Photo by Elmo Love (Flickr: Ferrachu. 382) [http://creativecommons.org/licenses/by/2.0">CC-BY-2.0]

On December 1st, a whole bunch of British porn producers woke up to find that they had suddenly become criminals. They’d managed this without actually doing anything, beyond producing legal material that didn’t contravene the Obscene Publications Act – at least not in any way that the authorities would risk challenging in court. In most countries, producing material that is not legally obscene would not be seen as anything to worry about. In Britain, it’s seen as a loophole that needs to be closed.

The new law that makes a whole swathe of British porn illegal – and renders the rest of it so restricted as to be commercially unviable for all but the biggest producers – was never debated in Parliament. It was never subjected to any sort of legal scrutiny, debate or discussion. It was, rather, imposed by statutory instrument, a rule that allows a government to amend existing laws without the need for all that pesky democracy. The Audiovisual Media Services Regulations is the high falutin’ name for a law demanded by the infamous regulator / protection racket ATVOD, and pushed through by a Prime Minister who seems to have a genuine terror of the sexual.

ATVOD, for those of you not in the know, are in charge of overseeing all ‘television like’ internet services. The requirement for these regulations is a Europe wide one, but Britain is the only country where almost any website featuring video content is deemed to be ‘television like’. Given that all such services have to pay a license fee to ATVOD, it’s understandable why they are so keen to classify every site with a few clips on it as ‘television like’ – it’s pretty much money for nothing. But in the absence of much mainstream material to actually regulate, ATVOD and its career censor chief Peter Johnson (ex-BBFC) have turned their attention to the porn industry. Regulating hardcore was not in their remit, but they decided to do it anyway. And so ATVOD demanded that any British adult website followed a set of rules that seemed specifically designed to put them out of business. These include only taking credit card payments – because kids might have debit cards – and not featuring any hardcore material on the front page. Now, free tours are the way websites prove to the potential punter that he or she is not about to be ripped off. And many people don’t have credit cards, either by choice or otherwise.

The only problem for ATVOD is that their made up rules had no statutory backing. They were at risk of legal appeal, especially as the wording of the European Audio Visual Media Services Directive says that “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.” Which might sound like it would cover hardcore porn. Unfortunately for ATVOD and the government, there is no actual evidence to show that exposure to porn does harm persons under the age of eighteen. In fact, all the existing evidence – by the admission of the authorities – suggests that no harm is caused. So ATVOD’s morally motivated rules were open to challenge by anyone who they tried to impose them on in theory – and one day, they were bound to go after a company that had both the money and the will to mount a legal challenge.

The new law circumvents that neatly. The new rules state that “An on-demand programme service must not contain any prohibited material”, which conveniently means any material that goes beyond what the BBFC would allow on video at R18. That means no BDSM or spanking beyond the very lightweight (no ball gags, no heavy spanking, no face sitting), no fisting, no pissing or shitting and no female ejaculation (despite medical evidence, the BBFC refuse to believe such a thing exists and class it as pissing). The BBFC rules also cover things like age-play, ‘abusive’ language and even ban certain words from film titles. Essentially, it's a rather random list of things that the censors seem to find icky, though it’s supposedly based on consultation with the Crown Prosecution Service over the sort of material that is still found obscene in trails. Except of course it isn’t, and the CPS avoid prosecuting such material whenever possible to avoid proving that. No surprise, when they get results like this.

If your work does all fall within the BBFC rules (and of course, you will be left to guess at whether that is the case or not), then congratulations – you can stay online, but only if you follow the earlier mentioned access rules. Which would be fine if the whole world was on a level playing field. But of course, any non-UK sites are not affected by these laws. So overseas pay sites can carry on taking subscriptions from British customers and tube sites can carry on providing free access to as much porn as anyone could ever want to watch.

So what is the point of the new law, then? Are the government so naïve as to think that forcing onerous new rules on the rapidly dwindling number of British based porn sites will make any difference to teenagers accessing hardcore? It seems unlikely. But then, in reality, this was never really about preventing children from accessing adult material. Rather, this seems the first step of a cunning plan. First of all, kill of the British industry by regulating it out of existence. Then, when there are rules in place about what is or isn’t legal within the UK, it becomes easier to strangle access to foreign sites. ATVOD are already pushing to stop card payments to foreign sites that don’t follow their rules (i.e. all of them). The next step after that will be legally enforced blocks, similar to those imposed on file sharing sites. The internet might have played its part in finally forcing Britain to legalise hardcore, but the government are determined to turn back the clock as far as possible, forcing sex back into the shadows. And don’t think this is just a Tory thing – the only complaints Labour has had about Cameron’s porn blocks and other legislation is that it doesn’t go far enough.

Notably, the people who will suffer most from the new law are, again, the BDSM community. A fair chunk of BDSM material was already outlawed in the dreadful Extreme Porn laws (which are nicely vague in wording, to allow as many prosecutions and as much legislation creep as possible), and now the producers of the sort of BDSM porn not covered by that law – mostly small, independent producers, many of them female – are being crushed by the new rules, which smother their activities far more effectively than any ass could smother a slave’s face. It's hard to think of any fetish site that would be tame enough to qualify for R18 approval. And that's the plan, clearly, It's the latest in a string of attacks on the BDSM community that would be met with howls of outrage if aimed at other sexual minorities. From the Spanner case, through the open discrimination that is allowed against fetishists and beyond, BDSM enthusiasts are routinely demonized and persecuted, often using the same sort of language and hysterical fears that were once used against the gay community. That so few people see this for what it is – blind, ignorant prejudice and phobia – is nothing short of shameful.

It might seem excessive to call this new law BDSM’s Section 28 – after all, no one is ever going to teach BDSM rights in school anyway – but the motives are very much the same. In the name of protecting children from something that they don’t need to be protected from (be it porn or BDSM), an entire industry is being destroyed and an entire community is once again being told that they are beyond the pale… abusers… corrupters. This is a shameful law, enacted by a shameful government under the diktat of a shameful organisation. It should be protested as loudly and as passionately as any other law attacking consenting adults for their sexual desires.