Questions Remain as U.K. Porn Law Takes Effect

Nov 28, 2014 1:00 PM PST

LOS ANGELES — With new adult website regulations hitting the U.K. on Monday, Dec. 1, many porn producers, marketers and distributors are questioning how (or even if) these measures will affect them — and are receiving conflicting answers.

The broad strokes are simple: the U.K. is now a laboratory for a bold experiment in ISP content filtering, mandatory online age verification, and the licensing of sites based upon their content.

While the approval, implementation and enforcement of these demands is meeting resistance and much modification (for example, the move for mandatory ISP level content filtering was watered down into a “voluntary” system, which reportedly over-blocks some 20 percent of websites), the tide of this turning point in Internet culture is unmistakable.

As such, it is important to not only understand what has passed through the legislative process, but also what was unsuccessfully proposed — but still on the agenda of activists seeking to suppress adult choice by limiting the availability of adult content.  

The latest incarnation of this process is known as the Audiovisual Media Services Regulations 2014 — and if you have customers in the U.K. (or prospective customers by virtue of your site being available in the U.K.), then this is a matter for your serious concern —  a concern being expressed by many members of the professional network.

You Can Run But You Can’t Hide
One of the most significant uncertainties with the new U.K. law is its applicability to non-U.K. based operators, such as companies located within the EU or the U.S. While the question may be more complicated for EU-based operators whose laws intertwine with those of the U.K., it is even more confusing for those in the U.S. and elsewhere.

According to adult entertainment industry attorney Michael Fattorosi, if you do business in a country and avail yourself of their citizens money, you usually have to abide by that country’s laws — and if you think that being overseas protects you, you may be in for a rude awakening.

“With that said, like ‘2257 in the U.S. (which requires compliance by foreign corps) I don’t think (again ‘think’ is the operative word) that the U.K. will be extraditing foreigners for prosecution,” Fattorosi told XBIZ. “But if you happen to go to the U.K. and are on a list of people wanted for violation of U.K. law, it will certainly make customs that much more interesting.”

Although Fattorosi is not certain that the U.K. would take such an approach, for example, apprehending foreign operators of unlicensed or otherwise non-compliant websites, he notes that the U.S. has shown no qualms about pursuing foreigners in transit.

“Be aware that the U.S. has sent law enforcement onto planes to remove foreigners from those planes wanted for various U.S. online law infractions when those planes have touched down on U.S. soil,” Fattorosi added. “I think there was even one incident where a plane flying over U.S. airspace was commanded to land so someone on the plane could be arrested.”

Part of the adjustment in mindset that is needed to embrace how one country’s laws can affect citizens of another country revolves around the global nature of the Internet and the global laws that are needed to regulate it.

“I don’t see how or why the U.K. would pass a law that would regulate U.K. porn providers but leave foreign entities unaffected. Logically it doesn’t make sense. Not that government regulation always makes sense but that wouldn’t solve the problem they are trying to address,” Fattorosi explains, adding “I don’t see many of my U.S.-based clients being all that concerned with it though [and] the one client I have that has a nexus with the U.K. didn’t note concern when I brought it to his attention. My Canadian clients don’t seem too concerned yet either. I suppose time will tell though.”

An Evolving Approach
It is important to realize that the changes coming on Dec. 1 do not signify the end of a process, but are merely one step along a very long road that we will doubtlessly hear more about in 2015.

For example, while much has been made of the “TV” and “Video On Demand” aspects of ATVOD, the U.K. authority is reportedly seeking to extend its regulatory authority over the entire online ecosystem — to include all websites, social media and mobile apps, regardless of their country of origin, as long as it is available to U.K.-based consumers — with a property possessing “TV-like” characteristics or online video content not being a prerequisite for coming under ATVOD’s aegis.

One indicator of the track is in the new law’s wording, which broadly encompasses “material whose nature is such that it is reasonable to expect that, if the material were contained in a video work submitted to the video works authority for a classification certificate, the video works authority would determine for those purposes that the video work was not suitable for a classification certificate to be issued in respect of it.”

In other words, while regulators may not by charter have authority over a certain medium, it could treat a specific content source as if it were content being delivered via a medium that it does control — for ATVOD, television and VOD — a legal workaround granting governance.

It is also important to realize that ATVOD is comprehensively targeting sites through ISP-level filtering, proposed licensing requirements, banking regulations, and various other means, so attempting to avoid or ignore its mandates may be an increasingly futile option for domestic and overseas media companies.

For further perspective on the tone of the British regulatory effort, consider the recent attempts at amending legislation surrounding the definition and licensing of foreign pornographic services and the offence of publishing a sexually explicit or pornographic image without consent (such as revenge porn).

Fattorosi’s best advice on coping with the changing U.K. law? Contact a U.K.-based attorney that is well versed in the new law and the politics that are driving this initiative forward.

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