Digital Economy Bill: What could happen after the government crackdown on online pornography

Obscenity lawyer talks to The Independent about the amendments of the Digital Economy Bill, what this actually means and what could happen once it is passed

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Britain's top obscenity lawyer says the government crackdown on online pornography could be the beginning of a major attack on the public's privacy on the web.

The Digital Economy Bill, a wide-ranging legislation targeting the UK’s electronic communications infrastructure, progressed to its final reading and amendments earlier this month. One of its main features is an attempt to restrict access to online pornography and it initially proposed banning any pornographic content which violates the British Board of Film Classification (BBFC) guidelines – including female ejaculation and menstrual blood.

The bill has now been passed through the House of Lords and will be presented to the Commons once more before Royal Assent. However, the Lords actually produced some amendments: namely that online porn does not have to ascribe to the BBFC restrictions but instead must not include “extreme pornographic content” enshrined in the Criminal Justice and Immigration Act of 2008.

Obscenity lawyer and activist Myles Jackman says the first issue of the bill is the clause which will require pornographic websites to comply with age verification checks. He says while the child protection imperative is important, the government has not taken into account privacy or security – as these checks will not be a simple case of ticking a box.

“What they [the government] haven’t taken into account is privacy or security,” Mr Jackman told The Independent explaining there is “absolutely no prohibition” on companies that provide the age verification checks from “monetising” the data of the website visitors.

Mr Jackman warns companies could get user's details from these age verification checks and then sell it onto other companies for financial gain. Moreover, there is no independent body set up to ensure the information provided through the checks is kept private and safeguarded against hacking meaning “if there is an Ashley Madison style hack, no one is there to protect your data”.

“The idea of age verification is not problematic, it is the mechanism,” Mr Jackman says.

Another issues arises, he says, from the fact it will be niche and minority sexual interest communities, such as LGBTQ and BDSM, who will be affected by the bill. Niche sites not mainstream enough to make money may find it difficult to purchase age verification checking software for all customers so will be barred from operating in the UK.

“You could make an argument that this is bad for freedom of expression because the consumer who would normally be watching their sexual fantasies be depicted safely and securely may not be able to access this information anymore.

“… This is likely to mean that only big players who create the most mainstream material who are likely to be able to afford to be successful which will actually cut down diversity particularly in communities who produce more ethical pornography that actually engages with sex worker’s rights in terms of how they’re treated on set, how they’re paid and how consent works. In reality, it will create a system where there is less diverse material and majority is quite mainstream… the choice will be reduced and it will reflect a smaller area of interest for the majority of people.”

Could these new measures pave the way for further restrictions and censorship when it comes to pornography?

“Arguably yes, as I have said pornography is the canary in the coal mine of free speech. It is the first to die and other freedoms will follow. It wouldn’t surprise me if age verification just as a way of tracking people on the internet to see what their usage is," Mr Jackman says.

The bill was initially a Conservative party manifesto pledge which was seen as an “easy win” according to Mr Jackman as it was assumed the majority would not object. However, he suggests the government did not consider just how accessible pornography is and how many people watch it, something that has risen steadily over the past 20 years. Additionally, they probably did not consider how “anyone with any degree of technological ability to use a VPN or proxy” could potentially circumvent the regulation.

The government’s attempted regulation and censorship of pornography has a long history; the first statute against pornography was in 1857 under the Obscene Publications Act

Harry Cocks, associate professor of British History at the University of Nottingham, told The Independent obscene was first defined in an 1868 court case as “anything that corrupts the morals of the person who reads it”.

Mr Cocks said it is difficult to define pornography by its content as the nude and arts have long depicted potentially erotic subjects. Instead, it has more commonly been defined by access and restricting access in law throughout history.

He says people who produced print and pictorial pornography typically tried to get around the censorships by dressing it up as art in the 1940s and 1950s or would send it to all male institutions where it would do the rounds. Regulations over sexuality and pornography began to open up in the 1960s when the obscene publications act was altered, homosexuality was decriminalised and abortion and divorce laws were altered. However, offences continued under homosexuality laws as there were further restrictions on the age of consent and public places which carried on until the 1990s.

“Sexuality is always regulated in one way or another,” he says. “Even though we may think we live in a liberal age in terms of consenting adults, there are always restrictions and regulations.”

Mr Jackman says the Digital Economy Bill was based on a perceived societal problem with pornography but in actual fact we do not fully understand the effects of online porn yet, just like we don’t with social media.

“It is an internet-based issue… instead of debating how and where it is consumed, these are just societal questions that the government has gone straight to the censor baton instead of actually engaging with the concern.”

The bill also “risks stigmatising certain communities” Mr Jackman says citing the example of vaginal and anal fisting which are legal activities “across all ranges of sexualities and genders”. However, it is not quite clear whether this falls under the extreme pornography guidelines (it would previously have been banned under the BBFC guidelines).

“You also have this ridiculous position where it is legal to do something but illegal to watch or film it," he adds. "It makes no philosophical sense what so ever.”

What the censorship on porn mean for the future of the government’s attempt to restrict sexual freedoms waits to be seen but Mr Jackman says: “The reality is sexuality is a very useful control mechanism for society that the governments want to deploy against people.”