MPs leave it to House of Lords to sort out porn cock up

Although Labour raised the issue of privacy, nothing was changed so there are still no privacy duties in the Bill. However, the Commons did find time to add powers for the regulator to block legal websites, through a poorly worded amendment from the government.

The Lords therefore have three issues to resolve: will age verification be safe? Will it lead to widespread censorship of legal content? And how will it make both age verification and website blocking safe and fair?

These aren’t easy questions and they ought to have been dealt with well before this bill reached Parliament. The privacy risks of data breaches and tracking of people around the Internet simply have to be addressed. We believe that privacy duties have to be written onto the face of the bill.

On website blocking, it’s clear that MPs are misleading themselves. The objective of website blocking appears to be to restrict access to websites that are not verifying the age of their users. However, the truth is that this is completely beyond the reach of the regulator.

The regulator, the BBFC, almost certainly have no intention of blocking more than a small fraction of the pornographic sites available. This would make pornography in general only slightly less accessible to someone under 18, as they will still be able to reach millions of other sites. It will however restrict access to specific, relatively popular sites. These sites could be aimed at specific communities or identities, which would be particularly harmful.

It is clear that website blocking is not likely to be a safety measure, but a punishment directed at non-compliant websites. Of course it will also punish the users of these websites. It is not clear to us that this approach is necessary or proportionate.

All this ought to make it clear that Age Verification isn’t a particularly wise policy.

The very least that needs to be done is for the regulator to make a proportionality test in relation to the blocking of any given website. This can also take into account the issues relating the which ISPs might do the blocking, for instance so that ISPs that lack the capability to block are not asked to do so, or at the very least, not without compensation.

Another concern that the BBFC itself raised is whether its own classification standards are imposed on websites, or the standard of what is legal to view in the UK. Understandably, the BBFC will seek to sanction websites that are publishing material that it does not view as publishable – or classifiable – in the UK. However, this needs to be the legal standard, rather than the BBFC’s view of what is legal or acceptable.

For this reason, there has to be a simple external appeals mechanism before any sanction is applied, and this too is missing.

Censorship, however you look at it, is a drastic step. While “improvements” can be made that might limit some particularly awful practices from developing, the vast majority of what gets blocked will be legal material that any adult has a right to access. This paradox – the censorship of legal content – won’t disappear just because the process is improved.

The only justification could be that there is a serious and widespread harm emerging that can be addressed; and while it is completely valid to discourage teenagers from accessing this content, it is far less clear that the proposed measures will work, nor that the alternative approaches such as filtering for specific users cannot work. And articulating a valid social goal is still a long way off a rigorous demonstration of harm.

We will hear the first signs of whether the Lords will resolve any of these issues today. The debate starts late this afternoon and can be watched online.

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