A legislative provision that has just come into force bans certain acts in online pornography produced in the UK, with the effect of bringing video-on-demand services into line with the British Board of Film Classification’s R18 standard that applies to physical films and DVDs sold in sex shops.

Proponents argue that all that has been done is to ensure that the same rules apply to the online and offline worlds, as the regulations only extend the law that already applied to physical copies of pornography to that delivered digitally. And while it might sound logical that the same laws that apply to both this is not always straightforward.

For instance, transposing of “offline laws” to the digital world can sometimes result in unacceptable levels of intrusion into the right to free expression, far outweighing the benefits intended to be achieved by the law. The problem on this occasion, however, lies with the law regulating pornography itself.

Strict regulation, ooh sir

The UK has always had a fairly rigid approach towards the control of pornography, with checks on content produced both within and outside the country. Adult pornography has been mainly regulated through the Obscene Publications Act 1959, which prohibits the publication or distribution of “obscene” material, and other legislation prevent pornography deemed infringing entering the UK from abroad.

But the rise of the internet changed this situation substantially, as pornographic material made and hosted abroad under different jurisdictions suddenly became accessible in the UK, fundamentally undermining the influence government had over controlling pornography within the UK’s borders. This led to a rethink about new ways of retaining that control, the result of which has been a series of new laws, most notably the “extreme pornography" law introduced as sections 63-67 of the Criminal Justice and Immigration Act 2008.

This criminalised the possession of what it called “extreme pornography” – a first for adult pornography, as prior to this it was not an offence to merely possess adult pornography for private consumption. Included in this definition were a wide range of bondage and sado-masochistic activities conducted between consenting parties. The pretext was to prevent “harm”, but there is no conclusive evidence of harm to justify its criminalisation – as acknowledged in the consultation document from the Home Office issued as part of the legislative process.

The possession offence for extreme pornography has been subject to a lot of criticism as being overly broad and infringing rights to free speech, privacy, thought and conscience, among others. The real intention was clear: if the government cannot regulate the producer based outside the UK, instead it targets the consumer in the UK and so re-asserts its control.

What is ‘obscene’?

It is worth noting that not all pornography is “obscene”; the standard of obscenity is determined through a “deprave and corrupt” test. This is very much a subjective test – and in fact a dynamic one too. Society’s perception of what is acceptable or obscene changes over time. For example, it would be inconceivable today that prosecution of Penguin Books would even be considered for their publication of DH Lawrence’s Lady Chatterley’s Lover as it was in 1961.

Ultimately it’s a court and jury that decide whether any material is obscene or not. However, it appears from recent cases such as the Michael Peacock trial that the Crown Prosecution Service’s understanding of obscene does not necessarily match the public’s perception. Here the jury rejected the prosecution’s argument that the depiction of fisting and urination was obscene, and acquitted Peacock on all six charges. Yet despite the setback from the case, the CPS’s guidelines on the Obscene Publications Act still prohibits fisting, which is slightly baffling.

Not fit for purpose

The new regulations that have come into force, which apply only to those services regulated by the Authority for Television on Demand (AVTOD), have made the situation even worse. These require that only sexual content that conforms to the BBFC R18 classification can be made available through video-on-demand services. But the BBFC guidelines dictate an even lower threshold than the CPS' guidelines under the Obscene Publications Act, meaning therefore that an even wider range of sexual activities will be banned.

While some of these activities are illegal anyway (through other legislation) and should remain so – bestiality, necrophilia, child abuse imagery – it makes no sense for an act that is perfectly legal for consenting adults to perform to suddenly be deemed depraving, corrupting, and ultimately illegal just from being committed to video.

The general tendency to demonise adult pornography which does not fit perceived “vanilla”, mainstream sexual tastes is alarming. Clearly the state has an interest to protect children, both in the context of child abuse images and also the separate issue of children accessing content that is inappropriate for them. However to control adult pornography in the guise of “preventing harm” in the absence of any evidence to support such claims, and in the process imposing a particular moral view on the public, must be challenged.

In the age we live in, norms and morals are not prescribed from Whitehall but are influenced by a variety of factors, including those shaped in cyberspace. The law as a tool for controlling behaviour will lose its legitimacy and respect if it does not reflect the norms and values of those who are bound to obey it. It is about time to accept that by the values of a bygone age – the Obscene Publications Act is getting on for 60 years old – hardcore pornography is the new softcore, and that we have come a long way since Lady Chatterley’s Lover.

Abhilash Nair does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.