Government defeated in Court. Again

On Wednesday of this week the UK Government was defeated in Court. Again. If it wasn’t for COP26 and various other  “big p” political stories I am sure the matter would have been picked up in the media. It wasn’t, so I cannot provide an alternative source or link but the horse’s mouth whispered in my ear. There will be a law report in due course.  Goodness knows when. Meanwhile…..

You remember the story. Parliament passed a law (Part 3 of the Digital Economy Act, 2017) making it compulsory for commercial pornography sites to have age verification to prevent minors from accessing their wares.

The then regulator (BBFC) prepared all the regulations necessary to implement the new law. These were presented to and approved by Parliament. All the big porn sites were ready to comply. The payments companies indicated they would withdraw facilities from sites found to be out of compliance. Everything was set.

All that was required was for the Government to lay an Order in Parliament naming the commencement date. But on 16th October 2019 Secretary of State Morgan rose to her feet in the House of Commons to say the Government  was not going to implement the law.

Culture Wars antennae tingling

We may have to wait until the memoirs start appearing before we discover what was really going on but everyone I have spoken to who was in a position to know is very clear. The decision to abandon child protection was made in No. 10. Not DCMS, not the Home Office. No. 10. All on its own. Their “Culture Wars” antennae had been tingling.

Brexit trumped everything

At the time the only thing No. 10 cared about was getting Parliament to agree to hold a General Election so they could “get Brexit done”.  They had no control over the timing which meant, if everything went ahead as originally planned,  the new porn laws could come into effect in the run up to or during the General Election Campaign.

And in order to win that General Election, No. 10 had in mind a certain demographic in what are known as the “Red Wall” seats.

It was assumed too many voters in the Red Wall might not like it if, on one of their regular visits to a porn site, they suddenly found, for the first time ever, they had to go through a process of verifying their age. In fact, they might dislike it so much they would withold their vote from the Conservative Party and  instead vote for a Party in the hands of the most left wing Leadership it had ever had.

On this pathetic and improbable altar was sacrificed a child’s right to a healthy upbringing.

Do parents in  Bolsover or Bishop Auckland care any less for their children than parents elsewhere? I don’t think so, but Boris did. Or, rather, he was taking no chances. This is a harbinger of the future of the Culture Wars No. 10 seems intent on encouraging whenever and wherever possible. Be warned.

No justifiable basis for the decision

There was zero, or close to zero, policy justification for the Government’s decision not to proceed with Part 3 of the Digital Economy Act 2017. Political spasms, political  calculations and knee jerks are not a recognised reason for refusing to implement a law.

How do we know this? Because of the way the Government has fought to defeat two attempts at establishing a judicial review of its actions. In both instances part of their case also involved them asking the Court not to allow background papers to be handed over to the plaintiffs or be made public.

Case No. 1

In the first case the Government sought to get the Age Verification Providers Association’s action struck out even before it started but the High Court judge sided with the Association. There was a prima facie case to answer. It was  allowed to proceed. Worried about costs the Association eventually withdrew when the Government said they intended to address the matter in the upcoming Online Safety Bill. A bit wimpish, but there you go.

Case No. 2 – continuing

The next people into Court were Ms Ava Vakil and Mr Ioannis Dekas. They were not so easily put off and on Wednesday the Court supported them.

Lady Justice Whipple looked at the text of the Online Safety Bill and noted that the word “pornography” did not appear anywhere. Unless and until it did, and unless and until Parliament repealed Part 3, Part 3 was still the law so the Government could be challenged in respect of their brazen attempt to ignore  it.

Since October 2019 we have had repeated statements from Ministers saying they intend pornography to be brought within scope of the Online Safety Bill. We have a Joint Scrutiny Committee deliberating on the text of the Bill. But fine words and deliberations butter no parsnips and knowing the Culture War zealots who populate No. 10, knowing they have the Prime Minister’s ear, absolutely nothing can be taken for granted. Until the ink is dry on a new Online Safety Act, until the consequential regulations have been drawn up and approved, a commencement date has been named and passed, it could all come to nought. 

The Information Commissioner needs to think again

When I challenged the Information Commissioner about her failure to act to stop porn sites processing children’s data she referred to the upcoming legislation as the place to resolve this question. That was a political answer, not a legal one and clearly Lady Justice Whipple is a lot less trusting or forgiving than our Commissioner was.

Perhaps when the new Commissioner arrives he will reconsider the matter in light of Lady Justice Whipple’s words. And please, no more terpsichorean head-of-a-pin distinctions between the act of data processing and the consequences of it.

It defies commonsense to say the Information Commissioner would act against a web site providing children with access  to pictures of butterflies because the site had taken a procedural misstep but they would at the same time refuse to act against porn sites that process children’s data because the real harm is in the content not the processing.  Try explaining that to the person on the Clapham Omnibus.

An Age Appropriate Design Code which is  impotent on data-induced age inappropriate outcomes needs to think about changing its name. How can the law be silent about porn sites collecting and processing children’s data so they can serve them more porn merely because the sites are not intentionally directed at or meant for children? In what universe does that make sense?  We know children are on these sites in large numbers.

Unconscionable delay

Even with the fairest of winds,  if we are left to rely solely on the Online Safety Bill, right now we are still looking at maybe three years before any protection from pornography will be in place. This is scandalous.

Three years is a very long time in the life of a child.

If the Government is sincere about protecting children from porn sites it must find a way to fast track the pornography protection provisions.

On 17th October 2019, the day after the fateful announcement, as the Government was being hammered in the House of Commons, the then  Parliamentary Under-Secretary at DCMS, Matt Warman MP, said they would fast track measures to address children’s access to pornography but, actually, they haven’t done. Fine words butter no parsnips. Oops. I already said that. And double oops, they could do it easily enough by proceeding to implement Part 3.

As  Lady Justice Whipple observed, it is still the law. It would be a trivial matter to designate Ofcom as the new Regulator and this would allow them to get going with drafting the regulations that will be required. Otherwise, with zero statuory authority, Ofcom can do nothing. It will have to sit on its  hands and wait for Royal Assent.

Meanwhile it is vital the current legal action, Case No. 2, does not fail for want of money. You can contribute here:

About John Carr

John Carr is one of the world's leading authorities on children's and young people's use of digital technologies. He is Senior Technical Adviser to Bangkok-based global NGO ECPAT International, Technical Adviser to the European NGO Alliance for Child Safety Online, which is administered by Save the Children Italy and an Advisory Council Member of Beyond Borders (Canada). Amongst other things John is or has been an Adviser to the United Nations, ITU, the European Union, the Council of Europe and European Union Agency for Network and Information Security and is a former Executive Board Member of the UK Council for Child Internet Safety. He is Secretary of the UK's Children's Charities' Coalition on Internet Safety. John has advised many of the world's largest internet companies on online child safety. In June, 2012, John was appointed a Visiting Senior Fellow at the London School of Economics and Political Science. This was renewed in 2018. More: http://johncarrcv.blogspot.com
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