, thereby stifling creativity and free expression, government should engage with and support the adult industry’s current efforts.

Zahra Stardust concludes that "The decriminalisation of pornography in Australia would assist in reducing stigma, allowing performers to speak in dialogue with young people to deconstruct the production process." The same is equally true in the UK. Any restriction of access to porn must go hand in hand with a progressive sex education and porn literacy programme, helping young people develop the critical skills to deconstruct pornography at whatever age they encounter it.

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