Appendix 7
Draft S.I.
Online Pornography (Commercial Basis) Regulations 2018
1.The Committee has requested a memorandum on the following point:
Q1. Explain why regulation 2(1) concludes with “are met” instead of “applies”.
2.Regulation 2(1) concludes with “are met” rather than “applies” because it has been drafted on the basis that a person is not to be considered to be making available pornographic material on the internet on a commercial basis unless it meets one of a set of criteria:
- They charge for making pornography available
- or, if making pornography available free of charge, receives a payment or other benefit (eg advertising revenue) for doing so.
3.Where content is made available free of charge but payment or benefit is received via other sources, at least a third of the content must be pornographic material for it to be in scope of these regulations (see Regulation 2(4)), unless the website is marketed with the intention to make pornography available.
Q2. In relation to regulation 2(4), explain:
(a) the intended effect of “… one-third of the content of the material made available on or via the internet site or other means (such as an application program) of accessing the internet by means of which the pornographic material is made available”, and how the Department considers that effect is achieved; and
4.The intended effect of that provision is to ensure that the legislation applies to pornographic websites, rather than popular social media platforms on which pornographic material is only a small part of the overall content. This was debated in Parliament during the passage of the Bill.
5.The definition of commercial providers of online pornography include persons that do not charge customers for providing access to the pornographic material but nevertheless receive a commercial benefit (for example through advertising) for doing so. Therefore, to achieve the intended effect, it is necessary to set a threshold below which that material should not be regarded as made available on a commercial basis to ensure a proportionate approach. If less than a third of the content of a website is pornography, we feel that pornography does not make up a significant portion of the overall commercial benefit that the person receives in connection with operating that means of accessing the internet, and therefore it should not be regarded as a commercial pornographic website.
(b) the concept of “more than a third of material on a means of accessing the internet” (see paragraph 7.6 of the Explanatory Memorandum).
6.The BBFC will ascertain whether regulation 2(3) of the Commercial Regulations does not apply based on whether it is reasonable to assume that pornographic material makes up less than one-third of the content of the material made available on or via the internet site or other means (such as an application program) of accessing the internet by means of which the pornographic material is made available. The BBFC’s assessment will be made in relation to the number of pieces of content and will be based on sampling.
Q3. Explain the intended meaning of “the internet site” in regulation 2(4) and (5).
7.For the purposes of these regulations, an “internet site” is intended to mean a set of related web pages located under a single domain name.
Department for Digital, Culture, Media and Sport
6 November 2018
Published: 23 November 2018