POSR0003

Written evidence submitted by CARE (Christian Action Research and Education)

Introduction

1.         CARE (Christian Action Research and Education) is a well-established mainstream Christian charity providing resources and helping to bring Christian insight and experience to matters of public policy and practical caring initiatives. CARE advised MPs and Peers during the debates on the Online Safety Act and worked with other organisations to ensure robust age verification of pornographic websites was included in the Act.

Summary

2.         Pornography is a known harm to children. It inhibits their mental and emotional development and leads to inappropriate views on relationships and sex. It is also highly addictive and inhibits brain function[1] and proper sexual and relational maturity.

3.         While we are pleased with the measures adopted by the Government to protect children through the Online Safety Act (OSA), they will only be effective if they are vigorously enforced. Effective enforcement is critical to the success of the Act and meeting public expectations.

4.         Ofcom already has age verification guidance for UK Video on Demand (VoD) providers so should be able to act swiftly in implementing similar requirements for social media/websites under the OSA.  CARE is concerned that Ofcom will seek to extend the 18 month deadline for submitting guidance to the Secretary of State.  Ofcom has not demonstrated robust enforcement of age verification for VoD providers which must be addressed to ensure robust enforcement under the OSA.

Age Verification: Video on Demand

5.         The Online Safety Act, while a hugely significant step forward in protecting children online, is not the first piece of UK legislation to include an element of age verification.  Since 2009, Video-on-demand services (VoDs) have been regulated under the Communications Act 2003.  In 2014 and 2020 further amendments were made enacting sections 368E (4) and (4a) which require VoDs to restrict access to "specially restricted material" which is content that has been or would be classified as R18 by the British Board of Film Classification (BBFC), or material which might seriously impair the physical, mental or moral development of under-18s.[2] The law stipulates that this material can only be made available by VoDs in a way which ensures that under-18s will not normally see or hear it.

6.         These age verification measures, while different in wording to the Online Safety Act provisions in respect of social media/websites, place a similar duty on VoDs, namely, to ensure people under the age of 18 do not access what the Communications Act terms as ‘harmful material’. These provisions are to be enforced by Ofcom. This in effect is age verification for VoDs.

7.         Although the latest provisions came into force in November 2020, Ofcom only issued guidance in December 2021, instructing operators of a VoD service how they could comply with the law. Ofcom state that compliance with the law includes “applying robust age verification measures for pornographic material.”[3] This is similar to language used by the Government in respect of the Online Safety Act.  When announcing new clauses in the Lords the Minister described the new duties as ‘highly effective’ age verification and ‘robust’.[4] While the wording of the Online Safety Act and the Communications Act differ, it is clear that the policy intent is the same, robust or highly effective age verification must be put in place to ensure children cannot access adult material.

8.         Ofcom interprets the VoD duty under the Communications Act to apply to “R18 and R18-equivalent material and 18-level “sex works”)” and for these services “there should be in place robust age verification measures that either operate as an age-gate to block users from the entire platform or to filter material in a way that can protect under-18s. This should be an age verification system which verifies that the user is aged 18 or over and prevents under-18s from accessing the pornographic service.” While Ofcom do not prescribe a technology to comply with the law, the guidance indicates what does not amount to age verification, namely, self-declaration of age, debit cards, disclaimers or relying on name and address data only.[5]

9.         The provisions for VoDs are similar to the requirements in the OSA and the regulatory approach adopted by Ofcom is expected to be similar for the duties under the Online Safety Act. It is therefore clear that Ofcom are in a position to move quickly after Royal Assent to ensure that age verification is in place for all pornographic content. Ofcom can draw upon their experience with VoDs and swiftly consult and implement similar guidance.

Implementation of Age Verification Duties in the Online Safety Act

10.     CARE, however, is concerned that Ofcom does not appear to be drawing on its institutional experience in respect of age verification duties under the Online Safety Act. While the Ofcom “Roadmap to Regulation”, published in July 2022, is now out of date, it does provide an insight into Ofcom’s intentions as to how it will implement duties under the Act and enforce them. The roadmap envisages that child safety duties, including age verification, will not be implemented until nearly two years after Royal Assent. The roadmap makes no mention of Ofcom’s expertise in this area and that it has already implemented a similar scheme for online VoD services.[6]

11.     By virtue of clause 38 (11) of the Online Safety Act, Ofcom must submit guidance on age verification to the Secretary of State within 18 months of Royal Assent. While this can be extended by the Secretary of State for one year, given that Ofcom has already developed and enforce age verification guidance, CARE believes that this extension should not be necessary, and that Ofcom are in a position to implement requirements under the Online Safety Act in a swift and timely manner. We are concerned that if Ofcom are not held to account, they will simply seek to utilise the full 18 months allowed under the Act and request (and be granted) a further one-year extension, as this would fit with their plans outlined in the roadmap. That would mean age verification guidance would not be published until the summer of 2025 at the earliest and potentially it could be 2026 before guidance is published. This seems unconscionable when guidance, with similar obligations and understood in similar terms by Ofcom, is already issued and operational for VoDs. We would implore the Committee to hold Ofcom to account and ensure that they, at worst, keep to the timetable set out in the Act without recourse to the built-in extension option. 

Enforcement of Age Verification Duties

12.     CARE is concerned that while guidance for VoDs has been in place since 2021, Ofcom has so far not moved to enforce age verification requirements. To date no VoD service has had enforcement action taken against it for failure to comply with the Communications Act, while only one service is under investigation[7]. Many VoD services are adult only. Currently there are 276 VoD operators registered in the UK. While it is hard to tell which services are adult only and which services contain adult content as part of their service, on a review of names only, it is clear that at least 35 VoDs are adult only services.[8]

13.     In January 2023 Ofcom initiated a review of age verification and VoD services.[9] Given the latest revision of the law has been in place for almost 3 years and guidance published for almost 2 years, it is alarming that to date, Ofcom have taken a light touch approach to enforcement. Ofcom have merely notified providers of their obligations; they state that they will ‘consider’ enforcement if platforms continue to ignore the law.

14.     CARE is concerned that this light touch approach, if adopted in respect of provisions in the Online Safety Act, will simply lead to an overwhelming majority of pornography sites and social media platforms simply ignoring the law. Age verification can only work if it is enforced. Ofcom have not demonstrated through their action on VoD services, that they are prepared to take robust action.

15.     While VoDs represent a small number of adult platforms. the Online Safety Act is vast in scope. The new age verification requirements will cover an estimated 25,100 platforms in the UK[10] and 4-5 million pornographic websites worldwide. This raises the question of Ofcom’s capacity and desire to take the necessary enforcement action at the scale which will be required. Para 73 of the Act’s Impact Assessment suggests that only 30-40 platforms will face enforcement action.[11] Public expectation is that age verification for pornography websites and social media will be implemented and enforced and that all pornographic providers will be forced to comply. Ofcom needs to be held to account to ensure the Act delivers what has been promised.

16.     Given Ofcom’s history with VoD enforcement, CARE is concerned that it will not take the necessary robust action at scale to ensure the provisions of the Act are complied with. Without effective enforcement, there is no incentive for organisations to invest in age verification technology[12] or take any other necessary actions to protect children, thus nullifying the effectiveness of the legislation.

October 2023