UK Government Watch

The House of Commons approved the upcoming internet porn censorship scheme to be implemented by the BBFC from about Easter 2019.

The debate was set for 3 sections to approve each of the 3 documents defining the BBFC censorship guidelines. Each was allotted 90 minutes for a detailed debate on how the BBFC would proceed. However following a Brexit debate the debate was curtailed to a single 90 minute session covering all 3 sections.

It didn't matter much as the debate consisted only of MPs with a feminist agenda saying how the scope of the censorship didn't go far enough. Even the government spokeswoman leading the debate didn't understand why the rules didn't go further in extending sites being censored to social media; and why the range of porn to be banned outright wasn't more extensive.

Hardly a word said was relevant to the topic of examining the BBFC guidelines.  Issues of practicality, privacy, the endangerment of porn viewers from fraud, outing and blackmail are clearly of no interest to MPs.

The MPs duly nodded their approval of the BBFC regime and so it will soon be announced when the censorship will commence.

The age verification service provider was quick to follow up with a press release extolling the virtues of its porn viewing card approach. Several newspapers obliging published articles using it, eg  See  Porn sites 'will all require proof of age from April 2019' -- here's how it'll work from metro.co.uk

On Tuesday the House of Lords approved the BBFC's scheme to implement internet porn censorship in the UK. Approval will now be sought from the House of Commons.

The debate in the Lords mentioned a few issues in passing but they seemed to be avoiding taking about some of the horrors of the scheme.

The Digital Economy Act defining the law behind the scheme offers no legal requirement for age verification providers to restrict how they can use porn viewers data. Lords mentioned that it is protected under the GDPR rules but these rules still let companies do whatever they like with data, just with the proviso that they ask for consent. But of course the consent is pretty mandatory to sign up for age verification, and some of the biggest internet companies in the world have set the precedent they can explain wide ranging usage of the data claiming it will be used say to improve customer experience.

Even if the lords didn't push very hard, people at the DCMS or BBFC have been considering this deficiency, and have come up with the idea that data use should be voluntarily restricted according to a kite mark scheme. Age verification schemes will have their privacy protections audited by some independent group and if they pass they can display a gold star. Porn viewers are then expected to trust age verification schemes with a gold star. But unfortunately it sounds a little like the sort of process that decided that cladding was safe for high rise blocks of flats.

The lords were much more concerned about the age verification requirements for social media and search engines, notably Twitter and Google Images. Clearly age verification schemes required for checking that users are 13 or 18 will be very different from an 18 only check, and will be technically very different. So the Government explained that these wider issues will be addressed in a new censorship white paper to be published in 2019.

The lords were also a bit perturbed that the definition of banned material wasn't wide enough for their own preferences. Under the current scheme the BBFC will be expected to ban totally any websites with child porn or extreme porn. The lords wondered why this wasn't extended to cartoon porn and beyond R18 porn, presumably thinking of fisting, golden showers and the like. However in reality if the definition of bannable porn was extended, then every major porn website in the word would have to be banned by the BBFC. And anyway the government is changing its censorship rules such that fisting and golden showers are, or will soon be, allowable at R18 anyway.

The debate revealed that the banks and payment providers have already agreed to ban payments to websites banned by the BBFC. The government also confirmed its intention to get the scheme up and running by April. Saying that, it would seem a little unfair for the website's 3 month implementation period to be set running before their age verification options are accredited with their gold stars. Otherwise some websites would waste time and money implementing schemes that may later be declared unacceptable.

Next a motion to approve draft legislation over the UK's age-verification regulations will be debated in the House of Commons. Stephen Winyard, AVSecure s chief marketing officer, told XBIZ:

We are particularly pleased that the prime minister is set to approve the draft guidance for the age-verification law on Monday. From this, the Department for Digital, Culture, Media and Sport will issue the effective start date and that will be around Easter.

But maybe the prime minister has a few more urgent issues on her mind at the moment.

The Isle of Man's Department of Home Affairs is consulting on a draft Sexual Offences and Obscene Publications Bill 2018 (the Bill). The purpose of the Bill is to modernise and consolidate the legislation and address important matters such as:

updating the definition of consent to ensure that it provides appropriate and clear protection for victims reviewing sentences for offences addressing image-based abuse modernising the legislation relating to pornography and obscene publications and the pardoning and removal of criminal records relating to historic consensual homosexual offences

The bill seems to echo mostly what is already in law around the UK.

The following four motions are expected to be debated together in the House of Lords on 11th December 2018:

Online Pornography (Commercial Basis) Regulations 2018

Lord Ashton of Hyde to move that the draft Regulations laid before the House on 10 October be approved. Special attention drawn to the instrument by the Joint Committee on Statutory Instruments, 38th Report, 4th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee B)

Guidance on Age-verification Arrangements

Lord Ashton of Hyde to move that the draft Guidance laid before the House on 25 October be approved. Special attention drawn to the instrument by the Joint Committee on Statutory Instruments, 39th Report, 4th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee B)

Lord Stevenson of Balmacara to move that this House regrets that the draft Online Pornography (Commercial Basis) Regulations 2018 and the draft Guidance on Age-verification Arrangements do not bring into force section 19 of the Digital Economy Act 2017, which would have given the regulator powers to impose a financial penalty on persons who have not complied with their instructions to require that they have in place an age verification system which is fit for purpose and effectively managed so as to ensure that commercial pornographic material online will not normally be accessible by persons under the age of 18.

Guidance on Ancillary Service Providers

Lord Ashton of Hyde to move that the draft Guidance laid before the House on 25 October be approved. Special attention drawn to the instrument by the Joint Committee on Statutory Instruments, 39th Report, 4th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee B)

The DCMS and BBFC age verification scheme has been widely panned as fundamentally the law provides no requirement to actually protect people's identity data that can be coupled with their sexual preferences and sexuality. The scheme only offers voluntary suggestions that age verification services and websites should protect their user's privacy. But one only has to look to Google, Facebook and Cambridge Analytica to see how worthless mere advice is. GDPR is often quoted but that only requires that user consent is obtained. One will have to simply to the consent to the 'improved user experience' tick box to watch the porn, and thereafter the companies can do what the fuck they like with the data.

See criticism of the scheme:

Security expert provides a detailed break down of the privacy and security failures of the age verification scheme

Parliamentary scrutiny committee condemns BBFC Age Verification Guidelines

Parliamentary scrutiny committee condemns as 'defective' a DCMS Statutory Instrument excusing Twitter and Google images from age verification.

There's a joint committee to scrutinise laws passed in parliament via Statutory Instruments. These are laws that are not generally presented to parliament for discussion, and are passed by default unless challenged.

The committee has now taken issue with a DCMS law to excuse the likes of social media and search engines from requiring age verification for any porn images that may get published on the internet. The committee reports from a session on 21st November 2018 that the law was defective and 'makes an unexpected use of the enabling power'. Presumably this means that the DCMS has gone beyond the scope of what can be passed without full parliamentary scrutiny.

Draft S.I.: Reported for defective drafting and for unexpected use of powers Online Pornography (Commercial Basis) Regulations 2018

7.1 The Committee draws the special attention of both Houses to these draft Regulations on the grounds that they are defectively drafted and make an unexpected use of the enabling power.

7.2 Part 3 of the Digital Economy Act 2017 ("the 2017 Act") contains provisions designed to prevent persons under the age of 18 from accessing internet sites which contain pornographic material. An age-verification regulator 1 is given a number of powers to enforce the requirements of Part 3, including the power to impose substantial fines. 2

7.3 Section 14(1) is the key requirement. It provides:

"A person contravenes [Part 3 of the Act] if the person makes pornographic material available on the internet to persons in the United Kingdom on a commercial basis other than in a way that secures that, at any given time, the material is not normally accessible by persons under the age of 18".

7.4 The term "commercial basis" is not defined in the Act itself. Instead, section 14(2) confers a power on the Secretary of State to specify in regulations the circumstances in which, for the purposes of Part 3, pornographic material is or is not to be regarded as made available on a commercial basis. These draft regulations would be made in exercise of that power. Regulation 2 provides:

"(1) Pornographic material is to be regarded as made available on the internet to persons in the United Kingdom on a commercial basis for the purposes of Part 3 of the Digital Economy Act 2017 if either paragraph (2) or (3) are met.

(2) This paragraph applies if access to that pornographic material is available only upon payment.

(3) This paragraph applies (subject to paragraph (4)) if the pornographic material is made available free of charge and the person who makes it available receives (or reasonably expects to receive) a payment, reward or other benefit in connection with making it available on the internet.

(4) Subject to paragraph (5), paragraph (3) does not apply in a case where it is reasonable for the age-verification regulator to assume that pornographic material makes up less than one-third of the content of the material made available on or via the internet site or other means (such as an application program) of accessing the internet by means of which the pornographic material is made available.

(5) Paragraph (4) does not apply if the internet site or other means (such as an application program) of accessing the internet (by means of which the pornographic material is made available) is marketed as an internet site or other means of accessing the internet by means of which pornographic material is made available to persons in the United Kingdom."

7.5 The Committee finds these provisions difficult to understand, whether as a matter of simple English or as legal propositions. Paragraphs (4) and (5) are particularly obscure.

7.6 As far as the Committee can gather from the Explanatory Memorandum, the policy intention is that a person will be regarded as making pornographic material available on the internet on a commercial basis if:

(A) a charge is made for access to the material; OR

(B) the internet site is accessible free of charge, but the person expects to receive a payment or other commercial benefit, for example through advertising carried on the site.

7.7 There is, however, an exception to (B): in cases in which no access charge is made, the person will NOT be regarded as making the pornographic material available on a commercial basis if the material makes up less than one-third of the content on the internet site--even if the person expects to receive a payment or other commercial benefit from the site. But that exception does not apply in a case where the person markets it as a pornographic site, or markets an "app" as a means of accessing pornography on the site.

7.8 As the Committee was doubtful whether regulation 2 as drafted is effective to achieve the intended result, it asked the Department for Digital, Culture, Media and Sport a number of questions. These were designed to elicit information about the regulation's meaning and effect.

7.9 The Committee is disappointed with the Department's memorandum in response, printed at Appendix 7: it fails to address adequately the issues raised by the Committee.

7.10 The Committee's first question asked the Department to explain why paragraph (1) of regulation 2 refers to whether either paragraph (2) or (3) "are met" 3 rather than "applies". The Committee raised this point because paragraphs (2) and (3) each begin with "This paragraph applies if ...". There is therefore a mismatch between paragraph (1) and the subsequent paragraphs, which could make the regulation difficult to interpret. It would be appropriate to conclude paragraph (1) with "is met" only if paragraphs (2) and (3) began with "The condition in this paragraph is met if ...". The Department's memorandum does not explain this discrepancy. The Committee accordingly reports regulation 2(1) for defective drafting.

7.11 The first part of the Committee's second question sought to probe the intended effect of the words in paragraph (4) of regulation 2 italicised above, and how the Department considers that effect is achieved.

7.12 While the Department's memorandum sets out the policy reasons for setting the one-third threshold, it offers little enlightenment on whether paragraph (4) is effective to achieve the policy aims. Nor does it deal properly with the second part of the Committee's question, which sought clarification of the concept of "one-third of ... material ... on ... [a] means .... of accessing the internet ...".

7.13 The Committee is puzzled by the references in regulation 2(4) to the means of accessing the internet. Section 14(2) of the 2017 Act confers a power on the Secretary of State to specify in regulations circumstances in which pornographic material is or is not to be regarded as made available on the internet on a commercial basis. The means by which the material is accessed (for example, via an application program on a smart phone) appears to be irrelevant to the question of whether it is made available on the internet on a commercial basis. The Committee remains baffled by the concept of "one-third of ... material ... on [a] means ... of accessing the internet".

7.14 More generally, regulation 2(4) fails to specify how the one-third threshold is to be measured and what exactly it applies to. Will the regulator be required to measure one-third of the pictures or one-third of the words on a particular internet site or both together? And will a single webpage on the site count towards the total if less than one-third of the page's content is pornographic--for example, a sexually explicit picture occupying 32% of the page, with the remaining 68% made up of an article about fishing? The Committee worries that the lack of clarity in regulation 2(4) may afford the promoter of a pornographic website opportunities to circumvent Part 3 of the 2017 Act.

7.15 The Committee is particularly concerned that a promoter may make pornographic material available on one or more internet sites containing multiple pages, more than two-thirds of which are non-pornographic. For every 10 pages of pornography, there could be 21 pages about (for example) gardening or football. Provided the sites are not actively marketed as pornographic, they would not be regarded as made available on a commercial basis. This means that Part 3 of the Act would not apply, and the promoter would be free to make profits through advertising carried on the sites, while taking no steps at all to ensure that they were inaccessible to persons under 18.

7.16 The Committee anticipates that the shortcomings described above are likely to cause significant difficulty in the application and interpretation of regulation 2(4). The Committee also doubts whether Parliament contemplated, when enacting Part 3 of the 2017 Act, that the power conferred by section 14(2) would be exercised in the way provided for in regulation 2(4). The Committee therefore reports regulation 2(4) for defective drafting and on the ground that it appears to make an unexpected use of the enabling power.

Digital ID was discussed by the Commons Science and Technology Committee on 13th November 2018.

Carol Monaghan Committee Member:  At the moment, platforms such as Facebook require age verification, but that simply means entering a date of birth, and children can change that. If you are planning to extend that, or look at how it might apply to other social media, how confident are you that the age verification processes would be robust enough to cope?

Margot James MP, Minister for Digital and the Creative Industries: At the moment, I do not think that we would be, but age verification tools and techniques are developing at pace, and we keep abreast of developments. At the moment , we think we have a robust means by which to verify people's age at 18; the challenge is to develop tools that can verify people's age at a younger age, such as 13. Those techniques are not robust enough yet, but a lot of technological research is going on, and I am reasonably confident that, over the next few years, there will be robust means by which to identify age at younger than 18.

Stephen Metcalfe Committee Member: My question is on the same point about how we can create a verification system that you cannot just get around by putting in a fake date of birth. I assume that the verification for 18 - plus is based around some sort of credit card, or some sort of bank card. The issue there is that, potentially, someone could borrow another person's card, because it does not require secret information--it requires just the entering of the 16-digit number, or something. But on the younger ages, given that we are talking about digital life and digital literacy, do you think that the time has come to talk about having a digital verified ID that young people get and which you cannot fiddle with--a bit like an online ID card, or digital passport? I know that that idea has been around a little while.

Margot James: It has. I do think that the time has come when that is required, but there are considerable hoops to go through before we can arrive at a system of digital identity, including someone's age, that is acknowledged, respected and entered into by the vast majority of people. As you probably know, the Government have committed in prior years to the Verify system, which we think has got as far as it can go, which is not far enough. We have a team of excellent policy officials in the DCMS looking afresh at other techniques of digital identity. It is a live issue and there have been many attempts at it; there is frustration, and not everybody would agree with what I have said. But you asked my view, and that is it--and the Department is focusing a lot of energy on that area of research.

Chair: Can you imagine that your legislation, when it comes, could include the concept, to which Stephen referred, of a digital identity for children?

Margot James: That is a long way off--or it is not next year, and probably not the year after, given how much consultation it would require. The new work has only just started, so it is not a short-term solution, and I do not expect to see it as part of our White Paper that we publish this winter. That does not mean to say that we do not think that it is important; we are working towards getting a system that we think could have public support.

To go slightly beyond the terms of your inquiry, with regard to the potential for delivering a proper digital relationship between citizen and G overnment through delivery of public services, a digital identity system will be important. We feel that public service delivery has a huge amount to gain from the digital solution.

Bill Grant Committee Member:: I am pleased to note that the Government are addressing issues that have been with us for nearly a decade--the dark side of social media and the risk to children, not least the risk that we all experience as parliamentarians. Can you offer any reason why it has taken so long for Government to begin that process? Would you be minded to accelerate the process to address the belated start?

Margot James: One reason is that progress has been made by working with technology companies. The Home Office has had considerable success in working with technology companies to eradicate terrorist content online. To a lesser but still significant extent, progress has also been made on a voluntary basis with the reduction in child abuse images and child sexual exploitation. I said "significant , " but this is a Home Office area--I am working closely with the Home Office, because the White Paper is being developed in concert with it--and it is clear that it does not feel that anything like enough is being done through voluntary measures.

Chair: Do you feel that?

Margot James: Yes, I do. A lot of the highly dangerous material has gone under the radar in the dark web, but too much material is still available, apparently, on various platforms, and it takes them too long to remove it.

Chair: Ultimately, the voluntary approach is not working adequately.

Margot James: Exactly--that is our view now. I was trying to address the hon. Member's question about why it had taken a long time. Partly it is that technology changes very fast , but, partly, it is because voluntary engagement was delivering, but it has impressed itself on us in the last 12 months that it is not delivering fast enough or adequately. We have not even talked about the vast range of other harms, some of which are illegal and some legal but harmful, and some in the grey area in between, where decidedly inadequate progress has been made as a result of the many instances of voluntary engagement, not just between the Government and the technology sector but between charitable organisations and non-governmental organisations, including the police.

Bill Grant: It was envisaged earlier that there would be some sort of regulator or ombudsman, but , over and above that , Martha Lane Fox's think - tank proposed the establishment of an office for responsible technology, which would be overarching, in whatever form the regulation comes. Would you be minded to take that on board?

Margot James: That is one proposal that we will certainly look at, yes. Martha Lane Fox does a lot of very good work in this area, has many years' experience of it, and runs a very good organisation in the "tech for good" environment, so her proposals are well worth consideration. That is one reason why I was unable to give a specific answer earlier, because there are good ideas, and they all need proper evaluation. When the White Paper is published, we will engage with you and any other interested party , and invite other organisations to contribute to our thinking, prior to the final legislation being put before Parliament and firming up the non-legislative measures, which are crucial. We all know that legislation does not solve every ill, and it is crucial that we continue the very good work being done by many internet companies to improve the overall environment.

Age Verification and adult internet censorship was discussed by the Commons Science and Technology Committee on 13th November 2018.

Carol Monaghan Committee Member: The Digital Economy Act made it compulsory for commercial pornography sites to undertake age verification, but implementation has been subject to ongoing delays. When do we expect it to go live?

Margot James MP, Minister for Digital and the Creative Industries: We can expect it to be in force by Easter next year. I make that timetable in the knowledge that we have laid the necessary secondary legislation before Parliament. I am hopeful of getting a slot to debate it before Christmas, before the end of the year. We have always said that we will permit the industry three months to get up to speed with the practicalities and delivering the age verification that it will be required to deliver by law. We have also had to set up the regulator--well, not to set it up, but to establish with the British Board of Film Classification , which has been the regulator, exactly how it will work. It has had to consult on the methods of age verification, so it has taken longer than I would have liked, but I would balance that with a confidence that we have got it right.

Carol Monaghan: Are you confident that the commercial pornography companies are going to engage fully and will implement the law as you hope?

Margot James: I am certainly confident on the majority of large commercial pornography websites and platforms being compliant with the law. They have engaged well with the BBFC and the Department , and want to be on the right side of the law. I have confidence, but I am wary of being 100% confident, because there are always smaller and more underground platforms and sites that will seek ways around the law. At least, that is usually the case. We will be on the lookout for that, and so will the BBFC. But the vast majority of organisations have indicated that they are keen to comply with the legislation.

Carol Monaghan: One concern that we all have is that children can stumble across pornography. We know that on social media platforms, where children are often active, up to a third of their content can be pornographic, but they fall outside the age verification regulation because it is only a third and not the majority. Is that likely to undermine the law? Ultimately the law, as it stands, is there to safeguard our children.

Margot James: I acknowledge that that is a weakness in the legislative solution. I do not think that for many mainstream social media platforms as much of a third of their content is pornographic, but it is well known that certain social media platforms that many people use regularly have pornography freely available. We have decided to start with the commercial operations while we bring in the age verification techniques that have not been widely used to date. But we will keep a watching brief on how effective those age verification procedures turn out to be with commercial providers and will keep a close eye on how social media platforms develop in terms of the extent of pornographic material, particularly if they are platforms that appeal to children--not all are. You point to a legitimate weakness, on which we have a close eye.

Pornographic Websites: Age Verification - Question

House of Lords on 5th November 2018 .

Baroness Benjamin Liberal Democrat

To ask Her Majesty 's Government what will be the commencement date for their plans to ensure that age-verification to prevent children accessing pornographic websites is implemented by the British Board of Film Classification .

Lord Ashton of Hyde The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport

My Lords, we are now in the final stages of the process, and we have laid the BBFC 's draft guidance and the Online Pornography (Commercial Basis) Regulations before Parliament for approval. We will ensure that there is a sufficient period following parliamentary approval for the public and the industry to prepare for age verification. Once parliamentary proceedings have concluded, we will set a date by which commercial pornography websites will need to be compliant, following an implementation window. We expect that this date will be early in the new year.

Baroness Benjamin

I thank the Minister for his Answer. I cannot wait for that date to happen, but does he share my disgust and horror that social media companies such as Twitter state that their minimum age for membership is 13 yet make no attempt to restrict some of the most gross forms of pornography being exchanged via their platforms? Unfortunately, the Digital Economy Act does not affect these companies because they are not predominantly commercial porn publishers. Does he agree that the BBFC needs to develop mechanisms to evaluate the effectiveness of the legislation for restricting children's access to pornography via social media sites and put a stop to this unacceptable behaviour?

Lord Ashton of Hyde

My Lords, I agree that there are areas of concern on social media sites. As the noble Baroness rightly says, they are not covered by the Digital Economy Act . We had many hours of discussion about that in this House. However, she will be aware that we are producing an online harms White Paper in the winter in which some of these issues will be considered. If necessary, legislation will be brought forward to address these, and not only these but other harms too. I agree that the BBFC should find out about the effectiveness of the limited amount that age verification can do; it will commission research on that. Also, the Digital Economy Act itself made sure that the Secretary of State must review its effectiveness within 12 to 18 months.

Lord Griffiths of Burry Port Opposition Whip (Lords), Shadow Spokesperson (Digital, Culture, Media and Sport), Shadow Spokesperson (Wales)

My Lords, once again I find this issue raising a dynamic that we became familiar with in the only too recent past. The Government are to be congratulated on getting the Act on to the statute book and, indeed, on taking measures to identify a regulator as well as to indicate that secondary legislation will be brought forward to implement a number of the provisions of the Act. My worry is that, under one section of the Digital Economy Act , financial penalties can be imposed on those who infringe this need; the Government seem to have decided not to bring that provision into force at this time. I believe I can anticipate the Minister 's answer but--in view of the little drama we had last week over fixed-odds betting machines--we would not want the Government, having won our applause in this way, to slip back into putting things off or modifying things away from the position that we had all agreed we wanted.

Lord Ashton of Hyde

My Lords, I completely understand where the noble Lord is coming from but what he said is not quite right. The Digital Economy Act included a power that the Government could bring enforcement with financial penalties through a regulator. However, they decided--and this House decided--not to use that for the time being. For the moment, the regulator will act in a different way. But later on, if necessary, the Secretary of State could exercise that power. On timing and FOBTs, we thought carefully--as noble Lords can imagine--before we said that we expect the date will be early in the new year,

Lord Addington Liberal Democrat

My Lords, does the Minister agree that good health and sex education might be a way to counter some of the damaging effects? Can the Government make sure that is in place as soon as possible, so that this strange fantasy world is made slightly more real?

Lord Ashton of Hyde

The noble Lord is of course right that age verification itself is not the only answer. It does not cover every possibility of getting on to a pornography site. However, it is the first attempt of its kind in the world, which is why not only we but many other countries are looking at it. I agree that sex education in schools is very important and I believe it is being brought into the national curriculum already.

The Earl of Erroll Crossbench

Why is there so much wriggle room in section 6 of the guidance from the DCMS to the AV regulator? The ISP blocking probably will not work, because everyone will just get out of it. If we bring this into disrepute then the good guys, who would like to comply, probably will not; they will not be able to do so economically. All that was covered in British Standard PAS 1296, which was developed over three years. It seems to have been totally ignored by the DCMS. You have spent an awful lot of time getting there, but you have not got there.

Lord Ashton of Hyde

One of the reasons this has taken so long is that it is complicated. We in the DCMS , and many others, not least in this House, have spent a long time discussing the best way of achieving this. I am not immediately familiar with exactly what section 6 says, but when the statutory instrument comes before this House--it is an affirmative one to be discussed--I will have the answer ready for the noble Earl.

Lord West of Spithead Labour

My Lords, does the Minister not agree that the possession of a biometric card by the population would make the implementation of things such as this very much easier?

Lord Ashton of Hyde

In some ways it would, but there are problems with people who either do not want to or cannot have biometric cards.

Reforms to the law are required to protect victims from online and social media-based abuse, according to a new Report by the Law Commission for England and Wales.

In its Scoping Report assessing the state of the law in this area, published today [1st November 2018] the Law Commission raises concerns about the lack of coherence in the current criminal law and the problems this causes for victims, police and prosecutors. It is also critical of the current law's ability to protect people harmed by a range of behaviour online including:

• Receiving abusive and offensive communications
• "Pile on" harassment, often on social media
• Misuse of private images and information

The Commission is calling for:

• reform and consolidation of existing criminal laws dealing with offensive and abusive communications online
• a specific review considering how the law can more effectively protect victims who are subject to a campaign of online harassment
• a review of how effectively the criminal law protects personal privacy online

Professor David Ormerod QC, Law Commissioner for Criminal Law said:

"As the internet and social media have become an everyday part of our lives, online abuse has become commonplace for many."

"Our report highlights the ways in which the criminal law is not keeping pace with these technological changes. We identify the areas of the criminal law most in need of reform in order to protect victims and hold perpetrators to account."

Responding to the Report, Digital Minister Margot James said:

"Behaviour that is illegal offline should be treated the same when it's committed online. We've listened to victims of online abuse as it's important that the right legal protections are in place to meet the challenges of new technology.

"There is much more to be done and we'll be considering the Law Commission's findings as we develop a White Paper setting out new laws to make the UK a safer place to be online.

Jess Phillips MP, Chair, and Rt Hon Maria Miller MP, Co-Chair, of the All-Party Parliamentary Group on Domestic Violence and Abuse and Katie Ghose, Chief Executive of Women's Aid, welcomed the Report saying:

"Online abuse has a devastating impact on survivors and makes them feel as though the abuse is inescapable. Online abuse does not happen in the 'virtual world' in isolation; 85% of survivors surveyed by Women's Aid experienced a pattern of online abuse together with offline abuse. Yet too often it is not taken as seriously as abuse 'in the real world'.

"The All-Party Parliamentary Group on Domestic Violence and Abuse has long called for legislation in this area to be reviewed to ensure that survivors are protected and perpetrators of online abuse held to account. We welcome the Law Commission's report, which has found that gaps and inconsistencies in the law mean survivors are being failed. We support the call for further review and reform of the law".

The need for reform

We were asked to assess whether the current criminal law achieved parity of treatment between online and offline offending. For the most part, we have concluded that abusive online communications are, at least theoretically, criminalised to the same or even a greater degree than equivalent offline offending. However, we consider there is considerable scope for reform:

• Many of the applicable offences do not adequately reflect the nature of some of the offending behaviour in the online environment, and the degree of harm it can cause.
• Practical and cultural barriers mean that not all harmful online conduct is pursued in terms of criminal law enforcement to the same extent that it might be in an offline context.
• More generally, criminal offences could be improved so they are clearer and more effectively target serious harm and criminality.
• The large number of overlapping offences can cause confusion.
• Ambiguous terms such as "gross offensiveness" "obscenity" and "indecency" don't provide the required clarity for prosecutors.

Reforms would help to reduce and tackle, not only online abuse and offence generally but also:

• "Pile on" harassment , where online harassment is coordinated against an individual. The Report notes that "in practice, it appears that the criminal law is having little effect in punishing and deterring certain forms of group abuse".
• The most serious privacy breaches -- for example the Report highlights concerns about the laws around sharing of private sexual images. It also questions whether the law is adequate to deal with victims who find their personal information e.g. about their health or sexual history, widely spread online.

Impact on victims

The Law Commission heard from those affected by this kind of criminal behaviour including victims' groups, the charities that support them, MPs and other high-profile victims.

The Report analyses the scale of online offending and suggests that studies show that the groups in society most likely to be affected by abusive communications online include women, young people, ethnic minorities and LGBTQ individuals. For example, the Report finds that gender-based online hate crime, particularly misogynistic abuse, is particularly prevalent and damaging.

It also sets out the factors which make online abuse so common -- including the disinhibition of communicating with an unseen victim and the ease with which victims can be identified.

The Report highlights harms caused to the victims of online abuse which include:

• psychological effects, such as depression and anxiety
• emotional harms, such as feelings of shame, loneliness and distress
• physiological harms, including suicide and self-harm in the most extreme cases
• exclusion from public online space and corresponding feelings of isolation
• economic harms
• wider societal harms

It concludes that abuse by groups of offenders online, and the use of visual images to perpetrate abuse are two of the ways in which online abuse can be aggravated.

Next steps

The Department for Digital, Culture, Media and Sport (DCMS) will now analyse the Report and decide on the next steps including what further work the Law Commission can do to produce recommendations for how the criminal law can be improved to tackle online abuse.

Comment: Law Commission must safeguard freedom of expression

See  statement from indexoncensorship.org

Index on Censorship urges the Law Commission to safeguard freedom of expression as it moves towards the second phase of its review of abusive and offensive online communications.

The Law Commission published a report on the first phase of its review of criminal law in this area on 1 November 2018.

While Index welcomes the report's recognition that current UK law lacks clarity and certainty, the review is addressing questions that impact directly on freedom of expression and the Law Commission should now proceed with great caution.

Safeguarding the fundamental right to freedom of expression should be a guiding principle for the the Law Commission's next steps. Successive court rulings have confirmed that freedom of expression includes having and expressing views that offend, shock or disturb. As Lord Justice Sir Stephen Sedley said in a 1999 ruling:

"Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having".

Foreign Secretary Jeremy Hunt also reaffirmed the UK's commitment to the protection and promotion of freedom of expression this week , asserting the importance of a free media in particular as a cornerstone of democracy.

The next phase of the review should outline how the UK can show global leadership by setting an example for how to improve outdated legislation in a way that ensures freedom of expression, including speech that is contentious, unwelcome and provocative.

Index on Censorship chief executive Jodie Ginsberg said:

"Index will be studying the Law Commission's first phase report on its review of abusive and offensive online communications carefully. Future proposals could have a very negative impact on freedom of expression online and in other areas. Index urges the Law Commission to proceed with care."

The Government has announced the organisations that will sit on the Executive Board of a new national body to tackle online harms in the UK.

The UK Council for Internet Safety (UKCIS) is the successor to the UK Council for Child Internet Safety (UKCCIS), with an expanded scope to improve online safety for everyone in the UK.

The Executive Board brings together expertise from a range of organisations in the tech industry, civil society and public sector.

Margot James, Minister for Digital and the Creative Industries said:

Only through collaborative action will the UK be the safest place to be online. By bringing together a wealth of expertise from a wide range of fields, UKCIS can be an example to the world on how we can work together to face the challenges of the digital revolution in an effective and responsible way.

UKCIS has been established to allow these organisations to collaborate and coordinate a UK-wide approach to online safety.

It will contribute to the Government's commitment to make the UK the safest place in the world to be online, and will help to inform the development of the forthcoming Online Harms White Paper.

Priority areas of focus will include online harms experienced by children such as cyberbullying and sexual exploitation; radicalisation and extremism; violence against women and girls; hate crime and hate speech; and forms of discrimination against groups protected under the Equality Act, for example on the basis of disability or race.

CEO of Internet Matters Carolyn Bunting said:

We are delighted to sit on the Executive Board of UKCIS where we are able to represent parents needs in keeping their children safe online.

Online safety demands a collaborative approach and by bringing industry together we hope we can bring about real change and help everyone benefit from the opportunities the digital world has to offer.

The UKCIS Executive Board consists of the following organisations:

• Apple
• BBC
• Childnet
• Children's Commissioner
• Commission for Countering Extremism
• End Violence Against Women Coalition
• Facebook
• GCHQ
• Google
• ICO
• Independent Advisory Group on Hate Crime
• Internet Matters
• Internet Watch Foundation
• Internet Service Providers and Mobile Operators (rotating between BT, Sky, TalkTalk, Three, Virgin Media, Vodafone)
• Microsoft
• National Police Chiefs' Council
• National Crime Agency - CEOP Command
• Northern Ireland Executive
• NSPCC
• Ofcom
• Parentzone
• Scottish Government
• TechUK
• Twitter
• UKCIS Evidence Group Chair
• UKIE
• Welsh Assembly

The UKCIS Executive Board is jointly chaired by Margot James, Minister for Digital and the Creative Industries (Department for Digital, Culture, Media and Sport); Victoria Atkins, Minister for Crime, Safeguarding and Vulnerability (Home Office); and Nadeem Zahawi, Minister for Children and Families (Department for Education). It also includes representatives from the Devolved Administrations of Scotland, Wales and Northern Ireland. Board membership will be kept under periodic review, to ensure it represents the full range of online harms that the government seeks to tackle.

As far as I can see if a porn website verifies your age with personal data, it will probably also require you tick tick a consent box with a hol load of small print that nobody ever reads. Now if that small print lets it forward all personal data, coupled with porn viewing data, to the Kremlin's dirty tricks and blackmail department then that's ok with the the Government's age verification law. So for sure some porn viewers are going to get burnt because of what the government has legislated and because of what the BBFC have implemented.

So perhaps it is not surprising that the BBFC has asked the government to pick up the tab should the BBFC be sued by people harmed by their decisions. After all it was the government who set up the unsafe environment, not the BBFC.

Margot James The Minister of State, Department for Culture, Media and Sport announced in Parliament:

I am today laying a Departmental Minute to advise that the Department for Digital, Culture, Media and Sport (DCMS) has received approval from Her Majesty's Treasury (HMT) to recognise a new Contingent Liability which will come into effect when age verification powers under Part 3 of the Digital Economy Act 2017 enter force.

The contingent liability will provide indemnity to the British Board of Film Classification (BBFC) against legal proceedings brought against the BBFC in its role as the age verification regulator for online pornography.

As you know, the Digital Economy Act introduces the requirement for commercial providers of online pornography to have robust age verification controls to protect children and young people under 18 from exposure to online pornography. As the designated age verification regulator, the BBFC will have extensive powers to take enforcement action against non-compliant sites. The BBFC can issue civil proceedings, give notice to payment-service providers or ancillary service providers, or direct internet service providers to block access to websites where a provider of online pornography remains non-compliant.

The BBFC expects a high level of voluntary compliance by providers of online pornography. To encourage compliance, the BBFC has engaged with industry, charities and undertaken a public consultation on its regulatory approach. Furthermore, the BBFC will ensure that it takes a proportionate approach to enforcement and will maintain arrangements for an appeals process to be overseen by an independent appeals body. This will help reduce the risk of potential legal action against the BBFC.

However, despite the effective work with industry, charities and the public to promote and encourage compliance, this is a new law and there nevertheless remains a risk that the BBFC will be exposed to legal challenge on the basis of decisions taken as the age verification regulator or on grounds of principle from those opposed to the policy.

As this is a new policy, it is not possible to quantify accurately the value of such risks. The Government estimates a realistic risk range to be between 2£1m - 2£10m in the first year, based on likely number and scale of legal challenges. The BBFC investigated options to procure commercial insurance but failed to do so given difficulties in accurately determining the size of potential risks. The Government therefore will ensure that the BBFC is protected against any legal action brought against the BBFC as a result of carrying out duties as the age verification regulator.

The Contingent Liability is required to be in place for the duration of the period the BBFC remain the age verification regulator. However, we expect the likelihood of the Contingent Liability being called upon to diminish over time as the regime settles in and relevant industries become accustomed to it. If the liability is called upon, provision for any payment will be sought through the normal Supply procedure.

It is usual to allow a period of 14 Sitting Days prior to accepting a Contingent Liability, to provide Members of Parliament an opportunity to raise any objections.

People's medical records will be combined with social and smartphone surveillance to predict who will pick up bad habits and stop them getting ill, under radical government proposals.

Matt Hancock, the health secretary, is planning a system of predictive prevention, in which algorithms will trawl data on individuals to send targeted health nags to those flagged as having propensities to health problems, such as taking up smoking or becoming obese.

The creepy plans have already attracted privacy concerns among doctors and campaigners, who say that the project risks backfiring by scaring people or being seen to be abusing public trust in NHS handling of sensitive information.