Phil

I was consulted by the US Free Speech Coalition (@FSCArmy) to advise on this UK “Choking” Content Ban FAQ for Platforms and Creators This FAQ contains general information to help you understand the UK’s new choking content ban, not legal advice. It summarizes what the law, the government’s guidance, and other official sources say about the UK’s new ban on choking content, 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 choking content in the UK. The law says it is illegal to possess or publish it. There’s no exception based on who you are or why you have the content.* 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 choking content banned in the UK? Depicting "in an explicit and realistic way, a person strangling or suffocating another person" in the UK is now a crime. Neither strangulation nor suffocation are defined in the law. The government says the words will be given their "ordinary meaning" and whether an image depicts strangulation or suffocation "will be a question of fact for the court in each case." What are the potential criminal penalties? Publication can lead to up to 5 years' imprisonment. The maximum for possession is 2 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 choking 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 counts as choking? What could "strangulation" mean? According to the government: "We consider that strangulation generally means one person applying pressure to another person's neck." The Crown Prosecution Service (CPS) guidance on prosecuting the offense of strangulation that suggests defining it as "the application of force or pressure by the defendant to the victim’s neck, whether using their hands or other means" and "does not require a particular level of pressure or force within its ordinary meaning, it does not require any injuryand it does not require...impeded breathing or circulation." They offer these examples of what could constitute strangulation: one or two hands held around the neck of a person, chokeholds or head locks, ligatures such as a scarf or belt tightened around the neck, pressure on the neck from a foot or knee. Whether an image depicts strangulation or suffocation "will be a question of fact for the court in each case." What could "suffocation" mean? According to the government: "We consider that suffocation will generally mean depriving a person of air in a way that affects their ability to breathe. Unlike strangulation, this does not require pressure to the neck. It could, for example, involve covering someone's mouth and nose or compressing their chest." The CPS guidance on prosecuting the offense of strangulation that suggests this definition: "to deprive a person of air which affects their normal breathing" and notes that "any action that causes a person to be deprived of air which affects their normal breathing could be considered to fall within the definition." Their examples of what could constitute suffocation include: putting a hand over the mouth and nose compressing the chest, any other force or suppression applied to a person to cause a restriction of breath Whether an image depicts strangulation or suffocation “will be a question of fact for the court in each case.” Is a hand on the neck choking? It's unclear, but unless pressure is being applied, a hand on the neck would not seem to meet the definition supplied by the government. Could it cover gagging or deepthroating? Potentially, as those acts tend to obstruct the airway. The government's equality assessment says the offense "could cover behaviours such as 'gagging'". Could it cover facesitting? Plausibly, if the nose and mouth are obstructed. In 2014, the British Board of Film Classification reportedly considered facesitting "without breathing restriction" to be acceptable under its standards, but not "as a breathing restriction or any other form of smothering."  That is a separate regulatory regime from the new criminal offense, but it may provide some indication of how facesitting will be judged. Does the content have to look dangerous? No. The government says the offense removes "the need to prove whether it appears to be life-threatening". Does it matter if the performers consented, or if the act was simulated? No. The offense's elements don't mention consent or simulation. The test is whether the image "explicitly and realistically" depicts the act and the people appear real. Does AI-generated content count? Yes, if it's realistic. 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 counts as possessing it. According to a government memo: "Once you create an image, you possess it, so the effect of the possession offence is to generally prohibit the creation of pornographic images portraying strangulation and suffocation." 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. The government was quite open about that fact that it wants to "generally prohibit the creation" of choking content and that it will target entities that publish choking content "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-c…