Digital Economy Bill

Written evidence submitted by the Adult Provider Network (DEB 56)

Written evidence to the House of Commons Public Bill Committee on the Digital Economy Bill, Part 3 Online Pornography

Who we are

1. The Adult Provider Network is a trade association for the UK adult industry, representing a wide range of companies and individuals providing adult products and services across the world. The APN was originally formed in 2014 to represent the interests of the adult video-on-demand community as a subset of the ATVOD Industry Forum. We have re-formed and re-focused in 2016 in response to the Digital Economy Bill being presented to Parliament, in order to present a consensus view and develop a constructive dialogue between the Government and the international adult entertainment industry. Our membership is a diverse cross-section of the industry, bringing together more mainstream and commercially substantial companies with smaller producers of ‘niche’ adult material. We are co-chaired by Chris Ratcliff, Chief Executive of adult broadcaster Portland TV and council member of the Digital Policy Alliance, and David Cooke, Director at MindGeek.

Summary

2. We support the Government’s aim to protect children online, and our members are committed to maintaining good practice, positive ethics and social responsibility. However, introducing compulsory age verification for all viewers of online pornography will have huge ramifications for both the adult industry, and for the viewing public. This aim must be tackled with great care to ensure that the policy is workable, proportionate, and allows a level playing field for the adult industry as a whole. Our concerns include the definition of "pornography", the potential for a trade barrier between UK and overseas businesses and its impact on UK SMEs, and the "prohibited content" category, which is out of date with public opinion and current case law on the Obscene Publications Act, and therefore overdue for review.

Definition of pornography

3. This Bill introduces a new definition of pornography which has not been subjected to proper legal scrutiny, particularly inasmuch as audio material and still images are included.

4. If the Bill is passed, it will still be possible for people to view sexual imagery in 18 classifiable content on TV and online without verifying their age, if that content is not considered "pornographic" (for instance, in the Game of Thrones series or the film Fifty Shades of Grey). It is inconsistent to have one rule for mainstream entertainment media, and another for the adult industry.

5. Conversely, even if a viewer can verify that they are over 18, they will still not be able to watch R18 material on TV, nor order R18 DVDs online via mail order. These discrepancies create an inconsistency between offline and online content which does not serve the interest of protecting children from age-inappropriate material. Furthermore, the creation of divergent standards for the regulation of adult content is out of line with the drive for a ‘common framework for media standards’ in a converged digital environment.

6. Our members, many of whom are parents, are concerned about our children encountering not only sexual imagery, but all scenes of horror and violence. There is no robust, peer-reviewed evidence to support the idea that under 18s are more harmed or distressed by encountering sexualised material than violent material.

7. Separating out sexualised material as uniquely requiring age verification creates a stigmatising double standard which discriminates against adult producers and reinforces taboos around sex and sexuality.

8. A significant tranche of UK adult producers provide alternative ‘niche’ content catering to the tastes of those with sexual fetishes. These websites often self-define as "pornographic" and are produced with the intention of creating sexual arousal. However, if they do not depict nudity or sexual acts, a child will not perceive them as sexualised. A foot fetish website is a good example: shots of bare feet might receive a Universal classification in the context of a dance or gymnastics video; but on a website catering to the foot fetish community, by the Bill’s definition, they would be considered pornographic.

9. It is illogical to hold works "intended to arouse" to one standard, and works intended to entertain, titillate, shock or stimulate in other ways to another. Depictions of a person gagged with all four limbs bound are prohibited content, and yet depictions of this act in a sexual context are permitted in 18 classified mainstream media entertainment such as Hollywood films. A scene of a man with all four limbs bound, gagged, and sexually violated while unable to withdraw consent can, for instance, perfectly legally be viewed in the 18-rated cult classic Pulp Fiction, which is available to view online via sites such as Netflix and Amazon.

10. The lines between art, entertainment and pornography are complex, shifting and subjective. Many web sites that are "intended to arouse" are also artistic, political and educational in both purpose and impact. Erotic intention alone does not erase the cultural value of a work.

Suggestions for improvement

11. The definition of "pornographic material" in the Bill should not include content classifiable as 18; clauses 16 (d)-(f) should be removed entirely. This would match the current Ofcom requirement for on demand programme services (ODPS) which mandates age verification only for R18-strength content.

Trade barrier between UK and overseas businesses

12. A person must not make pornographic material available on the internet on a commercial basis to persons in the United Kingdom

13. The wording of the Bill only specifies that the age of UK site visitors must be verified by commercial porn sites. However, we are concerned that more will be required of UK websites. Under ATVOD’s authority, our members were informed that UK websites must age verify all site visitors, not only those based in the UK. By contrast, our international members (such as MindGeek) are preparing to only age verify UK users, and not site users based in other countries. If this discrepancy is maintained, it will create a trade barrier that disadvantages UK businesses in the global marketplace.

14. The costs of implementing age verification will be borne by site owners, and most of the currently available AV solutions impose a fee per user checked. It is crucial that the costs of implementing age verification not be significantly higher for UK sites than for their overseas competitors. If a website receives ten thousand site visitors per day, of which a quarter are UK users, and installs an age verification solution that charges 10p per age check, the cost is as follows: £250 per day if only UK users are age verified; £1000 per day if all users are age verified. Conversion ratios for the adult industry (that is, the percentage of visitors who become paying customers) are usually well below 1%. The cost of age verifying all site visitors would therefore add up to significantly more than the total turnover of many ‘niche’ adult sites.

15. Holding UK sites and overseas sites to different standards regarding the number of users who must be age verified would hobble UK trade, reduce the flow of cash into the country from overseas, and put large numbers of porn industry workers and site owners out of work. The UK adult industry brings money into the treasury; many of our customers are international, and we pay tax, hire local workers and contribute to the UK economy. Bankrupting large numbers of small businesses, and drastically handicapping the performance of large businesses compared to their overseas competitors, will have a damaging impact on UK trade.

16. Critics of the porn industry often cite its homogeneity as a social issue, claiming it misrepresents real world sex and promotes the objectification of women. These criticisms usually arise from the perceived ubiquity of mainstream heterosexual porn. We submit that the diversity and inclusivity of the UK cottage porn industry challenges the status quo, constituting a flourishing ecosystem of micro-businesses, each supported by modest numbers of UK and international viewers. The financial burden of age verification has the potential to greatly diminish freedom of expression within the UK, and shut down the variety that makes our adult industry culturally diverse.

Suggestions for improvement

17. The wording of the Bill should be amended to clarify that only UK visitors must be age verified, by both UK sites and those based overseas. This would ensure a level playing field for the global adult industry as a whole.

Prohibited content

18. It is cause for concern that the Bill reproduces the existing classification category of R18 without putting it forward for review. The list of content prohibited from classification is drawn from Crown Prosecution Service (CPS) guidelines on the Obscene Publications Act (OPA) which are several years out of date with UK case law, and woefully out of touch with public opinion. As a result, a significant proportion of content on overseas websites would fall into the category of "prohibited" material, despite being compliant with the global standards of card schemes such as Visa and Mastercard.

19. The OPA’s definition of obscenity as something that "depraves or corrupts" is not an absolute standard, but a moving one, intended to evolve with the standards of the times. When the OPA became law in 1955, homosexual sex was illegal, as was any depiction of intercourse on film. The mere fact that social standards are changing is not evidence of harm; changing social standards may reflect growing attitudes of tolerance and acceptance.

20. In recent years the CPS Guidance on the OPA has not been kept up to date with UK case law. In R v Peacock (2012) the defendant was tried under the OPA for publication of DVDs showing male fisting, urolagnia and hardcore BDSM, and was found Not Guilty by the jury. This verdict, reached unanimously by a random selection of British citizens, may be considered a reasonable indicator of public opinion on obscenity. The same year, the jury of R v Walsh reached a similar verdict. Since these landmark trials, however, such acts are still listed as prohibited in the CPS guidelines and therefore restricted from depiction in R18 material, despite being legal to perform in the UK. These consensual sex acts arguably carry less risk than penetrative sex, and are easily made completely safe with prior negotiation and common sense safety procedures.

21. Many of the sexual activities prohibited from R18 are normalised and accepted aspects of healthy sexuality, and are proudly celebrated by the feminist, queer and ethical porn movements internationally. The prohibited content category includes some jarring gender discrepancies - for instance the prohibition of facesitting, while it is permissible to depict scenes of aggressive fellatio to the point of gagging. Likewise, the prohibition of female ejaculation or "squirting", where equivalent acts involving male ejaculation are accepted. Unless this category is reviewed, this Bill will criminalise consensual expressions of adult sexuality, with what seems to be a misogynistic emphasis on prohibiting acts relating to sexual dominance, female pleasure and female sexuality.

22. Reinforcing the prohibition of content from R18 classification is not relevant to the question of protecting children. Once age verification is in place, there is no reason to set restrictions on what content can and can't be shown to interested, consenting adults. We support age verification primarily to help keep children safe, but an added benefit will be the creation of a structure that will maintain the rights of adults to view adult content. The prohibited content category infringes adult sexual expression, and marginalises minority sexualities. The stated intention of the Bill is to protect minors from adult content - not to protect adults from themselves.

Suggestions for improvement

23. The Guidance on the R18 category must be reviewed and brought up to date with current UK case law (especially R v Peacock and R v Walsh) and public standards of social acceptability.

October 2016

 

Prepared 20th October 2016