Midsummer Eve #FBPE

I was consulted by the US Free Speech Coalition (@FSCArmy) to advise on this UK “Age Play” Content Ban FAQ for Platforms and Creators: This FAQ is general information to help you understand the UK’s new ban on age play content, not legal advice. It summarizes what the law, the government’s guidance, and other official sources say about the UK’s new ban on content featuring “adults roleplaying as children,” as of October 2026. Every business and every piece of content is different, so please talk to a UK lawyer about your situation. The basics Who does the law apply to? Anyone who possesses or publishes adult content in the UK. The law says it is illegal to possess or publish the targeted content. There’s no exception based on who you are or why you have it.* FSC cannot give legal advice (especially on such a vague law), but our impression is that individuals and companies located in the UK that create or publish choking content are at highest risk. Companies not located in the UK that block UK users altogether, or otherwise prevent UK users from accessing content prohibited under UK law would likely face lower risk, but we cannot stress enough how important it is to talk to a UK lawyer about your specific content before November 6. * If you are prosecuted, you may be able to argue in court that you had a legitimate reason for possessing or publishing it. Is age play content banned in the UK? It's a criminal offense in the UK to possess or publish adult content that "explicitly and realistically" depicts sex between adults roleplaying as children under 16. The government's guidance describes the age play offense as covering "sexual activity between at least 2 people where a reasonable person would think at least one person is, or is pretending to be, under 16." What are the potential criminal penalties? Publication can lead to up to 5 years' imprisonment. The maximum for possession is 3 years' imprisonment. Fines are also possible. Prosecutions need the consent of the Director of Public Prosecutions. Will Ofcom enforce this law? The new law makes possession or publication of this content a priority offense under the Online Safety Act. Ofcom says it "will provide an update to our policy roadmap by the end of the year" regarding "new offences that make certain types of pornography content illegal." We anticipate this will involve a public consultation and lengthy drafting process. What content counts? The law says it applies to underage portrayals, but it's unclear how it will determine when an actor is "pretending to be" under 16. We cannot stress enough how important it is to talk to a UK lawyer about your specific content before November 6. What kind of content is covered? Under the law, content is covered if a "reasonable person" would think that: it portrays at least two actual people engaged in sexual activity, at least one of those people is, or is pretending to be, under 16 years old Unlike the ”incest” ban, this offense doesn't require penetration. It covers "sexual activity," which the law doesn't define. The government simply says the term is "well understood and used elsewhere [in] the criminal law." Why under 16 and not under 18? The government says the offense is meant to cover "pornographic depictions of illegal sexual conduct." In the UK, the age of consent is 16. What does "pretending to be under 16" mean? It's unclear. The law says that it applies if a "reasonable person” viewing the material would think that any of the performers were, or were pretending to be, under 16. Bizarrely it also says that "a person is not to be taken as pretending to be under 16 if it is fanciful that they are actually under 16 in the way pretended." What does "fanciful" mean!? No one knows. The law doesn't define it, and the government hasn't said how it will be decided. A government memogives two examples of content that isn't meant to be covered: "an adult dresses in a nappy and pretends to be a baby" "someone who is clearly an adult where the only marker of childhood is the fact that he or she is in school uniform" Baroness Bertin, who spearheaded the law, told Parliament the exclusion covers "genuinely fanciful depictions involving unambiguously adult participants." Whatever that means. Is "teen" or schoolgirl content covered? Maybe. The government's equality assessment names "teen" and "schoolgirl" categories as popular and says they "predominantly depicts women portrayed as young girls." But the government has also said a school uniform alone, on "someone who is clearly an adult," isn't meant to be enough. Do titles, tags, and descriptions matter? The law's test takes into account "any sound or information associated with the image": for possession, associated material in the possessor's possession; for publication, material the publisher "publishes with the image." Titles, tags, dialogue, descriptions, and categories probably all count as "associated" information, but that's not explicitly spelled out in the law. Does AI-generated content count? Yes, if it's realistic. The guidance says the offenses "only capture pornography that shows people which appear, to a reasonable person, to be real." Possession, publication, and existing content What does "publish" mean? The law defines publishing a piece of content as "giving or making it image available to another person by any means." Government guidance says that publishing "could include uploading, posting, sending, sharing or distributing an image" in the UK. What does "possess" mean? The government's guidance says possessing content generally means "having custody or control of it." That could include content that is "stored on a device, retained in a personal account or cloud, saved in files, or otherwise kept physically or virtually" in the United Kingdom. Creating content may count as possessing it. In explaining the choking ban, the government said: "Once you create an image, you possess it." For this offense, a government memo says a person "can still privately possess pornography which shows them engaging in sexual activity and where they or the other person(s) in the image are pretending to be a child under the age of 16, so long as they are not in fact under 16 and serious harm is not caused." The same memo says producers "will be able to continue producing pornography, simply without portraying sex with a child under 16." Footage shot before November 6 is still covered, because possession is "a continuing act." What about content already on my site? The guidance says: "Publication can also be a continuing act. If you have uploaded, posted or otherwise made an image covered by these offences available whether online or offline, you will need to remove it and stop making it available" to people in the UK before November 6, 2026. What about copies we store but don't distribute? According to the guidance: "Possession is a continuing act. If you already possess an image covered by these offences, you will need to permanently delete it or otherwise get rid of it before 6 November 2026." This may include backups, archives, and moderation queues if located or accessible in the UK. Enforcement, penalties, and defenses Who will enforce the law? Starting November 6, 2026, the law will be enforced by a variety of bodies in the criminal legal system. Each does something different: Police investigate suspected offenses. The Crown Prosecution Service (CPS) decides whether to bring charges. Courts decide whether a specific piece of content violates the law. Ofcom can issue fines for failure to prevent UK users from encountering illegal choking content under the Online Safety Act. How are police investigations likely to arise? That's impossible to predict. The best evidence we have for how the new law will be policed is how the 2009 "extreme pornography" law was implemented. A 2017 study looked at 16 "extreme pornography" cases. All of the cases followed a “chance discovery.” The images were usually found while police executed a warrant for something else, and sometimes during visits to registered sex offenders’ homes or after a tip-off. The Metropolitan Police advise individuals to report "extreme pornographic images" to them. The government's impact assessment bases its estimate of 87 annual prosecutions under the new law on existing possession of extreme pornography and obscene publications prosecution data. It does not break down how many of these are expected to stem from possession vs. publication. Can creators who appear in the content still sell it? No, a government memo says the offense bars a person who "appeared in it, produced it or directed it" from publishing it "to anyone other than the other persons who directly participated in the act," and that it "directly targets those who publish images, including where they do so for commercial gain." What other defenses are there? The law offers three possible defenses for anyone charged with the offense: that the person had a legitimate reason for publishing the content or sharing it with particular people that the person had not seen the content and did not know or have any reason to  suspect that it was illegal that the person directly participated in the act portrayed, the act did not involve the infliction of any non-consensual harm on any person, and the person only published the image to other persons who directly participated What counts as a "legitimate reason" is unknown and having one of these defenses does not prevent you from being prosecuted. My company is outside the UK. Does this apply to me? Yes. Can a company be prosecuted, or only individuals? The law makes a company criminally liable when a senior manager commits an offense within their authority More information Where can I get more information about the law? FSC consulted UK lawyer @MylesJackman for this article. He is an expert on the UK's obscenity and extreme pornography laws. freespeechcoalition.com/uk-a…