Digital Economy

Rachel Maclean Excerpts

Monday 17th December 2018 Commons Chamber

[Margot James]

I welcome the intervention from the Chair of the Women and Equalities Committee. Let me clarify here and now that the regulations are a very important step forward in preventing children from viewing pornography online. In particular, we are closing the loophole whereby children can stumble across such material inadvertently. However, my right hon. Friend is right that the regulations do not extend to social media platforms that contain pornographic content that is a relatively small minority of the content that they provide. This is not a foolproof guarantee that young people and children will not be exposed to pornography online. It is a significant step forward, but there is, as my right hon. Friend points out, the potential for people to access material on social media platforms, which do not fall within the scope of the regulations unless more than a third of their average content is pornographic.

[Rachel Maclean (Redditch) (Con)]

Will the Minister give way?

[Neil O’Brien (Harborough) (Con)]

Will my hon. Friend give way?

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[Margot James]

My hon. Friend raises some important points. We do have rising expectations of social media platforms; we expect at the very least that they enforce their own terms and conditions. Some enforce to a greater extent than others, especially in terms of this particular issue. Facebook takes down posts that include nudity, which is its way of enforcing its own terms and conditions, but what about the private groups that operate on that platform? There is much more to be done. We expect social media platforms to uphold their terms and conditions across their platforms, not just in the public-facing parts of it.

[Rachel Maclean]

My hon. Friend is making an excellent speech dealing with this critical issue that any of us who are responsible for young people will feel very strongly about. Does she agree that there is a rapid evolution in the technology sector? She talked specifically about pornographic sites that charge for access. Will she say a bit more about how she would deal with those sites that offer slightly different business models—for example, the premium model, where it is free to go on to the site and it then captures people’s details and makes them pay a subscription fee later? I am sure that she has considered that as part of her response, so I would be grateful if she could update us on it.

[Margot James]

These regulations will apply even to pornographic sites that make their initial offer free of charge. The rule is that, if a site offering a service where more than 30% of its content is pornographic does so on a commercial basis—which can be free of charge if it is backed up by advertising revenues—it comes within the scope of these regulations, whether or not it provides those services free of charge. These draft regulations will capture such sites as are of concern to my hon. Friend.

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[Margot James]

I can reassure the hon. Gentleman that serious work is being undertaken as we speak, as we prepare the online harms White Paper. We are looking at encryption within the context of that White Paper. He will appreciate the difficulties of privacy versus the public need to reduce the exposure of young people to pornographic material. We are looking at this very seriously. We will be bringing forward the White Paper in the new year and will welcome his input on that.

We have set a threshold of 30% to ensure proportionality where material is made available free of charge. Thus there is an exemption for people making available pornographic content on a website where it makes up under one third of that content. This will ensure that websites that do not derive a significant proportion of their overall commercial benefit from pornography are not regarded in these regulations as commercial pornographic websites. Nevertheless, should a website or app be marketed as making available pornographic material, a person making such material available on that site will be considered to be making it available on a commercial basis even if it constitutes less than one third of the total. This is a proportionate way to introduce the new policy.

I am confident that these measures represent the most effective way to commence this important new policy, but our Department will of course keep it under review. Indeed, as I said, my right hon. Friend the Secretary of State will be reporting on the regulatory framework within 12 to 18 months of commencement of the regulations. In addition, as I just mentioned in response to the hon. Gentleman, the forthcoming online harms White Paper will provide us with another opportunity to review the wider context of this policy.

In conjunction, we have laid two pieces of British Board of Film Classification guidance—first, on age verification arrangements and, secondly, on ancillary service providers. The first piece of guidance sets out the criteria by which the BBFC will assess whether a person has met the requirements of section 14 of the Digital Economy Act 2017 to ensure that pornographic material is not normally accessible to those under 18. The criteria mandate four things: an effective control mechanism at the point of access to verify that a user is aged 18 or over; strict requirements on age verification data; a requirement to ensure that revisits to a site do not permit the bypassing of age verification controls; and the prevention of non-human operators—for example, bots—from exercising the age-verification regime.

[Rachel Maclean]

Does the Minister believe that the BBFC has sufficient resources and skills to do what the regulations require of it?

[Margot James]

I would like to reassure my hon. Friend that I certainly think it has the experience, expertise and resources to undertake this role. It has more than a century of experience in the control of film content. It has additional resources and moneys with which it can hold to account age-verification providers and, most importantly, the websites that are providing the pornographic content.

In addition to the criteria that the BBFC will use to verify the effective control of age-verification arrangements, it has provided typical examples of features that it would regard as non-compliant in the arena of age verification.

The second piece of guidance provides a non-exhaustive list of ancillary service providers that the BBFC will consider. That list is not exhaustive, to ensure that the policy remains flexible to future developments. The BBFC has published draft versions of both pieces of guidance and has run a public consultation for four weeks on their content. The draft guidance laid before the House takes account of comments received from affected companies, age-verification providers and other interested parties.

I have been clear that age verification is not a silver bullet, and we know that what we are doing is difficult. Indeed, we are the first country in the world to introduce such a measure. I am aware of the concerns expressed by the Joint Committee on Statutory Instruments about the drafting of the Online Pornography (Commercial Basis) Regulations 2018. I have considered its concerns carefully, and we are grateful for its work, but we do not believe that the variation in the legislation between the terms “met” and “applied” will be difficult for a court to interpret.

The Committee expressed concerns about the content threshold because it anticipates difficulty with the application and interpretation of the regulation. As I have said, the regulation will not apply in a case where it is reasonable for the age-verification regulator to assume that pornographic material makes up less than one third of the content of such a site. As stated in the BBFC guidance, the BBFC will seek to engage and work with a person or company who may be in contravention of the requirement in advance of commencing enforcement action.

I am aware that the Committee has also drawn the special attention of both Houses to these draft pieces of guidance because, in its view, they fail to contain the guidance required by section 25(1) of the 2017 Act and contain material that should not have been included. Section 3, paragraph 5, of the age-verification guidance sets out the criteria that the regulator will treat as complying with age verification. The guidance goes on in paragraph 6 to give examples of features that, in isolation, do not comply with the age-verification requirements. That approach ensures fairness and is product-neutral. Rather than recommending a particular solution, the guidance sets out principles that will encourage further innovation.