Fourth Report Contents

Instruments drawn to the special attention of the House

Draft Online Pornography (Commercial Basis) Regulations 2018

Date laid: 11 October 2018

Parliamentary procedure: affirmative

Draft Guidance on Age Verification Arrangements 2018

Draft Guidance on Ancillary Service Providers 2018

Date laid: 25 October 2018

Parliamentary procedure: affirmative

These draft Regulations, together with Draft Guidance on Age Verification Arrangements and Ancillary Service Providers from the British Board of Film Certification (the BBFC) (as the designated age-verification regulator), are laid by the Department for Digital, Culture, Media and Sport under the Digital Economy Act 2017. The Regulations set out the circumstances in which pornographic material is to be regarded as made available on a “commercial basis”. We draw these Regulations to the attention of the House so that it may invite the Minister to provide a fuller explanation about what the Government is doing to ensure children cannot assess pornographic material from providers operating on a non-commercial basis. The House may wish to satisfy itself that the measures available to the BBFC will be applied fairly and transparently.

We draw these Regulations to the special attention of the House on the ground that they give rise to issues of policy interest likely to be of interest to the House.

Background

3.Section 14(1) of the Digital Economy Act 2017 (“the 2017 Act”) requires that any person making pornographic material1 available on the internet on a commercial basis must ensure that the material is “not normally accessible” by persons under the age of 18. The “not normally accessible” requirement was defined to the Committee by the Department for Digital, Culture, Media and Sport (DCMS) as meaning “that a person must make arrangements to ensure pornographic material is not available online to users in the United Kingdom on a commercial basis without sufficient age verification controls in place”.

4.The Government have stated that their “principal objective is to ensure that the internet is a safer place for children” and that they are “committed to protect children from potentially harmful content online and ensuring that children, particularly younger, more vulnerable children, cannot easily access sexual content online which will distress them or harm their development”.2

Online Pornography (Commercial Basis) Regulations 2018

5.These Regulations are laid under the 2017 Act, and are accompanied by an Explanatory Memorandum (EM) and an Impact Assessment (IA).

6.The Regulations set out the circumstances in which pornographic material is to be regarded as made available on a “commercial basis”. These are:

7.We acknowledge that the scope of the Regulations is the definition of “commercial basis” and also the Government’s statement that “the focus of the legislation should be pornographic websites, rather than popular social media platforms”.4 The House may, however, wish to seek assurances from the Minister about protection for children who may be able to access pornographic material from internet sources which do not fall within the set criteria and invite the Minister to say what measures the Government are taking to ensure that pornographic material which is available on a non-commercial basis is not accessible by children.

8.The Committee also asked DCMS to explain why “one-third of the content” being pornographic was set as the threshold for “commercial basis”. DCMS explained:

“The policy aim is to capture those sites providing pornography on a commercial basis and where pornography constitutes a significant proportion of the overall commercial benefit that the person receives in connection with operating that site. To be proportionate, there must be a threshold under which pornography should not be regarded as a significant commercial driver for a website. In establishing a threshold, Ministers agreed that where pornographic material makes up more than a third of the overall content on the internet site or other means of accessing the internet (such as an application program), it may regarded as providing a significant proportion of the overall commercial benefit that the person receives in connection with operating that means of accessing the internet and thus be in scope of the regulations.”

9.The House may wish to ask the Minister to explain how “one-third of the content” will be quantified and how the Government will ensure there is a consistent approach to assessing the overall content.

British Board of Film Classification

10.The British Board of Film Certification (the BBFC) has been designated as the age-verification regulator by the Secretary of State using powers available under the 2017 Act.

11.Under section 25 of the 2017 Act, the age-verification regulator must publish guidance about the types of arrangements for making pornographic material available that the regulator will treat as complying with section 14(1), as well as guidance about 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.

12.DCMS has laid the Draft Guidance on Age Verification Arrangements (“Draft AV Guidance”) and Draft Guidance on Ancillary Service Providers (“Draft ASP Guidance”) together with an EM for each.

Draft AV Guidance

13.In the Draft AV Guidance, the BBFC has set out the criteria against which it will assess that an age-verification arrangement meets the requirement under section 14(1). They include:

(a)an effective control mechanism at the point of registration or access to pornographic content by the end-user which verifies that the user is aged 18 or over at the point of registration or access

(b)use of age-verification data that cannot be reasonably known by another person, without theft or fraudulent use of data or identification documents nor readily obtained or predicted by another person

(c)a requirement that either a user age-verify each visit or access is restricted by controls, manual or electronic, such as, but not limited to, password or personal identification numbers. A consumer must be logged out by default unless they positively opt-in for their login information to be remembered

(d)the inclusion of measures which authenticate age-verification data and measures which are effective at preventing use by non-human operators including algorithms.5

14.The Draft AV Guidance also sets out features which the BBFC does not consider will ensure compliance with the 2017 Act. These include: relying solely on the use of a “tick-box” system; using a general disclaimer; accepting age-verification through the use of online payment methods which may not require a user to be over 18; or checking against publicly available or other easily known information.

15.The Draft AV Guidance states that this “does not provide an exhaustive list of approved age-verification solutions”6 but that the BBFC will assess compliance with the 2017 Act by reference to the criteria. The House may wish to invite the Minister to explain more fully the types of arrangements which will be deemed adequate age-verification measures.

Powers available to the BBFC

16.Under the 2017 Act, the BBFC has a number of enforcement powers available to it where it considers that a person is in contravention of section 14 (1) of the 2017 Act.

17.The powers available to the BBFC include: issuing an enforcement notice;7 notifying payment-services providers and ancillary service providers; notifying internet service providers and requiring them to take steps to prevent access to material; or instituting civil proceedings against a person who has been issued with an enforcement notice. There is a power within the Act to impose financial penalties on a non-compliant person but this is not being brought forward at this stage. DCMS explained that:

“there is already a strong package of enforcement powers which will provide strong incentive for providers of online pornography to comply with this requirement …This is a new policy and the Secretary of State will continue to assess whether to designate powers under section (19) in the future.”

18.The Draft AV Guidance states that the “… BBFC will, on a case-by-case basis, determine which notification action or actions to take” but it “will be guided by its assessment of which course of action will be most effective in achieving the child protection goals of the legislation” and which notice will have a “significant effect”. The Draft AV Guidance includes a list of considerations the BBFC may take into account when deciding the most effective course of action.8

Draft ASP Guidance

19.As set out at paragraph 15 above, the BBFC can give notice to any ancillary service provider where it considers that a person is not compliant with the 2017 Act. Section 21(5) of the 2017 Act states that:

“an “ancillary service provider” means a person, other than a payment-services provider, who appears to the age-verification regulator to—

(a)provide, in the course of a business, services which enable or facilitate the making available of pornographic material or extreme pornographic material on the internet by the non-complying person; or

(b)advertise, on or via any internet site operated by the non-complying person or via any other means of accessing the internet operated or provided by that person, any goods or services provided in the course of a business.”

20.The Draft ASP Guidance sets out which providers the BBFC may consider to fall within the definition of an “ancillary service provider” and lists the following:

(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 non-compliant person or via any other means of accessing the internet operated by the non-compliant person.9

21.The Draft ASP Guidance explains that “it is not possible to provide an exhaustive list” and “individual cases may give rise to new classes of ancillary service provider”.10 The House may wish to ask the Minister what certainty the Government can provide as to which providers exactly fall within this list.

Conclusion

22.We recognise the Government’s intention to legislate to ensure that persons under the age of 18 are not able to access pornographic material. However, the Regulations only provide the need for age verification requirements for material which is provided on a commercial basis. The House may wish to press the Minister on what measures the Government are taking to ensure that pornographic material which is available on a non-commercial basis is not accessible by children. The House may also wish to press the Minister on how the threshold of “one-third” will be quantified in assessing if content is being made on a commercial basis.

23.The House may wish to satisfy itself that the measures available to the BBFC as the age-verification regulator (as set out in the Draft AV Guidance and the Draft ASP Guidance) will be applied fairly and transparently.


1 As defined in section 15 of the 2017 Act.

2 Impact Assessment, p 10.

3 Section 7 of the EM.

4 Para 6.2 of the EM.

5 Draft AV Guidance, chapter 3, para 5.

6 Draft AV Guidance, chapter 3, para 4.

7 The Draft AV Guidance makes clear, however, that the BBFC will issue a provisional determination of non-compliance before an enforcement notice (Draft AV Guidance, chapter 2, para 6).

8 Draft AV Guidance, chapter 2, para 11.

9 Draft ASP Guidance, chapter 3, para 3.

10 Draft ASP Guidance, chapter 3, para 4.




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