House of Lords briefing on the Digital Economy Bill

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House of Lords briefing on the Digital Economy Bill

Standard / by Blake / February 10, 2017 / No Comments

Digital Economy Bill

Briefing on Section 3: Age verification for online pornography

The age verification section of the Digital Economy Bill proposes a technological response to a complex social issue. The policy raises serious concerns regarding loss of personal privacy; increased risk of credit card fraud and identity theft; increased state surveillance; misuse of data by private companies; data leaks; adults prevented from viewing legal materials; and serious and significant infringement of freedom of expression.

Age verification will result in very serious breaches of privacy.
- Age verification solutions require the user to surrender sensitive personal information to the age verification provider, such as bank details, private social media posts or mobile phone number.
- The DEB does not provide adequate safeguards to protect the privacy of this data, and does not hold AV providers to sufficient data security standards. The draft code of practice (BSI PAS 1296) is inadequate to enforce operational security and data protection.
- Private companies will be able to retain data about users’ porn browsing history, paving the way for the creation of highly sensitive databases of individuals’ sexual tastes, all connected to their identifying details, which would be vulnerable to leaks, security breaches, or hacking.
Enforcing this policy will seriously infringe freedom of expression.
- Individual websites will pay per age check, whether or not the verified user goes on to become a paying customer. These costs will put small sites out of business, reducing diversity and discriminating against small business and people with marginalised sexualities.
- By referencing the British Board of Film Classification (BBFC)’s guidelines for prohibited content, the DEB criminalises the online publication of material depicting numerous consensual adult sex acts which are legal to perform in the UK.
- The amendment proposing web blocking of sites that do not comply with age verification, or which publish prohibited content, is disproportionate and unworkable.
This extreme interference with civil liberty should not be allowed without very strong evidence that it is genuinely necessary in order to reduce harm. There is no credible research base showing that online porn is harmful to children.
- Evidence widely cited in support of age verification (such as the 2015 NSPCC survey) does not stand up to academic scrutiny.
- The evidence gathered by the expert panel for DCMS in 2015, and by Ofcom’s 2005 overview of the impact of R18 material, both show that there is no robust evidence indicating that young people are harmed by encountering sexual images. On the contrary, the data from Denmark, Japan and the USA suggest that greater access to pornography is correlated with lower rates of sexual violence, higher reporting of sex crimes, and lower rates of STI transmission and teenage pregnancy.
Section 3 of the DEB should not become law unless (i) Convincing research by a respected authority or body has first established that pornography causes provable harm to children, (ii) Clauses are added to protect personal privacy, and (iii) The BBFC classification guidelines are reviewed to bring them up to date with recent case law.

Age verification will result in very serious breaches of privacy.

The Information Commissioner has said that age verification (AV) solutions should only collect and record “the minimum data required in the circumstances”.¹ However most of the AV solutions available at present require the user to surrender sensitive personal information in order to verify their age, such as their credit and electoral information, bank details, private social media posts, biometrics or mobile phone details.² The Commissioner has expressed “significant concerns” about these methods, citing their vulnerability to misuse, and attractiveness to disreputable third parties. The use of any of this information exposes internet users to threats of data mining, identity theft and unsolicited marketing.

The DEB is not specific about what sort of AV solutions will suffice to comply with its requirements; instead, this is left to the new age verification regulator to determine. The current code of practice for AV technologies (BSI PAS 1296) is inadequate to enforce operational security or data protection.³ This absence of privacy protections creates an enormous and disproportionate risk of the loss, breach or hack of the private sexual preferences of individuals, linked to personal identifiers.

It is unwise to introduce policy that will habituate UK internet users to surrendering personal information to gain access to adult content. Fraudulent websites will inevitably spring up worldwide, urging UK users to submit identifying details, which can then be used for the purposes of identify theft and credit card fraud.

It is not only our personal data that is at risk, but our browsing data. This Bill must not permit age verification solutions, pornographic websites, or private companies providing federated AV solutions, to retain any data about users’ porn browsing history. If sites visited by age-verified users are tracked and recorded, this could facilitate the creation of a privately owned database of the personal sexual tastes of millions of people, each browsing history connected to an email address or login that could easily reveal their legal identity. We must not make ourselves vulnerable to another Ashley Madison style data breach⁴; nor to corporations abusing, trading or selling our sensitive browsing histories.

Privacy protection must not be left up to the discretion of individual websites or age verification providers; it must be enshrined on the face of the Bill itself. Backlash recommends the inclusion of the privacy amendment to the DEB drafted by the Open Rights Group.⁵
Enforcing this policy will seriously infringe freedom of expression.

The cost of implementing age verification will, in practice, discriminate against small publishers. Websites will pay a fee to an AV software provider per user checked, regardless of whether that user goes on to pay for content. For small businesses, the ratio of traffic to sales is high enough to make this cost untenable.⁶

Niche websites – such as feminist, queer and independent porn sites – usually have conversion rates well under 1%, which would make the cost of age checking each visitor significantly higher than the site’s turnover, even before the expense of web hosting and content production.⁷

Small-scale content providers bring diversity to the adult industry, empower performers, subvert stereotypes, and disrupt the homogeneity of mainstream porn. Age verification will put such sites out of business, while the behemoths of traditional porn (which are far more likely to be stumbled across by under 18s) benefit from economies of scale that will permit them to survive. This discriminates against small business, and people with marginalised sexualities.

The DEB references the BBFC’s classification guidelines for prohibited content, and gives the age verification regulator scope to penalise websites for publishing content that would not be classifiable as 18 or R18, even with sufficient age verification controls in place. At present, the BBFC refuse to classify content depicting numerous consensual acts which are legal to perform in the UK, including fisting, urolagnia, and female ejaculation if the fluid lands on another person or is consumed. It is absurd to criminalise online porn depicting one of the few visual, undeniable representations of female sexual fulfilment, especially if the site is only accessible to over 18s.

The BBFC guidelines derive from the Obscene Publications Act – introduced in 1959, when social standards were very different. The BBFC guidelines have not been updated in light of relevant jury verdicts; e.g. R v Peacock 2012, in which the defendant was tried under the OPA for distributing DVDs depicting gay fisting, urolagnia and BDSM. The Not Guilty verdict established a precedent that these acts should not be considered obscene under the OPA.⁸ If we are to legislate with reference to the BBFC classification guidelines, they must be brought up to date with UK case law and current social standards of acceptability.

The Public Bill Committee has added a clause by which the age verification regulator may order the blocking of sites which fail to adequately comply with the classification guidelines, or with the age verification requirement. This blocking will be carried out by the regulator on administrative grounds, without due legal process, and without a clear route of appeal. Blocking is a disproportionate and unworkable penalty, and is likely to be in breach of the EU regulation on net neutrality and the Open Internet principle.⁹ If blocking amendment is retained, a mandatory proportionality assessment must be introduced, and a simple and inexpensive route of external appeal.
This extreme interference with civil liberty should not be allowed without very strong evidence that it is genuinely necessary in order to reduce harm. There is no credible research base showing that porn is harmful to children.

Evidence cited in support of age verification does not stand up to scrutiny. For instance, the 2015 NSPCC survey into “porn addiction” among young people has been widely criticised by academics; an open letter debunking it was signed by 38 leading professors, researchers and sex educators.¹⁰ Nonetheless the DCMS consultation on age verification claimed that “20% of children aged 11-17 surveyed on behalf of the NSPCC’s ChildLine service said they’d seen pornographic images that had shocked or upset them”. This survey was not a rigorous academic study, but rather an opinion poll conducted by OnePoll, a “creative market research group” who advertise themselves as offering “speedy surveys” and “polls for the press, meaning fun questions about celebs and your love life.”¹¹ It asked children to self-report “shock or upset” via 11 multiple choice questions. Respondents under 18 were recruited via parents who were already signed up to earn money online by filling out OnePoll surveys; it is therefore likely that children answered the questions with their parents present. The survey methodology contained no safeguards appropriate to this sensitive topic such as those used by the London School of Economics when they carried out research into children’s internet usage.¹²

The NSPCC survey is typical of the flimsy research and shoddy statistics underpinning the claim that under 18s are harmed by accidental or unwanted exposure to online pornography, and that the scale of this problem justifies the impact of the proposed legislation. A clear look at the evidence shows that under-18s accessing online pornography are mostly 16 and 17 year olds above the age of sexual consent, and that children are far more likely to encounter sexual imagery offline than online.¹³ The report of the DCMS expert panel in November 2015 supports these findings: online porn is not the primary route by which under 18s access sexual images; when they do find it, they are mostly not distressed or concerned by it; and there is no proof that it causes harm.¹⁴

Both the evidence gathered by the expert panel for DCMS in November 2015, and Ofcom’s own overview of the potential impact of R18 material from May 2005,¹⁵ show that overall there is no robust evidence to prove that young people are harmed by encountering sexual images. In fact the data from Denmark, Japan and the USA suggests that greater access to pornography is correlated with lower rates of sexual violence, higher reporting of sex crimes, and lower rates of STI transmission and teenage pregnancy.

The very evidence cited in support of age verification does not therefore support it: age verification is an example of policy informing evidence, rather than evidence informing policy.

Studies which demonstrate “concern” about pornography tend to reflect adult relationships with it, which is projected onto young people more than it is shared by them. This policy is founded on a fear of children becoming sexual, not any concrete evidence of harm. However research shows that many young people do not feel ready to have sex, and see porn as an alternative to real life experimentation – with significant less risk of STI transmission, pregnancy, or emotional hurt.¹⁶

This policy risks preventing young people who are curious about their sexuality and interested in learning about sex, gender and relationships from accessing valuable sex education websites. For instance, a site which teaches safe sex with imagery of someone putting on a condom would be restricted by this legislation. Young people have a right to explore their sexuality, including LGBTQ young people and those with marginalised sexualities. Age verification must not prevent young people from learning about sex, nor how to keep themselves and their partners safe.

As a harm reduction policy, age verification, particularly in the form proposed by the DEB, is not supported by the evidence, and is a distraction from the real issues. Young people deserve better sex education that focuses on consent and pleasure.¹⁷ If we really want to keep children safe, independent sex education must be funded and supported by the government, and SRE should take into account what young people are interested in learning.