Some time ago, in my capacity as Secretary of the UK’s Children’s Charities’ Coalition for Internet Safety, I received a complaint about a hard core porn site that was freely accessible to anyone and everyone although it was clearly aimed principally at a UK audience. It even sported a Union Jack on its home page. I am not going to publish the url. I don’t promote such places, even to my battle-hardened readers.
To be fair, the home page also contained a prominently placed warning about the explicit adult nature of the material within and you had to click on a button to confirm you were 18 or above to access it but in my book all this acted largely as a come on and not as a deterrent or as a serious warning.
Aimed at Britain, based in Holland
But here’s the thing. The site is domiciled in Holland.
In my view there is no question the sort of stuff they publish would not qualify for certificate 18 status in the UK. Some of it might struggle to get R-18 although for now let’s assume it would. This means, had the site been located in Blighty it would have fallen within the jurisdiction of ATVOD. That, in turn, would mean it would have to have age verification built in. If there was age verification built in I would never have got involved in the first place. But it isn’t so I am.
Country of origin principle
Now here’s the problem. Under the EU’s existing Audio Visual Media Directive the country of origin principle applies. In other words if the relevant authorities in the EU Member State where the content is published from consider something to be OK and in line with their interpretation of the Directive then everyone else has to live with it.
The relevant part of the Directive reads as follows in respect of online materials
Content which might seriously impair minors must only be made available in such a way that ensures that minors will not normally hear or see (it)
In the case of the site I am referring to – very obviously aimed at the UK – it seemed to me that the site’s owners were indulging in a little bit of sharp practice or exploiting a loophole precisely to avoid being caught by UK regulations.
I got on to ATVOD and, after explaining the Euro-law to me, they nevertheless agreed to speak to their Dutch colleagues – NICAM – to ask for their assessment of the site.
The Dutch take a different view
NICAM doesn’t think the material on display would
…..seriously impair the physical, mental or moral development of minors. This means that according to the Dutch Media Act, (NICAM) considers the warning page to be sufficient in terms of the protection of minors and does not intend to take any further action in relation to the site.
Now I appreciate that a country of origins principle is probably simpler to operate but most of us live in destination countries not countries of origin. Should simplicity be the only important consideration in a matter such as this?
Where a country’s cultural traditions and perspectives are at stake shouldn’t they be accorded some weight?
Simplicity can just be code for cheaper
As a general rule simple is best but it can sometimes just be a way of saying cheapest or easiest and quickest to implement. Simple is therefore not always a synonym for most appropriate.
We should remember that because there is a new consultation just getting underway on the Audio Visual Media Directive and, more broadly, as the EU marches ever more strongly towards a Digital Single Market this or similar challenges are likely to arise again.