Child Protection in the Digital Age

13^th 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.