If you’re confused about porn laws, you aren’t the only one. Technological developments and changing societal attitudes have left UK legislation dated, contradictory and just plain confusing. When judges can’t even agree how to interpret the law, what hope do those without a law degree have? Could your porn habits make your police officer fantasy a little too real?

What is porn?

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In the recent BBC TV programme ‘Brought up on Porn’, Nick highlights that porn isn’t realistic by saying “I think porn is kind of reality on acid. You can literally discover a perfect version of whatever.” And just like on acid, sometimes things get very weird… I’m all for artistic analogies, but the law requires something a little more concrete.

The Criminal Justice and Immigration Act 2008 defines a pornographic image as an image that “is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal”. While this definition is fairly substantial, it does have some major flaws. Not least the assumption that it is possible to know the the image producer’s intentions just by seeing the image.

Possession

If you buy your porn from a licensed sex shop then (unless the shop is selling things it shouldn’t be) you are in the clear. Licensed sex shops sell films which are classified by the British Board of Film Classification (BBFC) as R18 and magazines which are not considered ‘obscene’ or ‘extreme’.

If you are getting your porn online then things become a lot more complicated. Each country has its own laws so what is legal to upload in one country may not be legal to possess in another. In the UK the key piece of legislation is the Criminal Justice and Immigration Act 2008. This law prohibits the possession of extreme pornographic images. This includes films, stills and, crucially, data which is capable of conversion into an image. Files saved on your computer and images cached by a browser most definitely count.

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To be found guilty the image or images must be pornographic (as defined above) and extreme, but what is extreme?

Extreme Pornography

An extreme pornographic image is one that is “grossly offensive, disgusting or otherwise of an obscene character” and realistically and explicitly portrays any of these things:

• An act that threatens a person's life
• An act that results or is likely to result in serious injury to a person's genitals, breasts or anus
• Necrophilia
• Bestiality (whether the animal is dead or alive)

The Criminal Justice and Courts Act 2015 also amended the Criminal Justice and Immigration Act 2008 to include the realistic and explicit portrayal of:

• oral, anal or vaginal rape with a person's penis
• non-consensual sexual penetration of a person's vagina or anus with a part of another person's body or an object

On the face of it this seems logical, but when you delve a little deeper you realise this law can end up making acts which are consensual to perform illegal to possess images of. The prosecution of Simon Walsh for possession of urethral sounding and anal fisting images he took himself shows how this law can affect real people. What to do if you get arrested

You have the right to free, confidential and independent legal advice. Asking for a solicitor is not an admission of guilt and cannot be used against you. You can discuss the alleged offence with the police before speaking to a solicitor but it may be in your best interests to seek legal advice first.

Backlash have more information about your rights if you are arrested.

Defences to the possession of extreme porn law

If you are found to be in possession of extreme pornography, there are a few defences:

• You hadn't seen the image and had no reason to suspect it was an extreme pornographic image.
• You were sent the image without requesting it and did not keep it for an unreasonable time.
• The image is part of a film classified by the BBFC. If the image is extracted from the film for the purpose of sexual arousal then this is not a defence (e.g. A rape scene from a BBFC certified film is not pornographic as the whole film puts it in context but if you extract just the scene then it may be considered extreme pornography)
• You had a legitimate reason to be in possession of the image (for example you work for the police or prosecution service and require the image as part of your work)

There is also a defence if you are in the images, which I will explain below.

Making your own porn

If you’ve been inspired by the article about DIY porn, you might want to spend a bit of time making sure you aren’t accidentally breaking the law. The kinds of activities the majority of people engage in are completely legal to film and possess images of but if you like your sex a little kinkier, you might run into some unexpected legal troubles.

There is a defence under the Criminal Justice and Immigration Act 2008 for people who participated in the acts portrayed in the extreme images they possess. They must have participated in the acts, the acts must not have involved any non-consensual harm on any person, any seemingly non-consensual penetration must actually have been consensual and, if the images show necrophilia, it must not have been a real corpse.

If you are into fairly intense sadomasochism you might find your consensual act is not actually considered consensual in the eyes of the law as people can only consent to common assault, not actual bodily harm or grievous bodily harm. If you film genital torture or erotic asphyxiation, for example, you might find yourself in the dock.

You should also remember that the defence of participation does not include the camera person or anyone watching.

Distribution

The main law that governs distribution of pornography is the Obscene Publications Act 1959, but what is obscenity? One man’s obscenity is another man’s art.

In the UK, obscenity rests on the likelihood that an article could “deprave and corrupt”. The line between acceptability and obscenity moves across cultures and times. Take a film like ‘In the Realm of the Senses’ which includes unsimulated sex. When it was first released the director, Nagisa Oshima, faced an obscenity trial in Japan and the film could only be released with significant cuts both in the UK and Japan. Now the BBFC have classified it as 18 uncut, yet in Japan the actors’ genitals remain pixelated.

The Obscene Publications Act 1959 covers anything that can be read, looked at, heard, or any combination of the above. It’s definition of publication is equally broad:

“For the purposes of this Act a person publishes an article who—

(a) distributes, circulates, sells, lets on hire, gives, or lends it, or who offers it for sale or for letting on hire; or

(b) in the case of an article containing or embodying matter to be looked at or a record, shows, plays or projects it or, where the matter is data stored electronically, transmits that data.

While books are very rarely prosecuted these days, there have been cases of written fantasies and fan fiction being prosecuted. R v GS set a terrifying precedent; private one to one chat on the internet is now deemed publication. Discussing an ‘obscene’ fantasy with a partner privately online (for example on Facebook messenger) could potentially be a prosecutable offence.

Examples of obscene materials

There is no exhaustive list but the CPS have indicated that potentially obscene materials include:

• Fisting
• Sadomasochistic materials that go beyond transient and trifling infliction of injuries
• Realistic portrayals of rape, activities involving perversion or degradation (e.g. watersports and vomiting)
• Bondage (especially if gags are used which make it appear there is no way to withdraw consent).

As someone who considers that list a menu for a good night, I find the idea these kinds of actions are ‘obscene’ quite offensive. I would not want images or texts portraying these acts to fall into the hands of children but I don’t believe that seeing someone in bondage or drinking urine is really going to corrupt or deprave an adult.

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Are people so suggestible that seeing a realistic portrayal of rape will turn people into rapists? If people are so easily corrupted and unable to separate fantasy from reality then why are films showing robberies and murders not considered obscene?

The vagueness of the Obscene Publications Act 1959 means that nobody can say for certain whether something will be deemed obscene until a jury decides. This level of uncertainty shows the law is fatally flawed.

To avoid prosecution under the Obscene Publications Act 1959, I would recommend not sharing anything more extreme than mild BDSM porn (including homemade images and written accounts) and taking steps to ensure what you share could not be accidentally seen or accessed by children. It’s an extreme solution but until the law is clarified, it is the safest option.

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