Live Streamed Sex Videos

It would appear, certainly from examining the unwanted contents of my e-mail in-box, that the latest batch of dot. com entrepreneurs are rapidly realising that one of the few ‘almost guaranteed’ ways to make money from the Internet is by dealing in the illegal or barely lawful – making available through the WWW what is not, for good reason, easily available in the High Street. The High Street vendor refrains from dealing in such goods and services for the obvious reason that the police, local authority or other law enforcement agency are likely to prosecute and to close the enterprise down. The online supplier, conversely, seeks to exploit three particular and recurrent features of the Internet. First the trans-national aspect of the Internet allows a supplier to try and escape enforcement in a particular jurisdiction. Secondly the relatively anonymous nature of the WWW can allow a supplier to disguise his or her location and identity, making enforcement additionally difficult. Finally a consumer who has parted with their credit card details may find the enforcement of the contract for goods or services difficult when nothing arrives or access to an online service is denied. This is, of course, partly due to the anonymous and trans-national nature of the Internet but also because, as a matter of public policy, national laws rarely allow the enforcement of contracts for the acquisition of an unlawful item or service.

It also seems, from a brief and non-scientific examination of my in-box, that the most common barely lawful or illegal online service is the provision of pornography in all its forms. Much of it appears, at least from the related Web sites (the senders’ e-mail addresses are rarely genuine) to originate from Russia or Eastern Europe. In such cases there is scant consideration for the national laws regulating sexually explicit material which will apply in the countries receiving such mail.

It is a different matter for the e-commerce entrepreneur based, in the UK. That individual or business will have to do far more than pay lip service to UK legislation as otherwise there is a risk of police interest, the seizure of valuable equipment and prosecution. Most UK businesses dealing in the provision of sexually explicit material via the Internet are providing an online ordering service for videos and DVDs or are making still and video images which contain sexual activity available to subscribers.

I had cause recently, however, to consider the situation of a UK-based business seeking to provide live streamed video over the Internet containing sexual activity. The basic principle behind the concept is that the viewer should be able to interact with or instruct a model or models over an Internet link in return for payment. The idea is not original since there are businesses based in the USA and in the Netherlands which offer this type of service. I am not aware however of any UK-based businesses offering this type of service. This concerned me as the implication is either that UK legislation operates to criminalise and prohibit such a service if the business is based in the UK or, possibly, that the business model is not economically viable.

The rest of this piece sets out my own thoughts on UK legislation which is potentially applicable to such an enterprise. I would be genuinely interested if any readers have any further thoughts on the issue.

I am confident that there is no piece of UK legislation that applies immediately and directly to such an enterprise. This is in part due to the particular business model proposed – offering services via the Internet. Much of the potentially relevant legislation dates back to the 1950s or even earlier, when the Internet was not even conceived of. It is therefore a question of carefully examining potentially relevant legislation to see if it would apply in the context of this particular business plan.

Disorderly House

My starting point was to consider the legitimacy of a live sex show within the UK where the audience views the activity directly rather than via the Internet. Of course there are live shows with some sexual content available in the UK – lap dancing, peepshows and the like. However the particular business plan I was considering envisaged providing far more explicit sexual activity, including the possibility of customers viewing full penetrative sexual intercourse. This is certainly not currently permissible in the UK in the form of a show with a direct audience.

In the first place such a show would be prohibited by the old common-law offence of keeping a disorderly house. A ‘disorderly house’ is one which is ‘not regulated by the restraints of morality and which is so conducted as to violate law and good order’. There must be an element of ‘open house’ but it does not need to be open to the public at large.[1] Where indecent performances or exhibitions are alleged as rendering the premises a disorderly house, it must be proved that matters are there performed or exhibited of such a character that their performance or exhibition in a place of common resort (a) amounts to an outrage of public decency, or (b) tends to corrupt or deprave, or (c) is otherwise calculated to injure the public interest so as to call for condemnation and punishment. These ingredients should not, however, be regarded as mutually exclusive and a performance may well offend in all three respects.[2]

In R v Tan [1983] QB 1053 (in which prior cases were considered), the court observed that many forms of conduct may fall within the scope of the offence of keeping a disorderly house. Establishing a universal definition with precision is both undesirable and impossible. Where the ground on which the charge is based is that premises are being used for the provision of sexual services, a jury should be directed that they must be sure that the services provided are open to those members of the public who wish to partake of them and are of such a character and are conducted in such a manner (whether by advertisement or otherwise) that their provision amounts to an outrage of public decency or is otherwise calculated to injure the public interest to such an extent as to call for condemnation and punishment. The jury should further be directed, that the fact that the services are provided by a single prostitute to one client at a time and without spectators does not prevent the house being a disorderly house.

Secondly the Local Government (Miscellaneous Provisions) Act 1982 established, in sch 3, a system of licensing by local authorities for sex establishments (sex shops and cinemas) and sex encounter establishments. Sex encounter establishments are premises at which performances are given which are intended to sexually stimulate persons admitted to the premises or where the performances involve nudity. It is a criminal offence to operate such an establishment without a licence.

Having said this I feel confident in concluding that these pieces of law would not apply in an online environment, especially if the models are located in overseas jurisdictions since it is a fundamental requirement that the sexual or indecent activity takes place within the UK jurisdiction. Indeed even if the models were based within the UK I doubt whether either ‘disorderly house’ or the requirement to have a licence would be relevant since both legal provisions envisage an audience being admitted to premises where the activity takes place and this simply does not happen when viewing is via the Internet.

Obscene Publications Act

British law places controls on the use and distribution of sexually explicit material. The principal piece of legislation is the Obscene Publications Act 1959, as amended in 1964. Section 2 of the Act makes it an offence to publish an obscene article or to have an obscene article for publication for gain.

An ‘article’ is defined (s 1(2)) as anything containing material to be read, looked at or listened to. Although the legislation self-evidently predates both videocassettes and the Internet, it was held in A-G’s Reference (No. 5 of 1980) [1981] 1 WLR 88 that the object of s 1(2) was to bring all articles which produced words or pictures or sounds within the compass of the Act, that the words ‘shows, plays or projects’ in s 1(3)(b) of the OPA were sufficiently wide to cover pictures produced by a video cassette; and that, accordingly, a video cassette was an article within the meaning of s 1(2). So also is a computer disk: R v Fellows and Arnold [1997] 1 Cr App R 244.

‘Publishing’ includes distributing, circulating, selling, hiring, showing, playing, giving, lending and offering for sale or hire (s. 1(3)). Furthermore, the definition of publishing has been amended to take into account new technology so that publication also includes:

‘in the case of an article containing or embodying matter to be looked at or a record, shows, plays or projects it, or, where the matter is data stored electronically, transmits that data.’

If the mere transmission of data electronically constitutes ‘publication’ within s 1(3)(b), it follows that the uploading or downloading of a Web page constitutes publication.[3] Thus the OPA would potentially apply to live streamed video transmitted over the Internet.

The test of obscenity is contained in s 1 of the OPA. The effect of the article taken as a whole must be to ‘tend to deprave and corrupt [a significant proportion of] persons who are likely ….. to read, see or hear the matter contained ‘ in the article.

There have been attempts to define the term ‘deprave and corrupt’, but such definitions have been largely tautological. In the ‘Lady Chatterley’ case, ‘deprave’ was defined as ‘to make morally bad, to pervert, to debase or corrupt morally’. ‘Corrupt’ was defined as ‘to render morally unsound or rotten, to destroy the moral purity or chastity of, to pervert or ruin a good quality, to debase, to defile’.

These appear to be strong words ¯ the suggestion is that what is being prohibited is something which might destroy or undermine the fabric of society.

In practice, the courts tend to take the view that, if an allegedly obscene article contains an image, or possibly a description, of sexual behaviour which is, arguably, an exceptional practice or a minority taste, or, to adopt the language of the police, something which is ‘beyond the pale’, there may be a risk that viewers of the material may be ‘encouraged’ or ‘corrupted’ into such practices, which they may not engage in already, and hence the test of the legislation is satisfied.

Careful targeting of a specified audience may, therefore, lessen the risk of prosecution since the OPA requires the corruption of persons who are ‘likely to’, as opposed to ‘conceivably might’, see the article. Consequently, it might be argued that if the target audience has regularly experienced such imagery then there is no risk of corruption. However, in DPP v Whyte [1972] AC 849, the House of Lords held that the Act was not merely concerned with the once and for all corruption of the wholly innocent, it equally protected the ‘less innocent from further corruption and the addict from feeding or increasing their addiction’. Targeting is in any event difficult in the medium of the Internet, although ‘pay for view’ services may at least have an in-built age verification procedure if a credit card payment is required.

Prosecution & Police Practice For Obscene Publications

Prosecution policy tends to ignore the real meaning of the phrase ‘deprave and corrupt’. In practice the legislation is applied by having a list of ‘forbidden’ images or activities. The ‘forbidden’ list is not static, however, but constantly changing as publishers seek to push the boundaries of permitted images forward and the prosecuting authorities seek to re-impose what they feel to be the appropriate limits.

For example, it was considered, until relatively recently, that an image of an erect penis was not permissible. The early 1990s, however, have seen an explosion of sexual guidance videos, which contain such images and yet have been certificated by the British Board of Film Classification, and have to date not been the subject of any prosecutions under the OPA. In 2001, following a test case in the High Court, the BBFC demonstrated a willingness to classify videos which had no educational element but which featured explicit scenes of oral sex and penetrative intercourse with an 18R certificate. The 18R classification means a video can only be sold from a licensed sex shop. Also in 2000 the BBFC gave the video of the film ‘Romance’ an 18 certificate although it featured graphic scenes of oral sex and penetrative (heterosexual) intercourse. None of these publications have been the subject, to date, of an obscene publications investigation or prosecution, although a BBFC classification provides no protection against such a prosecution.

These constant shifts in what is and is not permissible can make it difficult to give certain advice. Text is certainly less at risk from prosecution than images and drawn images seem to attract less interest than photographs or videos. Recent experience suggests that the police are most interested in targeting material featuring children (people under 16), animals or SM imagery. There also seems to be a consensus that only images depicting unlawful sexual activity warrant investigation/prosecution. The one exception to this seems to be material depicting urination and coprophilia which are not in themselves unlawful activities. Such material is still frequently the subject of OPA prosecutions.

Conclusion regarding Obscene Publications

Although I can see that the OPA would potentially apply to live streamed videos with a sexual content, it seems unlikely that there would be an investigation providing the e-commerce entrepreneur keeps well away from the taboo areas outlined above and the live videos depict only consensual adult sexual activity of a ‘vanilla’ type.

The punishment here is a maximum of three years’ imprisonment and/or an unlimited fine.

Conspiracy to Corrupt Public Morals & Outraging Public Decency

These are two old common-law offences.

Outraging Public Decency

According to Archbold,[4] in general, all open lewdness, grossly scandalous behaviour, and whatever openly outrages decency or is offensive and disgusting, or is injurious to public morals by tending to corrupt the mind and destroy the love of decency, morality and good order, is an offence indictable at common law.[5]

It must first be proved that the act complained of was committed in public which means that it must be committed in a place, public or private, where there exists a real possibility that members of the general public might witness it.[6] But it is sufficient that only one person actually sees the act.[7] Secondly, it must be proved that the act was of such a lewd, obscene or disgusting character as constitutes an outrage on public decency. It is not necessary for the prosecution further to prove that the act in fact disgusted or annoyed the persons who had witnessed the act.

Because the offence is defined in a rather open-ended manner is has been used in situations where a prosecution under ordinary statutory provision might not succeed. So in R v Choi [1999] 8 Arch News 3, the act consisted of filming women as they used the lavatory in a supermarket, In R v Gibson and Sylveire [1990] 2 QB 619. G had sculpted a human head, to each ear of which he had attached an earring made from a freeze-dried human foetus of three to four months’ gestation. The sculpture was displayed in S’s gallery. They were both prosecuted for outraging public decency.

Conspiracy to Corrupt Public Morals

The only relevant relatively recent prosecution for this offence was in Knuller (Publishing, Printing and Promotions) Ltd v DPP [1973] AC 435, where the publication of contact ads for gay men was held to constitute the offence despite the partial decriminalisation of gay sex in 1967.

These two common-law offences are, as I have said, defined in a rather open-ended manner and I can foresee them possibly being used against live streamed videos depicting sexual activity. I do have a question mark in my mind as to whether in the case of outraging public decency the central act needs to be within the UK or whether it simply has to be viewable within the jurisdiction. I rather suspect that the latter would be deemed to suffice.

Because these are common-law offences the punishments are not defined and they are punishable with unlimited fines/imprisonment

Prostitution

A prostitute includes a woman who offers her body commonly for ‘acts of lewdness’ for payment, although there is no act or offer of an act of ordinary sexual intercourse.[8] Alternatively a prostitute must be someone who is prepared for reward to engage in acts of lewdness with all and sundry or with anyone who may hire her for that purpose.[9] Masturbating another person is a sufficiently lewd act.[10]

I think these definitions are wide enough to include the type of acts envisaged in the business plan considered – if the models are operating as a couple or in groups. Although when the above-mentioned cases were considered it was envisaged that an individual would be paying for sexual activity which would include him/her rather than paying to watch a person have sex with a third party, this does not seem to be a fundamental pre-requisite. I say ‘seem’ advisedly since the point has not been fully considered by the courts.

It is equally not completely clear whether a solo performance can constitute an act of prostitution (eg using a vibrator). The cases use the rather arcane phrase of ‘acts of lewdness’ but reading between the lines I would say that it is fairly clear that some form of sexual activity with at least one other person is what is required rather than a solo performance.

If the acts envisaged for the models are potentially acts of prostitution then there are potentially relevant offences under the Sexual Offences Act 1956. First s 22 provides:

‘It is an offence for a person –

(a) to procure a woman to become, in any part of the world, a common prostitute’.

It would appear that the act of procurement must take place within the UK even if the acts of prostitution take place abroad. Thus if models were recruited from Eastern Europe then liability under this provision would likely be avoided. However if the recruitment process took place within the UK then this provision may apply.

The punishment here is a maximum of two years’ imprisonment and/or an unlimited fine.

Secondly s 30 provides:

‘(1) It is an offence for a man knowingly to live wholly or in part on the earnings of prostitution.

(2) For the purposes of this section a man who lives with or is habitually in the company of a prostitute, or who exercises control, direction or influence over a prostitute’s movements in a way which shows he is aiding, abetting or compelling her prostitution with others, shall be presumed to be knowingly living on the earnings of prostitution, unless he proves the contrary’.

Again it is not clear, because the issue has not been considered by the courts, whether the prostitution and the living off immoral earning have to take place within the jurisdiction of the UK or whether it is sufficient for the ‘living’ to be within the UK and the prostitution overseas.

The punishment here is a maximum of 7 years’ imprisonment and/or an unlimited fine.

Angus Hamilton is Principal at Hamiltons Solicitors, www.hamiltons-solicitors.co.uk