The Audiovisual Media Services Regulations 2014…A new government law to crucify British adult websites has come into force today

Posted: 1 December, 2014 in ATVOD VOD Censor, Internet Censorship
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Read more UK Government Watch at MelonFarmers.co.uk

arms of the british governmentjpg logo The European Audio Visual Media Services Directive provides a justification for censorship thatwas implemented in UK law in the Communications Act 2003:

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.

Unfortunately for the censorial government, there is no particular evidence that hardcore porn seriously impairs children. In fact all the kids are already watching porn and they don’t seem to be ending up being seriously harmed, at least any more than any other generation.

So the legal underpinning for ATVOD’s onerous suffocating age verification rules for British adult websites seems somewhat shaky and open to challenge. Therefore the government are changing the law so as to explicitly make age verification a requirement without having to rely on mythical serious harm. The government has introduced the following statutory instrument which means that it will not be debated in parliament, just nodded through.

The Audiovisual Media Services Regulations 2014

These Regulations may be cited as the Audiovisual Media Services Regulations 2014.

  • Laid before Parliament on 6th November 2014

  • Coming into force on 1st December 2014.

Amendment of section 368E of the 2003 Act (harmful material) .

In section 368E(4) of the 2003 Act (harmful material), for subsection (2) substitute:

(2) An on-demand programme service must not contain any prohibited material.

(3) Prohibited material means:

  • (a) a video work which the video works authority has determined for the purposes of the 1984 Act not to be suitable for a classification certificate to be issued in respect of it, or
  • (b) material whose nature is such that it is reasonable to expect that, if the material were contained in a video work submitted to the video works authority for a classification certificate, the video works authority would determine for those purposes that the video work was not suitable for a classification certificate to be issued in respect of it.

(4) An on-demand programme service must not contain any specially restricted material unless the material is made available in a manner which secures that persons under the age of 18 will not normally see or hear it.

(5) Specially restricted material means:

  • (a) a video work in respect of which the video works authority has issued a R18classification certificate,
  • (b) material whose nature is such that it is reasonable to expect that, if the material were contained in a video work submitted to the video works authority for a classification certificate, the video works authority would issue a R18classification certificate, or
  • (c) other material that might seriously impair the physical, mental or moral development of persons under the age of 18.

(6) In determining whether any material falls within subsection (3)(b) or (5)(b), regard must be had to any guidelines issued by the video works authority as to its policy in relation to the issue of classification certificates.

(7) In this section:

  • the 1984 Act means the Video Recordings Act 1984;
  • classification certificate has the same meaning as in the 1984 Act (see section 7 of that Act);
  • R18 classification certificate means a classification certificate containing the statement mentioned in section 7(2)(c) of the 1984 Act that no video recording containing the video work is to be supplied other than in a licensed sex shop;
  • the video works authority [BBFC] means the person or persons designated under section 4(1)of the 1984 Act as the authority responsible for making arrangements in respect of video works other than video games; video work has the same meaning as in the 1984 Act (see section 1(2) of that Act).

Amendment of section 368B of the 2003 Act (supply of information)

Insert:

(d) OFCOM may supply information to the video works authority, within the meaning of section 368E, for use by the video works authority in connection with functions of OFCOM as the appropriate regulatory authority;

(e) a designated body may supply information to the video works authority, within the meaning of section 368E, for use by the video works authority in connection with functions of the designated body as the appropriate regulatory authority.

[This looks like a measure to stop the BBFC effectively changing the law by changing its own guidelines. It looks like Ofcom and ATVOD will be able to step in should the BBFC change its rules].

BBFC R18 Guidelines

For reference the current BBFC Guidelines for R18 takes the form of a list of material prohibited from R18:

The following is a list of prohibited material:

  • 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
  • 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

These Guidelines will be applied to the same standard regardless of sexual orientation of the activity portrayed

CPS Obscenity Guidelines

Of course the guidelines don’t fully define what is ‘judged to be obscene under the current interpretation of the Obscene Publications Act 1959’, but the CPS does offer some guidance. See charging practice from cps.gov.uk :

It is impossible to define all types of activity which may be suitable for prosecution. The following is not an exhaustive list but indicates the categories of material most commonly prosecuted:

  • sexual act with an animal
  • realistic portrayals of rape
  • sadomasochistic material which goes beyond trifling and transient infliction of injury
  • torture with instruments
  • bondage (especially where gags are used with no apparent means of withdrawing consent)
  • dismemberment or graphic mutilation
  • activities involving perversion or degradation (such as drinking urine, urination or vomiting on to the body, or excretion or use of excreta)
  • fisting

The Guidelines are still insufficient for VoD providers to judge the legality of their catalogue

The most immediate issue with the new law is how commonplace ‘rough sex’ will be treated. There are many films that suffer a few cuts for hair pulling, gagging, retching, spitting etc. Will a film that would be R18 after a few cuts now become illegal? If so, there are thousands of them. It is not clear how these cuts correlate to the guidelines. The guidelines are clearly produced for interpretation by the BBFC rather than the public and will effectively leave VoD service providers unable to judge the legality of films without a BBFC certificate. Perhaps that is the idea. But then again it will leave British websites with a tiny fraction of the range of choice to that of foreign competitors.

Comment: Scrapping red tape

letter writing 18th November 2014. From the Melon Farmers

Coincidently I got a circular emall from David Cameron yesterday claiming:

“we will carry on backing businesses by scrapping red tape, cutting taxes – and continuing to invest in the infrastructure that is vital to create jobs and enable Britain to compete successfully in the global race”.

Well if Cameron considers this new law as `backing businesses` and `scrapping red tape` then Britain is doooomed.

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