The focus of Age Verification has been on the censorship of general porn websites since the Digital Economy Act was passed in April 2017. However there is a smaller subset of adult Video on Demand websites that have been under the cosh, under the
auspices of the EU's Audio Visual Media Services directive, since several years earlier.
Don't ask what's difference between a general porn website and a Video on Demand website subjected to AVMS Rules. The EU law governing this is pitiful and it
is impossible to determine this difference from the law as written. ATVOD, the first official porn censor to have addressed this issue, must have wasted thousands of pounds trying to refine the laws into something that may make sense to the business
affected. They failed, and so then Ofcom wasted thousands more arbitrating on this impossible task and writing some incredibly long explanations to justify their decisions.
Peter Johnson was the chief censor at ATVOD and he put in motion the
morality campaign against porn in the name of age verification. He put in place onerous rules, requiring strict age verification for access to porn. The rub was that the rules only applied to British business, and this effectively put an end to the
British adult internet trade. UK companies simply could not compete with overseas websites that are free and open to access. Nearly all British businesses had to either close, move their operations abroad, or sell out to foreign companies.
For
example Simply Broadband was very successful up and coming business that could have become a major competitor with its knowledge of British pron favourites. The company was promptly sold abroad. Another major loss was the European branch of Playboy TV
that operated from the UK at the time. The company simply moved somewhere else.
Eventually Ofcom saw where this was going, Ofcom sacked ATVOD and took on the censorship role itself. A few small niche websites were saved, but the vast majority of
the UK business had already been lost to foreign interests.
And of course no kids were being protected by the AVMS rules. Foreign tube sites rules the roost, and if anything they gained from British competitors being snuffed out.
Presumably
it was this observation that led to the introduction of porn censorship via age verification in the Digital Economy Act. This time round the Age Verification would also apply to foreign companies.
Recalling that there still a few British
businesses that are still subject to age verification requirements via Ofcom's AVMS regime, Ofcom decided that it needed to update the AVMS rules to reflect the changes expected through the Digital Economy Act. Ofcom more or less proposed to adopt the
DEA rules into its own codes. Ofcom launched a public consultation in September 2018 to square away its proposed rules with the remnants of the British adult trade.
In fact, rather confirming the mass extinction of British business, only two VoD
companies responded to the the consultation. Portland TV (who run the softcore Television X channel) and Virgin Media who runs a Video on Demand service which includes a few 18 rated softcore porn films.
In fact Virgin Media was pretty miffed that
the new rules meant that 18 rated porn material had to be brought into the age verification regime. In particular it noted that it was not easy for set top boxes to be adapted for age verification, not to mention the fact that customers electing to use
such boxes were probably not those most computer literate types who would be happy to mess round with apps to get their age verified.
Ofcom decided to more or less rewrite the AVMS rules to reflect the BBFC censorship regime, and the updated rules
are given below. However thankfully Ofcom made it clear that the rules would not come into force until the Digital Economy Act rules came into force. So presumably these updated rules are now also canned.
So the few remaining British porn
companies can heave a sigh of relief, at least until the next moral panic, maybe the Information Commissioner's Age Appropriate Design rules to be announced towards the end of next month (November 2019).
Ofcom's censorship
proposed rules for British Video on Demand services
Rule 11: Harmful Material: Protection of Under-18s (Specially Restricted Material)
An ODPS must not contain any specially restricted material
unless the material is made available in a manner which secures that persons under the age of 18 will not normally see or hear it.
“Specially restricted material” means—
(a) a video work in
respect of which the video works authority has issued a R18 classification certificate;
(b) material whose nature is such that it is reasonable to expect that, if the material were contained in a video work submitted to the video works authority for
a classification certificate, the video works authority would issue a R18 classification certificate; or
(c) other material that might seriously impair the physical, mental or moral
development of persons under the age of 18;
(d) a video
work—
(i) in respect of which the video works authority has issued an 18 certificate, and
(ii) whose nature is such that it is reasonable to assume that its principal purpose is to cause sexual arousal, or
(e) material whose nature is such that it is reasonable—
(i) to assume that its principal purpose is to cause sexual arousal, and
(ii) to expect that, if the material were contained in a video work submitted to the video works authority for a classification
certificate, the video works authority would issue an 18 certificate.
In determining whether any material falls within (b) or (e), regard must be had to any guidelines issued by the video works authority as to its policy in relation to the issue of classification certificates.
Guidance on ‘Specially restricted material’:
In considering any particular case, Ofcom’s approach in the first instance will be to determine whether the content in question falls within the definition of
‘specially restricted material’.
Content which complies with the Ofcom Broadcasting Code, or that has been classified by the British Board of Film Classification (BBFC) in any category except ‘R18’ or as a ‘sex work’ at ‘18’,
would not normally be considered as material that “might seriously impair” and would not normally be subject to the requirements of Rule 11.
R18 and R18-equivalent material, sex works at 18 and material equivalent to sex works at
18, and any other material which might seriously impair under 18s is subject to the requirements of Rule 11. All ‘material’ in the ODPS, including still images and other non-video content is subject to this requirement.
By ‘sex
works’ we mean works whose primary purpose is sexual arousal or stimulation. Sex works at ‘18’ includes sex works that contain only sexual material which may be simulated. The R18 certificate is primarily for explicit works of consenting sex (including
non-simulated sexual activity) or strong fetish material involving adults.
The R18 certificate and the 18 certificate are issued by the British Board of Film Classification in respect of video works being supplied on a physical
video recording such as a DVD. There is no requirement for material being provided on an ODPS to be classified by the BBFC, but Ofcom must have regard to the BBFC Classification Guidelines when determining whether material on an ODPS is R18-equivalent
(i.e. if it was contained in a video work submitted for classification it is reasonable to assume that the BBFC would issue an R18 certificate). Ofcom must also have regard to the BBFC Classification Guidelines when determining whether material on an
ODPS is equivalent to sex work material at 18 (i.e. it is reasonable to assume that its principal purpose is to cause sexual arousal and if it was contained in a video work for classification the BBFC would issue an 18 certificate).
For more information on the R18 certificate and the 18 certificate for sex works, and the type of content likely to be awarded these certificates, see the British Board of Film Classification’s website:
www.bbfc.co.uk .
We note that the BBFC has regulatory duties to assess whether ‘pornographic material’ is not normally accessible by under 18s on online
commercial services available in the UK (excluding the ODPS regulated by Ofcom). In outline, ‘pornographic material’ includes both R18 equivalent material, and 18-equivalent material with a principal purpose of sexual arousal. In assessing whether
content falls within the definition of ‘specially restricted material’ under Rule 11, Ofcom will have regard to any advice issued by the BBFC on its approach to assessing whether content is ‘pornographic material’, including advice on what content can be
displayed without age-verification.
Guidance on Age Verification:
Provided the material is not illegal or otherwise prohibited (see Rule 14), content which Ofcom considers to fall under this Rule
(i.e. ‘specially restricted material’) may be made available on an ODPS, provided access is controlled in a manner which secures that people aged under eighteen ‘will not normally see or hear’ such material.
In assessing
age-verification arrangements under Rule 11, Ofcom will follow the BBFC’s principle-based approach for assessing the compliance of age-verification solutions on online commercial services available in the UK. Ofcom recognises that the BBFC’s principles
were designed in relation to online services, and that age-verification solutions on ODPS in practice may vary across different platforms. However, the same principles apply on ODPS regardless of the platform on which the service is delivered.
The criteria against which Ofcom will assess whether an age-verification solution secures that ‘specially restricted material’ is not normally seen or heard by those under 18 are set out below:
a. An effective control mechanism at the point of registration or access to the specially restricted material by the end-user which verifies that the user is aged 18 or over at the point of registration or access
-
a. [note repeated (a) is in original document] Use of age-verification data that cannot be reasonably known by another person, without theft or fraudulent use of data or identification documents or be readily obtained or predicted by
another person
b. A requirement that either a user age-verify each visit or access is restricted by controls, manual or electronic, such as, but not limited to, password or personal identification numbers. A consumer must be
logged out by default unless they positively opt-in for their log in information to be remembered
c. The inclusion of measures which authenticate age-verification data and measures which are effective at preventing use by
non-human operators including algorithms
The following are features which Ofcom does not consider, in isolation, comply with the age-verification requirement under this Rule:
a. relying solely on the user to confirm their age with no cross-checking of information, for example by using a 'tick box' system or requiring the user to only input their date of birth
b. using a
general disclaimer such as 'anyone using this website will be deemed to be over 18'
c. accepting age-verification through the use of online payment methods which may not require a user to be over 18. (For example, Ofcom will
not regard confirmation of ownership of a Debit, Solo or Electron card or any other card where the card holder is not required to be 18 or over to be verification that a user of a service is aged 18 or over.)
d. checking
against publicly available or otherwise easily known information such as name, address and date of birth
When considering the compliance of age-verification solutions with Rule 11, we will have regard to the BBFC’s assessments of age-verification used by online adult services to ensure compliance with the regulatory requirements, as
published on its website.
Ofcom recommends that ODPS providers adopt good practice regarding data protection in the design and implementation of age-verification solutions. The Information Commissioner’s Office (ICO) is responsible for enforcing data
protection legislation and providers should have regard to its guidance in this area.
Where they are required, age-verification solutions must be fit for purpose and effectively managed so as to ensure that people aged under
eighteen will not normally see or hear specially restricted material. Ofcom will consider the adequacy and effectiveness of age-verification solutions on a case by case basis and keep them under review in the context of ODPS. Responsibility for ensuring
that any required age-verification solution is in place and is operating effectively rests at all times with the person with editorial responsibility for the ODPS. The ‘Guidance on who needs to notify’ document explains how to determine the person with
‘editorial responsibility’ for the ODPS.
