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Porn Studies
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The British porn industry's ambiguity

towards opposing censorship
Jerry Barnett

Sex & Censorship, UK

Published online: 24 Jul 2014.

To cite this article: Jerry Barnett (2014) The British porn industry's ambiguity towards opposing
censorship, Porn Studies, 1:3, 337-341, DOI: 10.1080/23268743.2014.930583
To link to this article: http://dx.doi.org/10.1080/23268743.2014.930583

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The British porn industrys ambiguity towards opposing censorship

Fans of the movie The People Versus Larry Flynt may be under the impression that
the porn industry is a libertarian force, using its financial might as a counterweight
to moralistic attempts to suppress sexual expression. It is certainly true that the
interests of pornographers and those of free expression often overlap: it is no
accident that the industrys American trade body is called the Free Speech
Coalition.
Although porn (other than that deemed to be obscene) is recognized as
protected speech under the First Amendment of the US Constitution, the American
industry is used to coming under regular attack, and has frequently been forced to
defend itself in court, especially during those periods when a Republican President
occupies the White House. Thanks to the First Amendment, however, anti-porn
attacks must be creative: direct attempts to restrict the right of adults to watch
pornography have repeatedly been struck down in the courts. This includes attempts
at censorship under the guise of child protection. The US Supreme Court has
repeatedly ruled1 that child protection mechanisms cannot be so onerous that they
prevent adults from legally accessing content.
The constitutional protection of pornography appears to have fostered a culture
in which the porn industry can stridently defend itself. The US industry responds
vigorously to attacks, understanding that its existence and the existence of free
expression in general are intimately intertwined.
Conversely in Britain, the lack of a constitutional protection of free speech means
a very different legislative and regulatory situation, and this in turn has created an
industry with a very different mindset. Having had to live in the long term with
various censorship mechanisms, many of which would be unconstitutional in
America, the behaviour of the British industry differs significantly from its American
counterpart in various ways.
In 1984, the new Video Recordings Act (VRA) gave the British Board of Film
Censors (BBFC) a new title British Board of Film Classification and powers over
the availability of video works. A private organization now had the statutory power
to demand cuts from a title before it could be released, or even to block its release
altogether. Although the VRA was introduced in response to a moral panic over
horror films (Barker 1984; Barker and Petley 2002; Petley 2011), one of the BBFCs
first policy decisions was to block the release of all hardcore porn titles. This
outright ban on explicit porn video and DVD in the United Kingdom continued for
the next 16 years, until distributors and retailers of softcore videos won a legal
challenge, overturning the BBFCs ruling, and allowing hardcore video titles to be
legally sold in the United Kingdom for the first time. The BBFCs R18 certificate
was extended to allow hardcore acts, although R18 still represented one of the softest
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definitions of hard-core porn worldwide, and still excluded titles available

elsewhere in Europe (see Petley 2011, 129160).
This ruling constituted a moment in which free expression allied with the British
porn industrys interests, and stands as the major exception to the rule: the industry
has shown little interest in uniting to oppose censorship in fact, the opposite is
often true.
Having been forced underground by the BBFCs 1984 decision, the industry
became attractive to risk-takers. Black markets can offer far higher profits than legal
ones, and there was serious money to be made by those who were prepared to
face the risk of being prosecuted under the VRA or (more seriously) the Obscene
Publications Act. Vendors of hardcore content often sold their own titles (or the
pirated works of others) in pubs or at car boot sales. Prices of 70 for a VHS
tape were not unusual, and large amounts of cash were quietly earned. Today some
long-standing industry figures still lament the loss of the easy profits that were to be
made prior to the legalization of hardcore porn in 2000.
After 2000, Britain found itself with a strange patchwork of legislation and
regulation: on physical videotape and DVD, softcore (18) titles were sold with little
restriction, and R18 hard-core titles (although typically softer than available in
Europe) were also available so long as they were sold through a licensed sex shop.
On television (TV), all hard-core porn was banned by its regulator the Broadcasting Standards Commission and then, from 2003, Ofcom and only the softest
content could be broadcast. The internet, however, was a relatively unregulated
space allowing UK viewers to access content from the United States, Europe and
Japan. The BBFC sought legal advice as to whether the VRA applied to internet
content and were told that it did not.
The tight censorship controls imposed by Ofcom and the BBFC have been
restrictive and expensive to the industry (gaining a certificate for a video work
typically costs around 1000), but have created a largely protected porn market in
the United Kingdom, for which the local industry has been grateful. Imported hardcore DVDs could only be sold if certificated by the BBFC, and even then only via
licensed sex shops (whose numbers never rose above 400 in the United Kingdom).
The requirement to submit titles to the BBFC protected local distributors from direct
competition from American and European producers, and the monopoly granted by
the VRA to licensed sex shops protected them from having to compete with larger,
mainstream video retailers. Lack of competition also meant DVDs typically cost far
more in the United Kingdom than elsewhere in Europe.
This situation suited the incumbent UK industry, as well as the regulators, but
the internet blew holes in industry profits and regulatory power. European websites
began to offer both R18 and harder, uncertificated, hard-core DVDs by mail order
to UK consumers, something UK firms were banned from doing (given that websites
did not constitute licensed sex shops under the VRA). The industry attempted to
appeal this situation in 2005, but failed, and UK-based websites selling DVDs either
closed down or were transferred to companies operating on mainland Europe.
Simultaneously, the arrival of broadband connections into homes allowed users
to easily download and stream video direct from the internet. UK businesses did
establish websites (including my own, Strictly Broadband, which was launched in
2005), but in a global marketplace the bulk of sales inevitably went to overseas
businesses.

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In 2004 the industry, now operating legally, launched a trade body, the Adult
Industry Trade Association (AITA). Among AITAs first actions was to deal with
the possibility that an Ofcom policy review would approve the broadcast of hardcore adult videos; AITAs approach to Ofcom was made not to lobby for the
change, but to oppose it. AITA received considerable funding from the United
Kingdoms largest DVD distributor and owner of sex shops, which saw a potential
threat to its business from hard-core pornography on TV.
Anna Kieran, an AITA committee member and director of a video production
and distribution company, wrote to Ofcom on behalf of AITA on 29 October 2004:
The committee is wholeheartedly against hardcore being broadcast on television, even
through encrypted services If Ofcom were to allow R18 movies to be broadcast
directly into homes with only a PIN code safeguard, we feel that this would not provide
adequate protection for minors. Furthermore, if R18 material were to be transmitted
through encrypted services, broadcasters would have an unfair advantage both
financially and legislatively over licensed sex shops. (AITA 2004)

In an action that caused bemusement among free-speech advocates, as well as

pornography consumers, the UK adult industry, heavily reliant on DVD sales, was
rallying in support of one of Europes tightest censorship regimes, in its own shortterm self-interest, and even invoking protection for minors one of the sticks with
which it is most frequently beaten by regulators.
The system of censorship operated by Ofcom against adult TV channels also
serves to protect industry incumbents. Unlike the BBFCs regime, which is based on
pre-screening, Ofcoms is based nominally at least on public complaints. When
operators breach the tight rules by showing a banned act either deliberately or
(as has happened) by loading the wrong tape a complaint from a member of the
public will trigger a process that often culminates in a fine of tens of thousands of
pounds. An Ofcom investigation can even end in the withdrawal of a license, as
happened to Bang Media in November 2010 (Ofcom 2010). It is highly unlikely that
genuine viewers of adult channels would complain when their TV viewing is more
explicit than usual in reality, complaints are probably mostly generated by
competing TV channels. For companies dominant in the adult TV market, Ofcoms
regulations may be onerous, but in raising the costs of running such a business they
keep out smaller players, and intermittently allow businesses to do financial damage
to their competitors.
Some years after AITA set out to oppose the introduction of hard-core TV, I was
serving as the organizations chairman, and was invited by Claire Perry MP as a
witness at her parliamentary inquiry on protecting children online. Perry was known
to be seeking the introduction of a porn filter a network-level block on adult
material to be offered by internet service providers to their customers. In my
testimony, I opposed the filter, both as a poor way of protecting children and as a
threat to an open internet. On reporting back to AITA members, however, I found
less than unanimous support for my stance, with one DVD distributor wistfully
wondering whether the move towards filtering internet content might revive his
flagging product sales.
Beyond filtering, more draconian internet censorship is being discussed and
lobbied for. A system in which banned URLs are blocked by internet service

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providers would bring truly Chinese-style censorship to the United Kingdom, but
would also serve powerful interests. Such a move would be a huge boon to the UK
adult industry a block on international adult websites, especially American ones,
and particularly those that offer free content, would mean a new home-grown
pornography boom in the United Kingdom. Sadly, although unsurprisingly, some
British pornographers have privately voiced the hope that this might come to pass.
Other than vested interest, there appear to be other reasons why the industry
seems reluctant to defend itself and its products. One such reason may be timidity in
the face of regulators who write and implement their own legal framework, and
effectively operate their own legal system. There is little in the way of genuine due
process in the activities of Ofcom, the BBFC and other regulators; as unelected
bodies, they wield a level of power that appears incongruous in a democratic
country: it might be noted that Parliament had no involvement in the decisions to
suppress explicit sexual imagery on either TV or video. In short, British media
regulators are powerful bodies, and the industry without a First Amendment to fall
back on, or an ACLU to turn to for legal defence feels vulnerable to attack, and
avoids rocking the boat.
When, in January 2012, the state lost a major obscenity prosecution2 involving
the most extreme fetish content ever put on trial, the industry faced a prime chance
to challenge the Obscene Publications Act, which in turn would have had seismic
implications for the BBFCs right to censor DVDs. Although meetings were held to
discuss a response, none emerged: the feeling was that to challenge the authorities
might result in a backlash. One adult business owner voiced his fear to me that an
industry challenge to the BBFCs power might, indirectly, hurt his hopes of one day
being allowed to broadcast harder content.
Perhaps the final reason for British porn industrys reticence to oppose censorship
is simply that it is British. Government inroads on free speech are rarely met with
opposition from the British public, and members of the industry are no less diffident
than their countrymen. While attempts to censor content in the name of child
protection have been repeatedly struck down in the United States, they encounter
no such resistance in the United Kingdom. British pornographers are surprisingly
willing to accept that their product is damaging to teenagers although there is no
evidence to suggest this is the case, and even Ofcom (2011) have concluded that they
can find no such evidence of harm.
Britain faces attacks on sexual expression that are almost unparalleled in the
democratic world but, unlike their counterparts in the United States, the UK porn
industry has no stomach for opposition. Without constitutional guarantees of free
speech, this situation is unlikely to change.
Notes
1. Butler v Michigan, 352 U.S. 380, 383 (1957), and a number of later cases.
2. R v Peacock.

References
Adult Industry Trade Association. 2004. Letter to Ofcom. Ofcom. Accessed November 9,
2013. http://stakeholders.ofcom.org.uk/binaries/consultations/Broadcasting_code/responses/
aita.pdf
Barker, Martin. 1984. The Video Nasties: Freedom and Censorship in the Arts. London: Pluto.

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Barker, Martin, and Julian Petley, eds. 2002. Ill Effects: The Media Violence Debate. London:
Routledge.
Ofcom. 2010. Bang Media (London) Ltd and Bang Channels Ltd: Notice of Revocation of
Licences. Ofcom. Accessed November 11, 2013. http://stakeholders.ofcom.org.uk/binaries/
enforcement/content-sanctions-adjudications/bangmedia-revocation.pdf
Ofcom. 2011. Sexually Explicit Material and Video On Demand Services: A Report to
DCMS. Accessed November 11, 2013. http://stakeholders.ofcom.org.uk/binaries/internet/
explicit-material-vod.pdf
Petley, Julian. 2011. Film and Video Censorship in Contemporary Britain. Edinburgh:
Edinburgh University Press.

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Jerry Barnett
Sex & Censorship, UK