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The UK government has put extensive protections in place to ensure that the general public – particularly those under the age of 18 years old – are not adversely affected by pornography. The protections form part of a wider government effort to censor certain harmful information and materials on the Internet and elsewhere, such as copyright violations, libellous communications, depiction of animal abuse, terroristic propaganda and literature, and other extreme text, images, videos, and audio files. The purpose of this guide from our expert criminal defence solicitors is to give you an overview of some of the main laws relating to one such potentially harmful material: pornography.
Is porn illegal in the UK?
Figuring out what porn is illegal in the UK is not always a straightforward task. The regulation of pornography in the UK falls under a variety or laws, regulations, judicial processes, and even voluntary schemes. As such, there is a rarely a black and white answer to whether something is illegal. Rather, complaints about any particular material tend to have to be reviewed by regulators or judicial bodies (i.e. the courts) in order to determine its legality.
That said, the law does provide some clear-cut categories of pornographic material that is illegal in the UK. The core categories are child pornography and ‘extreme pornography’. The law against child pornography in the UK is, rightly, very strict and, helpfully, relatively straightforward.
The Protection of Children Act 1978 (and its subsequent amendments) makes it illegal to take, permit to be taken, make, distribute, show, have in one’s possession, publish or cause to be published any indecent photograph or pseudo-photograph of a child (defined as someone under the age of 18 years old). The law is defined broadly to allow the criminal justice system to capture a wide variety of acts that represent child pornography. The punishments for child pornography are some of the most severe of this category of offence, with up to ten years’ imprisonment given to the worst offenders.
More complicated, in some ways, is the definition of ‘extreme pornography’, which is only a relatively recent addition to the law having come into effect in 2009.
What is ‘extreme pornography’?
Government restrictions on ‘extreme pornography’ came about both to protect the general public from the harmful effects of such pornography, but also to protect those who are involved in the making of such materials (even if they consented to being a part of it).
The Criminal Justice and Immigration Act 2008 criminalised the possession of an ‘extreme pornographic image’. According to the Crown Prosecution Service (CPS), the agency responsible for prosecuting those who are in violation of this law, an ‘extreme pornographic image’ is an image that is:
- Pornographic (‘of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal’), and
- Grossly offensive, disgusting or otherwise of an obscene character, and
- Portrays in an explicit and realistic way any of the following:
- An act which threatens a person’s life, or
- An act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals, or
- An act which involves sexual interference with a human corpse (necrophilia), or
- A person performing an act of intercourse or oral sex with an animal (whether dead or alive) (bestiality), or
- An act which involves the non-consensual penetration of a person’s vagina, anus or mouth by another with the other person’s penis or part of the other person’s body or anything else (rape or assault by penetration) and a reasonable person looking at the image would think that the persons or animals were real.
In any criminal case involving extreme pornographic images, it will fall to the judge or jury to determine whether an image should be accordingly classified. Importantly, the intention of the defendant is not to be considered relevant to the proceedings, which means that even if someone claims not to have fully understood what the image contained or otherwise made an excuse about their intentions in possessing the image, it would make no difference to the outcome of the case.
Unlike child pornography cases, where there are several grades to the offence depending on one’s involvement in the illegal activity, with extreme pornography there is only the offence of ‘possession’. This is, however, a broad definition, so even those who might limit their involvement to publishing or distributing the material could readily be charged with possession.
What are the sentences for extreme pornography?
Punishments for being found guilty of possession of extreme pornography vary, but the maximum penalty is two years’ imprisonment and/or a fine for cases involving necrophilia or bestiality. For other images, the maximum is three years’ imprisonment and/or a fine.
If the offender is over the age of 18 years old and has been given a sentence longer than two years imprisonment, there may also be notification requirements appended to the sentence under the Sexual Offences Act 2003. This means that in certain circumstances, the offender must notify the police:
- of any and all foreign travel, even for a day
- where they are on a weekly basis (if not able to provide details of a sole residential address where he or she might be found)
- where they are living if there is a child (someone under the age of 18) also resident at that address
- of a number of personal identification and financial documents, including bank accounts, credit cards, passports, driving licenses, and other documentation that shows a person’s name (intended to stop people from changing their name so as not to appear on the sex offenders register)
What is the law on possessing and/or making indecent images?
Because pornography laws in the UK are so broad, sometimes people will be charged with a broader offence involving possessing and/or making indecent images rather than a specific child pornography or extreme pornography offence. Much depends on what the CPS considers to be the most appropriate charge taking into account the offender, his or her history, and any evidence to support the case.
Broadly speaking, separate offences exist for ‘possession’ and for ‘making’ indecent images (in any case, these are often prosecuted at the same time).
- ‘Possessing’ means the physical or digital possession of a prohibited image, which usually manifests as a file on a mobile phone or computer, printed/hard-copy materials, or a computer created/manipulated image. The offence may even be charged where a file has been deleted, as the imprint of the file still remains in the possession of the individual on their hard drive.
- ‘Making’ not only refers to a broad range of activities in addition to the straightforward ‘making’ of images, such as taking a photograph or filming a video. ‘Making’ can even occur when, for example, an image is downloaded, saved to an internal or external memory device, copied, shared, or sold.
With each of these offences, the intention of the person is taken into account. For some people, downloading will genuinely be an accident, either because they clicked on something they should not have (not knowing what it was) or were maliciously sent ‘unknown’ files by email that turned out to be indecent images.
The punishments for possessing or making indecent images vary considerably but could be up to six years’ imprisonment for the most serious cases.
What was the 2019 ‘Porn Law’ and what does it cover?
In April 2019, the Digital Economy Act 2017 (colloquially known as the ‘Porn Law’) came into effect across the UK. The Act covered many areas relating to electronic communications and copyright but is best known for its plans to restrict access to online pornography.
The one provision of the law that drew considerable attention was the plan to create an age verification system that would prevent people under the age of 18 years old from accessing commercially operated pornography websites. With such an age verification system in place, the law would allow regulators to fine websites up to £250,000 (or up to 5% of their turnover) and issue blocks or cease-and-desist orders to non-compliant websites.
The implementation of this age verification system proved to be contentious and ended up being one of the most heavily criticised areas of the Porn Law. Critics considered that such a system raised serious privacy concerns because of the need to collect user data, and in any case would easily be hacked or bypassed with virtual private networks (VPNs) or anonymous browsers, rendering the law useless in practice. Such extensive criticism of this aspect of the law eventually led the government to put age verification blocks on hold for the time being.
Where to get more help with pornography laws in the UK
If you need more information and guidance on the complex web of pornography laws in the UK and how they might impact any case in which you are involved, it is best to contact legal experts in the field. The team at Stuart Miller Solicitors have a long history of dealing with criminal cases involving pornography and will be able to assist you in all defence matters related thereto. For a non-judgemental conversation about your case, contact us today to arrange a consultation.
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