Porn in the UK
In 2010 the UK established an excellent system for dealing with TV-like hard core pornographic material published online by businesses domiciled within the UK. Age verification is an essential feature of such sites. Ordinarily the porn is therefore not accessible to persons under 18.
The problem is the vast majority of online porn is being published by businesses based overseas and they have no real barriers to access. Young people, including children, are being exposed to graphic material which was never meant for them.
While the content is generally “free” to view these sites are in fact highly commercial. They sell things and collect the money via credit cards or other online payments mechanisms or they derive revenues from advertising.
A new approach
Earlier this week the draft Digital Economy Bill, 2016-17, appeared. If the relevant provisions become law commercial online publishers of pornographic material directed at or available in the UK will be required to introduce an age verification mechanism to keep out under 18s. This measure was promised in the Conservative Party’s Manifesto at the 2015 General Election and was referred to in the Queen’s Speech in May, 2016.
There is no doubt this is a very positive step forward but the Bill as presently drafted has a major flaw which needs to be corrected.
Aligning the real and virtual worlds – simple but revolutionary
Pornographic material is defined as any sexual content which is or would be likely to be rated as R18 or 18 by the BBFC, the UK’s official film classification body.
In other words the modest (but otherwise revolutionary) aim of this Bill is simply to create a closer alignment between how things work on the UK’s portion of the internet and how they work in the physical part of the UK.
What do the public think of this idea?
On the same day the Bill appeared the Government released the results of the public consultation that was held about the policy underpinning it. Here is an important extract from the summary.
Overall, there was a roughly even split between those supporting age verification (44%) and those not in favour (48%). Responses from individuals made up the vast majority of those which were submitted via our online questionnaire (94%). Over half of the individuals were men, the majority of whom were between 18 and 34 years old.
Crucially, however, many of the key organisations we work with in the online child protection sphere – children’s charities, support and advice groups, the BBFC, internet service providers, and payment service firms and credit card companies – indicated their support for the proposals, and the overriding policy goal of protecting children online. (bold added by me for emphasis)
That seems pretty straightforward.
A new regulator is to be created
An independent age verification regulator will be established to oversee the new regime. If a pornography publisher does not introduce age verification mechanisms the regulator will have the power to issue an enforcement notice directing them so to do. Ultimately, if the publisher fails to comply they could face a fine of £250,000 or of up to 5% of their turnover. In civil courts the regulator could seek an injunction or “any other appropriate remedy.” Now there’s a thought!
I’ve got a little list, but…..
The regulator will create and maintain a list of non-compliant porn sites and circulate it to payments service providers, advertisers and other businesses that provide ancillary services to the publisher. In effect the notice will identify the non-compliant publishers as law-breakers who are putting children at risk.
But neither the payments service providers nor any provider of advertising or ancillary services will be required to do anything with the information the regulator gives them.
Cutting off the money?
Of course the not unreasonable expectation is that the UK-based payments and other service providers will not want to associate with or support a business that has been identified as operating unlawfully in ways that harm children. They will threaten to withdraw their services and that alone will be sufficient to compel the publishers either to cease publishing into the UK or bring in age verification. Either way we get a good result. This is known as the follow the money approach.
However, it was always clear we had to face the possibility that while a good portion of the payments companies, advertisers and other service providers would be likely to respond positively a large enough chunk of them might not. Even sites that were willing to comply might then change their minds if competitors began eating their lunch. The policy could quickly be left in tatters.
To avoid such a scenario the regulator must have a bit more heft. If all else fails, when every follow the money avenue has been exhausted the regulator must have the power to name persistently non-compliant sites and require ISPs and others to block access.
The major weakness
Sadly the Government seems to want to rule out blocking. In the explanatory notes that accompany the Bill the following appears at paragraph 23
The Bill does not provide for the blocking of non‐compliant websites by internet service providers on the basis that this would not be consistent with the treatment of other harmful or illegal content.
The other harmful or illegal content being referred to are child abuse images and terrorist material. Yet here both types of content are illegal whereas much of the porn will not be. Businesses that might happily act voluntarily in respect of child abuse images and terrorist material may not feel the same way about legal porn.
If inconsistency is the Government’s only worry or obstacle the answer is obvious: make them all consistent with each other. Alternatively we could just learn to live with the untidiness. The scale and nature of the porn problem is anyway completely different.
Some ISPs have expressed opposition to the idea of blocking on the grounds that the filters they provide can deliver the same result. The first point to make in response is the ISPs that provide filters cover only 90% of the domestic broadband market. Children in 10% of households also need protection. Secondly the Digital Economy Bill addresses the responsibility of publishers not heads of households who are perfectly free to turn off the filters any time they like for any or no reason. That does not give porn publishers a licence to ignore UK law.
Poor show. Ideology intrudes?
It is a poor show for the Government to say, in effect,
Yes we think it is a good idea for children to be protected from this kind of material but we are only willing to go so far and no further
The opposition to blocking has more than a whiff of ideology about it.
A residual power
Let’s not forget, under the overarching principle of proportionality which is core to the Bill, there is no suggestion the regulator would try to catch every tiddler in the pond. They will only be targeting commercial sites with a significant online presence. Thus if the regulator were to have a power to mandate blocking it would only be used in relation to a large commercial site.
So when the Bill begins its progress through Parliament I will be lobbying for the regulator to be given such a residual power. Just knowing it exists should greatly encourage the porn industry and others to engage.
Alternatively if the Government first wants to see if the follow the money strategy works it could insert a clause giving the regulator blocking powers but the clause would only be brought into effect by the Secretary of State in the event it became apparent the primary route was not having a good enough impact.
Fines for the payments and ancillary service providers?
Another obvious possibility would be to allow the regulator to issue an enforcement notice against any payments service provider or any provider of advertising or other ancillary services that failed to withdraw their facilities when notified that they were helping to prop up a business that was acting unlawfully. The notice would require them to withdraw the facilities. If that didn’t do it a fine or an injunction would be the next steps but, again, these would probably only work if the relevant businesses had some legal presence in the UK. This wouldn’t be an alternative to mandatory blocking but it would further underline the Government’s serious intent.
Who will the regulator be?
Who will the new regulator be? That remains to be seen but the obvious candidate is Ofcom, perhaps in a joint arrangement with the BBFC. However, there are persistent rumours that Ofcom is not keen to be involved because they think there is a significant possibility the policy will fail and if it fails they do not want any criticism attaching to them. In 2006 when discussing the possibility of blocking IP infringing sites Ofcom said the following
Nevertheless, site blocking could contribute to an overall reduction in online copyright infringement – especially if it forms part of a broader package of measures to tackle infringement.
I hope and trust that Ofcom and anyone else who might be involved in this latest policy initiative will see it for what it is: an extremely worthwhile challenge which they should enthusiastically embrace. The world’s eyes are upon us. No democratic country has tried to do this before. Everyone needs to step up and give it their best shot.