The following content is not acceptable from the 1st December 2014
Today marks the beginning of a new phase in a sustained campaign of internet censorship which has wide-reaching consequences beyond the mere production and consumption of pornography.
These new regulations impose even more draconian restrictions on the types of pornography that can be depicted on regulated Video on Demand services. Previously the Crown Prosecution Service’s Guidance on the OPA provided a list of sexual activities which were deemed illegal to publish.
However these new Regulations specifically state that only sexual content that is equivalent to the BBFC R18 Category can be sold via VoD service. This is a significantly lower threshold.
According to Nikki Whiplash, a regulated video on demand service provider who attended a recent ATVOD and BBFC led seminar on the impact of the new regulations, the following sexual activities will be deemed either acceptable or unacceptable at R18 classification level:
Watersports and Squirting
Peeing and squirting are acceptable if not performed onto another person and/or then consumed.
Squirting during sex or masturbation is acceptable if fairly brie, isolated and not deliberately consumed or put onto a body. It would be acceptable to imply that it was licked up if could be deemed as to be simulated.
Fisting is not acceptable. Penetration with all five digits beyond last knuckle is not acceptable; but all five digits of two or more hands would be acceptable as long as not past last knuckle.
Ofcom have sought medical guidance on fisting and don't believe it to be a dangerous act to perform. However, as the CPS’ Guidelines specifically cite fisting as obscene the BBFC can't pass fisting for classification. The BBFC acknowledge that they are well aware of the decision in R v Peacock but are obliged to have regard to CPS’ OPA Guidelines.
Since the BBFC haven't ever needed to consider amputee insertion, they reserve their position on the matter.
Enemas are acceptable if once they are squirted out they don't hit anyone else and does not contain feces. It is not acceptable to subsequently lick up what has been expelled; unless this is simulated (for example switched for another substance).
Catheterisation is acceptable, even if catheter connected to mouth; presuming that the tube is not transparent so that the liquid moving through cannot be seen.
Any form of consumption of (male) ejaculate is acceptable.
Vomiting may be acceptable if it is not performed as part of a sexual act; and is not visibly enjoyed by the participants.
Should the content features any nudity or other activity which might outrage the public decency, then the BBFC must be assured that the material in question was shot on private land with no public access or shot abroad. However, simulating the impression that it is in public is acceptable, fir example a vehicle with tinted windows. The key consideration that the material has not been created in the public eye.
Anything which might ‘encourage’ incest or sex with children under the age of eighteen is absolutely unacceptable.
However school uniforms are acceptable presuming that there are no references to the performer pretending to be under eighteen; and participants clearly 'of legal age' and participating in a consensual adult role play
Sexual activities performed at gunpoint are unacceptable if it is “believable”. This will depend on tone and believability. Basically if it looks like it could be a non-consensual activity then it is not acceptable.
Bondage and Restraint
Full bondage in conjunction with a gag is unacceptable, since there needs to be an obvious (to the viewer) means to signal to stop. Hence it is acceptable if not all four limbs are tied. Thus a means to indicate the withdrawal of consent must be visible to the viewer. For example full bondage and gagging would be acceptable if there is a safe signal which is defined as part of the scene.
Thus elements like artistic license, storyline and context become important. Hence a straightforward bondage scenario with no surrounding context is less likely to be acceptable than something with features a clearly signaled role play component.
BDSM Pain play
Acts which if copied by the uninitiated have the potential to cause injuries more than transient and trifling are extremely unlikely to be acceptable.
Only "moderate" pain play is acceptable. Thus reddening of the skin acceptable but no raised welts, blood and bruising are not.
Needles are more likely to be considered acceptable as they only cause transient and trifling injury similar to legal tattooing.
Facesitting as Breathing Restriction
Facesitting employed as a breathing restriction or any other form of smothering is unacceptable. However, facesitting without breathing restriction is acceptable. There is no flexibility on this. The airways must remain open. Apparently the rationale for this distinction is that men trying this at home might die.
Ballbusting may be acceptable, depending on the level. OFCOM recommend submitting clips in question for review. It will come down to definition of moderate pain and whether viewers at home are likely to sustain serious injury if they try it at home. Hence ball-yanking is not acceptable; whereas controlled ball stretching is acceptable.
This will depend on the surface upon which the person is being trampled on.
The insertion of urethral sounds is acceptable presuming that they are not inserted so far in as to enter the bladder; and that appropriate sterile and safety considerations are taken such as the use of lubricant and gloves.
Insertion of objects like buttplugs
The insertion of other objects is acceptable presuming that it is clear that they couldn't get. Hence the use of buttplugs is acceptable. Hence a clip of a mobile phone vanishing up an anus would not be acceptable, despite being a spoof, on the basis that people might try it at home.
The use of power tools is unacceptable, since most people have one lying around at home. However purpose designed “fucking-machines” are acceptable. The test in question is the 'association with violence'.
Head-scissoring is acceptable, presuming that it is gentle. However, if it is seen to be pushing on the carotid restricting blood flow then it is not acceptable. Hence, choking sounds or reddening of face as a result are not acceptable. As soon as any pressure is exerted it would be considered a choke hold and therefore not acceptable.
Wrestling is acceptable only if knockout moves are not deployed. Facesitting and seemingly non gentle scissoring are not acceptable.
Gagging on cock and deep throat are acceptable if not for the whole scene. However, language of the 'gag on my cock' variety is unacceptable due to the reference to choking.
These guidelines should be interpreted subject to these definitions:
"Fairly brief" = less than a minute
"Isolated" = not more than a couple of occurrences in a scene.
COMMENTARY – THE CONSEQUENCES OF THIS CENSORSHIP
Pornography is the canary in the coalmine of free speech: it is the first freedom to die. If this assault on liberty is allowed to go unchallenged, other freedoms will fall as a consequence.
This declaration of State censorship will affect millions of consenting adults who choose to view British pornography; impose an unnecessary trade barrier, which has already caused independent UK producers to shut down; result in a significant loss of revenue to The Treasury; is practically unworkable as it can be circumvented by proxy servers; and has implications for all forms of freedom of expression on the internet.
Of particular concern in terms of loss of freedom is the underlying intent to allow undesirable foreign websites to be blocked under UK ISP’s filtering systems. This has immeasurable implications on freedom of information and net neutrality.
Today, Backlash have launched a campaign to challenge this régime of State censorship disguised as regulation.
In the meantime, what follows is an explanation of the regulations and assessment of their impact.
What are the Regulations that came into force today?
The regulations which come into force today, the (AVMS Regs 2014), only apply to Video on Demand (Vod) services which are regulated by the Authority for Television on Demand (ATVOD), and restricts the types of sexual content that UK VoD providers can provide for their consumers to BBFC R18 classification level.
So what is a Video on Demand Service?
Video on Demand services offer consumers the opportunity to choose specific video content and then view it at a time which is convenient to them, rather than being slaved to pre-ordained broadcast schedules. Hence this would include catch-up services like Channel 4’s online ‘4oD’ service.
Who are ATVOD?
The Authority for Television on Demand is a quango, specifically designated as the "co-regulator" of UK VoD by Ofcom. Otherwise know as The Office of Communications, Ofcom is also a quango, with regulatory authority over the UK’s broadcasting, telecoms and postal industries.
The Regulations: ‘TV-like’ Services
ATVOD’s regulatory authority is conveyed by the European AVMS Regulations, which pertain to ‘TV-like’ services. Hence, to be regulated, the video content must resemble broadcast television by dint of being similar to it, hence the phrase: ‘TV-like’.
Thus in most European jurisdictions the vast majority of adult video websites are not deemed to be TV-like. Whereas ATVOD have applied their interpretation of what constitutes a TV-like service in the UK far more restrictively. This has allowed ATVOD to bring within its regulatory ambit any website it deems to be TV-like.
It is eminently arguable that this restrictive interpretation has created a trade barrier for UK VoD services when attempting to compete with their European trade-partners.
Challenges to ATVOD’s Interpretation of TV-Like
This restrictive interpretation of the definition of ‘TV-like’ VoD Services has been deployed in an attempt to catch a broad range of video services, both adult and otherwise. For example the and The were initially identified under ATVOD’s aggressive regulatory regime as being TV-like; although they successfully appealed to Ofcom that their services in question were not TV-like
On the adult side, a client of mine successfully appealed ATVOD’s determination that her esoteric Female Domination art site The was not TV-like.
How do the Regulations Impinge on Pornographic Content?
These new regulations impose even more severe restrictions on the types of pornographic material that can be depicted on regulated VoD services.
Prior to today the Crown Prosecution Service’s Guidance on the Obscene Publications Act provided a list of sexual activities which were deemed illegal to publish.
Yet the new Regulations specifically state that only sexual content that is equivalent to that categorised as R18 by the BBFC can be sold via VoD services. This is a significantly lower threshold.
Before we go on to explore the disparity between the OPA and the BBFC R18 guidelines, it is essential to understand why this has been imposed.
The original EU AVMS directive stated that content that “might seriously impair minors” should be restricted in order to protect those under 18. However, when of 20 European States, they held that:
Therefore, enshrining the already established R18 standard in law provides a convenient means to avoid the inconvenient evidence and the difficulty of establishing whether and what types of sexual content “might seriously impair minors”.
Nonetheless, despite the absence of conclusive evidence, the regulations have been introduced under the aegis of “child protection”, whilst having an adverse impact on consenting adults’ sexual choices.
With that in mind, we can explore the different standards between the CPS’ OPA Guidelines and the BBFC’s R18 Classification Guidelines.
CPS’ Guidelines on The Obscene Publications Act
According to the Crown Prosecution Service’s Guidelines on The Obscene Publications Act:
“It is impossible to define all types of activity which may be suitable for prosecution. The following is not an exhaustive list but indicates the categories of material most commonly prosecuted:
sexual act with an animal
realistic portrayals of rape
sadomasochistic material which goes beyond trifling and transient infliction of injury
torture with instruments
bondage (especially where gags are used with no apparent means of withdrawing consent)
dismemberment or graphic mutilation
activities involving perversion or degradation (such as drinking urine, urination or vomiting on to the body, or excretion or use of excreta)
This should be read and contrasted with the BBFC’s R18 guidelines.
The BBFC’s R18 Guidelines
According to the BBFC’s own Guidelines on their R18 Category:
“The following content is not acceptable:
material which is in breach of the criminal law, including material judged to be obscene under the current interpretation of the Obscene Publications Act 1959
material (including dialogue) likely to encourage an interest in sexually abusive activity which may include adults role-playing as non-adults
the portrayal of sexual activity which involves real or apparent lack of consent. Any form of physical restraint which prevents participants from indicating a withdrawal of consent
the infliction of pain or acts which may cause lasting physical harm, whether real or (in a sexual context) simulated. Some allowance may be made for moderate, non-abusive, consensual activity penetration by any object associated with violence or likely to cause physical harm
sexual threats, humiliation or abuse which do not form part of a clearly consenting role-playing game.
Strong physical or verbal abuse, even if consensual, is unlikely to be acceptable
These Guidelines will be applied to the same standard regardless of sexual orientation of the activity portrayed.”
THE CPS’ OPA GUIDELINES AND THE BBFC R18 GUIDELINES – CONTRASTED
It is now possible to discuss the legal and logical inconsistences of the CPS’ Guidelines on the OPA, before contrasting them with the much lower level of sexual material permitted by the BBFC’s R18 Guidelines:
1) Sexual act with an animal.
Since animals cannot consent at law, this prohibition is consistent and logical.
2) Realistic portrayals of rape.
This phrase is extremely problematic. “Realistic portrayals of rape” suggests simulation, role-play and acting. In itself, this raises questions regarding evidence of harm to performers and viewers of such material.
Regarding evidence of harm, the 2005 Home Office Consultation on the possession of extreme pornographic material stated:
“As to evidence of harm, conducting research in this area is complex. We do not yet have sufficient evidence from which to draw any definite conclusions as to the likely long term impact of this kind of material on individuals generally”.
Likewise, the Ministry of Justice’s criminal policy unit also stated in clear, unequivocal and unambiguous terms:
"We have no evidence to show that the creation of staged rape images involves any harm to the participants or causes harm to society at large”.
Hence, how can a simulated “portrayal” of rape become “realistic” enough to attract criminal liability for publication.
3) Sadomasochistic material, which goes beyond trifling and transient infliction of injury.
This phrase explicitly references the case of R v Brown (colloquially referred to as “Spanner”), which stated that individuals cannot consent to injuries “beyond trifling and transient” in a sexual context.
The CPS now defines this level of injury as: “significant medical intervention and/or permanent effects”.
Whilst the House of Lords’ decision in Brown has been consistently criticised for being Paternalistic, homophobic and arcane; it is still currently binding law. Therefore the inclusion of this clause is, regrettably, consistent with the criminal law.
4) Torture with instruments.
Since obscenity law is usually constructed in the context of controlling human sexuality, this clause is unlikely to prohibit the publication of CIA waterboarding or ISIS beheadings. Thus, it is unclear what might amount to “torture” in a sexual context and what might be classified as an “instrument”.
5) Bondage (especially where gags are used with no apparent means of withdrawing consent).
This clause is particularly poorly phrased; however it seems to suggest that it must be clear to the viewer that the performer in bondage is visibly capable of withdrawing consent.
6) Dismemberment or graphic mutilation;
Whilst the act of committing “dismemberment” would be illegal (as per Brown, above), it is unclear what constitutes “graphic mutilation”? What about images of female genital mutilation? That is a clearly abusive and non-consensual practice.
However, it is likely to catch consensual sexual activities like “blood play” (cutting the top layer of skin for the purpose of sexual gratification), irrespective of whether it is performed in a risk awareness fashion. Hence this seems an unnecessary repetition of the “sadomasochistic material” and “torture with instruments” provisions above.
7) Activities involving perversion or degradation (such as drinking urine, urination or vomiting on to the body, or excretion or use of excreta).
Confusingly, these activities are legal to perform in real-life with consent. Yet they are classified as obscene with the highly subjective and pejorative language of “perversion” and “degradation”, ignoring the performers’ right to consent to being “degraded”.
Similarly fisting (both vaginal and anal) is legal to perform in real-life with consent. Yet the representation of that activity becomes illegal and classified along with bestiality? Hence, despite the jury finding Micheal Peacock not guilty in his #ObscenityTrial for the publication of both watersports and fisting material, the CPS have expressly refused to update their guidelines since then.