In response to the reply we received from officials at the Department of Digital, Culture, Media and Sport, we have again written to the Secretary of State to seek clarification of the government’s policies, ahead of the imminent publication of a re-draft of the Online Safety Bill.
The welcome announcement that “all providers who publish or place pornographic content on their services” will be required “to prevent children from accessing that content,” was somewhat undermined by the detail in the letter sent to us which suggested that this measure would once again be relegated to secondary legislation. That will mean a further delay of 1-2 years before Ofcom is in a position to even begin enforcement activity.
The Deparment put forward two rather weak arguments for this:
1.”This will ensure the legislation remains agile and flexible”
This suggests the government may one day wish to remove pornograghy from the list of harms. We are not sure Ministers would want to defend that argument. While some new harms may emerge in future and regulations provide a good way to add them to the list of Priority Harms, it is no easier to argue that porn will become harmless in future, than it is to suggest terrorist content or CSAM should be removable at the stroke of a minister’s pen.
2. “This will also allow for parliamentary oversight and democratic debate”
This implies that detailed regulations (known as “secondary legislation”) get more scrutiny in Parliament than the Bill itself, which is not the case by any means. The new statute will be subect to review by both Lords and Commons, as a whole and in Committee, line-by-line.
The letter also naively claims that Ofcom will only need to apply to the courts for business disruption measures (including blocking) in the most serious cases – this is to massively overestimate the regulator’s ability to persuade over a million adult sites, mostly based overseas, to apply age checks without legal backing for the threat of enforcement measures. It simply will not happen.
Letter to DCMS 8-3-2022
While it is good to see the government has accepted the principle that we should keep kids off pornographic sites, there seems to be little urgency in doing so. The prevarication that led up to the abandonment of the Digital Economy Act may see history repeat itself. Truly, for this policy, where there is a will there is a way. If ministers want action on this, then they can, today, ask the Informaton Commissioner, John Edwards, to enforce existing laws to protect children’s data which is being abused on an industrial scale by adult websites, and tomorrow, they can put all the necessary legislation into the Online Safety Bill itself, recognise the preparatory work done by the BBFC as a sufficient legal basis for Ofcom to proceed, and ensure children are no longer exposed to ever-more extreme adult content within weeks of the Online Safety Bill becoming law.