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UK government faces court on ‘porn ban’ AV u-turn, as France and China both manage to pull it off

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A challenge on the legality of the UK government’s back sliding on introducing age verification (AV) for access to adult website has been given the green-light by the courts on the same day that the French government unanimously agreed to the blanket introduction of the technology for its adult sites.

In China, Beijing announced, too, that it had removed 8 million “pieces of pornographic and other harmful material” during the first half of 2020.

Following a hearing at the High Court in London yesterday, charities and technology companies secured a significant victory in the legal battle to get the government to introduce age verification for online pornography.

The case had been publicly backed by the UK’s leading children’s charities, including the NSPCC, Barnardo’s and the Children’s Society.

The hearing, which took place over Skype, began at noon and was originally scheduled to last for one hour, but in the end, complex constitutional arguments ran until past 4pm, as Alan Payne QC, representing the campaigners, faced the government’s most senior barrister, Sir James Eadie QC.

Ironically, the case law on which the verdict turned was the same precedent used by Gina Miller when she defeated Sir James in her Supreme Court challenge to Boris Johnson’s decision to prorogue Parliament, less than a month before the u-turn on the so called porn-block was announced.

Summing up her judgment, Mrs Justice Nathalie Lieven said: “In my view, [the case]is arguable because there are tensions within the three speeches [by the judges]in FBU (the Fire Brigades Union case) about the degree to which the Secretary of State is acting within the law in saying, in terms, as she has, that she has no intention at the moment of commencing section 14(1) and there is an argument to be had as to  the degree to which the Online Harms White Paper covers the same area as the DEA.  So, I think that is arguable”.

The recently appointed High Court Family Division judge said: “I express no views beyond arguablility on the merits of the case”, paving the way for a full hearing on the substantive arguments.  Crucially, Number 10 and DCMS are now obliged to disclose all the relevant internal paper, correspondence and even WhatsApp messages leading up to the announcement last October, which came at the time the Government was desperately trying to call a general election.

John Carr OBE, Secretary of the Children’s Charities’ Coalition on Internet Safety said: “This is great news.  We are another step closer to getting our children the protection they need and deserve.”

Fiona Bruce MP, said: “MPs from all parties came together over three years ago to secure a change in the law to help protect children by requiring Age Verification before accessing pornography online, and this is still not in force. We cannot make the internet safe but we can make it safer, and this is one way.  This is an issue about which parents are increasingly concerned and I believe the weight of opinion in Parliament is also very much in favour of government taking action now to help prevent children seeing pornography – some of it the most abhorrent material imaginable – and even more so now with so many young people spending longer online at home due to Coronavirus.”

The AV industry working together

The four companies that brought the case – AgeChecked, AVSecure, AVYourself and VeriMe – had developed specific new software to allow for age checks to be carried out without disclosing the identity of users to adult websites. Those sites would only know if a user was over 18 or not.

Implementation of the law had been repeatedly delayed at the last minute, until the Secretary of State announced that: “The government has concluded that this objective of coherence will be best achieved through our wider online harms proposals and, as a consequence, will not be commencing Part 3 of the Digital Economy Act 2017 concerning age verification for online pornography. The Digital Economy Act objectives will therefore be delivered through our proposed online harms regulatory regime”.

The need for online AV was determined by Parliament more than three years ago, following a  high-profile campaign by parents, charities and cross-party MPs, led by Claire Perry O’Neill. The Digital Economy Act was initially announced by ministers to be coming into force by Easter 2019.

It was first postponed until the following summer, and then a further delay was announced, just days before the revised go-live date of 15th July, after DCMS admitted it had failed to follow EU approval processes required for new regulations.  Eventually, last October, the then Secretary of State for Culture, Nicky Morgan, announced the government had concluded that this part of the law should never be implemented.

The aim of the Act was to protect children from stumbling across pornography when online through the introduction of age checks on all adult websites accessible to UK internet users.  Sites which did not comply could find access to them from the UK blocked, and credit card networks had agreed to cut off their revenue from advertising and subscriptions – threats which had persuaded all the main porn sites to comply, wherever they were based globally.

In March, the Independent Inquiry into Child Sexual Abuse also raised its concern about this u-turn. It said: “Legislation is required in order to ensure that children are protected from harmful sexualised content online, and this part of the DEA was an important measure designed to prevent children viewing adult sexual material. The value of this part of the legislation was, and remains, obvious – it may prevent some children being exposed to child sexual abuse material. Delaying or deferring action until the Online Harms legislation comes into force fails to recognise the urgency of the problem.”

The French connection and Chinese burns

The UK leads the world in developing secure, anonymised AV technology, with other countries such as Australia, New Zealand and Poland all considering adopting the approach developed here. Thousands of AV-checks are already undertaken smoothly every week for online purchases of alcohol and tobacco, or for access to gambling websites.

However, the French and Chinese have beaten the UK to the punch. The French Parliament unanimously agreed on the same day as the UK court ruling to introduce AV to prevent minors accessing adult and pornographic websites.

According to news site Politico: “Macron made the protection of children against adult content online a high-profile issue well before the coronavirus crisis hit. In January, tech companies, internet service providers and the adult movie industry signed a voluntary charter, pledging to roll out tools to help ensure minors don’t have access to pornographic content”.

The new French law, says Politico, “gives sites discretion to decide how to perform age verification. Requiring users to enter a credit card number seems to be one of the most popular options”, the news site reported.

It goes on: “In order to enforce the law, the French audiovisual regulator CSA will be granted new powers to audit and sanction companies that do not comply… sanctions could go as far as blocking access to the websites in France with a court order.”

Meanwhile in China, the National Office Against Pornographic and Illegal Publications issued a statement claiming that more than 8 million “pieces of pornographic and other harmful material” during the first half of 2020.

According to the agency’s announcement, 12,000 websites were removed under the umbrella terms “pornography and harmful content,” which can include various non-sexually-related categories.

Commenting on the move in UK to allow the legal challenge, Alastair Graham, Chief Executive of AV company AgeChecked, said: “Last October’s announcement came totally out of the blue.  Those of us who had been involved right from the drafting of this ground-breaking law, and worked closely with the DCMS and the regulator to build technology with the privacy safeguards they demanded, could not understand why the decision had been made.  Ministers were ditching an effective first step to protect young children from hardcore pornography, which we’d persuaded all the leading adult sites to accept.   The judge has now ordered the government to let us know the truth behind the decision – whether it was just a misunderstanding about the technology or, perhaps, the general election they knew they would announce within days.”

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1 Comment

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