The number of sites that are going to be affected in any way at all by the relevant provisions of the Digital Economy Act, 2017, is comparatively small although, of course, they are the biggest sites – the ones that have been shown to account for the overwhelming majority of visits to porn sites by under-18s in the UK. The threat to smaller sites, whether commercial or non-commercial, that might cater for particular or indeed any and every sort of taste or sexual preference is and always has been zero. This conforms with the principle of proportionality that is threaded throughout the legislation.
Definitions. No new categories of illegal material have been created
The Digital Economy Act changes absolutely nothing in terms of defining what is and what is not legal by way of depictions of sexual activity. If a particular type of image was legal before the Act, it is still is, and if it is was illegal it still is.
All that has happened as a result of the Act is the Regulator can, in effect, secure the removal of “extreme pornography” from qualifying sites. Extreme pornography is defined in the Criminal Justice and Immigration Act 2008. It would be very odd indeed, would it not, if the Regulator knowingly gave a green light to a site that contained material which, on the face of it, was illegal?
Whether the existing definitions of what is legal and what isn’t are, in and of themselves, (a) good enough and (b) appropriately congruent in online and offline environments, is a different matter but that will be separately addressed in the upcoming review of the UK’s overall internet safety strategy.
Would we all have preferred this important dimension to have been resolved as the Bill went through Parliament? Of course and, but for the early General Election, it might have been although I agree the odds were running against it. The question of definitions was acknowledged to be a shortcoming by everyone involved, both on the Government side and among the opposition parties, so I think we can all be confident the matter will be resolved asap.
Should this acknowledged deficiency have brought the whole proceedings to a full stop? Those who did not like the Bill anyway thought so. Should everything have been put on ice until it was cleared up? Absolutely not. What we have ended up with is definitely a great beginning and it will get better when the definitions have been looked at again with less immediate pressure on everyone to navigate a Bill through all manner of Parliamentary exotica and hurdles.
Privacy. Things will only get better
In relation to privacy, some of the solutions we know are emerging to meet the needs of the new regulatory environment mean that “Ashley Madison” scenarios are impossible, or at any rate hugely less likely to happen than they are right now.
This is because – and again this has been apparent for some time – the porn sites that will be regulated are going to have to use privacy-friendly solutions, and here the Information Commissioner has an independent role to ensure that they do. According to the basic legal principle of data minimization, the only thing a porn site needs to know in order to allow access is whether or not you are over the age of 18. Not your name, not your address, IP or otherwise, not your actual age or gender. Nothing but the simple fact of being or not being over 18.
Most of the affected pornography sites are going to use independent third party age verification providers who will not retain any kind of record that can be traced back to a named individual, account, device or profile. Moreover, even if it could, the mere fact that someone has been age verified will not prove anything about their interest, or lack of it, in pornography. There is a wide range of products and services that require someone to be able to prove their age e.g. in relation to the purchase of alcohol, tobacco, knives, gambling and so on.
Of course if, as now, someone buys something directly from a pornography site and they give the site their credit card details then that is completely different and a matter of choice for every user.
Some of the age verification solutions are likely to incorporate measures which will allow their users to prevent any of their data from being collected once they have gained access to a porn site. Thus, no doubt paradoxically to some, the era of age verification heralded by the Digital Economy Act, 2017, could turn into the beginning of an era where privacy is greatly enhanced, not threatened even to the smallest degree.