Internet Porn Censorship

The US state of Louisiana has commenced a new law requiring porn websites to obtain identity/age verification before allow access to viewers. The law is not enforced by official censors. Instead it simply allows Louisiana to sue for damages for any harm claimed as a result of underage porn viewing. So how is it panning out in practice?

It is the second week of the new law. Vice has found that very few sites have actually implemented the age verification system. As it stands, only PornHub and OnlyFans check Louisiana's residents' ages, others don't.

This may have something to do with the way the age check is implemented: when you access PornHub from Louisiana, you're met with a screen asking you to verify your age. From there, you're redirected to AllPassTrust, a Cyprus-based company specialized in age verification. AllPassTrust links to LAWallet, the state of Louisiana's digital driver's license wallet, which provides you with a code that you need to enter on AllPassTrust.

The way it's looking now, only Louisiana drivers licenses are accepted for verification, which is a problem for anybody currently in the state that doesn't have one. Sure, practically everybody in the United States has a driver's license, but there are those who don't, and visitors or short-term residents of the state won't be able to verify their age since they won't have a license issued in Louisiana.

According to local Louisiana newspaper L'Observateur, opponents are already gearing up for a legal challenge.

The idea is spreading though. There are reports of national politicians proposing similar laws to Louisiana.

Also two Republican state senators in Arkansas introduced a bill this week requiring age verification before entering a website offering pornography. Senate Bill 66, which proposes a Protection of Minors from Distribution of Harmful Material Act, is sponsored by Sen. Tyler Dees and Sen. Jim Petty. The proposed legislation is a copycat version of Louisiana's new law.

One of our priorities for the second year of the video-sharing platform (VSP) regime is to promote the implementation of robust age assurance, so that children are protected from the most harmful content. In October 2022, we published our report on the first year of VSP regulation . The report highlighted that many platforms that specialise in videos containing pornographic material (or "adult VSPs") do not appear to have measures that are robust enough to stop children accessing pornographic material.

Today Ofcom is opening an enforcement programme into age assurance measures across the adult VSP sector.

Our objectives for this programme are:

• to assess the age assurance measures implemented by notified adult VSPs, to ensure they are sufficiently robust to prevent under-18s from accessing videos containing pornographic material;

• to identify whether there are other platforms in the adult VSP sector that may fall in scope of the VSP regime but:

  • have not yet notified their service to Ofcom, as required under the VSP framework (see more below); and

  • may not have appropriate measures in place to protect under-18s from pornographic content; and

• to understand from providers of adult VSP services the challenges they have faced when considering implementing any age assurance measures. This will also help us build a picture of what measures work and are proportionate to expect from different VSPs, in line with our strategic priority of driving forward the implementation of robust age assurance.

The programme will seek to determine the scale of any compliance concerns in respect of notified and non-notified adult VSPs. We will then decide whether any further action (including enforcement) is needed, and how best to address potential harm.

Notable porn websites operating in France have suffered two legal defeats.

In the first case, a priority question of constitutionality (QPC) had been addressed to the Court of Cassation. MindGeek, which publishes Pornhub, argued that ISP blocking of their websites, as ordered by France's internet censors of the Audiovisual and Digital Communication Regulatory Authority (Arcom), was an affront to freedom of speech in France.

In its verdict of January 5, the Court of Cassation swept aside this QPC:

The question posed is not of a serious nature. Considering that the legal framework in question is sufficiently clear and precise to exclude any risk of arbitrariness . Nor is there any disproportionate harm to the objectives pursued.

The attack on freedom of expression, by imposing the use of a device for verifying the age of the person accessing pornographic content, other than a simple declaration of majority, is necessary, appropriate and proportionate to the objective of protecting minors.

Meanwhile YouPorn and RedTube lost an administrative challenge to the rather circuitous way that French authorities have specified the laws requiring age/identity verification to view porn websites.

Taiwan's Legislature has passed draft amendments to restrict the use of technology-enabled sexual images and video. The new laws will make the production and spread of such fake or manipulated images and video for profit a crime punishable by a jail term of up to seven years.

The draft bills were proposed after the arrest in 2021 of a Taiwanese YouTuber for making and selling deepfake pornographic videos of dozens of prominent women, including female politicians.

Under the approved legislation, producing sexual material involving images or video of another individual without that person's consent is subject to a maximum of three years in prison, while the unauthorized distribution of such material can result in a prison term of six months to five years. Anyone found guilty of distributing such content for profit faces an additional punishment of up to one half of the prescribed sentence.

Ireland's new internet censorship regime will be overseen by an Online Safety Commissioner (OSC), who will create binding online censorship rules to hold designated online service providers Providers to account for how they censor content. The OSC is also empowered under the Act to introduce an individual complaints mechanism.

Harmful content is set out in Part 11 of the new Act:

1. Offence Specific Categories sets out 42 different offences. A large proportion of these offences are offences against children, or provisions protecting the identification of child victims or child offenders. Notably the Act appears to be silent as regards identifying a child who is subject to an Order or proceedings under the Child Care Act 1991.
2. Other Categories of Harmful Online Content are set out as a two-tier category:

• (a) The Online Content must be content which bullies or humiliates another person; promotes or encourages behaviour that characterises a feeding or eating disorder; promotes or encourages self-harm or suicide; makes available knowledge of methods of self-harm or suicide.
• (b) Online Content must meet the risk test if it gives rise to: (a) any risk to a person's life; or (b) a risk of significant harm to a person's physical or mental health, where the harm is reasonably foreseeable.

This part of the Act deals with age-inappropriate content yet the Act does not provide for any age-verification measures. Earlier drafts of the Act sought to introduce robust measures to ensure a minimum age verification of account holders of 15 years old. This provision did not survive to enactment stage.

Republican Louisiana state representative Laurie Schlegel pushed through her bill  HB 142 earlier this year requiring age verification for any website that contains 33.3% or more pornographic material. The law takes effect from 1st January 2023.

According to Schlegel, websites would normally verify someone's age in collaboration with LA Wallet. An app available for anyone who has a Louisiana state ID or driver's license. Other options are also allowed.

It will be the website's responsibility to ensure age verification is required when accessing their site in Louisiana. There are no censors to enforce the law, instead the law allows residents to sue porn sites for any claimed harm to children caused by viewing porn on a website without age verification.

There is legislation in Washington, D.C. that looks to implement something like this on a national level. Sen. Mike Lee, R-Utah, introduced a bill similar to Schlegel's.

The Searches that Defined 2022

1. Reality

Topping this year's trends is Reality porn. The Reality category grew by +169% to become one of the Top 20 categories, while popularity of the Amateur category has dropped slightly by 20319%. Our statisticians theorize that as more amateur models have become full-time performers, the quality of their videos has improved, but visitors are still seeking a real homemade porn experience.

2. Gender

The Transgender category grew by +75% to become the 7th most popular category worldwide. Transgender was the #1 most viewed category in Brazil, and 3rd most popular in the United States and Italy.

FTM (female to male) searches were 8 times more popular than MTF (male to female), with transgender threesome and transgender surprise among the top searches. Men view Transgender videos +22% more than women, while women view the Trans Male Transgender sub-category +115% more than men.

3. Group Sex 

The Threesome category grew +34% in 2022, to become the 4th most popular category worldwide, and made the Top 5 categories in 17 of our Top 20 highest traffic countries. We also found that Orgy videos were +113% more popular, as was “gangbang” by +88%.

US Senator Mike Lee has proposed a bill that, if passed, would redefine what obscenity means nationwide, which could effectively decimate the porn industry. The Utah Republican filed the Interstate Obscenity Definition Act (IODA) based on the Communications Act of 1934, and stated in the IODA that obscenity is not protected speech under the First Amendment and is prohibited from interstate or foreign transmission under U.S. law.

Lee's bill seeks to reinstate the obscenity rules that were established in the Communications Act of 1934. These rules include removing content that appeals to the prurient interest in nudity, sex, or excretion, depicts, describes, or represents actual or simulated sexual acts with the objective intent to arouse, titillate, or gratify the sexual desires of a person, and, --  lacks serious literary, artistic, political, or scientific value, the IODA says.

The Free Speech Coalition tweeted its concern for the First Amendment, arguing the bill is a renewed attempt by conservatives to censor free speech and sexual expression. The director of public affairs with the Free Speech Coalition, Mike Stabile, told VICE News:

This bill, among our members, has gotten a huge amount of attention. Our members understand this for what it is: It's a threat to their business, to their livelihood. It's a threat to their community.

Obscenity in the US is currently defined under a Supreme Court test for obscenity: the 'Miller Test.' The Miller Test was introduced in 1973 and is named after the U.S. Supreme Court's decision in the Miller v. California case that year. In that case, a California publisher and author Melvin Miller were prosecuted for publishing what was ruled as containing obscene material. Miller had mailed five unsolicited brochures to his mother and a restaurant manager revealing explicit images and photos of men and women engaged in sexual activities.

Following the court's decision, then-Chief Justice Warren Burger outlined guidelines for jurors to follow when presented with obscenity cases including whether the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest, whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

A Canadian Senate committee amending the Liberal government's controversial Bill C-11 has added the requirement for online platforms to verify the age/identity of users accessing pornography, a move internet law experts say is likely unconstitutional.

Sen. Julie Miville-Dechene proposed the amendment, stating that online undertakings shall implement methods such as age-verification methods to prevent children from accessing programs on the internet that are devoted to depicting, for a sexual purpose, explicit sexual activity.

The committee passed the amendment, with seven senators voting in favour, five opposing it and two abstaining.

The amended version of the legislation must be approved by the full Senate and then go back to the House of Commons before it becomes law. #

It if does pass into law, it would be up to the CRTC to decide how to implement the age verification requirement.