But pornography portraying the following is not deemed prosecutable:
- Actual consensual sexual intercourse (vaginal or anal)
- Oral sex
- Masturbation
- Mild bondage
- Simulated intercourse or buggery
- Fetishes which do not encourage physical abuse.
That last list is really no more extreme than anything you'd find in a licensed sex shop, and adults can view this material online by actively opting-in to adult content with their ISP.
What does 'possession' mean?
Myles Jackman:
'An individual is still in technical possession of an image if it has been cached by a browser'
The legal definition of "possession" on the internet may seem unintuitive. Possession is basically the act of viewing something online, and the difference between actively downloading a video and passively clicking an ad on a legal site that takes you to illegal content is still a grey area.
As Myles Jackman, a specialist in obscenity law at Hodge Jones and Allen and @ObscenityLawyer on Twitter, puts it:
"An individual is still in technical possession of an image if it has been cached by a browser. The evidential question will be whether that individual accessed or requested the original image deliberately."
In general, prosecutors treat these cases on individual bases.
Is sexting safe?
Sexting counts as publication under the Obscene Publications Act
In 2013, in a landmark case where two adults were prosecuted for privately messaging paedophilia fantasies, the Court of Appeal ruled that online sexting counts as "publication" under the Obscene Publications Act.
Setting aside the content of these exchanges, this ruling has massive implications for online communications.
"The 2012 case of R v GS is unprecedented in extending liability for publication to one-to-one private fantasy chat via chatrooms, messenger clients and text message," says Jackman. .
"This potentially criminalises millions of otherwise law abiding adults for sexting."
Jackman discusses the implications in more detail on his blog:
"Sending a private message (for example a DM on Twitter, email or MSN chat message); intended solely for a single recipient (sent in good faith with the expectation that no-one else will see the contents); about an 'obscene' sexual act which is purely a fantasy; rather than a statement of an intention to perform that act - means you could be sent to prison."
Defining the terms
The law leaves much open to interpretation. Does role-play count as a "realistic portrayal of rape" even if the acting is awful? Do paper-cuts qualify as 'trifling infliction of injury'? This may sound flippant, but there's no hard and fast definition for these issues, and they're likely to differ from case to case.
The Obscene Publications Act is applicable in England and Wales, but its jurisdiction comes with a litany of statutory exemptions in Scotland and Northern Ireland, thanks to the differing obscenity laws in constituent countries. So how you get charged, what you get charged with, and what is chargeable will depend on where in the UK you live.
Our advice? Hide in a cupboard, think pure thoughts and, if you must buy lingerie, do it in a shop.
