The Crown Prosecution Service has announced a review of the guidance it issues to prosecutors concerning obscene materials.  It closes on 17th October.

This could be a great opportunity to correct a number of anomalies which have arisen since, and been magnified by, the arrival of the internet. Ditto in respect of the operation of those bits of the Digital Economy Act 2017 which address commercial porn sites.

To recap

Under the Digital Economy Act’s provisions on commercial pornography sites, qualifying commercial porn sites must do two things:

1. Make sure they have a robust age verification (AV) solution in place.
2. Make sure that, even behind the age gateway, there is no “extreme pornography”.   If you click the link you will see this category was established under earlier legislation.

The privacy and competition laws also matter

All web sites must comply with our privacy laws and our competition laws so while these are not specific to porn sites they have an obvious significance in this context.

The role of the Regulator

The regulator/enforcer for the Digital Economy Act in relation to porn sites is the BBFC. They have no direct locus in respect of enforcing the  privacy and competition laws although, for example, as they investigate and determine whether or not particular AV solutions  are working well enough to keep kids out, I imagine the BBFC is unlikely to approve a solution that is known to break privacy or competition rules so, to that extent, they are indirectly involved.

Definitions matter

When the Digital Economy Act was going through Parliament  the Government acknowledged that the definition of “extreme pornography” was not wholly satisfactory. In fact, as I recall, initially they also included a proposal to create a new and extra class of “prohibited material” which they later withdrew. Unusual, but not unheard of.

They promised they would revisit  the issue of definitions. Once the Bill had got underway the constraints imposed by the Parliamentary timetable meant it was impossible to open up a wider consideration of matters of this kind. If people had insisted the risk was we would have lost everything in the Bill on porn sites.

Enter the CPS

We also said at the time, and the Government appeared to accept, that the CPS had to do the same with its (outdated) guidance to prosecutors in respect of obscenity laws.  But the Government is always reluctant to instruct the CPS to do anything so we had to wait until the CPS decided to do this in its own good time. Well now it has.

The Government reminded us that, AV or not, there should be no illegal material of any kind on  any web site. The Digital Economy Act did not create a licence to publish illegal material as long as it was behind an age gate. This is why the CPS guidelines matter. OK they are not “the law” as such, but they are extremely important in shaping practice and a review of this kind can act as a spur to legislative change.

Not sure whether or to what extent this CPS  review obviates the need for or will count as the “extreme pornography” review the Government promised. I suspect it won’t entirely but we shall see.

One of several things we didn’t like about the definition of “extreme pornography” is that  highly sexualised Manga  images featuring very young people were clearly excluded. Could the CPS review correct that? Maybe. Maybe not.