Conversations with the Censor - the Amendment to the Communications Act

As you might have heard, new regulations limiting the sale of pornography went into effect at the start of this month. These laws apply the restrictions imposed on material granted an R18 certificate (the label that only sanctions sale in licensed adult shops) to online website-based sales, preventing UK-based producers from vending them. I think that this is a sufficiently bad thing to be worth writing about.

I've explained my objections to the recent anti-porn laws before,but it is likely worth repeating them here. As a Christian, it is impossible for me not to have some moral reservations about the practices of the porn industry – if only because the sex life it typically requires differs so strongly from the Christian model. This doesn't in itself mean that I would support a legal ban on pornography – confiscating free will from adults with regard to their own bodies isn't always a good thing. In fact I'd regard a blanket ban on porn as stupid and destructive in exactly the same ways that the 1930s American ban on alcohol was stupid and destructive. Even so, such a move would carry some moral arguments in its favour that I could respect.

The recent legal changes against pornography have not, however, been intended to create a blanket ban. Nor have they been intended to suppress 'hardcore' porn whilst allowing 'softer' productions to flourish. Instead, the law has criminalised porn that features certain specified sex acts, leaving porn that features different ones unaffected.

There is a truly vast amount of pornography in the world and most people don't view it entirely at random. Different porn caters for all kinds of different sexual interests, meaning that the specific porn a person chooses to seek out is a reflection of their own sexuality. Banning porn of specific acts therefore marks the target audience as undesirables, who are prevented from exploring themselves in the same way as everyone else in the alleged interest of the public good.

Although this is certainly understandable in the case of paedophilia, the vast majority of the restrictions imposed by the legislation regarding 'Extreme Pornography' and by the R18 guidelines impact squarely upon the BDSM community. Since this minority is already widely misunderstood and mistrusted, such attitudes from the top are harmful by default. The implications of selectively erasing the evidence of a particular sexual identity from the pornographic record are also fairly ugly. Even worse, the Extreme Pornography legislation has spent a great deal of time actually harming the harmless with prosecutions since it was enacted, whilst doing little to nothing in terms of protecting the public.

I was therefore rather concerned when I read last summer that Mr Cameron intended to bring in new restrictions for online porn based on the R18 rules. If the new law created new crimes for viewers, it could lead to a rise in these kind of prosecutions. I took a look at the BBFC's website to see what the new restrictions would entail. The list currently available runs as follows:

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 (see Annexe)

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

You can probably see how a lot of this relates very much to fetish material, which is problematic in itself. Although the list provided some kind of guidelines, I also felt that they were too vague if consumers were to be expected to apply them. I therefore emailed the BBFC enquiring about clarifications. Some were provided in response to my specific questions:

“use of ball gags and hoods is allowed, and may be allowed if hands are also restrained, however, full restraint and use of a gag, which prevents an individual from indicating a withdrawal of consent, is not acceptable. Careful penetration with a whip used in consensual BDSM play, for example, may be allowed, although there may also be circumstances in which it would be a problem.”

“The BBFC does not allow breath restriction or acts which restrict oxygen in sex works. We will also cut sight of penetration with objects likely to cause physical harm or associated with violence, such as knives and guns, and objects which are breakable or which have a higher likelihood of being lost internally and requiring medical intervention. So far as physical harm or the infliction of pain goes, there is, as you've noted, an allowance for moderate, non-abusive, consensual activity. However, and also in line with the Crown Prosecution Service guidance on the Obscene Publications Act, we will not allow the infliction of injury which goes beyond trifling and transient. You will understand that it would be impossible to provide an exhaustive list covering what is and is not allowed, given the wide range of possible practices. Certain acts we would also need to consider on their own merits in the context of a submitted work, taking into account such considerations as any evident care being taken.”


This is all very well, but ultimately much of it comes down to the judgement of the censor in regard to a specific work. But surely the BBFC can't study and rate every video with a .uk address on the internet? The examiner I communicated with was understandably reluctant to speculate on the mechanics of future legislation, but when pressed on the existence of any more detailed guidelines his response was clear:


“In terms of examiners' consideration of submitted works, we do have internal guidance which is based on research, medical and psychological advice, precedent, and our years of experience. But this is internal working guidance and is not publicly available. We do offer distributors and producers detailed guidance on what is and isn't likely to be allowed where specific questions are asked of us. But it is more difficult to respond in general terms because of the wide range of variables which can be relevant to the classification decision.”


So if you are making porn for DVD release in the UK, you are required to abide by a censorship guide that you are not allowed to actually read in full. This is an actual true fact. And now it applies if you run a website too.

1950s icon Bettie Page is spanked whilst gagged and in full bondage in a film by Irving Klaw. Although selling hardcore footage of orgies is entirely legal in the UK, the legal ability of a British Klaw working today to sell this film would be questionable.





Of course, the new legislation didn't in fact create new offences for consumers as I had feared it would. You can still watch porn that was legal last month, it simply can't be supplied to you online by UK-based pornographers. Since there are plenty of other countries in the world, the only actual effect of this new Amendment will be to damage the UK's porn industry in the truly international marketplace of the internet.
A notable number of people would probably celebrate news of a decline in domestic porn production, but it sure is an odd way to legislate when your grand plan is to stimulate private sector growth whilst shrinking welfare. In fact, the Tories recently emailed me to inform me that “the Conservatives are backing small businesses every way we can” - a statement that probably wouldn't go down well with the individuals and tiny companies under threat following the Amendment..At the very least they will be required to register their existence with AVOD and receive advice about how to run their show – for which they will be charged at least £137. This is because AVOD actually IS going to try and survey all British-created online porn – and charge the creators for doing it. Good thing the Tories are going for “lower taxes, better infrastructure, less red tape”.


The law only makes any kind of sense as a social policy – an assertion that the current R18 rating system is so fit for purpose that it should be applied more consistently instead of subjected to any kind of reform. So what does the system actually do?


Much of the press has been circulating a list of erotic acts that have been banned outright in UK porn. The list typically runs as follows (this example taken from the Independent):

Spanking
Caning
Aggresive Whipping
Penetration by any object 'associated with violence'
Physical or Verbal Abuse (regardless of if consensual)
Urolagnia (known as 'water sports')
Role-playing as Non-adults
Physical Restraint
Humiliation
Female Ejaculation
Strangulation
Facesitting
Fisting

The last three are described as 'life-threatening', due to the theoretical risk of smothering in facesitting and the danger of internal lacerations if fisting is performed under tragically ill-judged circumstances (such as wearing a large uneven ring in one known case). 

Facesitting can be lethal if you base your technique on Soul Calibur IV.

 
These kind of outright restrictions seem at odds with the contextual approach the BBFC has previously described and I can tell you that they are definitely over-simplistic. The best summary of the actual legal position that I've seen can be found here: These restrictions are not necessarily any less random or arbitrary, but they are at least more nuanced.


In fact, both the BBFC and AVOD have condemned the reporting on the issue as inaccurate. A similarly clear and comprehensive summation of their own has not been forthcoming from either of them. In response to further enquiries from myself, the BBFC replied:

“The amendment gives effect to the Governments commitment to align online regulation more closely with offline regulation. It created two types of content on UK-regulated VOD services: First, specially restricted content, which is content the BBFC has rated or would rate R18 and must be placed behind access controls on UK-regulated VOD services ; and secondly , prohibited content which is content the BBFC has refused or would refuse to classify. This content is banned from UK-regulated VOD services.
Media reports of a BBFC list of banned sexual activity for content on VOD services are misleading. There is no such list. Nor could there be given the importance of context in BBFC classification decisions.”

Of course, a body of proven 'prohibited content' does exist – and one assumes that the Independent in some fashion drew its own list from this evidence. The alleged restriction that has provoked the most outrage is the limitation on female ejaculation. It is not immediately obvious why this would be subject to such measures, given that male ejaculation is unrestricted. So is this a case of false reporting?


I dug up an old response by the BBFC to a question by Feminists Against Censorship which explains that:
“The Board does not in fact take any view on whether or not female ejaculation exists... At the most basic level, however, the Board is content that the pornographic tapes presented to us as examples of 'female ejaculation' are in fact nothing other than straightforward scenes of urination masquerading as 'female ejaculation'...
To conclude, the Board remains open minded about the issue of female ejaculation but we have yet to be presented with any pornographic video that has convinced us – or our medical advisor – that it consists of anything other than an excuse to display scenes of urolagnia. Such scenes are regularly found obscene by juries in the UK and therefore cannot be classified.”

My own communications with the BBFC confirm that this position remains in force:

“With regards to specific media speculation about banning female ejaculation, the BBFC is required to seek to avoid classifying material that is likely to be prosecuted under the Obscene Publications Act. According to the CPS's guidelines, sex works featuring urolagnia are likely to be prosecuted. Therefore, unless it's very clear that what is being shown is indeed 'female ejaculation', as opposed to urolagnia, the Board's position has to be that scenes of this nature featuring liquid that might be urine have to be cut.”

They further linked me to their FAQs section, which includes the following:

“Consequently, we may not classify any material which may be subject to prosecution. Among other activities, this includes any repeated focus on urination during sex and urination over any other person, including any act which cannot be distinguished from urination on the basis of the onscreen evidence alone.”

This level of confusion is not surprising. The existence of female ejaculation – and whether any liquid expelled is actually urine – honestly is subject to a great deal of uncertainty within the scientific community. Given the thorough scientific understanding and pornographic acceptance of male emissions, it's unsurprising that some see female ejaculation as a bona fide feminist issue. I'm... unsure how the ban on depictions of sexual urination in any fashion (or of any kind of breathing restriction) is compatible with the statement that there is not and could not be any list of banned acts.


If female ejaculation is a problematic subject due to the relationship with urolagnia, the obvious follow-up question is 'why is peeing a concern of the CPS?” As you can see, the answer lies in the current status of obscenity laws. One of the foremost duties of the BBFC and AVOD is to ensure that illegal material is not certified for distribution. Aside from the Extreme Pornography legislation, the key piece of law is the Obscene Publications Act 1959.
The act in question prohibits the publication of material which is deemed 'obscene' on the grounds that it “is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.” Material can be exempted from these measures if it is published in the interest of “science, literature, art or learning, or of other objects of general concern”. In fact, a dominatrix recently fought off AVOD by successfully claiming that her website The Urban Chick Supremacy Cell was a piece of feminist art. On the other hand, there is little sign that much evidence is needed to convict beyond the personal estimation of the jurors – making cases into a survey of popular mores with a remarkably small sample size.


Obviously attitudes have changed since the early days of the Act, when a jury was asked whether Lady Chatterley's Lover was the kind of book "you would wish your wife or servants to read." The CPS guidelines on obscenity have consequently evolved with them. Although many both inside and outside of the Church might argue that all hardcore pornography threatens to corrupt and deprave its users, porn has become far too normalised for prosecutions to be attempted on this basis alone. The only porn likely to be acted against is that which features acts so unusual that the average person might experience a negative visceral reaction upon seeing them for the first time. In other words, the Act now exclusively suppresses minority interests that Joe Average finds icky.
Awareness and acceptance of sexual minorities has increased significantly in recent decades, but acceptance of the BDSM community is lagging behind many others. Some claim that this must ever be so, because celebrating acts similar to those used to violate the unwilling when they are performed in a mutually appreciative environment is incompatible with civilised society. Obviously, applying the exact same argument to regular sex would lead to the conclusion that the crime of rape makes celebrating consensual sex unacceptable – which would immediately be dismissed as nonsense. This double standard persists due to the alarmingly common notion that hardcore BDSM enthusiasts are malicious predators, who use things like negotiation and consent as reluctant compromises and cynical shields. Although such exceptions do attempt to move among them, defining the whole group in that way is wildly unfair. Many of the restrictions on the porn that people are allowed to be 'influenced by' are most consistent with this hostile mode of thought – and that matters.
Even so, the willingness of juries to convict on obscenity charges is pretty low even in BDSM cases. In 2012, the case of R v Peacock returned a not guilty verdict regarding videos featuring various BDSM activities including fisting and urolagnia. Following the trial, several legal experts stated that the Obscene Publications Act no longer made any sense. Two years later, CPS guidelines still cite both fisting and urolagnia as obscene (forcing censors to classify them as prohibited) and the only legal change has been to apply the unaltered Act to more material.


The BBFC is perfectly willing to admit that it will censor beyond the strict requirements of the law to avoid negative social influences. In a public statement they explain that:


“Underpinning the BBFC guidelines is a specific requirement for the Video Recordings Act to have special regard to any harm that may be caused to potential viewers, or, through their behaviour, to society. This means that, before classifying a work, the BBFC may cut certain acts in pornographic works where imitation or the influencing of attitudes is a particular concern. Breath restriction is one such example. It would be wrong to assume that the BBFC consequently cuts all sight of people sitting across other people’s faces. But the BBFC will cut sight of clear and deliberate restriction of a person’s ability to breathe during sexual play. Breath restriction for the purposes of sexual enjoyment can result in death. Given such a clear and well-documented risk of harm, passing such breath play in a sex work would be contrary to the BBFC’s designated responsibility.”


Concern about foolish and dangerously performed imitation of riskier play is a valid thing – people really do hurt themselves and others that way. But attempting to erase all examples (including all the properly performed ones) in the hope that the idea will go away seems profoundly naïve. Of course, such footage would probably be illegal anyway so the choice of argument is surprising.




Practically speaking this new law will have very little actual impact – being limited entirely to damaging a small part of a domestic industry via new regulations that other, less international parts are already dealing with. Ideologically, however, expanding the enforcement of these laws without amending them is a slap in the face for all the activists who have been campaigning for years to raise awareness of the problematic features of both old and new legislation. It is also of necessity a positive endorsement of internet censorship.
Some writers have described porn freedoms as the 'canary in the coal-mine' of civil liberties – the first to die when conditions become toxic. When discussing a government that has made scrapping the Human Rights Act into a re-election pledge, this kind of doom-saying isn't entirely unreasonable. Apparently AVOD is already proposing that banks be obliged to decline payments to foreign pay-sites that don't meet its standards. This is a logical progression of the current measures, but one that has far wider implications for public freedom.




Backlash has launched a challenge of the new law, as can be seen here. For whatever it's worth, a direct.gov petition is also collecting signatures.
Other protests against the Amendment have been less... conventional. To the very best of my knowledge, no one died.