Posted by: Tyrant 19 December 2016 Disclaimer: Nothing in this article is intended as legal advice.
The new UK Digital Economy Bill bans many kinds of pornography and creates a new censorship body who can block websites and cut off their revenue.
The UK Digital Economy Bill has been covered by this website in the past, but it was passed in the House of Commons on November 29 and we are now staring down the proverbial barrel. The bill does two things that directly affect us as consumers and producers of adult content. Firstly, it requires that all websites have some system in place to ensure that no one under the age of 18 in the UK can view porn; secondly, it entirely bans websites from providing porn to anyone in the UK if it is too “extreme” for their R18 rating.
This article intends to do a serious examination of the bill and its implications for adult gaming. Each topic will ask and answer a straightforward question about the bill, with a much more detailed analysis in the text.
All citations are to the current House of Lords version of the bill.
Q: Why should I care if I live outside the UK?
A: Website owners outside the UK can have their advertisers and payment processors notified if they are in violation, and can have their websites blocked in the UK. This puts heavy pressure on websites outside the UK to comply.
The drafters of this law knew that most of the pornography consumed in UK comes from outside it, and planned accordingly. If you do happen to live within the UK, violations of the bill’s provisions can result in fines of up to £250,000 ($317,775.00 US Dollars as of writing). See Digital Economy HL Bill (2016-17) 80, cl 21(2). However, the Digital Economy Bill has two powerful hammers that the UK government can use to force websites outside its jurisdiction to comply.
The first hammer is that that the bill gives the UK government the power to send violation notices to payment-services providers and advertisers associated with websites that run afoul of the law. See Digital Economy HL Bill (2016-17) 80, cl 22(1); 22(5); 22(6); 22(7). We have previously covered some of the ways that payment restrictions can hamstring the adult games industry, and the Digital Economy Bill is going to tighten these restrictions – no major payment processor or advertising service will want to risk its business in the UK, and so they will cut off services. The mere threat of these violation notices will, therefore, force many adult websites to comply or lose their revenue stream.
The second hammer is that this bill allows the government to simply direct internet service providers (ISPs) to block access to violating websites. If you do not follow the rules set by the Digital Economy Bill, then no one in the UK will be able to visit your site at all. Fewer visitors means less revenue no matter your business model, which is to say nothing of the fact that someone running a website generally wants to reach as broad of an audience as they can simply on principle. These two hammers are strong practical incentives for non-citizens to comply with the Digital Economy Bill, and so this bill will affect your porn-viewing habits no matter where you call home.
Q: What exactly does the Digital Economy Bill prohibit?
A: The Digital Economy bill has two requirements: that website owners somehow make sure that no one under 18 sees “pornographic material” on their website(Section 15.1) and that website owners do not show any “pornographic material” that is too extreme to be sold in stores within the UK (Section 22(1) and Section 23(1)).
A person must not make pornographic material available on the internet on a commercial basis to persons in the United Kingdom except in a way that secures that, at any given time, the material is not normally accessible by persons under the age of 18.
(Digital Economy HL Bill (2016-17) 80, cl 15.)
In plain English, this provision says you can’t allow anyone in the UK to look at porn on your website without somehow making sure that they are over the age of 18. There is nothing in the law that specifies how this age verification is to be done, but the idea being most commonly talked about is websites requiring registration and providing a credit card number – even for entirely free websites.
Careful readers will note that the phrase “on a commercial basis” appears in the text, but the hope that might exempt some websites is quickly and absurdly crushed: “making pornographic material available on the internet on a commercial basis includes making it available on the internet free of charge.” Digital Economy HL Bill (2016-17) 80, cl 15(2).
Potentially even more troublesome than the obnoxious age verification is that the Digital Economy Bill would completely ban the distribution of videos and games that are “not acceptable for classification,” which is to say that they could not be sold in stores because they contain material that would make them too extreme for the UK’s R18 rating.
Where the age-verification regulator considers that a person is— (b) making prohibited material available on the internet to persons in the United Kingdom, it may give notice of that fact to any payment-services provider or ancillary service provider [or] … it may give a notice under this subsection to any internet service provider.
(See Digital Economy HL Bill (2016-17) 80, cl 22(1)(b); 23(1)(b).)
Q: What material triggers the age verification requirement under Section 15.1?
A: Anything that the new censorship body thinks would be rated 18+ if it were rated by the BBFC – the UK film rating agency. Adult games are included within the definition but are likely to be low priorities for enforcement.
The immediate answer to the question “what counts as pornographic material?” is surprisingly murky. The bill itself has the following to say:
(1) In this Part “pornographic material” means any of the following—
(a) a video work in respect of which the video works authority has issued an R18 certificate;
This is simple enough – if a video has been rated by the ratings board as 18+, it can be legally defined as porn.
(b) material that was included in a video work to which paragraph (a) applies, if it is reasonable to assume from its nature that its inclusion was among the reasons why the certificate was an R18 certificate;
Still pretty straightforward – clips from porn are still porn.
(c) any other material if it is reasonable to assume from its nature that any classification certificate issued in respect of a video work including it would be an R18 certificate;
And now the train-wreck begins. This section requires website owners to guess how a video or “other material” would be rated under the BBFC rating system. Obviously, the BBFC is not going to rate every clip of porn on the internet, so the new censorship body created by the bill will decide for themselves how they think a video or clip would be rated. If they think something should be rated 18+, then they can bring the hammer down on it. See Digital Economy HL Bill (2016-17) 80, cl 16. Even if you did memorize the BBFC ratings guidelines, they have so much grey area that coming to definite conclusions is almost impossible, and so the censorship body will have almost unlimited authority to penalize or ban websites with anything resembling adult content. See Digital Economy HL Bill (2016-17) 80, cl 16(1).
Adult games can be classified as “pornographic material” under subsection (c) – “any other material.” See Digital Economy HL Bill (2016-17) 80, cl 16(1). “Material” as defined by the bill means “(a) a series of visual images shown as a moving picture, with or without sound; (b) a still image or series of still images, with or without sound; or (c) sound;” Digital Economy HL Bill (2016-17) 80, cl 16(2). Read literally, this definition clearly applies to all adult games except those somehow consisting entirely of text— if you were to record a “let’s play” of any adult game and submit it to be rated, it would almost always be 18+, and so the game itself is “pornographic material” as defined by the bill.
As a practical matter, if the Digital Economy Bill is enforced against adult games, the enforcement is likely to target games consisting primarily in animation, many of which are more-or-less just videos where you can choose the next scene. Games with less animation and with lower ratios of porn to everything else would likely have progressively lower chances of running afoul of censors; however, a metaphorical ton of content related to adult games — preview videos, reviews, opening sequences, etc — also fall within the language of the bill, and would trigger the same draconian rules.
Q: What kind of content is entirely banned from being distributed to the UK?
A: Anything involving lack of consent, infliction of pain, physical or verbal abuse, anything involving apparent minors or those role-playing minors, and anything “obscene.” Almost anything pornographic can be defined as “obscene,” giving the censor broad authority to block websites from the UK.
“Prohibited material” is defined as anything whose content would be “not acceptable for classification” by the BBFC. See Digital Economy HL Bill (2016-17) 80, cl 22(4).
The criteria for what material is “not acceptable for classification” is as follows:
-material judged to be obscene
-material (including dialogue) likely to encourage an interest in sexually abusive activity which may include adults role-playing as non-adults
-he portrayal of sexual activity which involves real or apparent lack of consent. Any form of physical restraint which prevents participants from indicating a withdrawal of consent
-the infliction of pain or acts which may cause lasting physical harm, whether real or (in a sexual context) simulated. Some allowance may be made for moderate, non-abusive, consensual activity
-penetration by any object associated with violence or likely to cause physical harm
-sexual threats, humiliation or abuse which do not form part of a clearly consenting role-playing game. Strong physical or verbal abuse, even if consensual, is unlikely to be acceptable
(See BBFC Ratings Guidelines, 2014, pg 24.)
“Obscenity” is one of the things banned, and is particularly absurd. It is defined in the Obscene Publications Act of 1959 as anything that material that will “tend to deprave and corrupt persons” who view it. This definition is entirely, ridiculously subjective. Furthermore, lest anyone think that the UK wouldn’t really prosecute such absurd laws, consider that possession of obscenity within the UK is already illegal under the UK Criminal Justice and Immigration Act of 2008 and that last year there were 1,737 prosecutions for possession of so-called “extreme pornography.” CPS Violence against Women and Girls Crime Report 2015–2016. Many of those people go to jail for watching pornography of consenting adults actors performing (say) rape fantasy scenes or BDSM.
In closing, adult games often contain more “extreme” content than live pornographic films due to the medium (art or 3d CG) allowing for more creativity and latitude (for instance: Maggot Baits); however, even many relatively vanilla games and visual novels would be prohibited under these criteria. Think of how many adult games include things like sexual activity involving an apparent lack of consent, seemingly underage characters, or the infliction of pain. The distribution of games as diverse as Fate/Stay Night, Corruption of Champions, and Artificial Academy 2 would all be banned under this law, to say nothing of the aforementioned Maggot Baits. All of this, however, is subject to the caveats that we do not know how the law would be enforced until we see it enforced, and the fact that it will be obviously impossible to enforce the law against everyone in violation — the internet is vast and full of porn.