The case for age verification for pornography sites

Desiderata 29 April 2018
Children’s organizations and children’s interests led from the outset

In the UK we have a number of large and extremely well known children’s organizations. Some are substantial bodies employing thousands of people and can trace their roots back to the mid 19th Century. They have Royal patrons, are highly respected and respectable, often with internationally recognized expertise across a broad range of child welfare, child development, protection and educational issues. Moreover – and this was hugely important – they are resolutely secular. On internet policy they co-operate through a specially constructed coalition which has existed since 1999. I am its Secretary.

We were 100% pragmatic and stayed completely focused on harm to children. Obviously we had support from feminist and religious groups and that was welcome but they were in no way involved in shaping our tactics, strategy or messaging.

At no point did we say that we thought all porn was bad in and of itself, although we did point out that a great many people probably had a somewhat dated idea of what today’s online porn is like i.e. predominantly it depicts anti-female violence and promotes a completely unreal set of ideas about sex and relationships.

The new law

The Digital Economy Act, 2017 established that commercial pornography sites that publish into the UK must introduce age verification measures to restrict access by children. The so-called “free” sites were a key target of the legislation. These are, in truth, highly successful businesses. They don’t charge at the door, so to speak, they collect their revenues in other ways.

The new law will be operational towards the end of this year. There are two regulators.

What is porn?

The British Board of Film Classification (BBFC) has the primary regulatory role.Like the children’s organizations referred to earlier the BBFC is an extremely well known and trusted brand. An independent organization that has been in existence for over 100 years, the BBFC’s business is analyzing, classifying and describing every kind of content, including pornography. It has a child protection mission.

The BBFC’s principal regulatory task is to determine whether or not a qualifying site has put in place robust age verification measures that work. If they haven’t the BBFC has a range of tools at its disposal to encourage compliance. Ultimately the BBFC has a legal power to require ISPs and other access providers to block non-compliant sites. It is not thought this blocking power will be used very often because the sites are likely to comply. If they don’t their revenues will be hit. They care deeply about revenues.

As a matter of fact because the porn sites will be able to guarantee they have an adult audience in the UK, porn companies may even find they become more profitable. They will need less bandwidth to service their sites and since their visitors will have money and the means to spend it, advertisers may be prepared to pay more. This is an example of the doctrine of unintended consequences at work. Hey ho.

Privacy is vital

The other regulator with skin in the game is the Information Commissioner’s Office (ICO), the UK’s data protection authority. Its task is to ensure age verification solutions respect people’s privacy rights.

A key legal principle is data minimization i.e. the only thing a porn publisher needs to know is whether or not an individual who wishes to access their site has been reliably verified as being over 18. A number of companies are springing up to provide age verification services that can be used across a range of adult products, not just porn e.g. for gambling, buying alcohol, tobacco and knives. Thus, going through an age verification process does not mark you out as being into porn. It just shows that you may sometimes engage with a range of items which are associated with an age restriction.

Porn sites do not need to know or retain your name, your actual age, address or credit card number. All the porn site needs to know is that this particular log-in has been verified as belonging to someone who is 18 or above. The new system can therefore be seen as being privacy enhancing in a number of respects.

Getting agreement to act

First key political point: the measure went through the UK Parliament with all-Party support. However, it has to be said that winning the personal support and engagement of the previous Prime Minister was crucial in getting the ball rolling. Neither he nor his successor tried to use attitudes to porn and protecting children as a means of scoring points and the opposition parties adopted a similar stance. This was important. If the draft measure had become heavily politicised in Party terms it would probably have failed.

Second key political point: in lobbying for the measure we got the backing of major, mainstream newspapers and within Parliament a group of talented women Parliamentarians devoted a lot of time and energy to the subject over several years.

Without in any way doubting the sincerity or commitment to the principle behind the measure on the part of the Prime Ministers and the other politicians, it certainly did no harm to our cause to have the sustained support of major media outlets.

You have to listen to the other side

Free speech and civil rights groups were heavily involved in trying to get the measure defeated or neutered. That is their job. It is both wrong and counterproductive to portray them as heartless, nihilistic anarchists who do not care about children. The great majority of them do care but have genuinely held reservations about the methods being proposed. We have to address those reservations not just shout them down and refuse to hear. Some of what a number of them said definitely influenced me even though I thought others were too quick and too ready to misrepresent what was going on and why.

While I completely reject the idea that protecting children from pornography is in any way about promoting censorship – no legal content that is on the internet today will not be there tomorrow – it has to be acknowledged that whenever politicians get involved in subjects of this kind people are entitled to be nervous.

Some regimes and a number of groups do not want anyone in their country, or anywhere else for that matter, to be able to access pornography, and they might have a very broad definition of what constitutes pornography. We never argued adults should not have a right to access pornographic content.

Our only point was that children should not be able to get at it so easily.

A tiny amount of hassle is unavoidable

Age verification in the UK undeniably will create a minor inconvenience, i.e. adults will have to go through a process, but they already do this in many other areas, online and off. It is the inescapable but essentially trivial price we pay to achieve a desirable social goal. The age verification solutions that are being developed for use in Britain can be completed easily and rapidly. In other countries with better developed online infrastructures it might be even simpler to get confirmation that someone is over 18.

Technical measures are not a substitute for sex and relationships education

Age verification in respect of pornography sites is NOT an alternative to or a substitute for children and young people receiving age appropriate advice and guidance about sex and relationships, both at home and at school or indeed via thoughtfully prepared educational resources available online. This continues to be of vital importance

However, age verification is an important complementary component. Inter alia, it helps show children that, as with alcohol, gambling and similar, a serious effort is being made to ensure the laws and norms mean something. The advice given by parents, teachers and others in respect of porn is not merely “virtue signalling”. It is not something to which grown-ups pay lip service without it truly being meant to be taken seriously.

Bringing the physical and virtual worlds into closer alignment

Age verification for porn sites helps bring about a closer alignment between the physical world and the virtual one. We don’t have one set of rules and expectations which apply in one place but not the other.

Campaigning points

1. 1. Various people have observed that the internet is the biggest social experiment in history. We owe it to our children not to insist that they are unwitting, involuntary guinea pigs.
   2. To put that slightly differently, we cannot say we will wait 20 years or so to see how things turned out for this generation before deciding what to do to ensure the next is not damaged in a similar way.
   3. In the EU Kids Online survey exposure to pornography came out as the No 1 issue kids found upsetting in terms of materials they were exposed to online.
   4. By any standards there is enough evidence to suggest porn may be causing significant harm to children, particularly younger and vulnerable children. It is therefore simply unacceptable to say, in effect, we must do nothing until the matter is conclusively and finally settled beyond all reasonable doubt. Only then will it be acceptable to seek to mitigate or reduce the likely consequences of children being exposed to porn.
   5. There are very few areas of scientific or academic enquiry where the evidence is not disputed. If we waited until there was 100% agreement about everything and never tried anything new until there was zero doubt about the probable outcomes we would probably all still be living in the Rift Valley herding cows.
   6. The precautionary principle therefore dictates we must have regard to the evidence of the possibility of harm and, unless and until there is a widely accepted body of evidence to the contrary, we are obliged to take proportionate steps to avoid the reasonable apprehension of predictable harm.
   7. Anyone who thinks online porn can be a useful or worthwhile source of advice, guidance or information about sex and relationships plainly hasn’t seen any of it.
   8. It is easier to make the argument for introducing age verification in respect of younger children and the risk of accidental exposure, but in fact all under 18s have a right to be protected and to understand where the boundaries are and why those boundaries exist.
   9. Older teens might be more likely to want to engage with porn but the very fact that difficult to circumvent boundaries and technical controls are in place will cause them to pause and reflect and that is likely to change the nature of their experience or engagement with any porn they do encounter.
   10. We agree that porn consumers have a right to have their privacy properly safeguarded.
   11. Age verification does not promise to deal with accidental or intentional exposure to all forms of porn everywhere e.g. porn that might be exchanged via Bluetooth, messaging Apps or on thumb drives or be created using cameras in phones. Rather age verification addresses the easy accessibility of the gigantic quantities of pornography published by commercial concerns on the internet. This is the dominant form.
   12. Sadly there is no silver bullet that catches all porn everywhere, but that is no reason to refuse to act where you can have an impact.
   13. Age verification is about the responsibility of the publishers of pornography. They all say they don’t want children to access their wares but hitherto they have done little or nothing actually to prevent it.
   14. This was because they weren’t required to and even if an individual company might have been inclined to do something about it they were worried that unless everyone was under the same obligation to act at the same time they could lose business to less fastidious competitors. This is exactly how it worked with online gambling in the UK.
   15. Age verification should not be conflated or confused with the use of filters. Families might want to use filters to restrict access to all kinds of materials that conflict with their values or they might not want to use them at all. That still does not give porn publishers the right to expose under age youngsters to their products.
   16. Even if a family uses filters at home their children may end up in friends’ houses or other places where filters are not in use. Again that does not give porn publishers the right to expose under age youngsters to their products.
   17. An age verification law is really about establishing a new normative value. It is saying it is not OK for porn publishers to make their products available without taking meaningful steps to ensure children cannot see them.
   18. It is also saying that the realities of our modern lives and the challenges of parenting in the digital age mean it is unfair and unreasonable to put the responsibility solely or even largely on parents to protect their kids from stuff that shouldn’t be there in the first place. The porn industry should not be creating extra burdens for parents.
   19. Least of all should porn companies feel unmoved or unconcerned about the idea of making money from showing porn to kids.
   20. People argue kids will get around whatever you try. That is an argument for doing nothing, for preserving the status quo. Cui bono? Yet the evidence (see page 16) suggests most kids do not know how to get around blocks and even among those that do only a small proportion (6%) actually bother.
   21. It is a convenient myth that every child is a super-cool internet user who knows every technical trick in the book and wants to break every rule or ignore every boundary.
   22. That said it will be important to keep track of technological developments and changes in the porn market to ensure the regulators stay up to date and relevant and are sufficiently nimble so they can swiftly address any circumvention strategies which might appear at scale.
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