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25 May 2012updated 07 Sep 2021 12:03pm

“Filthy British businesses shafted“: regulating the porn industry

Revenue-slashing regulation could bring an end to British-made porn within the next few years.

By Nichi Hodgson

Is the porn industry really on its knees? Louis Theroux’s Twilight of the Porn Stars documentary, shown last Sunday, painted a poignant portrait of those struggling to make the money shots pay, as pirated content and the popularity of free amateur sites strips back profits. Meanwhile, over at the Guardian, Gail Dines and Dana Bialer countered that the death of porn was not imminent. Instead, it is undergoing corporatisation, they argued, with the sly strategy of using free, so-called “amateur” content to lure punters to paid sites that are undermining the businesses profiled by Theroux.

In the UK, the debate surrounding the rise of amateur video, authentic or otherwise, has little to do with the industry’s demise. Instead, companies that produce adult video-on-demand (VOD) content here are being suffocated by a self-appointed body called ATVOD (the authority for television on demand), a hangover quango that is imposing such stifling, revenue-slashing regulation that there will be no UK-registered businesses left within the next few years.

On paid-for porn sites, responsible companies have always age-verified before the content is released to the consumer. Yet since ATVOD took matters into its censorious hands in 2010 (endowed with, or rather, sold, its officiating powers by Ofcom), it has stipulated extortionate registration fees from those companies that fall within its remit (effortless income for a body whose chief executive, Peter Johnson, is on a salary of £102,744 a year, with a sizeable pension. Who know regulation could be so lucrative?). Now, in a purported bid to protect minors from content that may “seriously impair them”, ATVOD is  demanding that adult VOD producers take payment as a means of age verification from visitors to their sites, before any images can be seen – something which does not even apply to non-adult services such as Google and Twitter, which freely display hardcore imagery on a cursory search. For the over-18s seeking out such content on paid porn sites, this means blind-buying, and for a product that relies on its capacity to visually stimulate, the irony of this – let alone the evident impact on industry sales – cannot be lost on the regulators.

TVX, part of Portland TV, the first adult VOD producer to fully comply with ATVOD’s regulation, has reported a loss of almost a third of its annual revenue, and has seen an 80 per cent reduction in new business. As such, British companies, which make up less than 1 per cent of the global adult industry, are now opting to move offshore to dodge this punitive requirement (known as Rule 11) producing as much non-age-verified initial content as they like. When you combine this with the superfluity and ready accessibility of imagery across the web, it’s hard to see how ATVOD can legitimately claim that its methods make sense either economically or ethically.

With such a small share of the global market, promoting the UK industry via a “Buy British” porn campaign sounds like something of a Private Eye/Alain de Botton parody. But an effective regulatory strategy could set the benchmark for ethics and accountability, particularly within Europe. In fact, ATVOD (and its flaccid predecessor, BBFC online) was only set up in response to a 2009 EU directive, the Audiovisual Media Services Directive (AVMSD), which decided on-demand content must be regulated in the way that TV is. Implementation by various European governments, however, has been anything but uniform, meaning Spain is now a safe haven for British businesses previously preparing to liquidate in the face of Rule 11.

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Prior to Ofcom’s interjection, “we found ourselves in a legal grey area”, says Jerry Barnett, Chair of the Adult Trade Association and Managing Director of Strictly Broadband, an online adult VOD site which has actively tried to cooperate with regulators in order to operate responsibly. But after voicing concerns about the effects extra age verification would have on revenue, and the futility of it as a means of child protection, Barnett has simply received notification that his business must immediately comply with Rule 11 or risk disciplinary action.

And yet the legal authority of ATVOD’s rules is as shady as the adult industry’s position has been grey. The EU directive was implemented without ever having been debated in parliament, and ATVOD’s “role” has never been debated either. While the Communications Act 2003 may have conferred functions on OFCOM to regulate online video on demand services (which includes Virgin Media and iPlayer as well as porn), none of ATVOD’s rules, the rules it is now using to cripple not just adult industry businesses but all online VOD services, are either defined by or enshrined in the law.

In the US in 2009, a similar age-verification measure to Rule 11 was overturned, after the Supreme Court ruled that it breached the First Amendment. Given David Cameron’s zeal for internet content filtering, it’s unlikely that the current government is going to protect UK porn’s right to free expression, however valid an anti-censorship position that may be. But the opportunity to take the moral high ground over Europe? Surely Dave would want to opt in quicker than he could google “Filthy British businesses shafted”.
 

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