Judicial Review of ‘extreme images’ law

Backlash Media Information: Monday 27th October 2014

“Tiger porn” victim requests human rights review of “extreme pornography” law by Crown Prosecution Service

The law penalising possession of “extreme pornography” faces judicial review by a defendant previously charged with having a video of woman having sex with a tiger.

It was revealed in Court that the tiger was actually a man in a tiger-skin costume.

Yet the former defendant, Andrew Holland, of Wrexham, North Wales, suffered significant disruption to his life and widespread public ridicule.

Solicitor Myles Jackman at Hodge Jones & Allen LLP acting on behalf of Mr Holland, said:

“Mr Holland does not want others to go through the ordeal that he has faced. Mr Holland wants to ensure that others are not prosecuted unnecessarily in the manner that he was. He remains subject to the risk of further criminal charges in the event that he is in possession of similar joke images in the future.”

Consequently Backlash have written to the Prime Minister, and HJA have written to Alison Saunders, the Director of Public Prosecutions asking her to review the implementation of this law: Section 63 of the Criminal Justice and Immigration Act 2008.

“Something has gone badly wrong when Parliament were told there would be thirty cases a year yet there have been thousands of costly prosecutions” emphasised Backlash Chair Hazel Eraclaeous.

If this review is not forthcoming, the law will be challenged by way of judicial review in the Administrative Court of the High Court.

Jon Fuller, spokesperson for Backlash, said:

“This law threatens anyone with a sex life they want to keep private. It threatens ordinary members of the public who exchange dirty jokes by phone and over the internet. Potentially criminalizing millions of people is a disproportionate consequence of a law not based on harm and with no clear benefit.”


Myles Jackman, Backlash legal adviser & solicitor at HJA: 07791 436 100 – law@mylesjackman.com

Jon Fuller, Backlash spokesperson: 07951 570 784 – contact@backlash-uk.org.uk

Notes for Editors:

1. Backlash is an umbrella campaign providing academic campaigning and legal resources in defence of freedom of sexual expression.

2. Hodge Jones & Allen LLP is a Tier 1 firm for civil liberties and criminal defence.

3. A commentary by Myles Jackman aka @ObscenityLawyer is available here:


4. The full text of the letters are available here:

To the Prime Minister


Letter before Action to CPS


5. Andrew Holland’s case can be read here:


6. More details of the “extreme pornography” ban can be read here including currentCPS guidance:


Ofcom Spanked

Dominatrix Beats Regulator into Submission; Ofcom deliver judicious spanking to ATVOD.

A rattling good yarn. And a good laugh. If you’re being zealously regulated, contact Backlash. More coverage of ATVOD can be found at The Independent and Wired

Employment issues

Margaret Corvid in the New Statesman examines what can happen when kinky private lives are made public. More details here

On Cultural Harm and Pornographic Diversity

Jude Roberts has a significant post on the problematic concept of ‘cultural harm’, which is frequently used as a justification for censoring pornography, especially in the absence of evidence that pornography is associated with more concrete harms against people. Part of her argument links ‘cultural harm’ to the disproportionate focus of censors on media produced by women and sexual minorities, citing a recent victory against Atvod supported by Backlash:

While most pornography does in fact strive to represent women’s sexual pleasure (realistically depicted or otherwise), the censorship of pornography is disproportionately levelled against women (alongside gay men: see for example, the disproportionate prosecution of representations of gay male sex for breaching the Obscene Publications Act) who are working explicitly to bring women’s sexual pleasure to the fore.

A good example of this is the recent (ultimately successful) battle by Itziar Bilbao Urrutia, creator of the Urban Chick Supremacy Cell (UC-SC), against the Authority for Television on Demand (ATVoD). ATVoD’s role is as a regulator of video-on-demand content, delegated by Ofcom. They are responsible for ensuring that on-demand content doesn’t breach the Communications Act 2003, as amended by the Audiovisual Media Services Regulations 2009 and the Audiovisual Media Services Regulations 2010. Interestingly, ATVoD’s Chief Executive appears also to see their role as enforcing the Obscene Publications Act and having been overruled by Ofcom in their attempted regulation of Playboy TV (on the basis of most of the editorial work taking place overseas) seem to have firmly committed themselves to the pursuit of Femdom (female domination themed) pornography. Urrutia’s work blurs the (supposedly) clean-cut category boundaries between art and pornography (and according to ATVoD, between internet pornography and video-on-demand services like BBC iplayer), but crucially UC-SC focuses primarily (even exclusively) on women’s sexual pleasure, deliberately deconstructing precisely the kind of fantasies so often identified as problematically underpinning mainstream pornography (whether they do or not is a whole other question).

Read the whole post here.

New Statesman: The allure of the closet: is kink only sexy when it is underground?

Margaret Corvid discusses the kink closet, and Backlash’s work protecting the employment rights and family lives of people with a kinky private sex life:

“People who are outed risk losing their professional and social status; access to their children; and, in extreme cases, going to prison for having engaged in consensual adult activities in private. This raises significant civil liberties issues regarding the right to a private life, as guaranteed by law,” says Myles Jackman, an incisive, eloquent barrister who frequently advises Backlash, a campaigning group which fights for the right to freedom of sexual expression. In speaking to Backlash, I heard about employees hounded out of their jobs and parents losing their children. Backlash regularly hears from those affected by discrimination, and has been able to help many of them, but even those who have won their struggles have been traumatised, and many still require medication for stress; most wouldn’t talk to a reporter.

Read the full article here

Independent: Web dominatrix wins David and Goliath battle with regulators

A dominatrix whose website provides paid-for bondage and sadomasochistic content has won her David-and-Goliath battle against a quango’s attempts to regulate her site in the same way as ITV Player.

Lawyers representing Ms Itziar Bilbao Urrutia, who runs the website The Urban Chick Supremacy Cell (UCSC), declared the ruling “a massive victory for freedom of sexual and artistic expression”.

Read more at the Independent

Dominatrix beats online video regulator into submission

Ofcom spanks its internet video agency, ATVOD, for treating a small independent erotic website like a competitor to TV.

A dominatrix and performance artist dealt a blow to the Authority for Television on Demand (ATVOD) this week when Ofcom ruled that her website was not subject to their regulation. Itziar Bilbao Urrutia is a producer of The Urban Chick Supremacy Cell (UC-SC), a website that publishes video performances mixing erotic scenarios with social commentary. Scenarios include contrived scenes of kidnapping corrupt bankers and other high-powered businessman.

In June 2013 she was threatened with legal action and fines if she did not pay a fee to ATVOD, a private company with delegated authority from Ofcom to regulate online videos. Ms Urrutia was advised by sexual liberties campaign Backlash and their legal adviser, obscenity law expert, Myles Jackman.

ATVOD persisted, so Backlash via Hodge Jones Allen partner Daniel Godden instructed Ligia Osepciu of Monckton’s to prepare a formal appeal to Ofcom. The appeal was successful. In a decision released this week Ofcom sided with Ms Urrutia, slapping down their own subordinate and limiting ATVOD’s jurisdiction to websites that provide more obviously ‘TV-like’ content.

ATVOD’s legitimate area of regulation remains a value judgement, continuing a worrying level of uncertainty for Britain’s media producers.

Ligia Osepciu, the barrister who drafted the appeal, commented: ‘Ofcom’s carefully reasoned decision gives proper effect to the AVMS Directive as an instrument of economic and competition regulation rather than a vehicle for moral legislation’.

UCSC producer Itziar Bilbao Urrutia said: ‘I’m so glad we won after such a stressful year. In Britain authority is usually so uptight about sex, especially these days, with the shock of the new that still surrounds technologies such as the internet’

‘We’re also delighted to have had Atvod’s endorsement as being a site of significance. We are militant female supremacists, but I must concede that the patriarchy has its uses’.




Notes for Editors:

1.    Backlash is an umbrella campaign providing academic campaigning and legal resources in the defence of freedom of sexual expression.

2.    Myles Jackman specialises in sexual obscenity cases and is the legal adviser to Backlash. He was the Law Society’s Junior Lawyer of the Year in 2012. He blogs as Obscenity Lawyer.

3.    Myles Jackman’s commentary on the case has been published here.

4.    Ofcom’s judgement is available in full here.

5.    ATVOD is the independent co-regulator for UK video on demand services. Its powers derive from the EU Audiovisual Media Services Directive via the Communications Act 2003, as amended by the Audiovisual Media Services Regulations 2009 and the Audiovisual Media Services Regulations 2010.

6.    The Urban Chick Supremacy Cell is an art project designed, produced and created by real life dominant women where all violence and speech are part of a fictionalized dystopian Femdom fantasy. It is an adults-only website that is accessible here. A non-explicit splash image for viewing and re-use is here.

7. Ligia Osepciu specialises in competition law, public procurement, telecommunications and utilities regulation. In the telecommunications field, she has advised and represented a number of private parties in relation to challenges against the regulatory decisions of PhonepayPlus and ATVOD. She also recently acted for the successful appellant in the BT plc v Telefonica et al (2014) UKSC 42, a case concerning the scope of Ofcom’s powers under section 185 of the Communications Act 2003.

Index on Censorship: Criminalising Kink

Jonathan Lindsell provides an excellent overview of recent moves to extend the extreme pornography ban and other attempts to stifle freedom of sexual expression by the current Government. Backlash is quoted as follows:

[C]ampaigners contend the draft law’s language is too ambiguous. A policy researcher from anti-censorship organisation Backlash argues: “The law will cover much more than the legislators imagine or intend.” Passing this law as an appendage in a “bumper bill (that includes) lots of legitimate concerns – a radical overhaul of probation and legal aid – (means this) very delicate matter isn’t getting appropriate democratic oversight”.

Backlash legal adviser, Myles Jackman, also discusses the problems with the proposed amendment:

Solicitor Myles ‘ObscenityLawyer’ Jackman, who represented Walsh, highlights the dangerous subjectivity of judging pornography “realistic”, plus the “absence of any evidence proving…a causal link” between such material and Cameron’s “normalise(d) sexual violence against women”.

Backlash submits written evidence to Criminal Justice and Courts Bill Committee

Backlash has submitted expert evidence in response to an amendment in the new Criminal Justice and Courts bill expanding the definition of extreme pornography to include fictional portrayals of rape. The summary argument is as follows:

The amendment to ban ‘rape pornography’ risks criminalising more than a million otherwise law-abiding people in the United Kingdom. Nonetheless, there is no evidence of any corresponding public benefit from the proposed prohibition. Conversely there is a strong risk (based on our experience with the present extreme pornography offences contained within S63 (7) of the Criminal Justice and Immigration Act 2008), that any such prosecutions will be disproportionally deployed against sexual minorities; at significant cost to public funds that could be spent investigating crimes that provably harm the general public.

There is a significant amount of bondage themed material catering for those who enjoy submissive fantasies. Fantasy and fictional portrayals of ‘forced’ sex, which are likely to be the vast majority of images criminalised under the proposed amendment, are too commonly enjoyed to be reasonably subject to prohibition.

Hence we propose the amendment should either be rejected, or limited in scope to only prohibit images that are provably produced in circumstances where there is an absence of consent (either to the acts portrayed in the images or dissemination of the images themselves).

Should the legislation be enacted, we would therefore appeal for absolute clarity in the meaning and operation of the law: to enable the public to identify the difference between an “act which ‘realistically’ depicts rape” and the huge quantity of material that depicts sex and bondage.

The full submission can be read at Parliament’s website.

Letter to MPs on Criminalising “Rape Porn”

This week, the following letter was sent to a number of MPs and Lords, to raise concerns over the planned “rape porn” legislation. This was sent on behalf of Backlash and an alliance of other sexual freedom campaigns: Sex & Censorship, Consenting Adult Action Network, Campaign Against Censorship and the Sexual Freedom Coalition.

We write to express grave concern regarding S16 of the Criminal Justice and Courts Bill which will extend the existing ban on extreme pornography (S63 of the Criminal Justice and Immigration Act). This section is poorly defined. It will have the unintended consequence of criminalising the possession of material that depicts consensual sex, bondage and power-play fantasies common to millions.

Pornography of all kinds has become much more accessible since the Internet has become available to the general public. In that time, the prevalence of sexual abuse has not increased in the United Kingdom and may have decreased. It is simplistic & mistaken to suggest that pornography is a cause of violence against women. Correlation is not causation. Serious academic studies of pornography and sexual violence (1) show that increased availability of pornography is, in fact, associated with less violence and abuse.

Fictional and consensual portrayals of submission and domination are a common and popular sexual fantasy, as recently illustrated by the Fifty Shades of Grey novels. Indeed one of the largest surveys ever undertaken in Britain (2) indicated that nearly a third of us have fantasies about elements of forced sex, with approximately 2.2 million men and women having violent sexual fantasies. With around 90% of men and 60% of women viewing pornography, and with so many enjoying fantasies of this nature, the danger is that this poorly defined legislation will have a huge impact.

The Bill’s Impact Assessment suggests that the number of cases cannot be predicted. When extreme material was criminalised (by S63(7) CJIA 2008) government ministers predicted there would only be 30 cases a year, but the reality was very different. In the last year for which the MoJ has provided data (2012/13), there were 1,348 prosecutions. Given that the number of people who enjoy material that features sexual bondage and power-play is so high, we fear government will create thousands of new sex offenders, most of whom will be entirely harmless law-abiding citizens.

There is also a problem with government guidance for the public and prosecutors. Just prior to the enactment of S63(7) CJIA 2008, in response to reservations, the House of Lords was promised that meaningful guidance would be issued to explain those categories that were difficult to define. This never happened. In fact prosecutors were so unsure of the meaning of the law that there have been some trials of material which we are confident Parliament never intended. For example, the prosecution of barrister Simon Walsh, a former aide to Boris Johnson, whose legal practice had included investigating corruption within British police forces. His career in public life was ruined by a prosecution. It was rejected by a jury after 90 minutes deliberation. Prosecutors failed to prove that images depicting consensual sex acts between him and two other gay men were ‘extreme’.

The prosecution also threatened the reputation of the Crown Prosecution Service as an impartial public servant by showing that gay men risked having their lives destroyed in court over intimate acts which were consensual, safe and commonly practiced within the LGBT community. Bad laws do not harm only the individuals prosecuted; they also harm the institutions tasked with enforcing them, and increase even further the costs of the justice system to the taxpayer. This proposed law will also traumatise large numbers of women and men by having their private sexual fantasies examined and shamed in public.

It is therefore vital that S16 of this Bill be refined to limit the scope of the ban to images that are produced through real harm or lack of consent. Fantasy portrayals of forced/power-play sex are too commonly enjoyed to be reasonably subject to prohibition.

We appeal to you to refine this legislation. We also ask to be permitted to put detailed evidence to Parliament at the committee stages. Finally, we ask if you would be willing to host an event in Parliament, at which representatives could speak, so that members of both Houses can better understand what is at stake.


1. Pornography, Public Acceptance and Sex Related Crime: A Review: 2009: Milton Diamond
2. British Sexual Fantasy Research Project: 2007. ISBN 978-0-713-99940-2

  • Backlash is an umbrella organisation providing academic, legal and campaigning resources defending freedom of sexual expression. We support the rights of adults to participate in all consensual sexual activities and to watch, read and create any fictional interpretation of such in any media.