educational

Selling Adult in the U.K.

Alex Henderson
In recent months, some economists have been alleging that London stands a very good chance of overtaking Wall Street as the financial capital of the world. Between the power of the London Stock Exchange and the strength of the British pound (which as of early July was about twice as strong as the U.S. dollar), the U.K. appears to be standing tall in an increasingly global economy.

And even though British politicians do not like to admit it, one of the industries that contributes to Great Britain's economic health is adult entertainment. A few years ago, the security/technology firm Secure Computing conducted a study of adult websites and reported that more than 8.5 million pages of Internet adult were being hosted in the U.K. — and the fact that Britain and the U.S. speak the same language makes it an attractive place for American adult companies to market and sell their material.

Adult websites based in the U.S. have their share of U.K.-based customers, and those who visit adult video stores in England, Wales and Scotland can find American adult DVDs alongside DVDs from British companies such as Rude Britannia and Wrist Action Entertainment.

The U.K. is an important market for American adult companies seeking overseas customers, and it also is important for all the U.K.-based adult webmasters and adult film/video companies specializing in British erotica.

But despite its importance to the adult industry, the U.K. can be a challenging market — and any adult-oriented entrepreneur who is doing business in England, Scotland or Wales needs to know what those challenges are. The U.K. has some of the tougher, more restrictive obscenity laws in Western Europe. Something that prosecutors in Amsterdam or Barcelona couldn't care less about might get a person arrested in Manchester or Liverpool. Additionally, operating an adult video store in the U.K. can, depending on the location, carry a painfully high overhead.

In late June, XBIZ discussed some of those challenges with the London-based Mike McCann, who serves as chairman of the Adult Industry Trade Association (AITA) and managing director of Clone Zone, a gay-oriented adult retail chain.

AITA, like the FSC in the U.S., is a trade organization for the adult industry; McCann is essentially the U.K. counterpart of FSC Executive Director Diane C. Duke. McCann noted that any adult DVD sold in the U.K. must be approved and rated by the British Board of Film Classification (BBFC).

BBFC Ratings
The BBFC has different ratings for titillating material; softcore erotica tends to receive the less-restrictive 18 rating, while the BBFC's website (www.BBFC.co.uk) describes the tougher R18 rating as "a special and legally restricted classification primarily for explicit works of consenting sex between adults." An 18-rated film can be legally sold in a mainstream video store; an R18-rated film cannot.

There is both a good side and a bad side to receiving an R18 rating, McCann said. The good side is that if the BBFC has given a hardcore adult video an R18 rating, it has officially been declared legal in the U.K. and cannot be prosecuted for obscenity.

The bad thing about the R18 rating, McCann said, is that the U.K. is very strict about where an R18-rated DVD can and cannot legally be sold.

"The only people who can legally sell an R18 film in the U.K. are people who have a licensed sex store," McCann said. "The DVD has to be purchased and sold over the counter; it is not legal to sell an R18-rated DVD via the Internet in the U.K."

The laws governing the sale of adult entertainment in the U.K. are quite a contrast to very adult-friendly countries like Holland and Spain (where in some cities sexually explicit adult DVDs are legally sold on newsstands right out in the open). McCann said that a retailer who wants to legally open a sex shop and sell R18-rated DVDs anywhere in England, Wales or Scotland must obtain a sex shop license from a local council — and the cost of that type of license can vary considerably from one place to another, depending on what the local council decides to charge.

In London's fashionable Soho area for example, a sex shop license can cost a steep £30,000 annually (about $60,500); elsewhere the cost might be a more forgiving £1,500 (about $3,000) a year.

McCann stressed that a local council does not have to offer sex shop licenses if it doesn't want to. For example, Glasgow, Scotland's largest city, doesn't have any licensed sex shops, but Edinburgh, the second largest city, does. And until recently, Northern Ireland was devoid of licensed sex shops. But in early June, the BBC News reported that Northern Ireland's first legal sex shop had opened on the outskirts of Belfast after being granted a license by Newtownabbey Council.

However, Central Belfast is still without any licensed sex shops, although McCann said that Central Belfast, like Glasgow, has plenty of people who are meeting the demand for R18-rated DVDs by selling them illegally. "Belfast is definitely a difficult market," McCann said.

And, according to McCann, the lack of legal sex shops in Central Belfast, Central Glasgow and other places where local councils refuse to offer sex shop licenses is especially problematic in light of the fact that the U.K. forbids the sale of R18-rated DVDs online — a law that AITA has been fighting.

In June, London's Sunday Telegraph reported that the BBFC had proposed extending its current rating system to online adult content. The BBFC, McCann said, seems to be of the opinion that U.K.- based websites offering downloadable adult content should be able to submit sexually explicit material to the BBFC for review and receive an R18 certification for that material if the BBFC finds it acceptable. And AITA's argument is that if the BBFC is comfortable with R18-rated material being downloaded online, there is no reason why adult DVDs that have an R18 rating should not be sold online in the U.K. and snail-mailed to adults who want to buy them.

"If people can download or stream within the U.K. with comfort," McCann said, "what is the difference between selling a DVD via the Internet and downloading via the Internet? We claim that there really is no difference and that if they are going to allow downloading and streaming, they should allow an adult DVD to be sold — with responsibility — via the Internet."

McCann added that some U.K. residents are purchasing adult DVDs from websites based outside the U.K., but British customs officials have the right to confiscate adult DVDs mailed from Continental Europe, North America or elsewhere.

U.K. Downloading
These days, downloading sexually explicit content from American websites is very affordable for U.K. residents (assuming they are being charged in U.S. dollars) because the U.S. dollar has become so weak against the pound. Although American webmasters who are strictly U.S.-based and have no offices anywhere in the U.K. fall outside the jurisdiction of British law enforcement, McCann stressed that a U.K.-based adult webmaster who provides links to non-U.K.-based adult sites could be prosecuted for obscenity if British law enforcement officials consider any of those foreign sites obscene.

For example, an adult webmaster based in Newcastle in northeastern England is providing links to adult sites operated by a Miami-based webmaster; even if American prosecutors don't think the Miami resident's adult sites are obscene under the U.S.' Miller test, the Newcastle-based webmaster could be prosecuted in the U.K. if British prosecutors think the American sites are obscene under Britain's Obscene Publications Act of 1959. In 1994, the act was amended to include electronically stored material.

According to both McCann and Tony Mitchell, who recently launched fetish-themed webzine The Fetishistas, one type of erotica that the BBFC tends to be very hard on is explicit BDSM-oriented erotica.

The BBFC's guidelines state, in so many words, that while a little mild kinkiness might be acceptable, hardcore BDSM-oriented videos are unlikely to be approved even if the activity is totally consensual. And if a film cannot receive at least an R18 rating, it is essentially banned in England, Wales, Scotland and Northern Ireland (the Republic of Ireland is outside the BBFC's jurisdiction but has its own equivalent of the BBFC, the Irish Film Censor's Office).

Nonetheless U.K. residents who have a taste for hardcore BDSM material are obtaining it in different ways; some obtain DVDs that are sold illegally on Britain's black market and others simply download BDSM content from kinky websites in Continental Europe, North America or elsewhere.

But if some of Britain's social conservatives and more radical feminists have their way, downloading what is being loosely described as "violent pornography" could become a felony. Various pro-BDSM activists, including the London-based organization Backlash, have been speaking out against the proposed law, which Mitchell said is quite troubling to people in Britain's BDSM/fetish community.

"This is designed to try to scare potential consumers of extreme BDSM into not seeking out or acquiring such material, which obviously impacts on the businesses of those who produce it," Mitchell said. "The avowed intent is to hurt the producers — who are mostly outside the U.K. and therefore beyond the reach of U.K. law — by depriving them of income from U.K. consumers. The proposed law puts extreme BDSM consumers on a par with pedophiles in terms of the penalties for being caught."

The publisher of The Fetishistas (TheFetishistas.com) added, "If it does become law here, it is bound to be challenged in the European Court, as it seems to breach several areas of human rights legislation."

Another topic that is being debated in the U.K. is whether or not a store that has some type of erotic merchandise but is not an adult video store should have to obtain a sex shop license. In York, England, store-owner Andrew Clarke was recently fined £14,000 for operating such a store without a sex shop license; Clarke's store was not R18-oriented, and AITA has urged Clarke to appeal the fine even though he pled guilty. According to the City of York's website, £7,340 is the yearly fee for a sex shop license there.

"The majority of things Andrew was selling were of a sexual nature," McCann said. "He was selling toys and magazines. They told him he needed a license, and he didn't get one; eventually, he was prosecuted and fined. I think he made a mistake by pleading guilty."

McCann stressed that he is not opposed to adult entertainment being regulated in the U.K.; he just wants it to be regulated in a smarter, more fair-minded and less restrictive fashion.

And, McCann said, if the reforms that AITA has been calling for come about — reforms that include greatly increasing the number of sex shop licenses, allowing the sale of R18-rated DVDs via mail order, and reducing the exorbitant fees that adult video store owners are paying in certain areas — it will mean less erotica being sold on the U.K.'s black market and more tax revenue for Great Britain.

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