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
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.
Amputee Insertion
Since the BBFC
haven't ever needed to consider amputee insertion, they reserve their position
on the matter.
Enemas
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).
Catheters
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.
Eating ejaculate
Any form of
consumption of (male) ejaculate is acceptable.
Vomiting
Vomiting may be
acceptable if it is not performed as part of a sexual act; and is not visibly
enjoyed by the participants.
‘Public’ Sex
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.
‘Age Play’
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
Weapons
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.
Needle-Play
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
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.
Trampling
This will depend
on the surface upon which the person is being trampled on.
Urethral Sounds
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.
Power Tools
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
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
Wrestling is
acceptable only if knockout moves are not deployed. Facesitting and seemingly
non gentle scissoring are not acceptable.
Gagging
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.
Definitions
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 Audiovisual Media Services Regulations 2014 (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 BBC and The Sun newspaper 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 Urban Chick Supremacy Cell
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.
Why
Impose R18 Classification on VoD?
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 Ofcom considered the research of
20 European States, they held that:
“No country found evidence that sexually explicit
material harms minors”.
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)
fisting”.
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”.
8) Fisting.
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.
