Dispatch From the U.K.: Deciphering the Jargon of New Regs

There has been a lot of confusion in the media recently concerning the Audiovisual Media Services Regulations 2014 which pass into U.K. law on Dec. 1. This has been widely publicized as ushering in tighter age-verification controls.

In fact, age verification for U.K.-based video on demand services has been mandatory since 2010 when Ofcom delegated certain powers conferred on it by the Communications Act 2003 to ATVOD.

Those working in extreme fetish and BDSM, particularly pro-dommes, are likely to be hardest hit.

ATVOD is the U.K.’s independent co-regulator for video on demand services whose principal purpose is the provision of “TV-like” programming.

The Audiovisual Media Services Regulations 2009 transpose a key clause on harmful material from the European Audiovisual Media Services Directive into U.K. law. It states, “If an on-demand programme 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.”

ATVOD’s interpretation of this clause in its “Rules & Guidance” section, specifically Rule 11, is that hardcore material must be placed behind an effective Content Access Control system which determines the user is 18+ at the point of registration or access by the mandatory use of technical tools for age verification.

What this means in practice is that all explicit sexual content which depicts visible penetration, masturbation or ejaculation, irrespective of whether it’s stills or video, has to be placed behind an age-verified paywall. Any customer not paying with a credit card needs to be age verified against a reliable independent database such the British electoral roll (or equivalent), credit reference data or identity documents. Self-certification via an age-gate is not deemed to be sufficient. These checks have to be performed regardless of where the customer is based (i.e. is it not enough to verify only U.K. customers).

Significantly, this regulation only applies to video on-demand services that have their editorial base in the U.K.

Editorial responsibility resides with the person or company responsible for selecting or organizing the material which makes up the service. The regulation does not affect offshore paysites or tube sites.

It does not affect cam sites irrespective of where they are based. However it does affect U.K. producers who sell their content via sites like Clips4Sale.com or AdultWork.com, which are deemed to be technical distribution platforms.

There is an argument which says that ATVOD’s remit to regulate “TV-like” VOD services should not extend to adult sites, but determinations, with the exception of the recent Urban Chick Supremacy Cell appeal, have concluded that commercial adult VOD services are TV-like.

There has also been some debate about whether hardcore material falls into the category of material that “might seriously impair” minors.

As a result, as early as August 2010 the U.K. government articulated its concerns in a letter from Culture Minister Ed Vaizey to Ofcom, which advised a precautionary approach ahead of there being a more certain legal basis for requiring access controls to protect children.

In the absence of a full-blown Communications Review, it was not until the publication of the Department for Culture Media & Sport’s strategy paper “Connectivity, Content and Consumers” in July 2013 that this position was developed further with a clear statement of intent to legislate to ensure that the regulation of online video content is as robust as the regulation of content made available for physical distribution on DVD through licensed sex shops.

The Audiovisual Media Services Regulations 2014 do exactly this. They relate solely to content strength on U.K. VOD services and serve to remove any ambiguity about what is meant by material that “might seriously impair” thereby shoring up ATVOD’s Rule 11.

From Dec. 1 under U.K. law, “material which might seriously impair” minors is referred to as “specially restricted material” and means hardcore content capped at the strength that the British Board of Film Classification would classify as Restricted 18 or R18.

The AVMS Regulations also introduce a new category of “prohibited material,” which would be deemed unclassifiable by the BBFC which is henceforth banned on U.K. VOD services.

The AVMS Regulations 2014 do not however introduce any requirement for VOD content to be submitted to the BBFC for classification. They simply lay down the upper limits for content strength. The onus is on service providers to ensure their sites are compliant.

The BBFC Guidelines for the R18 category are based principally on charging practice from the Crown Prosecution Service. The R18 Guidelines state that the following content is not acceptable:

• 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;
• 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; and,
• 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.

So where in practical terms do the limits lie? Here’s a non-exhaustive list of acts which from Dec. 1 will be strictly prohibited on U.K. adult VOD services:

• Urolagnia, specifically piss play, and coprophilia. Basic urination as long as it is not onto another person may be allowable. The BBFC may also now allow short isolated sequences of squirting;
• Fisting (i.e.: five digits beyond the final knuckle);
• Breath play, throat holds, face-sitting, extreme gagging. The BBFC have a zero-tolerance policy in this area which extends to verbal references;
• Deliberate and convincing attempts to make performers look underage;
• Extreme bondage where there is no means of indicating withdrawal of consent;
• Extreme ball-busting or trampling;
• Any acts which result in heavy bruising, raised welts or break the skin;
• Blood play;
• Sex in public places or acts likely to outrage public decency where the scene has been shot in the U.K. and takes place in the public eye;
• Use of drilldos which look like adapted domestic power tools, insertion of objects likely to cause harm or get lost inside the body, penetration with a weapon. Insertion of a nightstick or baseball bat may be permissible provided that object has not been used in a threatening manner;
• Depictions of non-consensual sex or sexual coercion. There may scope for structured power play in clearly defined BDSM scenarios; and,
• References, verbal or otherwise, which in any way promote or encourage incest, rape, sex with children or animals.

It is worth noting that the CPS did not update it guidelines after Michael Peacock’s acquittal in the 2012 obscenity trial on the basis that it did not set a precedent for the general consumption of the type of extreme content he was accused of distributing.

The imposition of these R18 restrictions will not impact the majority of mainstream adult producers, though you’d be well advised to do a quick audit. However, those working in extreme fetish and BDSM, particularly pro-dommes, are likely to be hardest hit. Yet again legislation will have the unintended consequence of driving U.K. producers offshore from where they will be free to peddle their wares back to the U.K. market with impunity.

The AVMS Regulations 2014 kick in from Dec. 1. There will be no transition period. The inclusion of prohibited material will put you in breach. However ATVOD has advised it will be proportionate and reasonable in its approach to enforcement provided you can demonstrate due diligence. ATVOD intends to consult shortly on changes to its “Rules & Guidance” to reflect the legislative change. The BBFC offers an advice service, which is chargeable, should you have specific concerns about what is prohibited.

So what next for the U.K. market? There is talk of card issuers and banks taking action to restrict the flow of money to offshore websites. A gambling-style licensing system has been mooted for foreign websites wishing to operate in the U.K.

What is certain is that scrutiny of the industry is unlikely to abate in the run-up to the General Election in May 2015.

With politicians on all sides looking to score points, the adult industry is a soft target. Expect the issues of child protection, age verification and ease of access to online porn to be at the forefront of political debate.

Chris Ratcliff is managing director of U.K.-based adult broadcaster Portland TV, chair of the Adult Provider Network and industry lead on the Digital Policy Alliance working group on age verification.