Online gambling in the UK began to take off in the early 2000s. It sprang out of the rapid growth of the consumer oriented internet. I was soon getting calls from distressed parents whose children, typically 14/15 year old boys, had been diagnosed as “gambling addicts”. Not many calls, but there shouldn’t have been any. 18 was and is the relevant age limit.
These boys had bank accounts with debit cards that could be used to engage in a whole raft of online transactions. These children were being classified as addicts because, among other things, they had developed a compulsion which led them to stealing things from their family and friends, converting the items into cash to put into their bank accounts so they could go online and blow everything on a football game, a horse race or whatever.
To open an account with an online bookie all a person had to do then was tick a box to say they were 18. That was it. No further checks were made. Hence the problem.
I went to see several large and ostensibly respectable gambling companies. Face to face. Most of them said the same thing. They were aware of the problem of under-age gambling on their web sites and took it “very seriously” but actually the majority were not prepared to do anything about it. In essence they were worried if they did age verification on a voluntary basis their less fastidious competitors would draw away some of their customers who just preferred to avoid the hassle. Deadlock.
A change in the law changed everything
Long story short, when the Government initiated a review of gambling in 2003, the children’s groups lobbied to make age verification mandatory for online gambling even though, at that time, there was really no such thing as an “age verification industry”.
Appropriate clauses were inserted into the Bill as it progressed through Parliament. The Gambling Act 2005 became law with all-Party support. Then capitalism worked its magic. Businesses sprang up to do age verification or existing systems were adapted to make age verification easier. Since the new law came into effect I have not heard of a single case where a child was able to do what they did before, namely tick a box to claim they were over 18 then go on to gamble.
A couple of wrinkles have emerged. The Gambling Commission is addressing these. New forms of online behaviour have developed e.g. loot boxes in games, which have not yet been recognised as gambling. They will be. Online businesses selling alcohol, tobacco, knives and other age restricted products which take 18 as their baseline have been following the gambling industry’s lead, adopting more stringent age checks. Ripples in the pond and all that.
But porn?
What happened with online gambling provided the inspiration to press on to address online pornography. It gave birth to what became, in effect, a twelve year long campaign to get online pornography sites to do the same as gambling sites, and for the same reason. To protect children.
Once again we received significant support from all of the main political parties, particularly from a group of prominent women Parliamentarians in both Houses.
Following its inclusion in the Tory Manifesto and the subsequent passage of the Digital Economy Act 2017, all the necessary regulations were drafted, consulted upon and approved. We started getting the bunting ready as D-Day approached. Then 16th October 2019 happened.
Bad but not fatal
I think the UK Government made a bad decision when they announced they were not going to approve the final set of regulations. These were the ones which would press the button to make the policy operational more or less immediately. The infrastructure was ready and in place. Everything was ready and in place. The civil servants and the designated Regulator (the BBFC) had spent millions getting there, ditto the porn companies and the age verification businesses.
Political decision
The decision to call a halt was a political one taken at the highest level. That it was announced on a day which pretty much guaranteed it would struggle to get coverage in the media is evidence people in those high places were aware they were doing something dodgy. Brexit madness provided and continues to provide cover.
We have a new Government
Coming out of nowhere, as it did, we still have to ask the obvious question. Why? For one thing, although the current Government is, as it was before, a Conservative one, it is nevertheless a new Administration.
Theresa May has gone. Boris Johnson is the new kid on the block and when he became Prime Minister he appointed a load of new Ministers. One of these is Matt Warman MP. He is now the DCMS Minister for Digital and Broadband. In an earlier life, Warman was Technology Editor of the Daily Telegraph. He came to his new job with opinions and knowledge. One of the great things about being a Minister is you can set an agenda.
One cannot rule out the possibility of political influences from elsewhere e.g. No. 10, but my hunch would be that Matt Warman was lobbied by his erstwhile friends in the tech space and their close allies in the free speech and civil liberties communities. Either way he took up the cudgels, convinced his Secretary of State and the rest we know. Were all the senior civil servants happy with this? Did they have a hand in the volte face? We may have to wait 30 years for the memoirs to appear before we know the real answer to that. (Later addition/correction: ignore that last bit. I am now certain the whole thing was cooked up in No.10, with or without Warman’s active engagement or support. That only serves to underline its fundamentally political nature).
On ice not frozen out
Even so, as I made clear in my earlier blog the Government has emphatically not said they are abandoning age verification for porn sites but Ministers are saying the later publication of the Online Harms White Paper, with its emphasis on the creating an overarching duty of care, does change the wider environment. On that they are definitely right. Not sufficient to justify delaying the commencement but there you go.
Aside from needing to align with the duty of care, with the stated aim of making the UK’s approach to online child protection even stronger, what else, relating to the substantive policy, might have been behind the Government’s decision? I think there were two main issues, both of which we had spotted and raised very early on in the legislative process, and two others which have arisen since.
If you plan to try to get age verification going in your country, take all this on board now so you minimise the risk of hitting similar buffers.
Privacy
Consuming porn on the internet is not the same as ordering alcohol, buying cigarettes or knives or placing a bet on a horse and it is no good trying to pretend otherwise. Hypocrisy is the tribute that vice pays to virtue – in this case literally.
However, even though the privacy lobby had shown scant concern for porn consumers’ privacy rights before this measure came along, when the world’s largest producer of porn announced they were going to create an age verification solution and become an age verification provider, opponents of the policy were handed a major publicity gift. These opponents seized it and invented a series of wholly bogus or hugely exaggerated fears.
Nevertheless, because the privacy code of practice that is linked to the age verification policy was made voluntary, rather than compulsory, it did create tensions. Even people sympathetic to introducing age verification were not wholly unsympathetic towards some aspects of those tensions.
To the extent Warman might have indluenced events, if I had to pick a single aspect which is most likely to have motivated him to do what he did, it would be this. The privacy deficit.
Tip: if you are addressing porn in your country do not think of privacy as “someone else’s problem or a different and unrelated issue”. Make it part of the deal from Day 1.
It may seem weird for child protection people to worry about the privacy of porn consumers but if you don’t take care of it be prepared for it to come back to bite you. The objective here is to change the law to protect children from porn. It is not to persuade adults not to consume it or to frighten them with the risk of exposure (so to speak).
Social media
This was the second major issue.
As the Bill was going through Parliament the Government refused to countenance expressly including social media sites within the ambit of the Bill because the social media companies are not principally in the business of publishing porn. The assumption was social media companies would find a way to fall into line if only to avoid giving the Government a reason to come back at them.
At the time it felt that by going for age verification for porn sites the Government was being dramatic, bold, complicated and revolutionary. Drawing social media into the frame was a step too far. In other words the last Government “bottled” it. The new Government seems unwilling to do the same and wants to sort it out now. If they do that will be good.
In a minor key
Other factors? Voices were raised to argue the BBFC was the wrong organization to be the Regulator. In part the BBFC seemed to me and others to be the obvious choice because of its expertise and experience in online content classification and because the only plausible alternative, OFCOM, repeatedly said they wanted nothing to do with it. Cynics suggested this was because OFCOM thought the policy was doomed to fail.
Could it be OFCOM changed their mind and went in to bat to pull it back?
Then there is the EU’s approaching AVMSD. Brexit or no Brexit this complicates things. The suggestion is civil servants in the age verification section of the DCMS had missed it. When their bosses realised this they also had a reason to bring everything to a full stop and wind back.
Politics is murky at the best of times and these are not the best of times.
Until the dust has settled on Brexit and the imminence or otherwise of a General Election is clearer it is hard to know how best to respond to the current situation. Should we mount a campaign to get the Government to change their mind or should we take them at their word and go with the grain?
I am certain age verification for porn sites is on its way in the UK but it could be that the UK will now not be the first liberal democracy to introduce it.
Watch this space.
Desiderata 