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Child Protection in the Digital Age

13th July 2017

I was delighted when the Government introduced its Digital Economy Bill in the last session which gave effect to the 2015 General Election manifesto commitment to introduce age verification checks on pornographic websites. When introducing the Bill, the Government made it clear that they were committed to the principle that what is illegal offline is illegal online and of course this was very properly reflected in the enforcement standard of the new regulator created by the Bill. Material that would not be considered acceptable for video/DVD classification, known as “prohibited material” would not be permitted online, just as it is not permitted offline.  Legal but age restricted content would only be permitted online behind age verification.

I was, therefore, alarmed when, having drafted and introduced the Bill on this basis, and taken it completely through the Commons, the Government moved Report Stage amendments in the Lords to change what was not allowed from “prohibited material” to a significantly weaker enforcement standard, “extreme pornography”.  The new enforcement standard resulting from the Government’s intervention means that material that would not be permitted and rated offline in classified DVDs will now be accommodated online if it is behind age verification.

The consequences of this shift are considerable. Whereas previously the Bill did not seek to accommodate child sex abuse images, now non-photographic child sex abuse images, including very lifelike CGI child sex abuse images, will be accommodated so long as they are behind age verification. Interestingly it was precisely images of this kind that The Times found on Facebook the month after the Government successfully pressed its unfortunate amendments.  Very properly no such accommodation is made offline. Moreover, whereas previously the Bill did not make space for violent pornography, now pornographic violence will be accommodated so long as it is not life threatening and does not result in serious injury to the breasts, anus or genitals and is behind age verification. Once again, very properly, no such accommodation is made offline.

The truth is that it is not possible for the Government to develop and introduce a Bill that enforces the “prohibited material” standard online that has been the accepted norm offline for many years, only to undo that standard during the Parliamentary debate, without this having the effect of sending the message that this material is in some senses acceptable and worth accommodating. In a country where the revelation of the failings of the authorities in respect of child sex abuse in Rochdale, Rotherham and Oxford resulted in the conviction that we must do everything we can to address the problem and the wider child sex abuse inquiry, how is it acceptable for the Government to ask Parliament to make space for illegal child sex abuse images that are likely to stimulate a desire for sexual contact with real children? In a country where – quite rightly – we are told that the Government wants to take a strong line against violence against women with a new Draft Domestic Violence and Abuse Bill, why would one want to amend the legislation to make space for pornographic violence so long as it does not result in serious injury to three named body parts, inferring that serious injury to other body parts – so long as it is not life threatening – is worth accommodating through special Government amendments?  What will be the impact on regulating other media content as the Government has now set up two different enforcement standards online and offline?

If anyone thought that the public would be grateful for this intervention they would be wrong. A ComRes poll of 2,090 GB adults aged 18+ by the charity CARE between 17th and 19th March 2017 asked whether the law should permit or prevent adults from seeing online pornography that involved ‘the infliction of pain and possibly lasting physical damage whether real or simulated.’ The response was very clear: 76% said that the law should prevent access, rising to 81% of women. When asked about accessing online ‘content which is likely to encourage an interest in sexually abusive activity’ the response was even stronger: 81% said that the law should prohibit it, rising to 85% of women.

I recognise, of course, that some have attempted to suggest that perhaps the change is acceptable because the Internet Watch Foundation can deal effectively with non-photographic child sex abuse images. This, however, is not the case. The IWF is a non-statutory body which does a wonderful job dealing with photographic child sex abuse images because it works co-operatively with jurisdictions which do not accommodate this material. However, the countries from which the non-photographic child sex abuse images emanate tend to be jurisdictions where this material is permitted and where consequently the IWF has no way of dealing effectively with the problem. The age-verification regulator, by contrast, has statutory powers to require internet service providers to block certain sites, powers – crucially – that applied to non-photographic child sex abuse images prior to the Government’s amendments!

I also recognise there is a mechanism in the Bill for a review of the definitions in the Bill between 12 to 18 months after Part 3 comes into effect, which is likely to be next summer. This review could be used to address some of the problems with the extreme pornography definition in the Bill. However, using the law to accommodate non-photographic child sex abuse images for one month, let alone 18 or indeed the three years it would likely involve if one also allows time for taking action and amending the legislation, simply is not credible. At the very least this aspect of the enforcement powers must be restored in the next ten months or so before Part 3 comes into force.

Moreover, the case for making this change swiftly, and not waiting for the review, has been greatly compounded by the fact that the Government has since acknowledged that the new definition is not complete. When I raised concerns about it at Third Reading the Minister conceded “that there is still work to do”.  When the amendments subsequently went to the Commons, the Minister said in respect of the definition “we regard that as unfinished business.” Moreover, Claire Perry, the MP for Devizes noted that the Minister “has assured us from the Dispatch Box and in meetings of his firm commitment to making sure that these definitional questions are resolved in such a way as to enable all parties to support them.” On top of that, the Labour Front Bench spokeswoman Baroness Jones of Whitchurch, said during Report Stage that the definition of extreme pornography “is not ideal” and that we should work towards a “definition based on something deliverable online and offline with equal strength.”

In this context, I have been very pleased to introduce my Digital Economy Act 2017 (Amendment) (Definition of Extreme Pornography) Bill in the House of Lords this week to provide a legislative vehicle to address the problem as quickly as possible. If passed my Bill would ensure that the current standards offline will be enforced online, as the Digital Economy Bill originally proposed. I am not saying that it is the final word on the subject. There is, of course, scope for amendment and debate but what I will not move on is my firm conviction that we cannot countenance 18 months or more of accommodating CGI and other non-photographic child sex abuse images behind age verification before taking further action. That would amount to a shocking lack of moral leadership that would not reflect well on the Government, on Parliament or on us as a nation.


2 comments on “Child Protection in the Digital Age”

  1. John Carr says:

    If a new medal was created for services to children in the online space Lady Howe would be its first and highly deserving recipient!

  2. In March 2017 I wrote an article where I sought to discuss what should constitute “prohibited material” under the then Digital Economy Bill 2016-17

    https://www.linkedin.com/pulse/prohibited-materials-opinion-alistair-kelman

    My article on Prohibited Material sought to explore what should constitute video material which should always be banned from viewing on television and the internet. It immediately ran into a problem with FOX.

    In my article, I considered whether accidental deaths and serious injury should be shown or whether respect for the dead and the traumatic effect of such materials should give rise to a presumption that they are not permitted. To illustrate this point I cited the British 1965 U-rated movie – Those Magnificent Men in their Flying Machines – which, in its opening sequence shows what to the casual observer might be thought to be something that is making fun of the death of brave aviators. I explain that this is not actually the case and walk the reader through what is actually shown. To illustrate this I tried to put up a five-minute clip from the title sequence to the movie at a YouTube hotlink in the article. This was instantly identified by YouTube as being a potential copyright infringement and blocked.

    I, therefore, filed a copyright claim against FOX saying that this blocking is incorrect and that I am entitled to illustrate a legal argument by reference to a video copy of a substantial part of the title sequence. Open, fair debate on important legal issues is clearly ‘fair use’ within the meaning of the law and must be allowed.

    In a follow-up note to YouTube I said “While I wish the matter to be properly debated and discussed I do not wish FOX’s content to be misused by others who may wish to use FOX’s content for illegitimate purposes. Consequently, I believe that the appropriate approach to this matter would be for YouTube to generate a private link to the video which I have uploaded – i.e. a link which would not be indexed and accessible to all users on the internet or findable through searching using YouTube. This would mean that the only people who would find this particular movie extract are those who knew its URL. Since the only citation of the URL would appear in my article this will mean that the only people who visit and view the opening sequence of the movie will be readers of my article who are engaged in debating and discussing the points I am raising. I suggest that this approach would be a sensible compromise to the blanket copyright claims of FOX which would do not properly address the lawful exception (legal debate and education) which I rely upon to support my claims.”

    FOX had until 1st July to respond to my appeal under the YouTube rules. On 16 June they cleared my use. Consequently, the opening sequence from the movie can now be viewed via my article but the links are not indexed or searchable. This seems to be an appropriate approach to the issue.

    Similar problems are likely to occur with video images from inquests. During the Coroner’s Inquests into the London Bombings of 7 July 2005, there was a dispute concerning photographs and videos taken on board the Underground trains in which so many died or sustained serious injuries. For a twenty-first century event, the unusual feature of 7/7 was that with the exception of the Number 30 bus which was bombed in Tavistock Square, the atrocity occurred underground. Therefore, the outside world did not see images of the awful carnage beneath our streets.

    When it came to the public Inquests four years later, media representatives understandably assumed that they would be able to publish whatever images were viewed by the Coroner. The understanding was that all evidence viewed in Court 73 of the High Court would be uploaded onto the Inquest Intranet and thence to their website for all to see. A Protocol dated October 2005 had been reached between the DPP, Chief Police Officers and the Media companies all working on the assumption that material once seen in court could be seen by all. The Protocol includes the following : The aim of the CPS is to ensure that the principle of open justice is maintained – that justice is done and seen to be done – while at the same time balancing the rights of defendants to a fair trial with any likely consequences for victims or their families and witnesses occasioned by the release of prosecution material to the media. Prosecution material which has been relied upon by the Crown in court [and which] should normally be released to the media .

    The Coroner Lady Justice Hallett decided that stills and video footage of the Underground trains in the tunnels would be seen by all participants in the Inquests who needed to do so, but that there would not be wider distribution.

    Today with the ubiquity of mobile phone cameras that position could not be enforced. Compliance with open justice and Article 10 of the European Convention on Human Rights suggests that a fair compromise might be to only permit viewing of the equivalent content via the coroner’s site under suitable restrictions.

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