Posted at 22:30 on 30 Aug 2016 by Pandora / Blake
The government have published their reply to the consultation responses we submitted earlier this year on their proposed policy to enforce age verification for UK viewers of online porn. These proposals are not evidence-based, are classist to the core, and have worrying implications for privacy and freedom of speech. Along with many of you, I submitted a response to the consultation in April, which you can read in full here (it's split into six parts - turns out I had a lot to say). My response was also submitted to the Liberal Democrat policy committee, as well as to the Department of Culture, Media and Sport in the civil service.
Since then I've attended meetings with representatives from DCMS, the UK Adult Producer trade association, and the Adult Provider Network to discuss the age verification proposals. In these meetings the civil servants I spoke to worked hard to come across as reasonable, open-minded, and interested in listening to our concerns and improving the proposals. But now they've published their official response to the consultation, it's clear that this was a performance purely for our benefit. The Digital Economy Bill reproduces the original policy proposal pretty much unchanged; which in turn is drawn straight from a Conservative party manifesto pledge. It seems that the consultation was a mere box-ticking exercise, paying lip-service to the of listening to experts, industry and the public, but without any intention to actually take the responses into account. Despite seeming open to criticism when we met in person, the official response makes it clear that they don't care what we think, and intend to go ahead with the proposals as if the consultation had never taken place.
Far sooner than anyone expected, the Digital Economy Bill - the law that will implement the proposed age verification policy, among others - was presented to Parliament for its first reading. The second reading will be announced after the summer recess. Turning a bill into an Act of Parliament takes a little while, and the bill will be debated in the Commons and the Lords before it's passed, but one way or another it's likely to become law in spring of next year.
The impact of this legislation will be manifold, but here are the highlights. Once this is law, the following things will happen:
- Anyone in the UK will need to prove that they are over 18 in order to look at online porn.
- All UK site owners who make money from publishing online porn will need to install age verification software to check the ages of their site visitors.
- All site owners worldwide who make money from publishing online porn will need to install age verification software to check the ages of UK site visitors.
- It will be illegal for a UK website, or for any international website accessible to UK visitors, to publish any media (stills, video with or without audio, or audio) which would be classifiable as 18 or R18 without putting it behind an age check.
- The UK government will enforce this law through the creation of a new online porn regulator (is this raising any red flags yet?) who will be empowered to impose fines, and demand that hosting providers and payment processors withdraw services from non-compliant sites.
- Any pornographic content deemed "too extreme" to be classifiable as 18 or R18 (that is, content that doesn't comply with the BBFC R18 guidelines) will not be legal to publish online, even behind age checks.
The impact of this is astonishing: it will extend UK civil regulatory powers on a global scale, enabling the new regulator to impose UK law on international individuals and companies if their websites are accessible to UK viewers. This is an unprecedented power grab from the UK government; over the last couple of decades our legislators have often shown an interest in controlling and restricting internet freedom, but this is the first time they have sought to extend that control to websites hosted and operated overseas.
The bill is remarkably vague about the practicalities of these new powers. Most of the details are left to the discretion of the new age verification regulator; a role that has not yet been filled. The Bill grants the Secretary of State power to "designate any person, or any two or more persons jointly, as the age-verification regulator". Both Ofcom and the BBFC have thrown their hats into the ring, but it's absolutely possible that a new public body or - heaven forbid - another private company à la ATVOD will emerge to take this on. We can only cross our fingers and hope that we don't end up with another Pete Johnson, a private CEO on a vengeful mission to rid the internet of the porn which most offends him: in Johnson's case, femdom (about which he knew surprising amounts, particularly where to find it, and which niche fetish activities it tended to contain). The idea that a single individual might wield these new global powers is cause for grave concern.
Reading the Bill, I pulled out the following details as worthy of note:
- Which websites are covered: 15 (2) The Bill applies to all websites making pornographic material available on the internet "on a commercial basis". This includes sites that provide content which is free to the viewer, but which make money via advertising or affiliate sales, such as tube sites, portals and free hosted gallery sites. It also includes sex bloggers if they make money from advertising, and if they post explicit images, video or audio; but it doesn't include sites or blogs posting homemade, amateur content if the site operators don't receive any income from the site.
- What content is covered: 16 (1) The scope of the material required to be hidden behind an age check is heavily dependent on the BBFC classification guidelines. Age verification must be in place before the viewer can access "any material classifiable as R18, or classifiable as 18 if it is produced solely or principally for purposes of sexual arousal". This extends the regulations already implemented by the AVMS 2014, the statutory implement enforced by ATVOD, which ruled that R18 content must be behind a credit card paywall and not normally accessible by viewers under the age of 18 (therefore debit cards are not considered legitimate means of access).
- After the AVMS Regulations came into effect in December 2014, UK adult sites invested large amounts of time and money in re-organising their tour pages so that all R18 content was restricted, and only 18 classifiable content was visible to the public. With this new law, they will be forced to redo all that work and spend yet more money trimming their public pages still further so that even content classifiable as 18 - that is, any shots of full frontal nudity or any images of sex acts - must be hidden from public view. Not only is this a galling waste of industry's money and a big loss to UK business, it means that it will be almost impossible for UK porn sites to effectively advertise their products to prospective customers. It is completely unreasonable to expect an industry to expend this level of time and money every two years complying with changing regulations that may not even survive the next general election. A practical amount of legislative consistency is not too much to ask.
- How the regulator will be funded: The estimated expense of all this regulation and enforcement is considerable. It is not specified whether funding will be provided by the state: 17 (6) states that "The Secretary of State may pay grants or make loans to the age-verification regulator to cover expenditure", but the regulator is also empowered to levy financial penalties against non-compliant site owners. 21 (2) states that fines "must not exceed whichever of the following is greater:
- (a) £250 000;
- (b) 5% of that person's qualifying turnover (if any)."
- It's unclear to me whether 'turnover' applies in the traditional accounting sense of total income and expenditure - at which point 5% could be an unmanageable amount for a business with low profit margin, which includes most independent porn sites.
- Ancillary service providers: If a site (whether UK or overseas) refuses to comply with this law, the regulator will contact ancillary service providers to seek their co-operation in withdrawing essential services from the non-compliant website. Ancillary service providers are defined in 22 (6) as (a) any services "which enable or facilitate the making available of pornographic material"; or (b) advertisers. In other words, the regulator will not only be empowered to seek the co-operation of credit card companies like Visa and Mastercard, billing agents like CCBill and Verotel, and hosting companies to urge them to cut off the website in question, but they can also reach out to advertisers and affiliates so as to cut off the website's sources of income.
Quite aside from the staggering implications of a single country seeking this sort of global coercive control of commercial internet activity and worldwide freedom of expression, this bill is bad news for me personally. After a protracted legal battle, I won my appeal against ATVOD; Ofcom ruled that I am not an "on demand service provider" and therefore beyond the scope of the AVMS regulations 2014. However, that win did not exclude me from the UK classification system entirely. Like the AVMS regulations, this bill extends the scope of the BBFC classification system to include online content as well as TV and DVDs; one assumes that any law relating to online porn from now on will do likewise.
So although I've won an exemption to the specific statutory instrument that is the AVMS regulations, I am not exempt from the BBFC classification guidelines in general - which, as the success of my appeal partly indicates, are deeply flawed, and not representative of current social standards of obscenity. The majority of the content on my recently re-opened site Dreams of Spanking would constitute prohibited content under the BBFC guidelines, as material depicting injury to the body beyond that deemed "transient or trifling", or depictions of activities which could result in actual bodily harm if imitated by the viewer, would currently be refused R18 classification in the UK.
When the Digital Economy Act becomes law in spring 2017, there will be a six to twelve month enforcement window. Even if I jump through all of the hoops required to install a compliant age verification system on my site, and tuck everything even remotely explicit behind age checks, I will still be recriminalised, because the content behind those age checks would still be "prohibited", less than a year after successfully appealing the law which criminalised me last time.
The fetish porn industry in the UK has already been decimated by the AVMS regulations and the aggressive enforcement of ATVOD. Most site owners have moved overseas or shut down entirely; others are treading on eggshells, censoring themselves and contributing to the chilling effect that is severely inhibiting the hotness of UK porn.
The BBFC R18 category prohibits activities which are legal to do, such as watersports, squirting and fisting; it is four years out of date with UK case law on the Obscene Publications Act; and is in many other ways out of touch with current cultural standards of acceptability. As long as the R18 ceiling is so low, consensual adult fetish content like that on Dreams of Spanking will be recriminalised every time the UK government introduces new porn regulations, regardless of how socially responsible and ethical the studio in question may be.
This is a ridiculous situation, and highlights the way in which UK obscenity law is out-dated, inconsistent and not fit for purpose. We need to review our classification system, and bring clarity to the tangled system of dependencies between the case law on the Obscene Publications Act, the guidelines produced (but no longer actively maintained) by the Crown Prosecution Service, and the BBFC classification guidelines. It's time for a comprehensive review of UK obscenity law, and for the decriminalisation of consensual adult sex - and consensually-produced depictions of it.