On Monday, a new law governing the type of pornography that can be produced in the UK came into force. From hereon in, online, video-on-demand content made or sold in the UK must conform to the same guidelines binding DVDs sold in sex shops, with content more 'extreme' than the British Board of Film Censor (BBFC)'s R18 classification will permit prohibited.
Such services already had to adhere to the Crown Prosecution Service’s guidance on the Obscene Publications Act, which lists a number of activities it is illegal to broadcast. However, the BBFC’s R18 classification is far more restrictive and outlaws the portrayal of a far greater number of sexual acts. There's a very educational list of what's prohibited on obscenity lawyer Myles Jackman's blog should you wish to be exactly sure, but it includes anything other than ‘gentle’ spanking, whipping and caning, activities that can be classified as ‘life endangering’, such as strangulation, the portrayal of non-consensual sex and female ejaculation. The R18 rating also dictates what objects can be inserted into a consensual adult’s body and how, whilst outlawing instances of verbal and physical abuse, even if consensual.
The UK now has some of the most draconian laws on the production of porn in Europe. Mary Whitehouse might smile approvingly from beyond the grave, but for today's warm-blooded Brits this is a real kick in the nuts.
First of all, it’s bad for the UK porn business and its customers. In the grand scheme of things the impact on the fetish porn purveyor may not be huge, because UK citizens can still access content produced from around the world online. A number of UK performers and businesses will be affected, though, and forced to close shop or start lengthy proceedings to attempt to exempt themselves from the purview of the regulations.
These regulations apply to all video-on-demand services, which are regulated by the quango ATVOD (Authority for Television on Demand). ATVOD's authority stems from EU regulations surrounding 'TV-like' services. However, ATVOD takes a very liberal interpretation of what these 'TV-like’ services are, with both the BBC and the Sun newspaper appealing to Ofcom to have themselves removed from such classification. This large regulatory scope means that adult, video-on-demand websites in the UK are considered 'Tv-like’ and regulated as such, whereas in most other European jurisdictions the majority of sites are not.
However, these changes aren’t just bad for the UK’s comparative advantage in pornography - they’re a chilling act of censorship. The EU Directive empowering ATVOD states that content which ‘might seriously impair minors’ should be restricted to protect those under-18. However, completely prohibiting the production and sale of pornography beyond R18 classification is not ‘protecting children’ so much as seeking to prevent all adult’s access to it.
The law change was pushed by DCMS, who argued that the laws surrounding DVDs and online video were inconsistent. Maybe so, but to expand the remit of a censorship board which decides what is acceptable pornography and what is unclassifiably taboo is regressive and a significant restriction on freedom of expression. As Jerry Barnett, founder of the Sex and Censorship campaign claims, the R18 rating is "a set of weird and arbitrary censorship rules", for which "there appear[s] to be no rational explanation…they are simply a set of moral judgements designed by people who have struggled endlessly to stop the British people from watching pornography".
As has been noted, many of the acts prohibited for distribution under the new laws are those which offer an alternative to the mainstream porn offerings, are often performed and enjoyed by women, and considered empowering by those who engage in them. None of the acts are illegal to perform or enjoy, and some are simply bodily functions. We should be expanding the scope of the R18 classification to encompass all legal adult behaviour engaged in for pleasure, not busy censoring. To suggest that adults should be shielded by law from legal, but apparently 'unacceptable' acts of enjoyment is to return to the mentality towards homosexuality in 1967, when it was considered a 'shameful disability' and tolerated only 'behind locked doors and windows and with no other person present on the premises'.
Given that the new law only applies to UK porn producers and will not significantly reduce the amount or type of porn available in the UK, this seems a particularly ill-thought out piece of moralism. However, one possible concern is that this will be followed by calls for foreign adult sites to register with ATVOD and be censored, or for ISPs to block the sites. And, as Myles Jackman warns, "pornography is the canary in the coal mine 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". Now that really is obscene.