1) If the films have been certified as R18, are uploaded from the UK by a UK company to a server that's not in the UK, is there any written legislation that gives clarity or certainty that the Trading Standards or another aurthority won't come after you?
Trading Standards are concerned with matters regarding shopping, that what you buy is legal, merchantable quality and safe, etc. This only covers outlets in their region. A council in London can't go after a shop in Birmingham, so will not be worried about what is coming from Amsterdam.
You can publish produce porn in the UK and sell it overseas without their involvement. That product can legally come back into the UK, but can't be sold in the UK. The only problem you have is with Customs who may stop you at the border and obscenity laws. If the movie is "Obscene" then you can get prosecuted and as I said if it is within normal US guidelines you are safe.
2) Am I right to believe that if the film hasn't been qualified by the BBFC, is uploaded from the UK by a UK company to a server outside the UK .... you're breaking the law?
No you are not, it's being published from the country the server is in and is subject to that countries laws. You are breaking the law if you upload it to a UK server, even if you are a licensed sex shop. Trading Standards are currently going after companies with licensed sex shops for selling tapes mail order.
3) Is country of incorporation of the company that pays for the hosting of any importance in this ?
Don't know. Best to ask a lawyer.
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Sorry Charly. Whether you've been prosecuted or not I'll disagree. Uploading or 'editing' to a server outside of the UK is NO safeguard.
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Why not? As I said this is a law reguarding selling/trading. If you are just uploading where does it break the law regarding having a BBFC certificate?
This is about a law that was created so the control of what was being published was passed from the "Obscenity" laws to "Trading Standards" of whether it is licensed or not. They then set guidelines for what can get a certificate and in one fell swoop they have introduced "Censorship" A film may be perfectly legal, but it still has to be licensed. There is no defense, you either have the license or do not.
To sell R18 movies (hardcore porn) you need to do this via a licensed sex shop across the counter. Delivering them, transporting them, producing them is not covered by this law.
Tipsy
It does not need testing in court. If you are selling or publishing, within the UK, an unlicensed film you are breaking the law. If you are selling an R18 movie within the UK in any way other than via a licensed sex shop you are breaking the law. It was written that way and that is it. Does not need testing trust me.
Now whether the Trading Standards department of your local council has time to get around to you is another matter. I operated for 6 years, making half a million most years before they knocked on my door. But it still meant that for six years I was selling via mail order illegal videos, just got away with it. ;)