UK internet VoD Censorship

The Digital Economy Bill (DEBill) will require that porn sites verify the age of their users in order to prevent under 18s from viewing pornography. Despite concerns that this will leave porn users vulnerable to hacks and security risks, the Government has failed to amend the Bill so that privacy is written into the legislation. Instead, Codes of Practice will place the responsibility for protecting people's privacy with porn sites not the companies supplying age verification technology.

Executive Director Jim Killock said:

Age verification is an accident waiting to happen. Despite repeated warnings, parliament has failed to listen to concerns about the privacy and security of people who want to watch legal adult content.

As we saw with the Ashley Madison leaks, the hacking of private information about people's sex lives, has huge repercussions for those involved. The UK government has failed to take responsibility for its proposals and placed the responsibility for people's privacy into the hands of porn companies.

Censorship regime

The Bill will also enable the creation of a censorship regime as the BBFC will be given powers to force ISPs to block legitimate websites without any judicial process. These powers were added to the Bill, when it became apparent that foreign porn sites could not be compelled to apply age verification. During parliamentary scrutiny, they were extended to include other content, not just pornography, raising further concerns about the threat to free speech.

Killock added:

These new powers will put in place a vast system of censorship which could be applied to tens of thousands of adult websites. The BBFC will be under pressure to censor more and more legal content. This is a serious assault on free speech in the UK.

Almost 25,000 ORG supporters signed a petition calling for the Government to reject plans for blocking legal pornography.

Comment: Royal Assent

2nd May 2017 See article from pandorablake.com Thanks to Alan

The Digital Economy Bill has received the royal assent. Interesting comments and links on Pandora Blake's blog. Apparently a thrilling thirteen parliamentary jobsworths could be arsed to turn up for the final debate in the House of Comics. I would think it's now in the interest of porn producers, as well as their British customers, to drop any restrictions on access via VPNs and to help UK punters get round any attempted firewall.

Pandora seems to know more about the matter than the 650 political twats together!

See latest news from pandorablake.com

See also a good write up of how the bill will effect porn sites and their readers from pandorablake.com

ATVOD has announced actions against two adult services breached new Tory censorship laws banning material on UK video on demand services which would be banned on DVD under the police censorship rules implemented by the BBFC.

Two providers of on-line porn have fallen vicyim of new regulations banning on a UK video on demand ( VOD ) service material which would be banned on DVD. The service providers also failed to keep strong fetish videos and hardcore porn images behind unviable and onerous age verification requirements.

Banned pornographic material made available on the UK based services included videos of whipping likely to cause more than trifling harm, and the infliction of pain on a person who 'appears' unable to withdraw consent, even if filmed under totally consensual and safe conditions. Also repeated strong kicks to the genitals which appear to draw blood. Such material has been prohibited on UK based VOD services since 1 December 2014 under new censorship rules introduced by the Tory government.

The findings by the Authority for Television On Demand ( ATVOD ) are the first it has made under the new prohibited material rule introduced by Government in December and comes as ATVOD issues new guidance on the statutory rules it enforces following a three month consultation.

The two online video on demand victims are Glasgow Mistress Megara Furie and Mistress R'eal were held to be in breach of statutory requirements incorporated into ATVOD's censorship rulebook as Rule 11 (age verification) and the new Rule 14 (following BBFC R18 rules for VoD).

The UK based services allowed under 18s access to explicit hardcore and strong fetish porn videos which could be viewed on-demand. Yet the content of the videos was equivalent to, and in some cases went beyond, that which could be sold only to adults in licensed sex shops if supplied on DVD.

Both services allowed any visitor free, unrestricted access to hardcore pornographic video promos or still images featuring strong fetish material and real sex in explicit detail. Access to the full videos was open to any visitor who paid a fee. As the services accepted the most common payment methods, such as debit cards, which can be theoretically used by under 18's. However nobody seems to have actually documented any cases of any under 18s actually paying for porn with a debit card.

The operator of Glasgow Mistress Megara Furie closed the service within three days of the breaches being brought to their attention.

Enforcement action regarding the Mistress R'eal service is ongoing. If it fails to become fully compliant in accordance with a timetable set by ATVOD, the service provider will be referred to Ofcom for consideration of a sanction, a procedure which can lead to operators being fined or having their right to provide a service suspended, as happened in relation to the service Jessica Pressley.

ATVOD has also published determinations that three further UK based adult websites - Lads Next Door, Panties Pulled Down and Montys POV , failed to keep hardcore porn videos and images beyond the reach of children.

Following enforcement action by ATVOD, the operator of the Lads Next Door service acted to bring the website into compliance with the relevant Rule. The operators of Panties Pulled Down and Montys POV failed to become fully compliant in accordance with a timetable set by ATVOD. The service providers have therefore been referred to Ofcom for consideration of a sanction.

The latest rulings come as ATVOD publishes new guidance on the rules it enforces. Publication of the new guidance follows a three month consultation which began when the new censorship rules came into force.

Comment: ATVOD, the self appointed Pornfinder General

9th May 2015. See  article from  independent.co.uk

Critics of the new rules have long argued online viewers of niche pornography are still able to access content banned in the UK by watching videos filmed abroad, and new rules amounts to arbitrary censorship , while Myles Jackman, a British obscenity lawyer said that the case showed regulators were making up their interpretation of obscenity laws as they go along .

A spokesperson for Backlash UK, which is campaigning to defend freedom of sexual expression, added:

Atvod have erected themselves - pun intended - as the UK's Pornfinder General.... The sole purpose of this new puritanism is mass control and surveillance, under the pretence of protection.

Megara Furie, who describes herself as a professional dominatrix, said that she had taken her site down immediately after she was informed by the censor. She now uses a more robust third-party operator to host her videos. She said:

The banned material, as far as I am aware was one ball kick, which resulted in the equivalent of a shaving cut and lots of blood because it was a testicle. I was happy to take that down. It was an eye-opener and I'll now be more selective about my content. I wasn't aware I was breaching the rules.

Comment: Mistress R'eal appeals against ATVOD censorship

9th May 2015.  See  article from  xbiz.com

Mistress R'eal, the dominatrix whose scenes on Clips4Sale.com were the subject of a recent ATVOD probe and determination, has appealed the U.K. video-on-demand regulator's decision that she breached Rule 14.

With her appeal, Mistress R'eal also is challenging the legitimacy of the AVMS 2014 law. Currently, she faces a £10,000 fine and a ban on streaming online.

The videos that breached Rule 14 are:

• A Bullwhipping in the Woods, parts 1 and 2,
• Double Domme CBT and Pegs.

The scenes are explicit in the films, but they are like most BDSM content shown on a countless number of websites. For example, in Double Domme CBT and Pegs, a man is retrained against a cross and has weights attached to his bound scrotum, several pegs attached to his body, and a violet wand played over his genitals,. While his arms appear to be free initially, it's implied (and seems to be the case) that his wrists are restrained quite early in the clip. He is also gagged (and appears to be unable to speak with any real clarity) and has his legs bound. Hence his means of clearly indicating a withdrawal of consent is not apparent.

Mistress R'eal yesterday appealed against ATVOD's ruling that her site is in breach of regulations on the basis that the AVMS 2014 is not valid. Her appeal, according to SexAndCensorship.org , says the following:

I submit that the Audiovisual Media Services Regulations 2014, which introduced sections 368E(2) and (3) into the Communications Act 2003, were made ultra vires the Secretary of State's power to pass secondary legislation under section 2(2) of the European Communities Act 1972. Section 2(2) gives the Secretary of State the power to pass secondary legislation for the purpose of implementing any EU obligation or for the purpose of dealing with matters arising out of or related to EU obligations. I note that the Audiovisual Media Services Directive (2010/13/EU) imposes an obligation on Member States to prohibit hate speech on ODPS (Art. 6); by contrast, it does not contain any obligation to ban content that may be harmful to minors from ODPS, only an obligation to ensure that access to such content is appropriately restricted (Article 12). In the premises, I fail to see how the 2014 Regulations (and, by extension, section 368E(2) & (3) of the 2003 Act), could be said to implement an obligation in the AVMS Directive or to deal with matters arising out of related to that Directive. The 2014 Regulations plainly go well beyond the scope of the directive -- and, in doing so, subvert the appropriate democratic process for dealing with an important human rights (free speech) issue. In light of the foregoing, I submit that the 2014 Regulations and sections 368E(2)-(3), CA2003 are void -- as so, by extension, is ATVOD's Rule 14, which is based solely on the aforementioned sections of the Communications Act 2003.

The European Audio Visual Media Services Directive provides a justification for censorship that was implemented in UK law in the Communications Act 2003:

If an on-demand programme service contains material which might seriously impair the physical, mental or moral development of persons under the age of eighteen, the material must be made available in a manner which secures that such persons will not normally see or hear it.

Unfortunately for the censorial government, there is no particular evidence that hardcore porn seriously impairs children. In fact all the kids are already watching porn and they don't seem to be ending up being seriously harmed, at least any more than any other generation.

So the legal underpinning for ATVOD's onerous suffocating age verification rules for British adult websites seems somewhat shaky and open to challenge. Therefore the government are changing the law so as to explicitly make age verification a requirement without having to rely on mythical serious harm. The government has introduced the following statutory instrument which means that it will not be debated in parliament, just nodded through.

The Audiovisual Media Services Regulations 2014

These Regulations may be cited as the Audiovisual Media Services Regulations 2014.

• Laid before Parliament on 6th November 2014

• Coming into force on 1st December 2014.

Amendment of section 368E of the 2003 Act (harmful material) .

In section 368E(4) of the 2003 Act (harmful material), for subsection (2) substitute:

(2) An on-demand programme service must not contain any prohibited material.

(3) Prohibited material means:

• (a) a video work which the video works authority has determined for the purposes of the 1984 Act not to be suitable for a classification certificate to be issued in respect of it, or
• (b) material whose nature is such that it is reasonable to expect that, if the material were contained in a video work submitted to the video works authority for a classification certificate, the video works authority would determine for those purposes that the video work was not suitable for a classification certificate to be issued in respect of it.

(4) An on-demand programme service must not contain any specially restricted material unless the material is made available in a manner which secures that persons under the age of 18 will not normally see or hear it.

(5) Specially restricted material means:

• (a) a video work in respect of which the video works authority has issued a R18classification certificate,
• (b) material whose nature is such that it is reasonable to expect that, if the material were contained in a video work submitted to the video works authority for a classification certificate, the video works authority would issue a R18classification certificate, or
• (c) other material that might seriously impair the physical, mental or moral development of persons under the age of 18.

(6) In determining whether any material falls within subsection (3)(b) or (5)(b), regard must be had to any guidelines issued by the video works authority as to its policy in relation to the issue of classification certificates.

(7) In this section:

• the 1984 Act means the Video Recordings Act 1984;
• classification certificate has the same meaning as in the 1984 Act (see section 7 of that Act);
• R18 classification certificate means a classification certificate containing the statement mentioned in section 7(2)(c) of the 1984 Act that no video recording containing the video work is to be supplied other than in a licensed sex shop;
• the video works authority [BBFC] means the person or persons designated under section 4(1)of the 1984 Act as the authority responsible for making arrangements in respect of video works other than video games; video work has the same meaning as in the 1984 Act (see section 1(2) of that Act).

Amendment of section 368B of the 2003 Act (supply of information)

Insert:

(d) OFCOM may supply information to the video works authority, within the meaning of section 368E, for use by the video works authority in connection with functions of OFCOM as the appropriate regulatory authority;

(e) a designated body may supply information to the video works authority, within the meaning of section 368E, for use by the video works authority in connection with functions of the designated body as the appropriate regulatory authority.

[This looks like a measure to stop the BBFC effectively changing the law by changing its own guidelines. It looks like Ofcom and ATVOD will be able to step in should the BBFC change its rules].

BBFC R18 Guidelines

For reference the current BBFC Guidelines for R18 takes the form of a list of material prohibited from R18:

The following is a list of prohibited material:

• 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

CPS Obscenity Guidelines

Of course the guidelines don't fully define what is 'judged to be obscene under the current interpretation of the Obscene Publications Act 1959', but the CPS does offer some guidance. See charging practice from cps.gov.uk :

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

The Guidelines are still insufficient for VoD providers to judge the legality of their catalogue

The most immediate issue with the new law is how commonplace 'rough sex' will be treated. There are many films that suffer a few cuts for hair pulling, gagging, retching, spitting etc. Will a film that would be R18 after a few cuts now become illegal? If so, there are thousands of them. It is not clear how these cuts correlate to the guidelines. The guidelines are clearly produced for interpretation by the BBFC rather than the public and will effectively leave VoD service providers unable to judge the legality of films without a BBFC certificate. Perhaps that is the idea. But then again it will leave British websites with a tiny fraction of the range of choice to that of foreign competitors.

Comment: Scrapping red tape

18th November 2014. From the Melon Farmers

Coincidently I got a circular emall from David Cameron yesterday claiming:

"we will carry on backing businesses by scrapping red tape, cutting taxes - and continuing to invest in the infrastructure that is vital to create jobs and enable Britain to compete successfully in the global race".

Well if Cameron considers this new law as `backing businesses` and `scrapping red tape` then Britain is doooomed.

Porn websites will be forced to check users are over 18 under a new crackdown to stop children accessing explicit material.

Mobile phone companies and credit card firms will have to ensure that someone proves they are aged 18 or over before being given access to adult websites.

Now it has emerged that plans are being drawn up to force adult websites to carry out checks on the age of users. It would cover pornography sites, as well as those selling guns and other age-restricted material, the Sunday Times reported.

The Department for Culture, Media and Sport is working on the plans with Treasury minister Andrea Leadsom, who oversees regulation of the banking system.

However, the new rules would only cover UK-based websites to begin with.  It is already nearly impossible to run a British adult website due to onerous age verification rules and critics have noted that only one of the 1,266 adult websites visited from the UK in December 2013 was a service that is regulated in this country.

It seems very unlikely that these new rules will have any impact on the availability of porn to children. Even if new downloads were stopped tomorrow there's probably already enough knocking around and hard drives and memory sticks to last several lifetimes of playground swopsies. The only effect it will have is to add to the mountain of red tape, administrative costs and restrictive regulations that is impoverishing the west.

 

Offsite Comment: Why age checks on porn sites will do more harm than good

28th October 2014. See  article from  telegraph.co.uk by Martin Daubney

The Government's plan to introduce age verification checks only shows that politicians remain too scared to approach the porn problem in a meaningful manner.

...Read the full article

Update: Will the payment providers provide age verification?

31st October 2014. See  article from  business.avn.com

That tidbit of information, along with other reports indicating that PayPal and Visa will be taking part in the new scheme in addition to other approved methods of verification, suggests that one way the government ostensibly means to gain control of the internet is by pressuring processors to age-verify while simultaneously holding out the (dubious) promise of increased and officially sanctioned business.