Online Pornography (Commercial Basis) Regulations 2018

Lord Morrow Excerpts

Tuesday 11th December 2018 Lords Chamber

This has been like running a marathon but we are nearing the finish line and taking huge strides in the right direction, as this sets a fundamentally important precedent in online regulation. As I always say, childhood lasts a lifetime, so let us give children happy memories as they go forward.

[Lord Morrow (DUP)]

My Lords, I first apologise to the House that I missed the first two minutes of the Minister’s contribution. I would like to make some comments. Some have already been said and I hope that by repeating them, it will not lessen their impact. I am pleased to join other noble Lords in supporting the Government on bringing these regulations and the guidance before the House to implement age verification. However, I have some questions about implementation.

First, I note that the regulations apply to all pornographic websites that charge a fee or, if access is free, where there is benefit in some other way from pornographic content, perhaps through advertising. In cases of the latter, at least one-third of the site’s content must be pornographic for it to be required to provide AV, unless the website specifically markets itself as providing pornographic content, in which case AV requirements apply regardless of how much pornographic material is made available. This arrangement has caused Sub-Committee B of the House of Lords Secondary Legislation Scrutiny Committee to ask two key questions, which I put to the Minister today. First, how will the BBFC measure pornographic content on a free website so that it can come to a determination that one-third of the content is pornographic? Secondly, how will we protect children from pornography on free websites where less than a third of the content on the site is pornographic?

It seems to me that, in introducing this legislation, the Government have very properly recognised that it is not appropriate for children to stumble upon online pornography; they should be protected from this material through age verification. Having conceded this point, however, what justification can there be not to protect children from accidentally stumbling across pornography on a free site where 30% of the content is pornographic? Is there not a sense in which children are more likely to stumble accidentally on pornographic content located on websites with other content than on a site that is completely focused on providing pornography?

Turning to the guidance document, I note that page 9 suggests that age verification may not need to be conducted every time someone visits a website. Does this mean that if a child uses a computer that has previously been age verified by a parent, they will automatically be able to access adult sites without any further checks to establish that the computer is being used by an adult? What protections will be applied to prevent this happening? Moving on to page 7 of the guidance, I note that a website found to be in breach of the age-verification requirements will be given a “prompt timeframe for compliance”. However, what does “prompt” mean in practice? Will a website be required to rectify the deficiency within a day, a week or a month, or maybe longer? I hope the Minister will be able to make that clearer.

One of the enforcement mechanisms that has caused some questions is the ability to issue fines. At Second Reading of the Digital Economy Bill, almost two years ago to the day, I raised some practical questions about how fines would work in practice, as many of the sites are based overseas. I remind your Lordships that, when that Bill was in Committee in the other place, the Government said that it was possible in some circumstances to fine sites in other jurisdictions. They said:

“We want to be able to fine non-UK residents—difficult as that is—and there are international mechanisms for doing so. They do not necessarily reach every country in the world, but they reach a large number of countries. For instance, Visa and other payment providers are already engaged in making sure that we will be able to follow this illegal activity across borders”.—[Official Report, Commons, Digital Economy Bill Committee, 20/10/16; col. 217.]


I tabled some probing amendments in Committee here on 2 February 2017 about the use of fines, which I was then concerned would have “limited utility”. I can conclude only that the Government have come to the same view, as they are not proposing to bring those parts of the Act into effect. However, given that at the time of the Bill the Government were adamant that the ability to fine was needed, I hope there will be an analysis of the effectiveness of the other enforcement mechanisms going forward and that, if there is a gap that could be met by fines, the Government will bring the fining provisions into effect and designate a regulator to collect the fines—something the BBFC is not designated to do.

Finally, I echo what other noble Lords have said about non-photographic child sex abuse images, which it is illegal to possess under the Coroners and Justice Act 2009, and all but the most violent pornography, which it is illegal to supply under the Video Recordings Act. As I said at the time, I believe that a terrible mistake was made in moving amendments to prevent the regulator blocking this illegal content. I am pleased that Section 29 of the Act requires a review of the Part 3 definitions 12 to 18 months after the implementation of that part, which could make good this shortfall. This delay, however, is too long. I call on the Government to address this shortfall in the new year by making time for the Digital Economy Act amendment Bill proposed by the noble Baroness, Lady Howe. It is a very short Bill, the substance of which is all in a single clause. Crucially, however, that clause addresses all the presenting issues. I very much hope that the Government will seize this opportunity.

[Lord Paddick (LD)]

My Lords, I have some concerns about the regulations before us, although I have to say that the Government are trying to do something that is very difficult, if not impossible, which is to regulate the internet. I am perhaps not as enthusiastic as my noble friend Lady Benjamin on this.

These regulations do not adequately protect children from pornography or, to use the Minister’s words in his introduction, they are not the complete answer. No system of age verification can do that as, as other noble Lords have said, pornography is available on sites other than commercial pornography sites and the potential controlling measures could not in reality be used for those other sites. Asking UK internet service providers to block Tumblr and Twitter is not a runner in the real world, and these are free-to-use services, so asking financial institutions not to take payments for non-compliant sites would not work either.

In fact, using a virtual private network to appear to be in a country that does not have age verification is a free and easy way to get around any age-verification process. As the noble Lord and my noble friend said, we are the first country to try this and therefore there are plenty of countries that one can pretend to be in in order to get round the system.

Age verification without statutory guidelines to protect the privacy of adults seeking to access legal pornographic material on the internet is a significant threat to people’s privacy but, having said that, the arrangements that the British Board of Film Classification has made around a voluntary code, where certification is given to companies providing age verification to give people some confidence that their privacy will be protected, is a second-best but welcome measure.

These measures, in addition to creating the risks to privacy and failing to thwart curious and determined young people, are of use in preventing children accidentally stumbling across pornography, as my noble friend Lady Benjamin said, but only on commercial porn websites. Does the Minister feel that this could as easily be achieved by making it mandatory for websites that contain pornography, whether one-third or more of the website, to have “Adult only” warnings before the browser of the internet can access pornographic images as opposed to an age-verification system?

The other use of these regulations is an attempt to restrict access to extreme pornography, which is a bit like Brexit—it is not enough for some and goes too far for others, as the noble Baroness, Lady Howe of Idlicote, indicated. I am not sure that, as some have suggested, age verification limits access to educational LGBT+ resources; I am not sure that commercial porn sites contain such beneficial information. As I have said before and will say again, what is really needed is compulsory, age-appropriate, inclusive sex and relationship education for all children, including telling even very young children what they should do if they encounter online pornography—that is, to turn off the computer immediately and inform a parent or guardian—as that is unfortunately something that will inevitably happen despite these regulations.

My overall message is that we should not delude ourselves that these measures are going to be wholly effective in preventing children viewing online pornography or that they will adequately protect the privacy of adults seeking to access legal material on commercial porn websites and that as a result we should be careful that we do not lull ourselves into a false sense of security just by passing these measures.