Judging by the number of emails and phone calls I am getting, around the world there is growing interest in what the UK is doing to reduce the possibility of children being exposed to pornographic web sites.
We are introducing age verification. The aim is to restrict access to commercial porn sites to persons over the age of 18. This objective is now embodied in law.
People are asking what tactics and arguments were used to get the legislation on to the statute book.
What follows is therefore a briefing. Please feel free to add to, adapt, modify or abandon any or all of it to suit your local situation. There is no single or “correct” way. The local context will always be paramount. We all have to find our own path.
Children’s organizations and children’s interests led from the outset
In the UK we have a number of large and extremely well known children’s organizations. Some are substantial bodies employing thousands of people and can trace their roots back to the mid 19th Century. They have Royal patrons, are highly respected and respectable, often with internationally recognized expertise across a broad range of child welfare, child development, protection and educational issues. Moreover – and this was hugely important – they are resolutely secular. On internet policy they co-operate through a specially constructed coalition which has existed since 1999. I am its Secretary.
We had been concerned about the availability of porn to children via the internet for some time. When we judged the moment was right to start moving to get a new law which would restrict children’s access to it we resolved to be 100% pragmatic and to stay completely focused on harm to children. Obviously we had support from feminist and religious groups. That was welcome but they were in no way involved in shaping our tactics, strategy or messaging.
In addition we were building on a precedent that was reflected in the Gambling Act, 2005, where we had already won a battle to get online gambling sites to introduce age verification. This helped enormously with arguments about the technical feasibility of what we were proposing.
We never said we thought all porn was bad in and of itself, although we did point out a great many people probably had a somewhat dated idea of what porn is like. The internet is now the main source of pornography and predominantly it depicts anti-female violence, fostering completely unreal or toxic ideas about sex and relationships.
The new law
We already had a law which required domestic publishers of pornography to have age verification but the UK porn industry was then and still is tiny. The vast majority of porn on the internet was being produced and published from overseas by a relatively small number of companies.
The Digital Economy Act, 2017 established that commercial pornography sites that publish into the UK must introduce age verification measures to limit access by children. The so-called “free” sites were a key target of the legislation. These are, in truth, highly successful businesses. They don’t charge at the door, so to speak, they collect their revenues in other ways.
The new law will be operational towards the end of this year. The implementation of the Act will be overseen by two regulators.
What is porn?
The British Board of Film Classification (BBFC) has the primary regulatory role. Like the children’s organizations referred to earlier the BBFC is an extremely well known and trusted brand. An independent organization that has been in existence for over 100 years, the BBFC’s business is analyzing, classifying and describing every kind of content, including pornography. It has a child protection mission.
The BBFC’s principal regulatory task under the Digital Economy Act, 2017 is to determine whether or not a qualifying site has put in place robust age verification measures that work. If they haven’t the BBFC has a range of tools at its disposal to encourage compliance. Ultimately the BBFC has a legal power to require ISPs and other access providers to block non-compliant sites. It is not thought this blocking power will be used very often because the sites are likely to comply. If they don’t comply their revenues will be hit because advertisers will withdraw their ads and payments companies will stop processing transactions. Porn companies care deeply about their revenues.
As a matter of fact because the porn sites will be able to guarantee an adult only audience in the UK, they may even find they become more profitable. They will need less bandwidth to service their sites and since all their visitors will have money and the means to spend it, advertisers may be prepared to pay more. This is an example of the doctrine of unintended consequences at work. Hey ho.
Privacy is vital
The other regulator with skin in the game is the Information Commissioner’s Office (ICO), the UK’s data protection authority. Its task is to ensure age verification solutions respect people’s privacy rights.
A key legal principle is data minimization i.e. the only thing a porn publisher needs to know is whether or not an individual who wishes to access their site has been reliably verified as being over 18. A number of companies are springing up to provide age verification services that can be used across a range of adult products, not just porn e.g. for gambling, buying alcohol, tobacco and knives. Thus, going through an age verification process does not mark you out as being into porn. It just shows you may sometimes engage with items that are associated with an age restriction.
Porn sites do not need to know or retain your name, your actual age, address or credit card number. All the porn site needs to know is that this particular log-in has been verified as belonging to someone who is 18 or above. The new system can therefore be seen as being privacy enhancing in a number of respects.
Getting agreement to act
First key political point: the measure went through the UK Parliament with all-Party support. However, it has to be said that winning the personal support and engagement of the previous Prime Minister was crucial in getting the ball rolling. Neither he nor his successor, who also strongly supported the idea, tried to use attitudes to porn and protecting children as a means of scoring points and the opposition parties adopted a similar stance. This was important. If the draft measure had become heavily politicised in party terms it would probably have failed.
Second key political point: in lobbying for the measure we got the backing of major, mainstream newspapers and within Parliament a group of talented women Parliamentarians devoted a lot of time and energy to the subject over several years.
Without in any way doubting the sincerity or commitment to the principle behind the measure on the part of the Prime Ministers and the other politicians, it certainly did no harm to our cause to have the sustained support of major media outlets.
You have to listen to the other side
Free speech and civil rights groups were heavily involved in trying to get the measure defeated or neutered. It is both wrong and counterproductive to portray them as heartless, nihilistic anarchists who do not care about children. The great majority of them do care but have genuinely held reservations about the methods being proposed. We have to address those reservations not just shout them down and refuse to hear.
Some of what a number of the “anti groups” said definitely influenced me even though I thought others were too quick and too ready to misrepresent our case or what the measure entailed. For example in an early press release one of the groups campaigning against us said the Act would “outlaw all forms of erotica”. They must have known that was untrue or they didn’t care if it was or wasn’t. I went on the BBC’s PM programme and listened to a well known journalist say “the age verification provisions of the Digital Economy Act, 2017 have already been abandoned because it has been shown they can’t work.”
While I completely reject the idea that protecting children from pornography is in any way about promoting censorship – no legal content that is on the internet today will not be there tomorrow – it has to be acknowledged that whenever politicians get involved in subjects of this kind people are entitled to be nervous.
Outside of the UK some regimes do not want anyone in their country, or anywhere else for that matter, to be able to access pornography, and they might have a very broad definition of what constitutes pornography. To repeat an earlier point, we never argued adults should not have a right to access pornographic content. If we had done I am convinced we would have lost.
Our only point was that children should not be able to get at it so easily.
A tiny amount of hassle is unavoidable
Age verification in the UK undeniably will create a minor inconvenience, i.e. adults will have to go through a process, but they already do this in many other areas, online and off. It is the inescapable but essentially trivial price we pay to achieve a desirable social goal. The age verification solutions that are being developed for use in Britain can be completed easily and rapidly. In other countries with better developed online infrastructures it might be even simpler to get confirmation that someone is over 18.
Technical measures are not a substitute for sex and relationships education
Age verification in respect of pornography sites is NOT an alternative to or a substitute for children and young people receiving age appropriate advice and guidance about sex and relationships, both at home and at school or indeed via thoughtfully prepared educational resources available online. This continues to be of vital importance.
However, age verification is an important complementary component. Inter alia, it helps show children that, as with alcohol, gambling and similar, a serious effort is being made to ensure the laws and norms mean something. The advice given by parents, teachers and others in respect of porn is not merely “virtue signalling”. It is not something to which grown-ups pay lip service without it truly being meant to be taken seriously.
Bringing the physical and virtual worlds into closer alignment
Age verification for porn sites helps bring about a closer alignment between the physical world and the virtual one. We don’t, or shouldn’t, have one set of rules and expectations which apply in one place but not the other.
- Various people have observed that the internet is the biggest social experiment in history. We owe it to our children not to insist that they are unwitting, involuntary guinea pigs.
- To put that slightly differently, we cannot say we will wait 20 years or so to see how things turned out for this generation before deciding what to do to ensure the next is not damaged in a similar way.
- In the EU Kids Online survey exposure to pornography came out as the No 1 issue kids found upsetting in terms of materials they were exposed to online.
- By any standards there is enough evidence to suggest porn may be causing significant harm to children, particularly younger and vulnerable children. It is therefore simply unacceptable to say, in effect, we must do nothing until the matter is conclusively and finally settled beyond all reasonable doubt. Only then will it be acceptable to seek to mitigate or reduce the likely consequences of children being exposed to porn.
- There are very few areas of scientific or academic enquiry where the evidence is not disputed. If we waited until there was 100% agreement about everything and never tried anything new until there was zero doubt about the probable outcomes we would probably still be living in the Rift Valley herding cows.
- The precautionary principle therefore dictates we must have regard to the evidence of the possibility of harm and, unless and until there is a widely accepted body of evidence to the contrary, we are obliged to take proportionate steps to avoid the reasonable apprehension of predictable harm.
- Anyone who thinks online porn can be a useful or worthwhile source of advice, guidance or information about sex and relationships plainly hasn’t seen any.
- It is easier to make the argument for introducing age verification to reduce the risk of younger children being accidentally exposed to online pornography, but in fact all under 18s have a right to be protected and to understand where the boundaries are and why those boundaries exist.
- Older teens might be more likely to want to engage with porn but the very fact that difficult to circumvent technical controls are in place will cause them to pause and reflect. That is likely to change the nature of their experience or engagement with any porn they do encounter, whether accidentally or intentionally.
- We agree that porn consumers have a right to have their privacy properly safeguarded.
- Age verification does not promise to deal with accidental or intentional exposure to all forms of porn everywhere e.g. porn that might be exchanged via Bluetooth, messaging Apps or on thumb drives or be created using cameras in phones. Rather, age verification addresses the easy accessibility of the gigantic quantities of pornography published by commercial concerns on the internet. This is the dominant form.
- Sadly there is no silver bullet that catches all porn everywhere, but that is no reason to refuse to act where you can have an impact.
- Age verification does not directly tackle or address what some see as the wider “pornification” of our culture, as evidenced by everyday, unquestionably legal advertising, movies and TV programmes.
- Age verification is about the responsibility of the commercial publishers of pornography. They are the largest producers of porn in the world. They all said they don’t want children to access their wares but hitherto did little or nothing actually to prevent it.
- This is because the porn companies weren’t required to do anything, and even if an individual porn company might have been inclined to act to keep kids out they were worried that unless everyone was under the same obligation they could lose business to less fastidious competitors. This is exactly how it worked with online gambling.
- Age verification should not be conflated or confused with the use of filters in the home or on individual devices. Families might want to use filters to restrict access to all kinds of materials that conflict with their values or they might not want to use them at all. That still does not give porn publishers the right to expose under age youngsters to their products.
- Even if a family uses filters at home their children may end up in friends’ houses or other places where filters are not in use. The publishers’ obligations remain constant.
- An age verification law is really about establishing new normative values. It is saying it is not OK for porn publishers to make their products available without taking meaningful steps to ensure children cannot see them.
- It is also saying the realities of our modern lives and the challenges of parenting in the digital age mean it is unfair and unreasonable to put the responsibility solely or even largely on parents to protect their kids from stuff they shouldn’t be able to get at in the first place. The porn industry should not be creating extra burdens for parents.
- Least of all should porn companies feel unmoved or unconcerned about the idea of making money from showing porn to kids.
- It is a convenient myth that every child is a super-cool internet user who knows every technical trick in the book and wants to break every rule or ignore every boundary.
- I say this because some people argue kids will get around whatever you try. That is just another argument for doing nothing, for preserving the status quo. Cui bono?
- The evidence (see page 16) points in a different direction and suggests that, in fact, most kids do not know how to get around most blocks and even among those who do only a small proportion (6%) actually bother.
- That said it will be important to keep track of technological developments and changes in the porn market to ensure the regulators stay up to date and are sufficiently nimble so they can swiftly address any circumvention strategies which might appear at scale.
- In particular it will be key to see how “ancillary service providers” respond. The main ones are the social media platforms and the search engines. They are not directly caught by the new law but they are expected to co-operate and have said they will although the position of Twitter remains ambiguous at the time of writing.
- The BBFC will report annually to Parliament and there will be a review of the effectiveness of the policy after it has been working for 18 months.