UK Won’t Target ‘Consensual and Legal Activities’ for Obscenity Prosecution

LONDON – The United Kingdom’s Crown Prosecution Service has confirmed media reports that pornography depicting consensual, otherwise legal sex acts between adults which are intended for an adult audience will no longer be prosecuted under the UK’s Obscene Publications Act.

“It is not for the CPS to decide what is considered good taste or objectionable,” a CPS spokesperson said. “We do not propose to bring charges based on material that depicts consensual and legal activity between adults, where no serious harm is caused and the likely audience is over the age of 18.”

This is not to say the CPS will cease all obscenity prosecutions, as the CPS spokesperson also made clear, adding that the CPS “will, however, continue to robustly apply the law to anything which crosses the line into criminal conduct and serious harm.”

The spokesperson’s reference to “criminal conduct and serious harm” is was significant, in that under §63 of the Criminal Justice and Immigration Act 2008, the definition of illegal “extreme pornographic images” includes images which portray “in an explicit and realistic way… an act which threatens a person’s life (or) which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals.”

Although this language paired with the spokesperson’s comments appears to leave some room for the CPS to bring obscenity charges in relation to depictions of consensual sex acts between adults if the depictions run afoul of the above statutory definitions, British solicitor Myles Jackman said the policy change represents the most substantial change to the UK’s obscenity crime policy in decades.

“For producers and consumers of consensual adult pornography in the UK this represents a positive change in the obscenity ceiling, meaning BDSM, watersports, squirting, fisting and other fetishes that are consensual and otherwise legal, are now legal to produce and distribute for the first time,” Jackman told YNOT.

In comments reported earlier by The Guardian, Jackman said that “in free speech and privacy terms, these changes represent the most significant public changes of attitude by an institution of the state towards consensual adult sexual content since the Wolfenden Report in 1957. In principle, anything which is legal to consent to doing is now legal to consent to distribute images of, providing the likely audience is over the age of 18. The law has finally caught up with social standards.”

The caveat of “providing the likely audience is over the age of 18” is an interesting one as well, given that the UK is just weeks away from starting enforcement of its age-verification requirements under the Digital Economy Act.

Originally planned to take effect in April 2018, late last year the UK government delayed the implementation of the age-verification measures again, saying it was anticipated the requirements would be in force by Easter of this year.

When that delay was announced, Margot James, the Minister of State for the Department for Digital, Culture, Media and Sport, also fielded questions about the possibility of extending the requirements to social media sites and platform, as well.

“We have decided to start with the commercial operations while we bring in the age verification techniques that haven’t been widely used to date,” James said at the time. “We will keep a watching brief on how effective those age verification techniques turn out to be with the commercial (adult content) providers. We will also keep a close eye on how social media platforms develop in terms of the extent of pornographic material on those platforms, particularly if they are platforms that appeal to children.”