My Lords, on Second Reading, a number of noble Lords raised concerns about censorship and the definition of prohibited material. I found this surprising as we have so often heard the mantra that what is illegal offline is illegal online. Offline, the British Board of Film Classification has operated for a long time on the basis that it will not classify certain types of video work based on the content. This principle is well established and has been in statute since an amendment to the Video Recordings Act 1984 was made in 1994 after the Jamie Bulger murder. That requires the BBFC to have special regard to any harm to potential viewers. A “potential viewer” means,
“any person (including a child or young person) who is likely to view the video work in question if a classification certificate or a classification certificate of a particular description were issued”.
Moreover, it is of course an offence under Section 9 of the Video Recordings Act to supply a video work which the BBFC decided is not suitable for classification. It is also an offence under Schedule 10 to have such a work in possession for the purpose of distribution and supply.
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As the Minister said in his closing speech at Second Reading:
“We do not allow children to buy pornographic material offline, and this material would not be classified for hard-copy distribution. The BBFC ?has a well-understood harm test and would not classify material that, for example, depicts non-consensual violent abuse against women, and it may not classify material which is in breach of the Obscene Publications Act, as clarified in guidance by the CPS”.—[Official Report, 13/12/16; cols.1228-29.]
The BBFC publishes its guidelines openly and publicly, and they are produced after wide consultation. In other words, what is classed as prohibited in terms of physical video works is not a surprise to anyone. The last guidelines were published in 2014. Given the argument for “parity of protection” and a level playing field across all media, when R18 material became subject to age verification controls for United Kingdom-based, video-on-demand programming in 2014, the term “prohibited material” was used and based on the material not allowed under the Video Recordings Act. Such material must not be made available by UK video-on-demand producers, meeting the Government’s commitment at the time to,
“ban outright content on regulated services that is illegal even in licensed sex shops”.
In this context, it is not at all surprising that the concept of prohibited material has been carried over to the Bill to bring a level playing field in terms of regulation. It would have been strange had that not happened, as the Government would be saying that this material was acceptable on one media platform but not another. Clearly, that is an unsustainable position.
The amendments in this grouping, which seek to remove prohibited material from the scope of the enforcement measures provided by Clause 22, are concerning. It is important to understand that they also undermine the efficacy of Clause 23, which depends on Clause 22 for its definition of prohibited material. The amendments are informed by the following logic: we want to protect children and the point of this legislation is that it will protect children; and as long as prohibited material is behind age verification checks it will not matter if this material, which is currently prohibited offline, is deemed for the first time to be legal online. I understand this argument but it is based on a false assumption about what the legislation does.
First, age verification requirements will be for the material that is defined as pornographic in Clause 16. That means material that would be classified as 18 and R18 by the BBFC. If material is deemed not suitable for classification, which would be the case for prohibited material, it would not be counted under the Section 16 definition as pornographic and therefore not subject to age verification controls. In theory, this material, which would not be classified by the BBFC, could still be freely available to children and young people on the internet. If that is the case, without enforcement action of the type set out in Clauses 22 and 23 there is no new protection of children from this type of material and the Government’s manifesto commitment is not met. If the Opposition want prohibited material to be accessed by age verification procedures, they would need to amend Clause 16 to bring such material within the scope of Clause 15(1).
Secondly, even if one sought to get round this problem by amending Clause 16 and place prohibited material behind age verification, one would still encounter two major difficulties, one legal and one practical. In the first instance, taking this step would make the current position of prohibited material offline and of UK-based video on demand completely unsustainable. That would constitute sweeping changes which would be completely wrong to introduce without a thorough public consultation. It would not be appropriate for us, or indeed the Government, to change such a long-standing arrangement without a full and detailed public consultation. In the second instance, even if prohibited material was put behind age verification checks, it is important not to fall into the trap of thinking that this makes children safe across the board and that adults can access what they like without concern. We must not forget that both the Government and the BBFC have been very clear that enforcement will be targeted at the bigger sites.
Let us consider the Government’s statements on their approach to enforcement of the age verification proposals. In their response to the public consultation on their age verification proposals, the Government said they wanted to:
“Ensure a targeted and prioritised regulatory approach to monitoring and enforcement, to achieve maximum impact. The Government’s preference is for the regulator to have discretion as to which sites and providers it takes enforcement action against. For example, the regulator should be able to focus on the most popular sites, those known to be most frequently accessed by children and young people, or the size or profitability of the provider”.
In their original consultation document, they had said:
“We anticipate that the sites on this list would be subject to change, and therefore that the regulator would need to regularly reassess the list of top sites. This would put the primary focus of regulatory activity on the sites most regularly visited by UK users, and which account for a proportionately far higher number of total visits to porn websites”.
Indeed, Clause 24 explicitly gives the age verification regulator the power to exercise its functions “principally” in relation to larger websites. The Explanatory Notes say that the clause gives the regulator discretion to,
“exercise its functions in a targeted way, to those providers of pornography who reach the most people or have large turnovers”.
Moreover, the BBFC, giving evidence to the Public Bill Committee in the other place, said:
“We would devise a proportionality test and work out what the targets are in order to achieve the greatest possible level of child protection. We would focus on the most popular websites and apps accessed by children— those data do exist. We would have the greatest possible impact by going after those big ones to start with and then moving down the list”.—[Official Report, Commons, Digital Economy Bill Committee, 11/10/16; col. 46.]
The BBFC suggested that its enforcement would start with the top 50 websites, which 70% of users access, while reminding the Committee that 1.5 million new pornographic website links come online every year.
Given that the Government have been quite open that enforcement will not apply to all websites, and the BBFC’s focused enforcement plans, it is extremely likely that smaller websites will not introduce age verification. In this context, it is simply wrong to suggest that because of the Bill children will not be able to see prohibited material and therefore adults can relax about what they choose to access. The Bill takes significant strides in the cause of child protection. It would be a shame if we in this House took steps to undermine this.