Yesterday was the final day of debate on the “Gracious Address” in the House of Lords. The Address had been delivered by Her Majesty on 19th December to mark the opening of a new Parliamentary year and a new Parliament following the General Election. The next day a more detailed announcement followed setting out the Government’s legislative programme for 2019-20.
Online Harms
There is to be an Online Harms Bill. This is good. Probably. Originally the Government said such a Bill would be put through pre-legislative scrutiny, which could also be good, but details of how and when remain scarce. This may presage substantial delay. We might be talking about two to three years. Which is terrible.
This question of delay and timescales is particularly significant when set in the context of the ease with which children can currently access millions of hard core pornography web sites. The crazy thing is we already have a law that could help shield kids from such material but the Government has refused to implement it. The law of which I speak is contained in Part 3 of the Digital Economy Act 2017.
Were Part 3 to be brought into effect the UK would become the first democratic country in the world to require commercial publishers of pornography on the internet to introduce age verification mechanisms as a way of restricting children’s access to their wares
Protection delayed is protection denied
Following a sustained campaign led by children’s organizations and a group of mainly women MPs and Peers, the idea of having such a law appeared in the Conservative Party Manifesto of 2015. In 2017 it completed its passage through Parliament with the support of all the major political parties.
Ministers brought forward a set of statutory instruments to establish the regulatory framework within which the policy would operate. A Regulator was nominated by the Government and agreed by Parliament (the BBFC). Millions of pounds were spent getting us to that point. A range of new and existing businesses also spent millions innovating highly efficient ways of carrying out age verification online. Something similar happened before when age verification for online gambling sites was introduced following the implementation of the Gambling Act 2005.
While initially hostile, the commercial pornography publishers accepted this was now law so they too prepared themselves for the new regime. The Information Commissioner was satisfied with the privacy aspects of the policy.
The fateful day
Absolutely everything was in place when, on 16th October, the Government called a halt. Out of the blue, so to speak. No prior warning.
Several media outlets reported the Government had had a change of heart and was dropping the policy altogether. I have seen nothing from Ministers speaking on the record which would justify that conclusion so unless there was lobby briefing to the contrary, I am at a loss to explain why journalists picked up the story in that way.
In search of “coherence”, apparently
The principal justification offered by the Government was that they wanted the measures to protect children from pornography to be folded into or made “coherent” with their evolving thinking on the wider Online Harms Bill which they were preparing. The Secretary of State’s exact words were:
“It is important that our policy aims and our overall policy on protecting children from online harms are developed coherently….. with the aim of bringing forward the most comprehensive approach possible to protecting children.
The Government have concluded that this objective of coherence will be best achieved through our wider online harms proposals…”
Certainly it is true Part 3 was enacted before the Government embarked on its larger odyssey but the question of the role of porn publishers is quite discrete and particular. Part 3 simply insists commercial publishers of pornography take responsibility for ensuring kids cannot access their sites so easily. Whatever the Government might decide to do with social media sites or other online businesses they are going to have to come back to it. Everybody working in the field knows that.
Is it even remotely possible the Government will say, in effect, “Following a rethink we now believe commercial publishers of pornography can carry on as before. They will have no legal obligation to do anything to keep children off their sites“? I don’t think so.
The very next day
Matters did not rest as they were left on 16th October. The very next day in the House of Commons over a dozen MPs questioned the Minister for Digital, Matt Warman MP, about the shock announcement.
In his replies Mr Warman acknowledged that restricting children’s access to commercial pornography sites was “critically urgent” before going on to say “I am not seeking to make age verification (for pornography sites) line up with (the Online Harms Bill) timescale”.
If protecting children from commercial pornography was so “critical” one has to wonder why it was stopped on the eve of implementation? By their actions the Government ensured children who could have been protected from seeing some truly shocking and harmful images, will not be. It did not have to be that way.
Nevertheless, as we have seen, Warman did indicate that moving forward on age verification for commercial pornography sites need not be bound to the same timetable as the promised Online Harms Bill. That does give some grounds for optimism. Might the new age verification regime yet be brought forward sooner rather than later? It could be. It should be. It would be very easy to do. “All” it requires is for the Government to bring one more statutory instrument to Parliament and name a commencement date.
Yesterday in the Lords in winding up the debate the Government gave assurances that they would be bringing forward “interim codes on online content and activity relating to terrorism and child sexual exploitation”. These are welcome but, at the risk of being repetitive, they do not address the responsibility of commercial publishers of pornography to keep kids off their properties. Part 3 of the Digital Economy Act 2017 does precisely and only that. But on this the Government was silent (although they have promised a letter answering a number of questions that were raised in the debate which Ministers did not cover in the summing up).
Alternatively, if the Government believes there is a specific problem with Part 3 as originally envisaged, they should say what it is. There are various rumours but nothing definitive has emerged from Whitehall.
Perhaps there is a legal method or Parliamentary procedure which could be deployed to amend or add to what we already have in a way which would meet the Government’s concerns? Surely the Opposition Parties would happily facilitate such a course of action?
Desiderata 