If you click here you will see a copy of a letter I sent today to Information Commissioner, Elizabeth Denham CBE, the UK’s chief privacy enforcement official.

In the letter I suggest the fact that the Government called a halt to the implementation of Part 3 of the Digital Economy Act 2017, (DEA) appears to have convinced porn companies they can carry on as before for at least another year. Other businesses that engage in the provision of sites, apps or services intended only for adults seem to think they too have been awarded an extended, child-harming holiday.

All of them are mistaken, at least in principle.

My letter is designed to see how far this principle might be able to propel the Commissioner to act to make the internet safer for children sooner.

What was Part 3 about?

There are two fundamental points about Part 3 of the DEA.

First, it only applies to commercial pornography sites.  As already mentioned, there are several other types of adult sites, apps and services which can put children at risk. For them Part 3 is substantially if not wholly irrelevant.

Secondly, reverting to commercial pornography sites, let us recall Part 3’s quite specific purpose. It was intended to create a regulator with powers which would allow it to influence the behaviour of businesses ordinarily outside the reach of UK courts. All the porn sites that matter are based overseas. They have no significant asset base in the UK.

The regulator would be able to bring such sites to heel by attacking their income streams. Ultimately, if necessary, the sites themselves could be blocked.

There has to be another Bill

The DEA said the regulator would be the BBFC. Now it looks like it will be Ofcom but that is contingent upon the Government bringing a Bill to Parliament.

The Government said they will bring a Bill at or around the time they publish their final response to the Online Harms White Paper.  We still have no idea exactly when that will be. Covid and Brexit are set to dominate British politics for ages. However, even if the Bill appears, as promised, “sometime this year”, it likely will not pass until next year,  then the processes of getting a new regime established will begin.

Things could be “speeded up” by the wholesale copying of the BBFC’s work but, assuming the Government remains true to its word, there will be the new powers to integrate vis-a-vis social media platforms. Then there’s privacy. It seems likely there will be changes there as well. Either way we could be looking at 2023 or beyond.

That is completely unacceptable but some people who were focused solely on porn said they weren’t so bothered because once the excellent Age Appropriate Design Code kicks in  the Information Commissioner can go after the sites. A regrettable delay but not a huge one. We can live with it. No.

The Code is not about adult sites, apps or services

The problem is the Code, brilliant and necessary though it is, actually is not concerned with adult sites, apps and services. It follows if the Commissioner can do anything it has to be rooted in the basic law. And if that is the case we do not need to wait until the Code comes into force. The child-harming holiday is cancelled.

Still need Part 3 DEA powers but in the meantime

Obviously, the Commissioner does not have at her disposal the same powers that were going to be given to the BBFC. But if, whether in a letter or as the outcome of a formal investigation, Elizabeth Denham were to make clear that certain sites or classes of apps, sites or services operating without robust measures to restrict children’s access were operating unlawfully, or were likely to be, it may have some beneficial impact. It might shame the owners into acting earlier or cause other businesses on whom they depend to withdraw their services or support.

We can but hope.

PS If you read the letter all the way to the end note the point about perilous and deceptive marketing.