Lord Morrow (Democratic Unionist Party) introduced his Digital Economy Act 2017 (Commencement of Part 3) Bill [HL] on 9 June 2021. This was after he came sixteenth in the private member’s bill ballot held at the beginning of the 2021–22 session. Baroness Howe of Idlicote, now retired from the House of Lords but formerly a Crossbench member, introduced a version of the bill in the 2019–21 session. However, this earlier version did not progress beyond first reading.

What would the bill do?

The bill would compel the Government to bring into force sections of the Digital Economy Act 2017 relating to online pornography by 20 June 2022. Lord Morrow has said this would “ensure children were protected from online pornography by the introduction of age verification for commercial pornographic websites”. It would also “allow a regulator to ask internet service providers to block websites that contain illegal extreme pornographic material”. He explained the rationale for the proposed measure as follows:

This bill is needed because age verification was never implemented and the need to remove extreme pornography has become more acute since 2017, not least since there is widespread consensus about the harmful role violent pornography can play in violence against women and girls. The Government’s draft Online Safety Bill is not clear about whether age verification requirements will be required nor how extreme pornography will be treated. Furthermore, the Online Safety Bill is not expected to be implemented until at least 2024 and maybe later, leaving children and women without the online protections provided by part 3 for potentially another two years.

Overview of the bill’s provisions

The bill has one substantive clause. This reads that the “secretary of state must make regulations under section 118(6) (commencement) of the Digital Economy Act 2017 to ensure that by 20 June 2022 all provisions under part 3 (online pornography) of that act have come into force”.

The bill would extend to England and Wales, Scotland and Northern Ireland, and would come into force on receiving royal assent.

Background to the proposal

The Explanatory Notes to the Digital Economy Act 2017 explain that part 3 of the act included provisions to require commercial providers of pornography (defined as material designed primarily to cause sexual arousal and stimulation) to have age verification controls in place where such content was accessed online from the UK. The notes further explain that the act would allow for a designated regulator, envisaged to be the British Board of Film Classification, to “notify payment providers such as credit card companies of non-compliant sites to enable them to consider whether to withdraw services”. The regulator would also be able to “require internet service providers to take steps to prevent access to offending material”.

Many of the provisions in part 3 of the act have yet to be brought into force. The Government has said it does not intend to activate them. In October 2019, the then Secretary of State for Digital, Culture, Media and Sport, Nicky Morgan (now Baroness Morgan of Cotes), published a written statement in which she said the Government would “not be commencing part 3 of the Digital Economy Act 2017 concerning age verification for online pornography”. Ms Morgan indicated the act’s objectives relating to online pornography would instead be delivered through the Government’s proposed online harms regulatory regime, which would also cover social media platforms.

In December 2020, the Government published a response to the consultation held on its online harms white paper. This elaborated on the reasoning for seeking to protect children online through the online harms regulatory framework instead of part 3 of the Digital Economy Act 2017:

One of the criticisms of the Digital Economy Act was that its scope did not cover social media companies where a considerable quantity of pornographic material is accessible to children. The Government’s new approach will include social media companies and sites where user-generated content can be widely shared, including commercial pornography sites. Where pornography sites have such functionalities (including video and image sharing, commenting and live streaming) they will be subject to the duty of care. The online harms regime will capture both the most visited pornography sites and pornography on social media, therefore covering the vast majority of sites where children are exposed to pornography. Taken together we expect this to bring into scope more online pornography that children can currently access than the narrower scope of the Digital Economy Act.

The response added that the new regulator, expected to be Ofcom, would “determine appropriate levels of risk-based and proportionate protection for children”. It added that forthcoming online harms legislation would not “mandate the use of specific technological approaches to prevent children from accessing age-inappropriate content and to protect them from other harms”. Instead, Ofcom would be able to recommend the use of age assurance or verification technologies as required.

In May 2021, the Government published a draft Online Safety Bill to implement the new online harms framework. This included a provision to repeal part 3 of the Digital Economy Act 2017. In July 2021, Baroness Berridge, then a Parliamentary Under Secretary of State at the Department for Education, commented on the provisions of the draft bill in a follow-up letter to an oral question on the subject of protecting children online. She said the draft bill would go further than part 3 of the Digital Economy Act 2017 in “protect[ing] children from a broader range of harmful content on a wider range of services”. She explained that “services which are likely to be accessed by children will be required to provide further protections for children from content and activity which is legal but harmful to them”. This would be via a “duty in legislation to undertake regular child risk assessments to assess the nature and level of risk of their service specifically for children”, and a requirement to “put in place effective systems and processes to protect children from harm on their service”. She continued:

The legislation will capture the most visited pornography sites, and pornography on other sources such as social media, video-sharing platforms, forums and via image or video search engines. The majority of these would not fall within scope of part 3, but will fall within the scope of online safety legislation. We expect companies to use age verification technologies to prevent children from accessing services which pose the highest risk of harm to children, such as online pornography. Ofcom will set out the steps companies must take to protect children in its codes of practice. If a company wishes to take an alternative approach, it must demonstrate that it delivers at least the same level of protection for children. Ofcom will have a range of enforcement powers at its disposal to take action in the event of non-compliance.

In a report published earlier in July, the House of Lords Communications and Digital Committee deemed the Government’s draft bill “inadequate” for protecting children from harm, particularly in relation to pornographic websites. In response, the Government said it would “use the pre-legislative scrutiny process to explore whether further measures to protect children are required”.

On 12 November 2021, the House of Lords held a second reading debate on a private member’s bill sponsored by Baroness Kidron (Crossbench) that would require Ofcom to produce a statutory code ensuring age assurance systems meet minimum standards. Speaking on behalf of the Government during the debate, Lord Parkinson of Whitley Bay, a Parliamentary Under Secretary of State at the Department for Digital, Culture, Media and Sport, said that ministers were “exploring ways to provide wider protections for children from accessing online pornography” through the draft Online Safety Bill undergoing pre-legislative scrutiny, “including on sites not currently within the draft bill’s scope”. He added the Government was also “interested in exploring whether it would be possible to expedite key parts of the Online Safety Bill, including work relating to age assurance”.

Read more

Cover image by Compare Fibre on Unsplash.