Second Briefing for Parliamentarians: Online Pornography: Outstanding issues with implementation of the Digital Economy Act 2017

Part 3 of the Digital Economy Act 2017 (the Act) provides for the regulation, through age-verification, of online pornography with the primary purpose being the protection of children from pornographic content online. In order to ensure that the legislation is effective in practice, it is vital that the Regulations, and Guidance from the Age Verification Regulator (the British Board of Film Classification) provides the necessary clarity and coverage to ensure that the legislation is as effective as possible in protecting children.

The Draft Online Pornography (Commercial Basis) Regulations 2018, along with Guidance on Age-verification Arrangements and Guidance on Ancillary Service Providers, have now been laid before Parliament for approval by the Affirmative Resolution procedure.  These documents set out the criteria by which the BBFC will assess whether age-verification services and online pornography providers have met with the requirements of the act, and the classes of ancillary service provider that the BBFC will consider notifying to request the removal of services if a site fails to comply.

The Digital Policy Alliance's Age Verification and Internet Safety Working (AVIS) Group continues to hold serious concerns about the draft Regulations and Guidance as they apply to the protection of children, privacy and security, and in particular to the question of the extent to which Virtual Private Networks, search engines and social media platforms will be captured as ancillary service providers and held to account for pornography accessed by children via these paths. The attached document explains the basis of our concerns, and focuses on the consequences of omissions in the current draft proposals.

As yet, no date has been timetabled by Parliament for the ratification of the guidelines. We note however that the Fourth Report of the Secondary Legislation Scrutiny Committee (Sub-Committee B) has raised particular issues, e.g. concluding that 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.

There will therefore be an opportunity for Parliamentarians to debate the issues under the affirmative resolution procedure, and decide whether or not the Regulations and Guidance, as currently drafted, will afford the necessary protection to children.