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Regulating U.K. Web Erotica

Regulating U.K. Web Erotica

July 23, 2008
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" Waddon, in his defense, argued that because he was using an American ISP and his digital content was being stored on servers in the U.S., it fell outside the jurisdiction of British prosecutors. "

Editor's note: this article originally appeared in the May, 2008 issue of XBIZ World magazine

In the U.K., there has been much discussion over how adult entertainment should be regulated on the Internet. Parliament has been considering some controversial legislation that would make it a felony to download what some British politicians have been loosely describing as "extreme pornography," and the British Board of Film Classification (BBFC) — which has been critical of the proposed "extreme porn" law — is launching a voluntary program that will extend its rating system to online entertainment, including erotica. No one can say for sure exactly where the regulation of adult online content will go in the U.K. in the future, and like so many things pertaining to the Internet, the rules are still being worked out.

In England, Wales, Scotland and Northern Ireland, the laws governing the sale of adult DVDs have been much clearer than the laws governing the sale of erotica online. The BBFC typically gives hardcore adult DVDs its R18 rating, and under U.K. law, R18-rated DVDs can only be sold in specially licensed brick-and-mortar sex shops; selling R18-rated DVDs on the Internet via mail order is illegal within the U.K.

The licenses for sex shops can only be offered by local councils, and if local councils don't want to sell sex shop licenses, there will be no licensed sex shops in a particular area. Thus, legally sold adult DVDs are much easier to find in some parts of the U.K. than others; for example, licensed sex shops are plentiful in the center of Manchester, England, but Northern Ireland didn't haven't any licensed sex shops at all until one opened on the outskirts of Belfast in 2007.

Of course, U.K. residents don't need to have a licensed sex shop in their area to enjoy erotica; people all over England, Wales, Scotland and Northern Ireland have been downloading an abundance of erotica on the Internet — some of it generated within the U.K., some of it from webmasters in Continental Europe, North America, Asia and elsewhere.

Should the BBFC decide that an adult video is so unacceptable that it doesn't even merit an R18 rating, that video is essentially banned from distribution in the U.K. Anyone who is physically based in the U.K. or has an office there is subject to U.K. obscenity laws, and that includes webmasters. Britain's obscenity laws are outlined by the Obscene Publications Act (OPA) of 1959, which in 1994 was amended to include electronically stored data. The fact that adult webmasters can be prosecuted for obscenity was demonstrated in 1999, when London-based webmaster Graham Waddon was prosecuted under OPA laws for publishing obscene material on the Internet.

Waddon, in his defense, argued that because he was using an American ISP and his digital content was being stored on servers in the U.S., it fell outside the jurisdiction of British prosecutors. A London judge disagreed and ruled that because Waddon was physically based in the U.K., the digital content was subject to U.K. laws regardless of where the servers were located. Waddon pled guilty and was sentenced to 18 months in prison, although the sentence was suspended for two years due to Waddon's health problems. Nine years later, the memory of the Waddon case lingers in the minds of British adult webmasters, who realize that a website can be as prosecutable as a DVD or a magazine.

In March, BBFC spokesperson Sue Clark told XBIZ, "The BBFC is talking to the adult industry, along with the mainstream film companies, about providing an online classification system." Clark said that that as of March 19, the BBFC was "still sorting out the details" of the plan.

Vancouver-based adult industry attorney Paul Kent-Snowsell, who is licensed to practice law in both Canada and the U.K., has been discussing the BBFC's plan to rate Internet erotica with some of his British contacts. Kent- Snowsell said that under the new program, which is in a trial period at this point, adult webmasters will have the option of submitting video-on-demand (VOD) and streaming video to the BBFC to be rated. Sexually explicit material that the BBFC finds acceptable would be eligible for the same R18 rating that BBFC-certified adult DVDs have been receiving, he said.

Kent-Snowsell said that if adult webmasters volunteer to participate in the program and have an abundance of VOD and streaming erotica rated by the BBFC, various BBFC fees could easily add thousands of pounds to their annual overhead.

"I can't understand why anyone would want to voluntarily shell out that kind of money and then give the BBFC the right to censor you," Kent-Snowsell said. "I just don't see it as being particularly attractive. If it were a mandatory program, that would be another matter. But I just don't see why anyone would volunteer."

One possible reason why adult webmasters might volunteer to have their VOD and streamed erotica examined by the BBFC is a belief that getting the BBFC's stamp of approval in the form of an R18 rating would make the material less likely to be prosecuted for obscenity. Kent- Snowsell stressed, though, that the R18 rating "does not give automatic immunity from prosecution. However, this has been a concern, and in the BBFC's Home Office Consultation on the issue, they are suggesting making classification by the BBFC a defense to an obscenity prosecution in the future."

Dave Taylor, co-founder of the British anti-censorship website MelonFarmers.co.uk, said, "As a point of law, the BBFC R18 certificate does not indemnify against prosecution. However, the police and customs now follow the same guidelines, and it would be highly unlikely that an R18 will be prosecuted. None have been so far. There were a couple of police raids on R18s, but the prosecution service put a stop to it and got the police to return the videos."

Taylor added that there is "a legal quirk that obscenity depends on the likely audience. R18s could theoretically be prosecuted as obscene if the supplier failed to prevent kids from viewing."

Historically, obscenity law in the U.K. — like obscenity law in the United States and Canada — has dealt with creation, manufacturing, production and distribution rather than possession. In other words, prosecutors in modern western democracies have generally targeted porn companies and porn stars instead of their customers. If Parliament passes the "extreme porn" law that it has been considering, however, possession of certain types of erotica — including some BDSM material — could become a felony punishable by up to three years in prison.

The proposed "extreme porn" law would outlaw possession of material depicting any of the four following things: intercourse or oral sex with an animal, sexual interference with a human corpse, serious violence in a sexual context and serious sexual violence.

It is the "sexual violence" part that worries members and allies of Britain's BDSM community, who fear that if the legislation passes, U.K. residents could go to prison for downloading material from a spanking, tickling or bondage website. The long list of U.K.-based civil libertarians who have been vehemently outspoken against the proposed law includes journalist/author Daryl Champion, Demolition Red of the organization Backlash, Avedon Carol of Feminists Against Censorship and Derek Cohen, chairman of the BDSM rights organization the Spanner Trust.

"I think that when you look at two of these four categories — serious violence in a sexual context and serious sexual violence — there is a problem with the definition," Kent-Snowsell said. "What do they mean by serious? A lot of BDSM play looks serious; some of it is, some of it isn't. I think that's where you get into problems with the interpretation. Where do you draw the line with BDSM play? I think it's rife with problems."

Presumably, the type of material the "extreme porn" law would affect is material that the BBFC would not certify with the R18 rating. However, the BBFC has expressed strong reservations about the proposed law.

"The concern of the BBFC is creating confusion between its ratings scheme and the Crown Prosecution Office interpretation of case law as to what constitutes obscenity," Kent-Snowsell said.

Champion, who has been a contributing editor to the London-based, fetish-themed Skin Two Magazine and wrote the political book "The Paradoxical Kingdom: Saudi Arabia and the Momentum of Reform," told XBIZ, "Basically, the BBFC thinks the 'extreme porn' law opens a can of worms regarding regulation, certificate issuance, etc. It's like the BBFC is saying, 'We agree that there is material of concern, but..."

Champion went on to say, "The proposed 'extreme porn' law could make website self-regulation very difficult, as some images of a fetish nature or that treat BDSM subject matter that would not normally be regarded as pornographic, could fall foul of loose definitions of 'extreme' in the proposed law. The extreme porn law will cut across BBFC certificate guidelines and will probably create two separate and contradictory regimes for classifying adult imagery. The result of this could well be that adult websites will purge their content of even mild fetishistic and BDSM-flavored material."

The fact that the Internet makes erotica so accessible is troubling to both social conservatives and radical feminists in the U.K., Champion said — and he sees the proposed "extreme porn" law as part of a growing push for sexual repression in Great Britain.

The London-based Demolition Red voiced similar concerns, saying that the "extreme porn" law will most likely pass, and that in the near future, "Britain will have the most Draconian anti-porn legislation of any modern western democracy. It seems almost inevitable at this stage that it will soon be a criminal offense in this country to possess certain types of pornographic images.

Taylor said that the international nature of the Internet is one of the reasons why anti-porn activists have been aggressively promoting the proposed "extreme porn" law; their feeling is that if British law enforcement cannot control what adult webmasters publish outside of Great Britain, they can try to control what people download within Great Britain.

"This will theoretically limit the subscription to foreign sites well outside of the R18 guidelines," Taylor said. "This will probably become a very powerful tool to police downloads, as who knows if you can trust your ISP not to snitch on what you are up to."

Champion predicted that anti-porn activists will oppose the BBFC's plan to extend the R18 rating to online erotica, because they believe that erotica shouldn't be legal at all.

"Radical feminists and the Christian Right oppose all pornography, because they say it degrades women by its very existence," Champion noted. "Their position is to have all porn banned and its production and distribution criminalized."

Exactly what will happen with the proposed "extreme porn" law and the BBFC's new online rating program — and whether or not there will be any conflicts between the two — remains to be seen. But it is safe to say that the U.K., like North America, is a place where the rules governing the regulation of online erotica will likely remain a hotly debated topic.


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