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The Digital Economy Bill: Adult Games in the New Age of UK Internet Censorship

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.

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  • Azure

    This is super hypocritical as well, movies like Saw and Hostel are perfectly fine but seriously more obscene than fictional non-con scenes when involving porn.

    • yawnswithpower

      “How they will be able to afford to uphold this nonsense is beyond me as
      well, who’s going to actually pay for something so broad to be dealt
      with. It is going to require a ton of man power, man power that is
      probably going to involve those frustrated with these stupid laws

      Simple. They won’t.

      Laws like this never pass cause no one actually wants to spend millions/billions of dollars building and maintaining new departments like this.

      • Antonio

        I agree. It is easier for them to ban all pornography of UK than check everyone of the sites. And Credit Card? The same children uses to buy games on Steam, PSN, Live or Playstore? Really hard to get one… The bill asks the impossible. There no safe way for the sites check if the users are children. Asks them is quite enough in my opinion, if they agree to see it, them were warned, and are assuming the responsability for any “harm” they get, Browsers have filter opitions if I am not mistaken, why parents can’t use that? Throw the first stone who only saw porn on 18, and we didn’t become beasts.

        Why do they expect that the duty to protect the children is from the governemnt, what about the parents? Don’t they have any responsability on that? Since they are who provided the PC used for the children to access porn, shouldn’t be they to take mesures for their kids don’t see anything inapropiated? “We are protecting our children” My ass. This is always to find a scapegoat for the problems of the society, and gain votes, the same Hitler did.

        And sincerely, there isn’t any scientific research showing without a shadow of doubt that any midia can influence people to anything. The ones against are usually made people interested on the results, like partisan or religious entities.

        • Nazzaroth

          even more, the idea of kids shoud never see sex before their 18 is absurd and only came up in the last century really. before then familys on farms didnt have the space to seperate those actions all the time. kids always found a crack in the wood-walls of the barn or something. and they didnt suddenly start to fuck everything that not on a tree by 3.

          its a dumb law made by people who have no idea what they are talking about and are too scared of sexual organs that they try not to watch themselves in a mirror.

      • RocKM001 .

        Except they do…

        The problem is one of complacency and the need to look like they are “looking out for the common good”

        I cannot even begin to count the amount of asinine legislation that has recently passed here in Australia with no regard whatsoever on how to even enforce them. Most of these laws/legislations never think that far ahead.. they are just there to be seen like the government of the day has done something and they move on.. leaving the poor saps/companies to muck about w/ implementation or else risk breaking the actual law.

        And it happens because people get complacent on issues like these… “oh it’s only porn” or “oh I have nothing to hide and it doesn’t affect me” All fine and dandy until the eventual wake up call of the effects of half assed legislation planning and at which point billions of tax payers money has been sunk on something that has lessened instead of improved the lives of the common citizen…

  • Dave6487

    I haven’t really read up much on this.

    But from what I grazed over, my tin foil hat is telling me this is just a “for the children” argument whose primary purpose is an attempt to Trojan “anti-piracy” laws past legislators.

    Although this bill unnerves me to no end, I don’t honestly see something this unconstitutional passing.

    • Testy

      They should have phrased it as anti-piracy instead of this semi moral ban. They could have gotten more support since everybody is supposedly against digital piracy, instead of presenting a large grey area for its limitation.

      • Dave6487

        The reason I came to that assumption is because a cock sucker by the name of Vic Toews tried similar tactics here in Canada a few years back.

        IIRC a news paper article pretty much pointed out that the bill he was trying to pass was the same crap that was previously rejected…. several times already, but renamed and tried to be passed off as some other safety/moral crap.

        I believe the main idea is for big movie and other media distributors to entrench laws that would allow them to get user data from isp’s and go after people who (may) have downloaded their IP and extort… err, I mean demand they pay reparations for all the profits they (believe) have lost due to getting shared content….. This is big (legal trolling) business from what I understand.

        Anyway this is just a theory, and I haven’t exactly done extensive research on the matter. It just sounds similar. I just feel that the above bill is so ridiculously and unrealistically costly for everyone that there has to be something else going on behind the scenes. I’m just not sure what it is.

        Of coarse, that doesn’t mean we should just accept it either 😉

    • Antonio

      Free expression and choice rights are being violated. Your saint right to like to do and consume content without harming anyone else.

      • chris

        the Open Rights Group have a petition up and nearly 20,000 people have sign it, many in the UK do not want this law

        • Antonio

          I really hope they can stop it, the way this bill was made, it pratically ban the entirety of Porn from UK. I still don’t understand who would support this kind of thing, You can’t make a law based on assumpions without any scientific research behind. Every country has porn, everyone has access to it before 18, who are they trying to protect anyway?

          • John Doe



  • DDD-kun

    So are they trying to lock out foreign content in order to generate a home market?

    • Mirai

      No, they’re penalising the home market more harshly than the foreign one — foreign porn gets payment processing shut down or websites blocked, while home-grown porn gets both that and a hefty fine.

      There’s quite a few popular recent movies that would fit those descriptions, too. So it might be legal to watch them in theatres or on DVD, but illegal to stream them (even on a paid TV service). That’s just bonkers.

      • DDD-kun

        So the House of Commons have worms in the brain. Got it.


    Well this was a cancer to read.

    • Antonio

      Agreed. i really hope they don’t give turn UK in South Korea

  • DynastyStar

    This is depressing.

  • Wellesley Yeung

    i say fuck living in the uk

  • fire lion

    DIdn’t anyone see this coming? This is just another symptom in embracing cultural marxism. Nanny state gotta nanny. Keep everyone safe from the bad things. Europe needs another world war to clear this disease.

  • Naicore

    So a porn-clip with an 18 year old actor in a school-uniform made to make her look younger is bend over and tied to a chair, she’s receiving a spanking from a teacher. That would contain three different banned contents. This is obscene content and we have to protect the children from it.

    Yet the opening scene from Deadpool with decapitation, graphic headshots, a guy getting slammed into a billboard, cutting off a hand and impaling people with swords is completely fine and receives a 15 rating.

  • -.-

    we already have to put up with guns being banned (including bb/toy guns if they look realistic) and absurd land ownership laws (even if you own a plot of land you cant just do what you please with it even though it belongs to you) now you try to take our motherfucking porn too ? fuck this im moving to america (i mean i had been planning to for a long time for other reasons but this just gives me more motivation) until i do find a way to move i have roughly 50gb’s worth of porn and h-games of all kinds to keep me sane

  • -.-

    this was written by dan bull last time this was proposed (by david cameron) and i feel it is more valid than ever

  • doctorwhocommentator .

    can I just point out that mindgeek (the owner of pornhub and just about every other porn site) are not only going to comply with it but there developing age verification technology to corner the market
    but i’ll say this right now, I will never sign my name to such a thing, there’s no way of knowing how it verifies your age and will only lead to problem’s in the long run.

  • doctorwhocommentator .

    you should look at this, apparently Britain’s not the only country looking into age verification 20 other’s are, but apparently there will be technology to be compliant without having to spend money or verify anyone (what?)