|Uk report||1.38 MB|
Cameron's war on pornography
The UK government is currently embarked on a moral and legislative crusade against adult content on the internet. The ostensible aim of this crusade is the protection of minors from content that can harm their development and distort their views of sexual relationships.
This strategy has three distinct but connected strands: 1) getting internet service providers (ISPs) to implement default opt-out network-level filtering; 2) banning the online distribution of content depicting specific sexual acts considered obscene; and 3) imposing strict age verification on adult sites. The first two of these developments were put in place by the former Coalition government, and the newly formed Conservative government is preparing the details of the third.
Protecting children is a laudable goal, but as we explain below these proposals are very problematic in several respects. The sexual freedoms of minorities are particularly at risk, but these developments have serious implications for the freedom of speech and privacy of large segments of the population. Sexual freedoms online provide a microcosm of the wider issues around digital rights.
Policy and political background
In July 2013, Prime Minister David Cameron made a speech about a proposed crackdown on online pornography and making the internet safer for minors more generally. Cameron described the internet as an unregulated space where child abuse proliferates, and called on search engines to block certain search terms, which they agreed to do. In the same breath he also announced that ISPs would have to ensure that minors cannot access adult content.
Cameron’s speech was part of a long campaign by religious groups, centred around SafetyNet.org.uk. By 2012, the campaign had gathered some 100,000 signatures “calling on the Government to force Internet Service Providers to make accessing pornography an adult only opt-in service,” and enrolled the support of a prominent Conservative member of parliament, Claire Perry. In December 2012 she was made Special Advisor to the Prime Minister on Preventing the Commercialisation and Sexualisation of Childhood.
Perry, in her final report on Online Child Protection, in April 2012, recommended “a network-level 'Opt-In' system, maintained by ISPs, that delivered a clean internet feed to customers as standard but allowed them to choose to receive adult content.” Following months of consultations and further political positioning, ISPs eventually agreed to deploy network-level filtering by December 2013.
SafetyNet has now wound down, and as their proposals were implemented they lost the support of high-profile groups such as Mumsnet. But the idea of controls on adult content has gained momentum in recent years among some mainstream organisations, such as the National Society for the Prevention of Cruelty to Children (NSPCC).
The other strands of the government crackdown on online adult content – banning content depicting certain sexual acts and forcing age verification on hardcore pornography websites – have been less discussed in wider forums.
These policies are aligned with the increasing use of moral narratives by British politicians to describe their policies, and a constant reference to “values” in the public discourse in the absence of ideologies. The increasing interest of the Conservative party in regulating sexual behaviours has not been challenged by the other parties, as critically engaging with the issues is politically toxic.
In addition, mixing up – as Cameron did in his speech – references to criminal child abuse imagery with underage access to lawful content makes it very hard to have a proper debate, as these are very different things. It must be stressed that in the rest of this report we are not dealing with child abuse images, only with representations of sexual behaviour among consenting adults.
The UK is unique among Western countries in implementing default filters for adult content by all major ISPs. This has not been achieved through legislation, but after pressure from the government on those companies in private meetings and public statements condemning companies for not doing their bit. Default filtering has been in place for mobile data connections for some time with problems similar to those we describe below, but it did not affect as many people. All new customers to major ISPs are now faced with an unavoidable choice to filter the internet connection for the whole household, with a roll-out of the service for existing customers, who are forced to choose when they try to access a blocked site.
The process for implementing the filters is problematic. The filters were originally meant to be based on an “active choice” by users, but have ended up being a default where users have to opt out. In addition, the computer interfaces in most cases are designed to drive users towards the filters, with the use of pre-ticked boxes and buttons for setting up the filters several times bigger than those for opting out. The government’s official line is that the success of the policy is based on people being presented with a choice, not necessarily taking up the filters, but they clearly expect companies to deliver uptake. There are even questions as to whether the filters would fit with the requirements to provide a neutral internet environment under EU legislation, which bans “managing web traffic by default.”
Despite these aggressive techniques, the available evidence is that customers may be rejecting the filters. The regulator Ofcom reported uptake for new customers in 2014 as low as 4%. But unfortunately the report did not explain how many of these were households with children. Ofcom also reported higher numbers among existing customers, but this is to be expected, as there are simply a lot more existing customers compared to new installations. What matters is the total uptake percentage, ideally for households with and without children, and this has not been published.
The filters go beyond pornography, covering all kinds of content unsuited to minors: gambling, alcohol, dating, etc. The websites also cover very specific areas such as suicide and even sexual advice. In some cases the filters block potential malware websites as a separate category. Some companies have also implemented a gradual system with categories for different age groups that will selectively block gaming sites or social networks. All filters have a setting to stop websites in the category of “hacking and technology”, which can cover any internet tools to bypass censorship. Protecting minors from uncontrolled content has also led to the blocking of all kinds of online forums, blogs or any site that allows comments.
Minors have a human right to access information, and, for example, restricting websites that glorify suicide and self-harm should not stop children from accessing confidential sources of advice on those topics. There are also limits to what parents can do to shape their children’s views of the world. In a particularly egregious case, ISP BT gave parents the option – since removed – to block websites related to “gay and lesbian lifestyles”.
In addition to issues around the filtering policies there are also concerns about websites being wrongly categorised and blocked on the basis of automated text analysis. This had already been an issue with the earlier mobile data filters, with, for example, church websites blocked as alcohol sites for their use of the word “wine” in the context of the holy communion. Clare Perry’s own site was blocked as she uses the word porn a lot in her campaigning, and a variety of other organisations have reported their websites as wrongly blocked.
Concerns about the “overblocking” of content led to the formation of an official working group under the UK Council for Child Internet Safety (UKCCIS). The extent of problems with content is under dispute. The official working group downplays the issue in its final report as “very low”, based on industry reports of complaints. But the Open Rights Group ran automated tests through the Blocked.org.uk project and found that 11-21% of the top 100,000 most popular websites are blocked in one or another ISP, depending on the filtering settings applied.
Perhaps the main issue with the filters is that they may not be effective at precisely what they are trying to achieve: avoiding the exposure of minors to inappropriate online content. David Cameron promoted the idea that filters deliver “one click to protect your whole home and to keep your children safe.” But this is far from clear. One particular ISP, Talk Talk, had long pioneered offering system-level internet filters but they were criticised in a study for potentially increasing access to pornography if users relied on this system and turned off other protections. ISPs have long filtered websites serving child abuse materials – classified by the Internet Watch Foundation – via the BT Cleanfeed system. That system has been criticised in the past for providing a way to actually find child abuse images. In addition, filters may have limited effect on YouTube videos contain graphic violence. Most experts admit that filters can only work as part of a wider strategy, where parental involvement in actively monitoring their children’s internet use is central. The filters as such can provide a false sense of security.
Regulation of adult content
Ban on specific sexual acts
The UK Audiovisual Media Services Regulations (AMSR), approved in December 2014, outlaw content on UK adult websites stronger than the British Board of Film Classification (BBFC) R18 classification certificate for hardcore pornography. The regulations are part of the implementation of measures allowed by the EU Audiovisual Media Services Directive to protect minors from “harmful content”. But the UK is the only country to apply such restrictive measures. The regulations are enforced by ATVOD, the “independent co-regulator for the editorial content of UK video on demand services.”
R18 materials can only be supplied in licensed sex shops or special cinemas, and at present UK websites providing these materials must have some form of age verification system. Stronger content is unclassified and cannot be distributed on DVD or in cinemas or sex shops, but until now it had been distributed online by UK producers under similarly restrictive settings as for R18.
The BBFC guidelines list some content that is “not acceptable”, and perceived as more extreme than R18, such as: spanking, aggressive whipping, penetration by any object "associated with violence”, physical or verbal abuse (regardless if consensual), urolagnia (known as "water sports”), role-playing as non-adults, physical restraint, humiliation, female ejaculation, strangulation, face-sitting and fisting. These acts are in principle legal to perform among consenting adults but any film showing such acts will not be classified by the BBFC and therefore will not be distributed in the UK. After these changes in the law, any UK-based website providing such materials can be shut down and their operators fined.
The above list includes BDSM practices brought to the mainstream by films such as 50 Shades of Grey, but the wording describing the acts does not fully explain what exactly is banned. Subtle and minor changes to how sexual acts are depicted by filmmakers – even down to angle and duration of the takes – are able to push films from 18 (normal distribution) to R18 (hardcore restricted distribution) or into illegality. The exact boundaries for how the acts are depicted, in order to be banned, are arcane, unclear and very complex.
The law has been widely criticised as “misguided”, “deeply sexist”, and an attack on the LGBT and BDSM communities without tackling some of the male-dominated taboo forms of pornography. The choice of banned acts has also been criticised for not being based on evidence but moral judgement, and affecting women disproportionately. The government has argued that the changes simply bring the internet in line with already existing DVD ratings. But regulating video online has a broader social impact because it potentially covers the activities of many ordinary people, not just commercial media production companies and sex shops.
Backlash is the leading UK group campaigning for the “freedom of sexual expression”, and it has legally challenged this law on the grounds that it is an assault on sexual freedoms and wider freedom of speech. The lawyer for Backlash, Myles Jackman, is the leading authority on obscenity legislation and he is defending one of the two dominatrices currently being prosecuted by ATVOD under the new rules.
AMSR 2014 is not the only restriction on sexual materials. The Obscene Publications Act (OPA) from 1959 makes it an offence punishable with a fine and up to three years in jail to publish materials likely to “deprave and corrupt”. This law has been challenged since its inception – famously around the publication of D. H. Lawrence’s Lady Chatterley’s Lover – and it is seldom followed through to prosecution, yet its occasional use is a constant source of concern for the BDSM community.
The above restrictions do not apply to the possession or viewing of such materials, which remain legal in themselves, but only to their production and distribution in a regulated context. Separately, it is a criminal offence punishable with three years in prison (five in Scotland) to possess extreme pornographic images or films. Extreme images include threatening a person's life, serious injury to a person's anus, breasts or genitals, bestiality, and necrophilia – including realistic simulated images.
Age verification for adult sites and payment controls
In March 2014 ATVOD published a report that claimed there was evidence of widespread underage access to online porn, and called for robust age verification controls. Since much of such content comes from foreign providers that did not fall under their jurisdiction, ATVOD called for new legislation to stop payments to websites without access controls. They found that most porn is viewed on free “tube” sites that would not be affected, but as those sites are funded by leading viewers to paid services, they expected financial restrictions to have indirect effect.
During the last general election campaign in April 2015, the Conservative Party pledged to modify the existing ISP filters to compulsorily block – not opt in or out – any British or foreign hardcore pornography websites that failed to put in place age verification controls. This followed a campaign on the exposure of children to online porn by the influential NSPCC. In July 2015 Cameron announced a public consultation on the matter in the autumn, threatening legislation if industry failed to self-regulate. Similarly to the ban on extreme pornography, the rationale is to bring existing restrictions on R18 materials to the online world.
The government has not given many details on what would constitute valid age verification. Credit cards are currently used, but debit cards are not considered by ATVOD a sufficient form of access control, as they “can be used by under 18’s,” and ATVOD has prosecuted some pay-per-view websites on this basis.
The UK adult content industry is currently heavily regulated, and so would welcome attempts to regulate foreign providers to create a level playing field. For them it would also be easier to have someone else manage verification. A broad industry coalition is trying to preclude legislation, developing a system through the Digital Policy Alliance. There are few details on how the “robust, consent based and confidential” British standard system for age verification would actually work, but it appears to be based on the model of trust frameworks followed by the UK government’s Verify system. But Verify has been recently criticised by security experts for serious privacy failures.
These proposals raise extremely serious privacy issues for end users and will confront very hard architectural challenges. Age verification and digital identities in general are some of the most complex policy and technical issues around the internet. There are some working examples, including a Japanese system that uses mobile phone subscriber data, but nothing as ambitious as what is being proposed in the UK.
The protection of children is the most often used argument to control online content. While this is a laudable aim, forcing ISPs to control the websites they deliver can have very negative consequences for freedom of expression and other human rights. Internet filters can restrict legitimate access to information about sexual matters by minors. We have seen that some specific sexual minorities are disproportionately affected by controls on non-standard pornography.
Attempts to force all adult websites to implement age verification could completely change the nature of the internet. Right now internet users are regularly tracked by marketing companies via cookies and other tools, but if porn websites develop the technology to check attributes of their users, such as age, similar systems could be implemented in many other sectors.
The regulation of online porn also provides a good example of the tendency by government to force private companies to police online behaviour instead of providing for legislative measures and the use of courts. Restrictions on rights such as freedom of expression should be provided by clear law, and this approach is particularly unsuited to cases where there is no social consensus amongst the people affected.
One particular problem that stands out in all the cases we discuss above is the lack of consensus on the evidence for the policies being taken. Policy makers repeatedly quote figures of very high access to adult content, but the sources appear to be campaign materials without any scientific basis.
The NSPCC was severely criticised by experts when it claimed that 10% of 12- to 13-year-olds in the UK are “addicted” to porn. Its figures were based on commercial polling, rather than scientific research, and there is simply no consensus that the language of addiction is the best way to deal with these issues. Instinctively we believe porn must be harmful, but there is a lack of agreed-upon research on the actual prevalence of porn amongst minors, and the exact impacts and harms. Much research conflates access by all minors without separation of young children and teenagers, and it is unclear how the situation compares to the pre-internet era.
For example, Ofcom research used in the process to ban unclassified websites did not provide conclusive evidence that R18 material “might seriously impair” minors’ development, nor clear, conclusive evidence of a lesser degree of harm. Nevertheless, Ofcom argued in the same report that some experts believe that there is evidence that exposure of minors to R18 material can have adverse effects. Therefore, it claimed, it cannot be confidently said that sexually explicit material carries no risk of harm to the development of minors, and on this basis it took precautionary action.
Advocacy on filtering in the UK has been led by the Open Rights Group, which has campaigned against the filters and run several projects to this effect, such as the Department of Dirty satirical website. One very important aspect is transparency and information about the filters. The Blocked.org.uk project has been the main point of reference for website owners and users to check whether pages are blocked by different providers. This tool is now being extended to other countries in collaboration with international NGOs.
The ban on selected sexual acts under AMSR 2014 threatens freedom of expression and the sexual rights of minorities, and digital rights organisations would primarily need to work with groups representing those directly affected while providing their expertise.
Proposals for age verification are in a very early stage and there is little organised advocacy around them yet. As in the case of filtering, information and close engagement will be important. Privacy organisations need to be involved, as well as technical experts who can unpick any flaws in the identity frameworks proposed.
Overall, regulation of sexual content online should be based on evidence, and governments should support the required research. Government-sponsored control over information should be replaced as much as possible by active involvement by parents. While some filtering can be appropriate in some cases, it should only be used as part of a broader strategy, ideally implemented at the device level in the operating system and coupled with admin controls, and with clear transparency over what is filtered.
One important aspect to ensure that minors are safe online is to prioritise education and empowering minors. Unfortunately, the Conservative Party in the UK refuses to promote sex education in schools after pressure from religious groups.
In a positive development, industry has set up the independent website Internet Matters, which includes information about the filters and very useful advice ranging from setting up parental controls in various devices to teaching children e‑safety.
Metzdorf, J. (2014). The Implementation of the Audiovisual Media Services Directive by National Regulatory Authorities National Responses to Regulatory Challenges. Journal of Intellectual Property, Information Technology and E-Commerce Law, 5(2). www.jipitec.eu/issues/jipitec-5-2-2014/3998/#ftn.N10393
The R18 category is a special and legally restricted classification primarily for explicit works of consenting sex or strong fetish material involving adults. Films may only be shown to adults in specially licensed cinemas, and video works may be supplied to adults only in licensed sex shops. www.bbfc.co.uk/what-classification/r18
British Board of Film Classification. (2014). BBFC Classification Guidelines 2014. www.bbfc.co.uk/sites/default/files/attachments/BBFC%20Classification%20Guidelines%202014_5.pdf
Jacking Off the Censor. The R18 Story, the legalisation of hardcore: Chapter 1: 1997. Melon Farmers. www.melonfarmers.co.uk/arloh01.htm (Warning: explicit detailed depictions.)
www.backlash-uk.org.uk/beyond-r18-verboten (Warning: explicit detailed depictions.)
Razavi, L. (2014, 2 December). No spanking or bondage: why the government’s new porn laws are arbitrary and sexist. New Statesman. www.newstatesman.com/politics/2014/12/government-s-new-porn-laws-are-arbitrary-and-sexist
Mullin, F. (2014, 1 December). British BDSM Enthusiasts, Say Goodbye to Your Favourite Homegrown Porn. Vice. www.vice.com/en_uk/read/the-end-of-uk-bdsm-282
Pons, G., & Beaumont, K. (2015, 13 January). Stricter rules for the pornography industry – what has changed? Halsbury Laws Exchange. www.halsburyslawexchange.co.uk/stricter-rules-for-the-pornography-industry-what-has-changed
ATVOD. (2014, 27 May). ATVOD acts against 29 UK video on demand websites to protect children from hardcore porn. ATVOD. atvod.co.uk/news-consultations/news-consultationsnews/atvod-acts-against-29-uk-video-on-demand-websites-to-protect-children-from-hardcore-porn
Quine, O. (2014, 15 August). Web dominatrix wins David and Goliath battle with regulators. The Independent. www.independent.co.uk/news/media/online/web-dominatrix-wins-david-and-goliath-battle-with-regulators-9672463.html
Nick. (2014, 1 December). New powers to censor digital media are a threat to free expression. Backlash. www.backlash-uk.org.uk/new-powers-to-censor-digital-media-are-a-threat-to-free-expression /
Merrill, J. (2015, 5 May). Dominatrix becomes first to fall foul of porn laws for doing what a dominatrix does. The Independent. www.independent.co.uk/news/uk/home-news/two-dominatrix-pornographers-become-first-filmmakers-to-be-hit-by-new-online-porn-laws-10226769.html
Obscene Publications Act 1959. www.legislation.gov.uk/ukpga/Eliz2/7-8/66/contents
Jackman, M. (2012, 6 January). Obscenity trial: the law is not suitable for a digital age. The Guardian. www.theguardian.com/law/2012/jan/06/obscenity-trial-law-digital-age
Covered by two different laws: England and Wales Criminal Justice and Immigration Act 2008, www.legislation.gov.uk/ukpga/2008/4/part/5/crossheading/pornography-etc and Scotland Criminal Justice and Licensing (Scotland) Act 2010, www.legislation.gov.uk/asp/2010/13/section/42/enacted
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Minto, S. (2015, 31 March). ChildLine porn campaign confronts issue of young people and porn. NSPCC. www.nspcc.org.uk/fighting-for-childhood/news-opinion/sue-minto-we-cannot-shy-away-talking-about-porn
GOV.UK. (2015, 30 July). Curbing access to pornographic websites for under 18s. https://www.gov.uk/government/news/curbing-access-to-pornographic-websites-for-under-18s
Department for Culture Media and Sport, written question, answered on 4 June 2015. They Work for You. www.theyworkforyou.com/wrans/?id=2015-06-01.618.h
ATVOD. (2015, 10 February). ATVOD acts against two UK VOD services for failing to protect children from online porn. www.atvod.co.uk/news-consultations/news-consultationsnews/atvod-acts-against-two-uk-vod-services-for-failing-to-protect-children-from-online-porn
Gayle, D. (2015, 26 May). UK pornography industry proposes user ID checks for adult websites. The Guardian. www.theguardian.com/culture/2015/may/26/pornography-industry-user-id-checks-adult-websites-privacy
Virgo, P. (2015, 2 April). Times have changed: robust consent based, confidential, on-line age verification is now not only practical, it makes good business sense. ComputerWeekly.com. www.computerweekly.com/blogs/when-it-meets-politics/2015/04/times-have-changed-robust-cons.html
Brandão, L. T. A. N., Christin, N., Danezis, G., & Anonymous. (2015). Toward Mending Two Nation-Scale Brokered Identification Systems. Proceedings on Privacy Enhancing Technologies, 2015(2), 135-155. doi.org/10.1515/popets-2015-0022
Wireless Watch Japan. (2011, 19 January). Mobile SNS Age Verification Service. wirelesswatch.jp/2011/01/19/mobile-sns-age-verification-service
Mullin, F. (2015, 13 April). Children addicted to porn? Don’t believe everything the surveys say. The Guardian. www.theguardian.com/media/shortcuts/2015/apr/13/children-addicted-porn-shouldnt-believe-surveys
Ofcom. (2011). Sexually Explicit Material and Video On Demand Services: A Report to DCMS by Ofcom.
Dunt, I. (2015, 17 February). Religious groups' war on sex education. Politics.co.uk. www.politics.co.uk/blogs/2015/02/17/religious-groups-war-on-sex-education
The filters were initially meant to be an opt-in measure based on an active choice around equal options, but in the end they became opt-out: if customers do not do anything they will get filtered internet by default.
The Conservatives and Liberal-Democrats ran a coalition government between 2010 and 2015. This kind of government is very unusual in the UK, where a constituency-based electoral system favours a strong two-party system.
Independent Parliamentary Inquiry into Online Child Protection. (2012). Findings and Recommendations. www.rcn.org.uk/development/nursing_communities/rcn_forums/children_and_young_people_field_of_practice/cyp_healthy/useful_links/?a=447806
An online discussion platform for new mothers that has become very influential, and has a very broad social base. www.mumsnet.com
Bradwell, P., Craggs, G., Cappuccini, A., & Kamenova, J. (2012). Mobile Internet censorship: What’s happening and what we can do about it. Open Rights Group. https://www.openrightsgroup.org/ourwork/reports/mobile-internet-censorship:-whats-happening-and-what-we-can-do-about-it
Duggan, O. (2013, 15 July). 'Active Choice+' vs ‘Default On’: how Cameron’s crackdown on internet pornography became a rebranding exercise. The Independent. www.independent.co.uk/news/uk/politics/active-choice-vs-default-on-how-cameron-s-crackdown-on-internet-pornography-became-a-rebranding-8710076.html
Smith, M., & Whitehouse, H. (2015, 26 May). An EU ruling could make David Cameron's porn filters illegal. The Mirror. www.mirror.co.uk/news/uk-news/david-cameron-told-porn-filters-5765153
Ofcom. (2014). Ofcom Report on Internet safety measures. stakeholders.ofcom.org.uk/binaries/internet/internet_safety_measures_2.pdf
Bloodworth, J. (2013, 20 December). BT allows parents to block children’s access to “gay and lesbian lifestyle” websites. Left Foot Forward. leftfootforward.org/2013/12/bt-allows-parents-to-block-childrens-access-to-gay-and-lesbian-lifestyle-websites
Bradwell, P. (2012, 17 December). Another church blocked by mobile networks. Open Rights Group. https://www.openrightsgroup.org/blog/2012/another-church-blocked-by-mobile-networks
Worstall, T. (2013, 25 December). The Best Story Yet About The UK's Online Porn Filters. Forbes.com. www.forbes.com/sites/timworstall/2013/12/25/the-best-story-yet-about-the-uks-online-porn-filters
Cameron, D. (2013, 22 July). The internet and pornography: Prime Minister calls for action. https://www.gov.uk/government/speeches/the-internet-and-pornography-prime-minister-calls-for-action
Arthur, C. (2012, 28 June). TalkTalk's internet filter could give children access to porn, says magazine. The Guardian. www.theguardian.com/technology/2012/jun/28/talk-talk-internet-filter-porn
This report was originally published as part of a larger compilation: “Global Information Society watch 2015: Sexual rights and the internet ” which can be downloaded from https://www.giswatch.org/2015-sexual-rights-and-internet
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