Pornography and the new illiberalism: the Digital Economy Bill

A 19th-century drawing after Raimondi, illustrating Aretino’s I Modi; access to Aretino’s work was restricted in most countries due to its being placed on the Catholic Church’s Index

One of the unfortunate consequences of the political hurricane that is Brexit and Trump is that, drowned out by the noise and the mayhem, many political and legislative developments have slipped by quietly and largely unnoticed. The passage of the Investigatory Powers Act (which awaits royal assent) and the Digital Economy Bill (which has completed its legislative stages in the House of Commons, and now moves onto the House of Lords, with a view to it passing into law in 2017) is a case in point. Both are appalling pieces of legislation containing numerous problems—yet there has been little public debate about either of them. Here I’m going to discuss only the Digital Economy Bill, a piece of legislation that deals with several broad issues pertaining to digital communications, above all piracy, file sharing, copyright and pornography. At the risk of disappointing readers, I will focus here solely on that driest of topics: pornography.

Perhaps some form of disclosure ought to preface my discussion. In principle I have no problem with pornography. Sex is an (occasionally) enjoyable and important part of being human; the opportunity to enjoy it, think about it and explore it through pornography and erotica is valuable. (I have written elsewhere about pornography’s historical relationship to radicalism, subversion, satire and freedom.) There are no good arguments, but many bad moral arguments, against the depiction of sex. When it comes to pornography, I am not far off being a libertarian. At the same time, however, I think most pornography is dreadful and has helped to create attitudes towards sex and sexuality which I find troubling; and there is no doubt that the pornography industry is frequently exploitative, and often downright nasty (although, to be fair, the same can be said about most industries and occupations). That a large proportion of pornography is boring, dreary, rubbish, horrible, or all four, and that many pornographic performers are exploited, do not, however, constitute reasons to ban pornography; rather, they should be met by artistic and ethical efforts, by good porn, by feminist porn, by ethical porn, by intelligent erotica. I am, I might add, quite a fan of erotica.

The Digital Economy Bill attempts to address a supposedly common source of popular anxiety: the easy accessibility of pornography to children. Whether or not this anxiety is exaggerated and hysterical, and whether it can be found beyond the pages and readers of the Daily Mail, is not something I can discuss with any authority; but moral panics are not unheard of. (What would be the point of the Daily Mail if it didn’t have a good moral panic to scream about?) Nevertheless, I’m led to believe that there evidently is a lot of pornography on the internet within easy reach, and children, being curious creatures, are wont to search for it. It would be trite to suggest that it is the responsibility of parents to manage and obstruct this curiosity; far better, the government and the morally righteous have concluded, would be to get the state to do the job.

The proposed solution to the problem, as outlined in the new legislation, amounts to this: adult material (by which is meant images, videos and audio) will henceforth require age verification (AV) in order to be accessed; a regulator will be appointed to police the internet, with the powers to enforce sites to implement AV, to block sites that do not comply with the legislation, and to fine site owners in contravention of the law (up to £250,000 or 5% of a site’s turnover, whichever is the greater); the British Board of Film Classification (BBFC) will be assigned the Herculean task of determining whether a site contains adult content. It is important to note that the legislation applies only to commercial sites; non-commercial sites (for example, personal blogs and amateur websites) are unaffected. It is also worth noting that pornography and erotica in the form of the written word are also unaffected; those who like to read and write erotica can breathe a sigh of relief.

There is little of merit in these proposals. The bill threatens to have a negative impact on personal freedom; there are numerous potential anomalies in the legislation; and it is highly likely that it will quickly prove unworkable and impractical. My prediction is that it will join such legislative incompetencies as the 1991 Dangerous Dogs Act (notorious as a poorly considered and kneejerk response to a media-driven panic), and that the proposals on pornography will ultimately be abandoned or repealed. Politicians, often under pressure from both the public and the media, can be inclined to push forward hasty, poor, ill-informed legislation in areas they know little about. Our current set of politicians are neither better nor worse in this respect than their predecessors; history is littered with terrible legislation.

I certainly hope my prediction of abandonment or repeal is correct, because if I am wrong those of us with liberal values have a lot to worry about. Above all, the legislation (especially in tandem with the Investigatory Powers Act) signals a huge expansion in state control of online activity. As well as granting to police and security agencies almost limitless power to snoop on and hack into the digital activity of British citizens (irrespective of whether an individual is suspected of wrongdoing or not), Britain will very soon have the most repressive legislation relating to internet use of any western country. While totalitarianism is not likely in the UK any time soon, what does lie around the corner is some of the basic infrastructure of totalitarianism.

The legislation certainly indicates a chill wind of illiberalism and puritanism is blowing. A striking feature of the bill is its definition of ‘pornographic material’. As might be expected, anything that would receive the BBFC’s R18 classification (i.e. the equivalent of adult movies available only through licensed distributors such as sex shops) is covered—and, to be frank, there is a case for taking some sort of action to prevent this type of material being easily accessible to children. But also designated as content to be restricted is anything that would receive an 18 certificate and was ‘produced solely or principally for the purposes of sexual arousal’. Welcome to an area that is fifty shades of grey. The main intention is presumably to restrict access to softcore pornographic videos and images. But where does softcore end and erotica begin? Films such as Secretary, Fifty Shades of Grey, Nymphomaniac, Blue is the Warmest Colour, Sex and Lucia, and many, many more in that broad erotic genre, all contain explicit sexual scenes that would not be out of place in most softcore films. The legislation will almost certainly not restrict access to such mainstream films (and we can at least be thankful for that, even if Nymphomaniac is not a film I much want to see again). But it’s going to be a fun job for the BBFC to decide whether a video should be designated as ‘produced solely or principally for the purposes of sexual arousal’ or not. What would decide the matter? Would the semblance of a plot, competent acting, dialogue about non-sexual matters, and a modicum of production values ensure that a video escapes being restricted? Or does it all come down to that indefinable quality: taste? Similarly, plenty of difficulties will stem from still images. Nudity and mild sexual scenes are acceptable in 15 films; but would nudity be acceptable in an image? Some nudity is sexual, some isn’t, but most stands somewhere in between. It may come down to context: an image on an adult site will be judged differently from the same image on a non-adult site. I foresee endless arguments and appeals against BBFC classifications, and many inconsistencies in their decisions as to what should and should not be restricted.

What is clear from the bill is that a vast range of adult content will potentially be swept up by its definition of pornographic material: everything from the most explicit hardcore pornography to mild erotica. The impact this will have on the production of and access to adult material in the UK is likely to be profound. This has been discussed eloquently and intelligently elsewhere by, among others, Pandora Blake and Girl On The Net, so here I will only note the main points of their arguments.

The bill is likely to force most small, independent producers of adult content to close down their sites due to the prohibitive costs of implementing AV. It will have less of an impact on the big porn players, who will have the means and resources to accommodate the legislation (probably passing on the costs of AV to the consumer) or to ignore it (leading to their site becoming inaccessible in the UK—whether or not to ignore the legislation will depend on whether they see the UK market as worth the hassle and cost of AV). Some producers will inevitably find ways of circumventing the legislation; most such producers will be based overseas, a long way from any legal risk. Doubtless much porn currently easily accessible will find its way to the wild lands of the dark web. The overall effect of the legislation is likely to be a strengthening of the commercial power of the large producers relative to independent producers, many of whom will not survive. Adult material will be less free, less diverse, less likely to cater to niche interests, and there will simply be less of it.

The new legislation will obviously also affect those who wish to access adult material: not only will this be much harder, and much material no longer available (because the producers will no longer be able to operate, or because the site has no AV and is blocked), but there will be much less free content. In addition, all users will need to provide personal data to verify their age (no-one is clear what data will be used and how AV will be implemented yet), with all the attendant risks of this data being lost, stolen, misused, or sold. As well as creating large databases of porn users, accessible to the regulator and attractive to hackers and blackmailers, AV will also open up opportunities for fraudsters to acquire personal details (expect messages such as ‘Free porn! To access it simply enter your credit card details to verify your age and click here’ to be a lucrative branch of cybercrime). For a more detailed and technical discussion of the numerous issues around implementing AV, see Alec Muffett’s blog article, ‘A Sequence of Spankingly Bad Ideas’.

In short, the bill (presumably unintentionally, since its principal aim is to protect children) spells bad news for both producers and adult consumers of pornography, an outcome that will no doubt be welcome to many campaigners, be greeted by others as an acceptable price for protecting children, but be lamented by those who value the freedom to produce, explore and enjoy perfectly legal erotica and pornography.

But will the legislation work? There are several reasons to think (and hope) it will quickly founder on the rocks.

First, Muffett’s article suggests that there is no straightforward way of implementing AV. Any AV has to be robust and secure, as minimally intrusive as possible but sufficiently intrusive to verify a user’s age, and to apply potentially to every single user of the internet throughout the UK. At present, nobody knows what form AV will take, and it could take a long time before any system has been set up. Those without much knowledge of digital technology, such as most politicians, tend to assume that digital projects are relatively straightforward to fulfil; those of us with experience of working on digital projects know that the opposite is the case. (Think of the billions of overspend and huge delays on Iain Duncan Smith’s much touted system of universal credit for an example of the naïve hopes of the politician about IT projects.) Muffett’s analysis is that any system of AV in line with the bill’s proposals is likely to run into various problems. That may lead to it being abandoned; or it may lead to a more comprehensive form of digital ID that every British citizen will be required to have. If the latter, then we will be inching a little closer to an Orwellian dystopia.

Second, it doesn’t take long to find examples of content that will defeat the intentions of the bill. Consider Twitter. Twitter has a comparatively liberal, hands-off approach to adult content; unsurprisingly, Twitter is awash with pornography. To comply with UK legislation, Twitter will either have to implement AV for UK users, or it will have to remove all adult content. It’s almost impossible to envisage it doing either. To add AV to UK Twitter accounts will mean everybody in the UK who wishes to use Twitter will need to supply personal details simply to have access to an account. Moreover, it will presumably mean that Twitter will become 18+ in the UK. Perhaps this will be acceptable to UK users; but I doubt it. The alternative—to remove all adult content—would mean Twitter changing global policy simply to comply with the laws of a single country, letting the BBFC determine for Twitter what is and what is not acceptable content, and diverting resources so that content can be regularly and closely monitored. There is zero chance of that happening.

Third, I have already mentioned the difficulties facing the BBFC in determining whether material should be restricted or not. This will not be made any easier by the fact that the BBFC will be making decisions on every single adult website, and every website that contains adult content, from all over the world (and the regulator will need to determine whether any sites flagged up by the BBFC are commercial or not, before contacting the site and trying to enforce AV). Numerous job opportunities may well be opening up at the BBFC and in the new regulator’s department in the near future; applicants with a knowledge of pornography will have an advantage.

There are also various potential anomalies that will arise. For example, an erotic short story on a commercial site will be unaffected by the legislation; but if an author includes an audio file of that story, then, according to the letter of the law, AV will be needed to access the blog. A curious aspect of the bill is that the same words have a different legal status depending on whether they are written or spoken. Another anomaly: an explicit short story (one that describes, say, sexual torture) on a non-commercial blog will remain accessible to children; some mild nudity on a commercial adult blog will be restricted. Moreover, hardcore pornography will still be accessible on non-commercial sites (personal blogs, for example) without the need for AV. Fortunately for the Daily Mail, there will remain plenty to get worked up about.

It is worth recalling how ineffective politicians have been in dealing with media generally. For years politicians have discussed how to deal with the some of the worst excesses of traditional media, and have even endeavoured from time to time to do something, yet without any noticeable effect. All the measures designed to regulate newspapers, for example, have done little to curb the worst practices of the tabloids. Whether or not that failure is to be welcomed, it may be instructive when assessing the likelihood of successful regulation of digital media.

Perhaps the fundamental problem is the unrealistic, overweening confidence of UK legislators that a national legislative body can provide solutions in an area that is truly global and ever-changing. One might even say the spirit of Brexit can be detected here: rather than view this issue as requiring transnational cooperation, the British blunder forward in the stubborn belief that it can all be solved at the national level. Equally unrealistic is the idea that proposed solutions in 2016 will be relevant even a year or two from now. Digital technology changes rapidly; new devices and platforms will emerge; new problems will arise; current problems will evolve into different ones; ways will be found around out-of-date legislation. In the world of digital communications, legislation and policy have a very short shelf life, such is the rapidity of change in that world.

None of this is to minimize the seriousness of the problem: easy access to pornography shouldn’t be available to children. But a heavy-handed and censorious approach by the state is not likely to work—at least not without serious restrictions on individual freedom (for reference, see North Korea and Saudi Arabia, among other countries, as guides to effective internet restrictions). Far better would be: to begin a wide-ranging, open and public debate about digital communications; to take a more sophisticated approach to the different types of adult material (which would include thinking about that old chestnut, the difference between pornography and erotica); to work transnationally at addressing these issues; and to work and engage closely with digital producers, with social media companies, and, importantly, with producers of adult material. Easy solutions won’t be forthcoming; but a more informed debate and understanding of digital communications will be generated that is more likely to lead to positive outcomes, and less likely to lead to astonishingly illiberal mistakes such as the Digital Economy Bill.

As I’ve suggested above, there are good reasons to suppose the bill will not work. That is not necessarily good news: it may lead to an even more thoroughgoing attempt at censorship, deeper intrusion into privacy, and greater restrictions on personal freedom. And even if the outcome, more positively, will be the abandonment of attempts by the state to expand its monitoring and close policing of its citizens, the situation in the immediate future is not promising: the Digital Economy Bill will inject numerous anomalies and inconsistencies into the digital culture of the UK, it will move towards the establishment of a database of porn users, it will lead to the demise of many independent producers of erotica and pornography, and it will create a puritanical climate in which erotica is policed in an intrusive and heavy-handed way. For those of us who regard erotica and sex as important topics worthy of attention, creativity and freedom, this is a bleak, dismal state of affairs. And for those of us imagining that erotica might be one form of pleasant distraction from the horrors of Brexit, another hope is in danger of being dashed. It’s becoming increasingly hard to find anything to look forward to in Britain right now.

4 thoughts on “Pornography and the new illiberalism: the Digital Economy Bill

  1. This bill is a bad answer to a real problem. The proposed age verification solutions are unlikely to be feasible, and carry significant additional risks. Another ill-conceived measure to try to placate the tabloid papers, like the “Dangerous Dog’s Act”? What might be better is improved sex education in schools.

    Liked by 1 person

  2. This is going to be one big headache for me. As a UK based web retailer of second-hand adult magazines since 2004, I have no idea whether I’ll even be allowed to trade to UK customers if this law goes through. Trying to understand the bill is very difficult for a layman and causes a great deal of uncertainty. I might just make my site for members only for all my current customers with public access to non UK customers. As for protecting children – playground talk will mean them using the TOR browser and able to access any kind of porn they like including the most vile subjects imaginable – well done you stupid government fools you are just about to send thousands of youngsters to the Dark Web – I’ve been there and it is a real internet Hell that will pervert the next generation of adults.


    1. I’m not a lawyer I should emphasize… From what I can gather there would be nothing illegal in trading to UK customers. The potential problem will be whether your website contains images that the BBFC will consider to require AV to access. Here we get to one of the unknowns. Will the display of images of adult magazine (and DVD) covers require AV? Amazon sell adult material (top-shelf magazines, 18-rated pornographic videos), but will Amazon be required either to stop selling this stuff or to implement AV in order to access it? And bearing in mind that Amazon operate globally (it’s not just that one can buy from), if the new law does mean that such stuff requires AV then Amazon would presumably have to implement it for their entire global operation–just to satisfy the laws of one country. For what it’s worth (and let me say again, I’m not a lawyer), my guess is that things like this will soon make the legislation largely absurd and unworkable. Global giants such as Amazon, Twitter, Google (Google images is probably the place where pornography can be most easily accessed) are not going to change their entire operation just to satisfy British law and BBFC views on what is and is not acceptable. So if the big players are given a pass, it would be the height of hypocrisy to apply different criteria to the smaller retailers.

      The other thing that is likely to happen is that increasing numbers of UK internet users are going to subscribe to Virtual Private Networks. As I understand it, VPNs will allow uncensored web browsing. (There are other good reasons for using a VPN, including increased protection against hackers and enhanced privacy in the face of the Investigatory Powers Act.) I doubt that the government will care about VPN-use in relation to pornography–after all, they’re not intent on criminalizing access to pornography, only on making it harder to access by children. The government and security agencies might be dismayed at a surge in VPN use as defeating some of their supposed intelligence and security objectives. But I doubt there’s a lot they can do about it. That’s one of the stupidities behind both pieces of legislation: both are blind to the way that digital communications are a global issue, and how technology will invariably find ways to circumvent censorship. In short, I foresee a huge increase in VPN use in the UK over the coming years.


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