The noise and mayhem of Brexit and Trump has meant that many political developments have largely escaped attention and public debate. They have, in effect, been able to slip under the radar. One such development in the UK has been the Digital Economy Bill which is due to pass into law in 2017. For those of us concerned about the erosion of liberal values, the new legislation (alongside the Investigatory Powers Act, which grants to the police and security services the power—long exercised by them illegally—to harvest confidential phone and internet data, and to hack into private accounts, even when targeted individuals are not suspected of wrongdoing) is likely to confirm suspicions that we may be entering a new age of expanding state control, surveillance, censorship and restrictions on individual freedoms.
The Digital Economy Bill seeks to address various issues pertaining to online content, in particular piracy, file-sharing, copyright and pornographic material. Here I will be discussing only the last of these. The post will be in two parts. In this first one I will consider the practical implications of the legislation, above all as it may affect erotica authors. In the second part I will discuss some of the wider cultural issues surrounding the impact of the bill on erotica.
An important preliminary point to make is that the thinking behind the bill’s sections on pornography is, in principle, admirable. The legislation attempts to realize the government’s intention to protect children from pornographic material by making it impossible, or at least extremely difficult, for those under eighteen to access that material. Understandably and deservedly this intention enjoys widespread public support: there are undoubtedly serious and important issues with the easy availability to children of hardcore and explicit adult content. However, whether the legislation is the right way of addressing the issue, and whether the bill has stemmed from a sufficiently insightful debate, are both open to question.
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The effects of the legislation on pornographic material can be summarized as follows: age verification will be required in the UK to access pornographic sites (whether or not those sites are based in the UK or not); a regulator will be appointed to police pornographic content, with the power to order a site to implement age verification; sites that are in contravention of the law can be blocked, and site owners can be fined (up to a maximum of £250,000 or 5% of the site’s turnover, whichever is the greater).
Before considering how the legislation may affect erotica authors, it is worth briefly noting its effects in general on the production of and access to pornography. These have 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 age verification. It will have less of an impact on large producers of pornography, who will have the means and resources to accommodate the legislation, to ignore it and even to circumvent it. The overall effect may be to strengthen the commercial power of the large producers. It will also affect those of us who wish to access adult material: not only will this be much harder, and some of it no longer available (because the producers will no longer be able to operate), but there will be much less free content. Moreover, those users willing to provide the required details for age verification (such as credit card details, a passport or diving licence) will be entrusting personal and confidential data with organizations, and potentially the state. In addition to the risk of that data being compromised, not everyone is comfortable with being on a database that keeps a record of the personal details of all consumers of adult material. In short, the bill (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 what about the impact on erotica authors and readers, that is, those who enjoy erotica (and pornography) in the form of the written word?
In general terms, the bill should have no impact on written erotica. The legislation specifically concerns pornography in the form of video, still images and audio. Those who write erotica, and those who publish books (including e-books) should be unaffected. As long as something is currently legal according to the Obscene Publications Act, it should remain legal in the future. Erotica bloggers and authors will not require age verification on their personal blogs.
Furthermore, the legislation applies only to commercial sites. Amateur, non-commercial blogs will be unaffected by the legislation, and that will presumably include blogs that contain images and video. (Indeed, as far as I can tell from reading the bill, potential anomalies may arise: a commercial site that displays softcore pornographic images will face restrictions to its access and even possible blocking; but a non-commercial amateur blog showing hardcore images does not seem to be covered by the legislation, and hence will be able to continue without age verification.)
While most erotica authors and bloggers can breathe a sigh of relief (for now at least), the bill potentially does raise issues for their work. Most blogs tend to contain images alongside the text. Sometimes a blog post may specifically be about a particular image or video (e.g. an erotic photograph or film). Since the Digital Economy Bill concerns ‘pornographic’ images, this aspect of an author or blogger’s activity is likely to be affected. Whether or not the regulator will deem such images as requiring age verification will depend on whether the blog is commercial or not.
For example, here’s how I understand the legislation in relation to this website. Firstly, I would maintain that this is a non-commercial blog. The content I provide is free, there are no sections of my blog requiring subscription or payment, and I do not sell anything from my blog. However, the non-commercial status of my blog might be questioned. I have published one e-book (and hope to publish more), for which I provide a link to the relevant Amazon page. So it could be argued my blog forms part of an overall commercial enterprise (no matter that sales of my book are virtually non-existent, and that I regard my erotica writing as essentially something that interests me personally rather than commercially). In addition, this is a WordPress site; WordPress are a commercial company, and (unless a blogger pays not to have them) WordPress can include adverts on a blog. So there are arguments both for and against this being a non-commercial site; at the very least it is not a straightforward issue.
Assuming the worst-case scenario—that this is technically a commercial site—I would then need to consider the nature of my content. The written content is not covered by the legislation, so I don’t need to worry about that. But I also have a few images, none of them hardcore, but one or two that show states of undress and partial nudity. Do the few, fairly tame, images on my site constitute pornography according to the new legislation? Section 16 of the bill defines what is meant by ‘pornographic material’. Such material is: (a) R18 video content; (b) any material (such as still images) that was included in (a); (c) any other material that would receive an R18 certificate; (d) any video that is issued with an 18 certificate, and that was ‘produced solely or principally for the purposes of sexual arousal’; (e) any material (such as still images) that was included in (d); (f) ‘any other material if it is reasonable to assume from its nature, (i) that it was produced solely or principally for the purposes of sexual arousal, and (ii) that any classification certificate issued for a video work including it would be an 18 certificate’.
In the case of the images on this site, the only one of these categories that potentially applies is (f), since none of the images I use are stills from video. Several of my images (e.g. pictures of women in underwear) should be fine, since it is highly unlikely that they meet the requirement of (f) (ii), and it is arguable whether they even meet the criteria of (f) (i). Images that display naked breasts or bottoms should likewise be acceptable, so long as they do not portray any sexual act, since such images (on their own), were they to form part of a video, would not fall into the 18 certification. However, I have one image of a woman over a man’s knee receiving a spanking. This one is more problematic, since it arguably fulfils the criteria of (f). Finally, there is the image on my front page (a sixteenth-century erotic painting). Since this is a painting, rather than a photograph, and hence could not form part of a video, I doubt that it is affected by the legislation. Were it, say, an artistic and photographic reenactment of the original painting, it may be affected, but then we would enter into various complex areas: would two topless women, one tweaking the other’s nipple, warrant an 18 certificate if it were included in a video? If so, it is likely that the image would be regarded differently according to context: it might be regarded as pornographic in the context of an erotica blog, but as non-pornographic if it was displayed on an academic blog about erotica (since the former would be deemed as aiming at sexual arousal, whereas the latter would not).
Bearing in mind that I am not a lawyer, and that I am simply interpreting the law as best I can in relation to my website, my conclusion is this: assuming (and this is highly questionable in my view) my site is commercial, I have one image that may warrant it requiring age verification.
Of course, my solution to this is straightforward: if I want to be sure my site is unaffected by the legislation, I can simply remove that single image (and all images if I want to be ultra-safe). Whether I will sit tight and wait to see what happens, or whether I will pre-empt any potential difficulties (either from the regulator or my web host) is something I haven’t yet decided. But it is worth noting that I tend to use very tame images on my site—I’m drawn much more to sexy, subtle erotica than to explicit, hardcore images. Many bloggers use images more overtly pornographic than anything I include. For some, those images could be taken down; others, however, might consider the images essential to their blog. The latter are likely, therefore, to face difficult decisions, if their blogs are commercial (or deemed to be so), and perhaps would have to adopt age verification to comply with the law. For most bloggers, the cost and technical implications of age verification are prohibitive.
For erotica authors, the new legislation will mean that great care will need to be taken when it comes to including images alongside text. Blogs that include video and images potentially become subject to the bill. Only those authors and bloggers who eschew all images can feel entirely safe from the Digital Economy Bill.
Finally, it is worth noting two other problems that may confront erotica authors. The first concerns the issue of audio. Some authors like to include audio versions of their written material, and many authors release audio books. As I understand the bill, any audio files are affected by the legislation. An erotic short story in textual form is fine; but a blogger who provides an audio file of that story being read (for example, to widen access to their writing to the visually impaired) risks bringing the regulator and age verification to their blog. A curious aspect of the new law is the way that, on the face of it, words have entirely different legal status depending on whether they are written or spoken.
The second problem concerns how blog-hosting companies respond to the new legislation. It may be that they are spooked enough to introduce much tougher terms-of-service that will limit what erotica bloggers and authors can do or say. The legislation may be creating a climate in which erotica generally is policed in a much more intrusive and heavy-handed way, with resultant restrictions and difficulties facing all of us who regard erotica and sex as important topics worthy of attention, creativity and freedom.