Formal Internet Censorship: BBFC pornography blocking

Read the full report here.

1. Administrative blocking powers

The Open Rights Group is particularly concerned that the BBFC, as the age verification regulator, has been given a general administrative power to block pornographic websites where those sites do not employ an approved age verification mechanism. We doubt that it is in a good position to judge the proportionality of blocking; it is simply not set up to make such assessments. Its expertise is in content classification, rather than free expression and fundamental rights assessments. [1]

In any case, state powers’ censorship should always be restrained by the need to seek an independent decision. This provides accountability and oversight of particular decisions, and allows the law to develop a picture of necessity and proportionality.

The BBFC’s blocking powers are not aimed at content but the lack of age verification (AV) in some circumstances. Thus they are a sanction, rather than a protective measure. The BBFC does not seek to prevent the availability of pornography to people under 18, but rather to reduce the revenues to site operators in order to persuade them to comply with UK legislative requirements.

This automatically leads to a risk of disproportionality, as the block will be placed on legal content, reducing access for individuals who are legally entitled to view it. For instance, this could lead to some marginalised sexual communities finding content difficult to access. Minority content is harder to find by definition, thus censoring that legal content is likely to affect minorities disproportionately. It is unclear why a UK adult should be prevented from accessing legal material.

At another level, the censorship will easily appear irrational and inconsistent. An image that is blocked on a website and lacks AV could be available on Twitter or Tumblr, or available on a non-commercial site.

The appeals mechanisms for BBFC blocks are also unclear. In particular, it is not clear what happens when an independent review is completed but the appellant disagrees with the decision.

2. BBFC requests to “Ancillary Service Providers”

Once section 14 of the Digital Economy Act (DEA) 2017 is operational, the BBFC will send requests to an open-ended number of support services for pornographic sites that omit age verification.[2] The BBFC hopes that once notified these services will comply with their request to cease service. Complying with a notice could put these services in legal jeopardy as they could be in breach of contract if they cease business with a customer without a legal basis for its decision. If these are companies based outside of the UK, no law is likely to have been broken.

Furthermore, some of the “services”, such as “supplying” a Twitter account, might apply to a company with a legal presence in the UK, but the acts (tweeting about pornography) would be lawful, including sharing pornographic images without age verification.

If a voluntary notice is acted on, however, then free expression impacts could ensue, with little or no ability for end users to ask the BBFC to cease and desist in issuing notices, as the BBFC will believe it is merely asking for voluntary measures for which it has no responsibility.

This is an unclear process and should be removed from the Digital Economy Act 2017.

Recommendations to government:

1. The BBFC’s blocking powers should be removed.

2. Cease obligations to the BBFC to notify ASPs for voluntary measures.

Recommendations to BBFC:

1. Ask for the application of the FoI Act to the BBFC’s statutory work.

[1] This report does not cover privacy concerns, but it is worth noting that privacy concerns could easily lead to a chilling effect, whereby UK residents are dissuaded from accessing legal material because of worries about being tracked or their viewing habits being leaked.

Robust privacy regulation could reduce this risk, but the government has chosen to leave age verification technologies entirely to the market and general data protection law. This leaves age verification (AV) for pornography less legally protected than card transactions and email records.

See https://www.openrights-group.org/about/reports/response-to-bbfc-age-verification-consultation

and https://www.openrightsgroup.org/blog/2018/the-government-is-acting-negli-gently-on-privacy-and-porn-av

[2] Digital Economy Act 2017 s14 http://www.legislation.gov.uk/ukpga/2017/30/section/14/enacted