The lawns outside the Houses of Parliament in London came alive two weeks ago, as a group of some 60 protesters gathered to bring attention to a recent move by the government to further limit pornography produced in the United Kingdom.

The Audiovisual Media Services Regulations 2014, which went into effect the first of December, have been depicted as a harmless move to bring the standards for U.K.-based porn sites in step with those the imposed on DVDs. This means that adult content that is produced in the U.K. for online distribution must not include acts that would be deemed obscene by the British Board of Film Classification, as well as ensure that any sites that are accessible within the country have sufficient safeguards to prevent individuals under the age of 18 from accessing the content.

The legislation sounds so benign, it’s easy to dismiss the protest as an overreaction. To be sure, the protest on December 12 only focused on a small aspect of the issue: the acts that the new regulations have effectively banned in all U.K.-produced porn. But what is happening in the United Kingdom right now is not just about the banning of acts associated with female pleasure, or the destruction of what previously been a thriving a local industry — it’s much bigger, with implications that could easily ripple across the pond.

In order to understand what’s at work here — and what it means for U.K. consumers as well as U.K. and foreign operators of adult websites — we need to dive into the details, starting at the top.

Classification of Adult Content

The non-governmental British Board of Film Classification (BBFC) is an entity that regulates the types of content allowed in media that is distributed in the U.K.

To efficiently classify content, the BBFC makes use of examiners, which according to the BBFC site, “are drawn from a wide range of backgrounds including social work, teaching, journalism, research, law and marketing.” The process works like this: for every movie that is to be released in theaters, two examiners are selected for its review, and in most cases, a senior examiner will confirm their recommendation. If the examiners can’t agree or the film brings up policy questions, other examiners may be called on, and the BBFC may even confer with specialists to discuss the legality of a film’s content.

For DVDs, however, the bar is set higher. “Our decisions on the age rating of DVDs and Blu-rays can occasionally be stricter than at the cinema because there is a higher risk of underage viewing in the home and a greater potential for watching scenes out of context,” the BBFC explains. And yet only one examiner is required to view these for making a determination about the film’s rating.

In the U.K., most pornography falls under the R18 category, which covers “clear images of real sex, strong fetish material, sexually explicit animated images, or other very strong sexual images.” Films that are rated R18 can only be sold in licensed sex shops and shown in licensed theaters. Films with content deemed beyond the scope of even R18 are refused classification, or banned.

Stretching Film Classification to the Internet

The internet — much like video-on-demand and a number of media made possible by more recent advances in technology — was for years beyond the scope of the BBFC. To address this issue, the Authority for Television On Demand (ATVOD), another non-governmental organization, was created. ATVOD is responsible for regulating the content of videos that are available to U.K. viewers “on-demand,” a definition that has in recent years increasingly stretched to target websites.

Since its inception in 2009, ATVOD has been given an increasing amount of power by the Office of Communications (Ofcom), the government authority that regulates, among a number of other industries, broadcasting. At first, ATVOD largely functioned under the supervision of Ofcom, with decisions subject to their prior approval, but in 2012, the agency was given the authority to issue enforcement notifications on its own.

The agency’s first move was to target the internet, arguing that the content offered by many websites fall under the category of video-on-demand. Within a year, adult content had become a focal point for the fledgling regulator.

The Rules

ATVOD’s guidelines include 13 rules, of which one deals with adult content. This policy, called Rule 11, states: “If an on-demand program 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.”

This means that it’s not enough for sites under ATVOD’s jurisdiction to present an interstitial page asking users to promise they’re over 18 with a simple mouse-click. In fact, it’s not even enough to erect a paywall, as debit cards are trivial for minors to acquire. To be in compliance, porn sites must employ age-verification tools such as restricting payment options to credit cards that allow for age-verification, or the use of a digital identity management service that verifies viewers’ ages on its database.

Both options cost money for site owners. The first, placing a limit to forms of payment, invariably reduces the number of people able to access a site. This is especially true when debit cards are cut out of the equation: it is an established phenomenon in the United States that the recent recession greatly reduced people’s reliance on credit cards, but the impact is best illustrated by a recent poll conducted by Princeton Survey Research, which found that a whopping 63 percent of millennials aged 18 to 29 don’t even have credit cards.

The second option, is not much better. Employing the services of an identity management company begins costing site owners money before they even make a sale, since no explicit content — not even teasers to encourage subscription — may be shown before a viewer’s age is verified.

In addition to this, Rule 11 restricts the type of content that is allowed even on a porn site. Prior to the Audiovisual Media Services Regulations 2014, ATVOD relied on the Obscene Publications Act, which disallows bestiality; torture; dismemberment or graphic mutilation; realistic portrayals of rape; sadomasochistic material that causes injuries requiring significant medical intervention and resulting in permanent effects; forms of bondage that prevent participants from withdrawing consent; activities involving perversion or degradation (such as drinking urine, vomiting or defecating onto a person’s body, etc.); and fisting.

The new regulations that came into effect this month, however, have expanded this list, effectively banning spanking; caning; “aggressive” whipping; choking; physical restraint; penetration with any object “associated with violence;” physical or verbal abuse; humiliation (even if it’s consensual); watersports (urinating on a person for the purpose of arousal); role-playing as non-adults; female ejaculation; face-sitting (the act of providing oral sex to a person, usually a woman, who lowers herself over another’s face).

The regulatory agency described choking and face-sitting as “potentially life-threatening” acts, drawing the ire of women, kinksters and the country’s small, but vibrant community of female domination-focused porn producers.

The undeniable emphasis on female sexuality in the list of banned activities has caused feminists to decry the regulations as misogynist. As the feminist blogger stavvers pointed out: “It’s worth noting that facefucking — an activity which, when shown in porn, often involves a man putting his penis in a woman’s mouth hard and fast (so, basically, exactly how it sounds) — a staple of mainstream heterosexual (and often deeply misogynistic) porn isn’t on the list. It’s fine to be there on DVDs, and it’s fine online. Meanwhile, facesitting — which usually involves a woman sitting on a man’s face — is banned. So, a representation of female dominance is banned, while a representation of male dominance is perfectly legal.”

Likewise, individuals who enjoy sexual practices involving dominance, submission, restraint, roleplaying and other aspects of BDSM, argue that the regulations unfairly single them out, erasing their desires from online pornography in favor of porn that fits within the conventional cookie-cutter.

The regulations have single-handedly destroyed the livelihoods of a number of U.K. women producers, whose websites focus on female domination. For them, the options are limited: fight ATVOD’s classification of their sites as “TV-like” and escape their regulations, or move their sites out of ATVOD’s jurisdiction. Both options cost money — and, for reasons we’ll examine, may turn out to be worthless strategies in the long-term.

Regulatory Spree

By the end of August of 2012, more than 20 porn sites had been investigated by ATVOD, half of which were found to have insufficient restrictions preventing minors from accessing their content. Two of the services contacted by ATVOD shut down, and four appealed ATVOD’s categorization to Ofcom.

On January of 2013, Ofcom slammed Playboy, which had been among the sites investigated by ATVOD, with a £100,000 (around $155,875) fine for “failing to protect children” — that is, for failing to limit payment options to credit cards. (Playboy was eventually able to go back to business as usual in the U.K. after transferring editorial control of its sites to the Canada-based Playboy Plus, which is out of ATVOD’s jurisdiction, and winning an appeal proving this to Ofcom.)

At the time, however, the decision against an icon of the adult industry was seen as a resounding success for the young agency. Seemingly drunk on its power, ATVOD went after YouTube channels in an overzealous regulatory spree, claiming that these classified as video on-demand. Fortunately, sanity prevailed in this instance, and Ofcom overruled the agency. As Pete Johnson, chief executive officer of ATVOD, admitted at the time, “The question of whether video content is ‘comparable’ to programs normally included in television broadcasts is far from straightforward.”

And it is precisely this lack of clear boundaries that enables ATVOD to impose its regulations on any number of producers of video content in the United Kingdom — especially those who don’t have the means to take on the fight.

More adult sites were hit with ATVOD violations in 2013, and that November marked the first time that a site was banned by Ofcom for failure to comply with ATVOD’s guidelines. Nearly all sites ATVOD reviewed in 2013 failed to make it difficult enough for minors to access the content in porn sites, a trend that would repeat in 2014.

In its ruling on one of the sites, ATVOD made its position clear: “Service providers should also be aware that the provision of ‘R18’ material or ‘R18’-equivalent content in a manner which allows children to access it may constitute a criminal offense under the Obscene Publications Act 1959 & 1964.”

The Obscene Publications Act

From as early as 2012, ATVOD has been advocating the use of the Obscene Publications Act (OPA) to limit the availability of content that is out of regulators’ reach.

In a report for the House of Lords Select Committee on Communications, ATVOD stated that media convergence created a number of new concerns for the public, among them “the ease with children may access hardcore pornography — and other potentially harmful content — online. […] ATVOD does not take the view that the responsibility lies exclusively with parents, and considers that the public policy response should involve not just robust action by regulators (where services are within a regulator’s jurisdiction), but also more active enforcement of existing legislation, such as the Obscene Publications Act, against those who provide hardcore pornographic material — or other content likely to deprave and corrupt children — in a manner which fails to secure that children will not normally be able to access it.”

In the same report, ATVOD complained that OPA convictions for the distribution of pornographic content that would have been refused classification by BBFC (i.e., banned in the U.K.) declined from 81 in 2000 to a mere seven a decade later — and not because this type of content has become increasingly rare.

A year after this report, ATVOD pushed OPA again in its annual report, arguing that non-U.K. websites that are accessible in the U.K. and offer unrestricted access to pornography should be considered to be in breach of U.K. law. This line of thinking hinges on the interpretation that the simple transmission of data is equivalent to publication.

The 2013 ATVOD report foreshadowed the agency’s next steps:

As in previous years, a number of adult services found to be in breach of Rule 11 (which requires hardcore pornographic material to be kept out of reach of under 18s) indicated that they had, or intended to, transfer editorial responsibility for the service to an entity established outside the U.K., either to an European Union (E.U.) Member State which does not require hardcore pornographic material to be kept out of reach of children or to a country entirely outside the E.U. Although ATVOD requires evidence that any such transfer of editorial responsibility is genuine, it is clear that moving is an option for services which seek to avoid the obligations placed on U.K. providers.

Given the response of a minority of providers of adult services to enforcement of Rule 11, ATVOD continued to brief policymakers during the year on how children might better be protected from hardcore pornography online, and especially from such material on websites operated from outside U.K. jurisdiction.

In the report’s foreword, ATVOD chair Ruth Evans further hinted at the agency’s approach to providers who fall outside ATVOD’s jurisdiction when she noted the agency’s success in discussions with the payment processing industry regarding “the possibility of preventing payments flowing to adult websites which fail to
protect children from hardcore porn material.”

The concern that the U.K. may soon begin enforcing economic sanctions on porn site operators suddenly seems like no exaggeration.

“Given that many such services appear to be operating in breach of the Obscene Publications Act, can it be right that they are part-financed by payments made from U.K. bank accounts?” asked Evans.

As suspected, in 2014, the Department for Culture, Media and Sport (DCMS, which sponsors Ofcom) began working on a licensing system for foreign porn sites, based on the model used for online gambling services. The DCMS confirmed to the Sunday Times that Visa, PayPal, and the U.K. Cards Association, among others, met this past summer to further discuss ways to coordinate efforts.

Myles Jackman, a U.K. attorney who specializes in obscenity and pornography cases, put it like this: “It looks like an unelected quango [quasi-autonomous non-governmental organization that has been granted powers by the state] is gearing up to impose foreign financial sanctions, by utilizing unelected bankers to decline payments to foreign jurisdictions, based on a selective interpretation of the unelected CPS [Crown Prosecution Service] Guidelines on the OPA, drafted in collaboration with unelected film censors at the BBFC. This is a spectacularly dangerous precedent.”

Censorship Arms Race

ATVOD’s annual reports indicate that between assuming responsibility for complaints on September 22, 2010, until March, 2011, it received 30 complaints. The agency’s 2012 report shows that they received 602 complaints. The following year, that number had risen to 690, with an additional 176 investigations initiated by ATVOD itself. Including the investigations that were already open at the beginning of that year, ATVOD conducted a total of 1,095 breach investigations in 2013. Its most recent report showed that ATVOD received 560 complaints, and initiated 100 investigations on its own. Including the investigations that were open at the beginning of 2014, ATVOD conducted 273 investigations. Despite the drop in numbers, ATVOD noted a 200 percent increase in regulation violations, specifying that violators “primarily involved services providing ‘adult’ content.”

The prominent case of Urban Chick Supremacy Cell — which appealed ATVOD’s ruling that it was a video-on-demand service and thus had to comply with its guidelines — visibly drew attention to the limits of ATVOD’s powers. But the victory may be short-lived for the radical feminist-themed female domination site, and other porn site operators who have thus far managed to evade the agency through appeals or relocation.

“U.K. services which feature the most extreme material are not subject to the video-on-demand regulations — which protect children from material which might cause them serious harm — unless they are considered ‘TV-like,'” said Johnson in a press release about Ofcom’s decision. “ATVOD will continue to discuss with policy makers further options for reducing the exposure of children to pornography and other potentially harmful VOD [video-on-demand] material on websites based both inside and outside the U.K.”

It is clear that this is only the beginning of ATVOD’s offensive against adult content. The end-game is a standardization of porn into content that adheres to established gender roles and a very narrow slice of sexuality — and the placement of this porn behind so many hurdles that few people will be easily able to access it.

If this seems unlikely, perhaps you would do well to remember that along with that list of banned sex acts, the Audiovisual Media Services Regulations 2014 granted ATVOD the additional power to enforce its rules. This agency is growing quickly, with the support of both government bodies and financial institutions.

And all the media can bring itself to do is make clever quips about the acts that were banned.

Protest

It’s unlikely that the media would have paid much mind to the protestors gathered outside of London’s Houses of Parliament had attendees not played up the titillating factor by dressing provocatively, carrying sexually-suggestive signs, and acting out some of the banned acts.

Protesters know this. In fact, Charlotte Rose — a sex workers’ rights activist and the organizer of the protest — intended the protest to establish a world record for the biggest crowd of people simultaneously engaged in simulated face-sitting. Though Guinness refused to acknowledge the event, photographers showed up by the dozen, turning #pornprotest, as it would come to be known on social media, into an international phenomenon.

But even this superior understanding of publicity wasn’t enough to protect Rose from another, equally insidious, type of censorship. On the morning of the protest, Rose logged in to her YouTube account to discover that it had been suspended by Google without warning.

Her account was restored the following week, following a number of e-mails from me asking for comment. We have yet to receive any explanation. My guess is that Google has once again confused lobbying for sex workers’ rights with promoting sex work.

This incident, as well as recent reports of sex workers who are seeing their Twitter accounts suspended without explanation, is a stark reminder of how Silicon Valley’s silent campaign against adult content converges with government censorship to disempower people fighting for freedom of expression.

UPDATE: At midday on Tuesday, December 23, Charlotte Rose informed me that YouTube has once again suspended her channel, without specifying a reason.

CC BY-NC 2.0 Dave Wild

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