Thirty-ninth Report of Session 2017–19 Contents

Appendix 2

Draft Guidance

Guidance on Ancillary Service Providers

1.The Committee has asked the Department for Digital, Culture, Media and Sport for a memorandum on the following points:

i) “Indicate the paragraphs in the document which provide the guidance that the age-verification regulator is required to publish under section 25(1)(b) of the Digital Economy Act 2017.”

ii) “Explain why the document includes the Part headed—

‘2. The BBFC’s Approach and Powers under Part 3 of the DEA’;
and how it meets the requirements of section 25(1)(b) of the Digital Economy 2017.”

2.The Department’s response to the Committee’s query is set out below.

3.In response to the first point, as the Committee will be aware, section 25(1)(b) puts a duty on the regulator to publish guidance on the circumstances in which it will treat services provided in the course of a business as enabling or facilitating the making available of pornographic material or extreme pornographic material. To note - the Secretary of State has the power to modify and approve the Ancillary Service Providers Guidance.

4.Part 3, paragraphs 3 and 4 of the draft guidance address this point. Paragraph 3 contains a non-exhaustive list of classes of providers which the BBFC may consider as within scope under S25(1)(b):

The following are classes of ancillary service provider that the BBFC may consider under section 21(5). This is not an exhaustive list:

a) Online platforms, including social media, on which a non-compliant person has a presence.

b) Search engines which facilitate access to non-compliant services.

c) Providers of IT services to a non-compliant person.

d) Third parties who provide advertising space to the non-compliant person.

e) Third parties who provide advertising space on a website, app or other service belonging to a non-compliant person.

f) Third parties advertising on or via any internet site operated by the noncompliant person or via any other means of accessing the internet operated by the non-compliant person.

5.In order to ensure that this policy remains flexible to future developments, it is necessary that this is a non-exhaustive list. Where new classes of ancillary services appear in the future, Part 3, paragraph 4 of the BBFC’s Guidance explains the process by which these services will be informed.

6.This is consistent with the guidance issued by Secretary of State7 to the AV Regulator (under section 27 of the DEA) which was laid before Parliament in January 2018. Section 27(3) of the DEA states that ‘the regulator must have regard to the guidance’ and this Guidance was made available during the passage of the Digital Economy Bill.

7.Paragraphs 5.9-5.10 of the Guidance from the Secretary of State to the AV Regulator states that:

The regulator’s guidance should include a list of the classes of ancillary service providers it will consider under section 21, but this does not need to be an exhaustive list. The regulator should work with the industries concerned to aid transparency on what circumstances a person will be considered to provide an ancillary service.

8.In response to your second query, the guidance includes the section on the “BBFC’s Approach and Powers under Part 3 of the Digital Economy Act” provides essential wider context about how the Regulator will use their powers.

Department for Digital, Culture, Media & Sport

20 November 2018


Published: 30 November 2018