It’s been bubbling away quietly for a few months now, but today the Crown Prosecution Service in the UK have finally announced an overhaul of what material is considered illegal under the Obscene Publications Act. Gone is the list of forbidden acts that effectively scooped up all non-vanilla sex acts, and in comes a series of ‘tests’ to determine if an image is obscene.
The OPA has long been a blunt tool used to enforce British censorship, where convictions could be held up as evidence of the ongoing legal obscenity of pornography while acquittals were quietly brushed under the carpet. After years of juries failing to convict hardcore porn in court – even though it was widely established as being ‘illegal’, the powers that be finally gave up the ghost on that one in 2000, and finally allowed British adults to watch images of other adults having consensual sex. But entirely legal acts remained on the list of material that was likely to be prosecuted – from pissing and shitting, to fisting, to most forms of BDSM and even female ejaculation, which the authorities resolutely refused to believe was a real thing. The British Board of Film Classification (BBFC) used this as justification for removing any material of this nature from porn movies (though funnily enough, they were fine with such imagery appearing in arthouse movies), even though no one could point to any recent – and by recent, we’re talking this century – cases where juries had found such material obscene. That’s because the police and the CPS were reluctant to bring obscenity prosecutions against such material, because they knew juries would not convict. So we had this ludicrous situation where we were told that such material would be found guilty by juries, but no one was willing to put it to the test. The odd case that did reach court – and invariably ended with acquittal – was said to be an aberration, and we were told that we’d need a constant stream of acquittals to force a change in CPS advice over what was or wasn’t obscene – but we’d never get that constant stream, because no one was being prosecuted. The existence of the Video Recording Act, which makes the sale of uncertified films illegal, was an easier tool to use to prosecute anyone selling such material, as it did not involved juries having to make decisions about what might be “likely to deprave and corrupt.”
But now the list of forbidden imagery has been replaced with four ‘tests’:
- it features consenting adults, where the provision of consent is made clear where consent may not be easily determined from the material itself
- no serious harm is caused, whether physical or otherwise
- it is not otherwise linked with other criminality
- the likely audience is not under 18
Why the sudden change? Well, the CPS and other authorities might claim that is is simply moving with the times, though we might then question why they hadn’t done so previously. Certainly, the recent face-sitting protest outside Parliament attracted surprisingly sympathetic press coverage as the ridiculous nature of the ban on kink was exposed for the first tike to the wider public, but that’s not why the rules have just changed.
The real reason is down to the fact that the BBFC has been appointed as the government authority to oversee internet porn – they will be enforcing age-verification rules on websites around the world, and forcing ISPs to block those sites that don’t comply. This is the much vaunted, and still unlaunched Porn Block that the UK government has been wrestling with for a decade. The problem with the porn block is that it also states that sites hosting legally obscene material must be blocked outright. But the major tube sites all host clips that feature pissing, fisting, BDSM and other acts that were previously outlawed in the UK. Asking those sites to remove that material would be impossible, especially with such a flimsy legal foundation to do so, and yet the authorities need the likes of PornHub on board if they are to make age verification work. After all, if the major free sites sign up (and they eagerly have), then not only does it take the most visible and accessible porn out of open circulation, but it forces smaller sites to also comply or be blocked – UK based viewers will be less likely to look into VPNs and other workarounds if the big boys are not only complying with the law but also – and this is highly possible – set up a system that will not allow access via VPNs. By allowing this sort of material, the authorities are clearly hoping to avoid having porn viewers going to sites where they might find far more extreme content.
Of course, no one in the UK authorities is going to admit that they have effectively changed the law to accommodate porn sites, but that’s exactly what has happened here. And we shouldn’t be too cynical – this is a major step forward in what we are allowed to buy (contrary to what various news sources have been saying, merely owning obscene material has never been illegal – only distributing it). Since the arrival of the internet, the ban on these harmless kinks has been very much like King Canute trying to stop the tides (with most people remaining blissfully unaware that the material that they were looking at was legally ‘obscene’ to begin with), and it’s good to see common sense has finally triumphed.
Like what we do? Support us on Patreon so that we can do more!
