Written evidence submission to the Public Bill Committee on the Digital Economy Bill

Posted at 12:29 on 28 Oct 2016 by Pandora / Blake

Tags: age verification, BBFC, classification, Digital Economy Bill, freedom of expression, Myles Jackman, obscenity, politics, porn, privacy, R18

Digital Economy Bill

Written evidence submitted by Myles Jackman and Pandora Blake (DEB 61)

 

Who we are

1 This evidence is submitted jointly by Myles Jackman and Pandora Blake. Myles Jackman is a solicitor specialising in obscenity law, who obtained Not Guilty verdicts in two landmark obscenity trials in 2012, R v Walsh and R v Peacock. The same year, he was awarded the Law Society’s Junior Lawyer of the Year Excellence Award. Pandora Blake is an independent scholar and multi award-winning feminist pornographer, whose ethical porn site was unsuccessfully censored in 2015 by ATVOD under the AVMS Regulations 2014, and reinstated in 2016 after a successful appeal to Ofcom. Both have significant concerns around the impact of obscenity law on sexual minorities, and are active campaigners for civil liberties and sexual freedom.

 

Executive Summary

2 We have serious concerns about the impact of the age verification policy outlined in the Digital Economy Bill, regarding: the potential for loss of personal privacy; credit card fraud and identity theft; increased state surveillance; misuse of data by private companies; embarrassing data leaks; adults prevented from viewing legal materials; and serious and significant infringement of freedom of expression. We argue that this policy is unnecessary, disproportionate, unworkable, and unintentionally risks vesting more harm rather than good for the following reasons:

A) Necessity: Lack of evidence

Age verification fails to meet the test for necessity, since the research base showing that exposure to pornography is harmful to children simply does not exist; and therefore it presents a disproportionate interference with personal liberty.

B) Proportionality: Lack of safeguards for personal privacy

The absence of privacy protections creates an enormous and disproportionate risk of the loss, breach or hack of private sexual preferences linked to personal identifiers.

C) Economic Interference: Impact on UK SMEs

Imposing compulsory age verification on smaller and free content providers will cause businesses to close and have a significant financial impact on the UK economy.

D) Freedom of Expression: Problems with classification

The simplistic definition of pornography provided in the Bill is unworkable in practice; and would impede freedom of expression, being based on dated guidelines that are not in accordance with "current moral standards".

Recommendations

R1 Given the lack of evidence supporting the claims on which the policy is based, we strongly recommend that the age verification section be excised from the Digital Economy Bill in its entirety.

R2 SRE needs to be a mandatory part of the school curriculum. Government time and funding would be better spent on supporting this than on restricting access to online porn.

R3 Privacy protection must not be left up to the discretion of individual websites or age verification providers; it must be enshrined on the face of the Bill itself. We support the inclusion of the privacy amendment drafted by the Open Rights Group. [1]

R4 Clauses should be added to the Bill specifying that enforcement should be limited to large businesses that receive high amounts of traffic (for instance, sites which receive hundreds of thousands of visitors per day, or more).

R5 Alternatively, or additionally, a financial "cap" could be set, limiting the scope of the age verification requirement to businesses with a minimum annual turnover (e.g. £100,000 per annum, such as the threshold used by Italy in its implementation of the EU AVMS 2014).

23 Exercise of functions by the age-verification regulator

(1) The age-verification regulator may, if it thinks fit, choose to exercise its powers under sections 20 and 22 principally in relation to persons who, in the age-verification regulator’s opinion -

(a) make pornographic material or prohibited material available on the

internet on a commercial basis to a large number of persons, or a large

number of persons under the age of 18, in the United Kingdom; or

(b) generate a large amount of turnover by doing so.

R6 This section could be improved by removing the trailing "or" and replacing it with an "and", thus limiting the scope of the policy to business with both high traffic and high turnover, with a particular emphasis on those visited by substantial numbers of under 18s. This provision should be confirmed within the wording of the Bill, and not left to the discretion of the regulator.

R7 All 18 classifiable content should be accessible online without the need to age verify, removing the stigmatising double standard between media intended to arouse, and mainstream entertainment.

R8 If 18 classifiable content is included in the scope of the Bill, clauses should be added specifying dispensations for works that are educational, political, or have artistic or cultural merit.

R9 The R18 ceiling should be raised to include consensual adult sexual activities which are legal to perform, including fisting, urolagnia, female ejaculation, bondage and facesitting.

R10 If the Bill is to rely on the R18 category, the CPS Guidance on the OPA which defines what content is prohibited must be updated in line with recent case law.

Lack of evidence

3 We agree that it is important to keep children safe online, and we support evidence-based efforts to reduce purported harm. The age verification policy contained within the Digital Economy Bill claims to be based on research showing that exposure to pornography is harmful to children. However this research base simply does not exist.

4 Evidence cited in support of age verification does not stand up to scrutiny. For instance, the DCMS consultation document cited a 2015 NSPCC survey that has been widely criticised by academics; an open letter debunking it was signed by 38 leading professors, researchers and sex educators. [2] This survey is typical of the flimsy research and shoddy statistics underpinning the claim that under 18s are harmed by accidental or unwanted exposure to online pornography, and that the scale of this problem justifies the impact of the proposed legislation. (See Annex 1.)

5 Age verification will not prevent internet-literate teenagers from accessing porn via VPNs, TOR and proxies if they are determined to do so. Furthermore, the claim that increasing numbers of young children are accidentally encountering porn online, and are distressed by it, is not based on fact. Studies which demonstrate "concern" about pornography reflect adult relationships with it, which is projected onto young people more than it is shared by them. This policy is founded on a fear of children becoming sexual, not any concrete evidence of harm.

6 Both the evidence gathered by the expert panel for DCMS [3] in November 2015, and Ofcom’s own overview of the potential impact of R18 material [4] from May 2005, show that there is no robust evidence to prove that young people are harmed by encountering sexual images. In fact the data from Denmark, Japan and the USA suggests that greater access to pornography is correlated with lower rates of sexual violence, higher reporting of sex crimes, and lower rates of STI transmission and teenage pregnancy.

7 It is unnecessary and unhelpful to differentiate between 18 classifiable material produced "for purposes of arousal" and other 18 classified media. If age verification becomes mandatory for online porn, it will not prohibit young people from accessing films and TV such as Game of Thrones or Fifty Shades of Grey online, both of which contain strong sexual imagery (and arguably problematic messages about consent). Maintaining different standards between mainstream entertainment media and the adult industry is stigmatising, inconsistent and self-defeating. Since children are far more likely to encounter sexual imagery offline than online, [5] it seems backwards to impose stronger access controls on online content.

8 It is nonsense to suppose that young people have only begun to hold sexist or problematic ideas about sex and relationships since they gained access to online porn. Young people were experiencing societal pressures around sex, gender and bodies long before the Internet; and harmful messages about sex and relationships permeate our cultural media. These are no less prevalent in films, TV, books and advertising than they are in porn; the solution is not restricting access, but better SRE and improving young people’s media literacy.

9 This Bill risks preventing young people who are curious about their sexuality and interested in learning about sex, gender and relationships from accessing valuable sex education websites. For instance, a site which teaches safe sex with imagery of someone putting on a condom would be restricted by this legislation. Young people have a right to explore their sexuality, including LGBTQ youth and other young people with marginalised sexualities. Age verification must not prevent young people from learning about sex, or how to keep themselves and their partners safe.

10 Young people who have grown up with access to the Internet are more media literate than we give them credit, and can differentiate between what is real and what is simulated. [6]

11 Many young people do not feel ready to have sex, and see porn as an alternative to real life experimentation - with significant less risk of STI transmission, pregnancy, or emotional hurt. [7]

12 This Bill is a distraction from the real issues. What young people are crying out for is better sex education, focusing on consent and pleasure. They want opportunities to talk about what they might enjoy, and what they might want to do, and to reject the cultural scripts that impose a single approved mode of sexual realisation. [8] Independent sex education needs to be funded and supported by the government, and SRE should take into account what young people are interested in learning.

Recommendations

R1 Given the lack of evidence supporting the claims on which the policy is based, we strongly recommend that the age verification section be excised from the Digital Economy Bill in its entirety.

R2 SRE needs to be a mandatory part of the school curriculum. Government time and funding would be better spent on supporting this than on restricting access to online porn.

Lack of safeguards for personal privacy

13 It is repeatedly claimed that the Digital Economy Bill does not seek to identify the user, only to verify their age. However, most of the software solutions that have been developed to fulfil the age verification requirement to date involve the user surrendering sensitive personal information such as their passport, date of birth, home address, credit card details, private social media posts or mobile phone number. [9]

14 The Bill does not impose adequate safeguards to protect the privacy of users submitting identifying details to age verification providers. [10]

15 Habituating UK internet users to surrendering personal information to gain access to adult content will have lasting implications for cybersecurity. Fraudulent websites will inevitably spring up worldwide urging UK users to submit identifying details, which can then be used for the purposes of identify theft and credit card fraud.

16 The PAS 1296 is insufficient to protect user data: it says little about security requirements or data protection requirements, and provides no strong enforcement for AV solutions to protect user privacy. [11]

17 This Bill must not pave the way for individual websites, or private companies providing federated solutions, to retain data about users’ porn browsing history. A database recording each individual’s personal sexual tastes, connected to an email address or mobile number that could easily reveal their legal identity, would be ripe for hacking. We must not make ourselves vulnerable to another Ashley Madison style data breach; nor to corporations abusing, trading or selling our porn viewing data.

18 Not every adult over 18 has the necessary documentation to verify their age. They might not have the financial security to maintain a credit card or pass a credit check; they might have unstable housing circumstances preventing them from giving proof of address. Passports and driving licenses might be financially inaccessible to those living in poverty. Transgender individuals, particularly trans women, are more at risk of violence or murder than any other group. Survivors of domestic abuse, queer and transgender people are all entitled to sexual expression, but would put themselves in danger by connecting their online activity with their legal name.

19 Despite recent social progress, many sexual subcultures continue to be vilified in the UK, and people who are ‘outed’ as queer, trans or enthusiasts of BDSM risk being publicly shamed, bullied and mocked, including by the press, losing their job or facing threats and violence. Myles Jackman is the Chair of Backlash, [12] a non-profit organisation that advocates for people who are stigmatised on the basis of their sexuality. While it would be wonderful if none of us had anything to lose by revealing our sexual tastes, the reality is that for many of us, privacy is not a luxury but a matter of survival.

20 In reality most methods of age verification rely on a certain level of social stability and affluence: financial credit, a stable address, living without fear of violence. This Bill will maintain a class hierarchy whereby adults who have these privileges are legally entitled to look at sexual media, and adults who don’t have them are not. This echoes the snobbery expressed during the trial of Lady Chatterley's Lover, when Mervyn Griffith-Jones asked the court whether "you would even wish your wife or servants to read [it]." In the history of the British class system some adults have always been considered more adult than others.

21 Online privacy is a right which the UK has made repeated commitments to uphold, and there are many valid reasons why people might wish to keep their legal activities private. Restricting access to online pornography would increase the amount of social stigma associated with it, increasing people’s desire for privacy. It is demeaning to keep records about what adults do with our genitals, and what we think about while we do it.

Recommendations

R3 Privacy protection must not be left up to the discretion of individual websites or age verification providers; it must be enshrined on the face of the Bill itself. We support the inclusion of the privacy amendment drafted by the Open Rights Group. [13]

Impact on UK SMEs

22 Pandora Blake and many other UK adult content providers care about social responsibility, and ethical pornographers do not shrink from our role in protecting children or maintaining good practice. Unfortunately, the costs of age verification will be out of reach for Pandora’s website and most SMEs in the adult industry.

23 Pandora’s niche BDSM website receives over two thousand unique visitors a day, and has a monthly turnover of under two thousand pounds, of which she pays herself a quarter or less after costs - figures which are not unusual for small-scale pornography providers. Age verification solutions range from a cost of £0.05 to £1.50 to check each user. Even the cheapest of these represent a running cost for Pandora of £100 per day, or £3000 per month, simply to allow users access to her website, regardless of whether they go on to become paying customers. This adds up to more than her total turnover.

24 Expecting small businesses to afford additional running costs which are more than their total turnover is unreasonable and unworkable. This policy will put large numbers of self-employed individuals out of work, and will be significantly detrimental to the UK economy.

25 There are very few large businesses producing porn in the UK who could afford to bear the burden of implementing age verification. The majority of UK porn websites are, like Pandora’s, household "cottage industries", often individuals or couples producing content at home. Porn performers who empower themselves by going self-employed and shooting their own content also fall into this category. These niche sites contribute to the diversity of the UK porn industry, which includes a wealth of alternative, feminist, fetish, queer, DIY and homegrown amateur content, alongside the more visible mainstream production companies.

26 Critics of the porn industry often cite its homogeneity as a social issue, claiming it misrepresents real world sex and promotes the objectification of women. These criticisms usually arise from the perceived ubiquity of mainstream heterosexual porn. We submit that the diversity and inclusivity of the UK cottage porn industry challenges the status quo, constituting a flourishing ecosystem of micro-businesses, each supported by modest numbers of UK and international viewers. Bankrupting these businesses will greatly diminish freedom of expression within the UK, and shut down the variety that makes our adult industry culturally diverse.

27 Small adult websites rarely score highly in search engines, are not widely advertised, and are hard to find, catering not to the wider public but to adult members of niche sexual communities. These businesses certainly cannot afford the sort of intrusive "popup" advertising which would bring them to the attention of children. Bankrupting these businesses will not further the aim of protecting under 18s.

Recommendations

R4 Clauses should be added to the Bill specifying that enforcement should be limited to large businesses that receive high amounts of traffic (for instance, sites which receive hundreds of thousands of visitors per day, or more).

R5 Alternatively, or additionally, a financial "cap" could be set, limiting the scope of the age verification requirement to businesses with a minimum annual turnover (e.g. £100,000 per annum, such as the threshold used by Italy in its implementation of the EU AVMS 2014).

23 Exercise of functions by the age-verification regulator

(1) The age-verification regulator may, if it thinks fit, choose to exercise its powers under sections 20 and 22 principally in relation to persons who, in the age-verification regulator’s opinion -

(a) make pornographic material or prohibited material available on the

internet on a commercial basis to a large number of persons, or a large

number of persons under the age of 18, in the United Kingdom; or

(b) generate a large amount of turnover by doing so.

R6 This section could be improved by removing the trailing "or" and replacing it with an "and", thus limiting the scope of the policy to business with both high traffic and high turnover, with a particular emphasis on those visited by substantial numbers of under 18s. This provision should be confirmed within the wording of the Bill, and not left to the discretion of the regulator.

Problems with classification

28 The Bill applies a simplistic definition of pornography which is not workable in practice. Distinguishing between 18 classifiable works produced for purposes of arousal, and 18 classifiable works produced to provoke other emotional or physical responses, is both highly subjective and deeply problematic. Sexuality is emotionally complex, and sexual documentation can be as emotionally wide-ranging as any drama centered on human relationships. Porn can be profound, satirical, provocative and political. It is stigmatising and unhelpful to create a double standard around intention to arouse.

29 Media intended to arouse may not involve nudity, sexual intercourse, or genitals; and may not be recognisable as pornography to viewers who do not share the tastes of the creator. Human fetishism encompasses a myriad of themes that are not commonly associated with sex - in fact for a fetishist, this disconnect is often part of the appeal. Sexuality is deeply personal: any image can be sexually charged for the right person. Intention is neither a workable measure of impact, nor an effective way of defining pornography.

30 The Bill relies on existing categories used by the BBFC, specifically the 18 and R18 classifications. As Pandora knows first-hand, the R18 category excludes many consensual sex acts which are legal to perform in real life; it was publication of this "prohibited content" that caused ATVOD to find her in breach of Rule 14 of the AVMS Regulations for her films of consensual spanking, although this verdict was revoked by Ofcom after appeal.

31 The R18 category is contentious. Sex workers, feminists and BDSM practitioners have criticised the prohibition of acts such as fisting, facesitting, urolagnia and female ejaculation. Many of the prohibited acts are non-penetrative, non-phallic, and safe from an HIV perspective. These consensual fetish activities have cultural significance for the queer and BDSM communities. Should we be discouraging young gay men from discovering modes of safe sex such as fisting and watersports which do not carry any risk of viral transmission?

32 Many "non-pornographic" films and websites contain explicit material that may be more extreme, more violent and more harmful, than "pornographic" material intended to arouse. It will not aid child safety to prohibit content excluded from R18 from niche independent sites that have age verification in place, that are only accessed by a small number of consenting adults with a pre-existing interest in the topic.

33 As a feminist pornographer, Pandora Blake considers consent to be paramount in her work. When producing BDSM material the clear communication of enthusiastic performer consent to the viewer is a crucial component of ethical, socially responsible pornography. It is scandalous that consent should play no part in the definition of what content is prohibited from R18, particularly when certain acts (such as the restraint of all four limbs plus a gag) are excluded ostensibly to keep porn performers safe. Consent is the only factor separating sex from rape, and BDSM from assault. The consent of participants should be centred in any guidelines around what acts are acceptable to depict.

34 It is shocking that activities involving female ejaculation are prohibited from R18. "Squirting" is a form of orgasmic expression which occurs naturally in many women (as well as some people of other genders, such as non-binary individuals and transgender men). To continue to prohibit the depiction of this undeniable visual evidence of authentic orgasm - particularly female orgasm - would be both regressive and sexist. It is not the Government’s place to control the bodies, autonomy and sexual enjoyment of porn performers, nor of women more generally.

35 The BBFC classification categories draw on Guidance on the Obscene Publications Act which is maintained by the Crown Prosecution Service. According to the OPA guideline sentencing case of R v Holloway [1982] the deprave and corrupt test must be applied with regard to the "changing moral standards" or society. However, the CPS Guidance has not been updated to reflect the results of the latest trials under the OPA.

36 In 2012 Myles Jackman represented the defendant in two cases which reflected on current social understanding of obscenity. In R v Walsh, his client was found Not Guilty for possession of a very small quantity of self-made pornography depicting fisting and urethral sounding. The CPS’ Guidelines on extreme pornography were subsequently updated in the light of this unjust and illiberal prosecution.

37 That same year Myles achieved another landmark acquittal: R v Peacock. His client was tried under the OPA for publishing supposedly obscene DVDs of male fisting, urination and BDSM, and was found Not Guilty by the jury. Despite being widely reported and commented upon in the media, the CPS have not yet updated their Guidance on the OPA in the light of this landmark jury decision.

38 These jury verdicts clearly demonstrate that even four years ago, average members of the UK public did not consider fisting, urolagnia and BDSM to be "obscene". If new legislation such as the Digital Economy Bill is to rely on existing BBFC categories for 18 and R18, the Guidance informing what content is prohibited and permitted should be brought up to date with UK case law, and with current standards of social acceptability.

39 The CPS Guidance takes into account the safety of participants, but was not drawn up in consultation with practitioners. Those who practice BDSM are the experts in their own lives, and many of the prohibited activities are in reality undertaken carefully and considerately, with strong community standards for safe behaviour and best practice. We applaud the efforts of the CPS and the BBFC to protect safety and consent, and recommend that the Guidance be reviewed in consultation with BDSM practitioners and porn performers. These specialists have the best available information on how BDSM activities might be undertaken safely and responsibly, preserving the full ability of all participants to withdraw consent at any time. We are happy to submit further evidence to assist with developing realistic, sensible guidelines for classifying R18 content.

Recommendations

R7 All 18 classifiable content should be accessible online without the need to age verify, removing the stigmatising double standard between media intended to arouse, and mainstream entertainment.

R8 If 18 classifiable content is included in the scope of the Bill, clauses should be added specifying dispensations for works that are educational, political, or have artistic or cultural merit.

R9 The R18 ceiling should be raised to include consensual adult sexual activities which are legal to perform, including fisting, urolagnia, female ejaculation, bondage and facesitting.

R10 If the Bill is to rely on the R18 category, the CPS Guidance on the OPA which defines what content is prohibited must be updated in line with recent case law.

ANNEX 1

40 The DCMS consultation on age verification claimed that "20% of children aged 11-17 surveyed on behalf of the NSPCC’s ChildLine service said they'd seen pornographic images that had shocked or upset them". This survey was not a rigorous academic study, but rather an opinion poll conducted by OnePoll, a "creative market research group" who advertise themselves as offering "speedy surveys" and "polls for the press, meaning fun questions about celebs and your love life." [14] It asked children to self-report "shock or upset" via 11 multiple choice questions. Respondents under 18 were recruited via parents who were already signed up to earn money online by filling out OnePoll surveys; it is therefore likely that children answered the questions with their parents present. The survey methodology contained no safeguards appropriate to this sensitive topic such as those used by the London School of Economics when they carried out research into childrens’ internet usage. [15]

41 Likewise, the DCMS have cited comScore data that "1.4 million unique visitors under 18 accessed adult sites from their desktop. This represents c.20%, roughly one fifth of under-18s accessing the internet. 13% of children aged 6-14 visited an adult site in May 2015." These statistics are deliberately cherry-picked in order to give the false impression that one fifth of younger children (e.g. those aged 6-11) are looking at R18 equivalent material online. The comScore statistic of 20% includes depictions of violence, not just sexual images, in its definition of "adult content"; it also includes older teenagers above the age of consent for sex. Grouping older teenagers in with younger children is an easy, misleading way to tweak the statistics and make them sound worse than they are.

42 A clear look at the data shows that under-18s accessing online pornography are mostly 16 and 17 year olds above the age of consent. Ofcom’s report on Internet Safety Measures [16] shows that "The majority of 5-7s and 8-11s say they spend most of the time using the internet with an adult in the room (85% and 69% respectively)"; and "a majority of 8-11s (61%) say they only visit websites they've visited before". While 1% of 9-10 year olds and 3% of 11-12 year olds do encounter sexual images online (on video sharing platforms and in popup ads respectively) [17] , the figure of 20% been massaged out of all proportion.

43 If under 18s are looking at too many sexual images, the internet isn't even the problem; children are far more likely to encounter sexual imagery offline than online. The 2011 EU Kids Online survey [18] of UK 9-16 year olds and their parents found that of the 23% of UK 9-16 year olds who say they have seen sexual images in the past 12 months, 19% encountered them in films, TV, magazines and books [19] , compared with only 11% who saw them online.

44 According to the EU Kids Online report, 2-8% is a much more realistic assessment of the number of 9-16 year olds who have seen R18 content online; and most of those teenagers are at the older end of that age bracket. "A minority of online content is sexually explicit – among 11-16 year olds, 11 per cent have seen nudity, 8 per cent have seen someone having sex, 8 per cent have seen genitals, and 2 per cent have seen violent sex." This undermines the claim made by the DCMS that 13% of 6-14 year olds have looked at online porn.

45 The EU Kids Online study finds that "Overall, most children have not experienced sexual images online and, even of those who have, most say they were not bothered or upset by them", and concludes: "While public concern over online sexual content is justified, the extent of children’s exposure should not be exaggerated, and nor should it be assumed that all children are upset or harmed by such exposure – the present findings do not support some of the moral panics surrounding this issue."

46 There is not sufficient evidence to support the premise, on which the entire policy is based, that encountering online pornography is harmful to under 18s. In 2005, Ofcom commissioned an overview of the evidence [20] , looking specifically at the impact on under 18s of viewing R18 classified material; that is, explicit depictions of sexual intercourse between consenting adults. This independent research was commissioned by Ofcom from Ellen Helsper, London School of Economics, with a view to investigating whether to retain the ban on broadcasting R18 content on UK television.

47 The report found that there isn't much evidence on the impact of this sort of content on under 18s at all. It states, "Due to ethical restrictions, there is a severe lack of research regarding the effects of exposure of minors to R18 pornography which contributes to the evidence being inconclusive." The Department for Culture, Media and Sport itself referenced this lack of evidence in the Explanatory Memorandum to the Audiovisual Media Services Regulations 2014 [21] , but goes on to say that the AVMS magically "removes uncertainty" by legislating to restrict access to R18 material despite the lack of justification for doing so. Unfortunately, this is not how evidence works.

48 Ofcom found that "there is some evidence for a positive effect of R18 material and young people; exposure to pornography at a younger age and a less restrictive parental environment seem to be related to a lower likelihood of committing sex crimes (Becker & Stein, 1991; Gebhard et al., 1965; Heins, 2001; Kelley, 1989)." Ofcom's overview clearly shows that pornography is correlated with lower rates of sexual violence, higher reporting of sex crimes, and does not demonstrably cause harm to under 18s who view it.

49 Another study cited by the DCMS consultation [22] from 2011 claims a link between adolescents deliberately seeking out violent pornography and reporting sexually aggressive behaviour. However a more recent analysis of this study from 2013 [23] found that while individuals predisposed to sexualised violence might be influenced by viewing pornography, for better or for worse, individuals without this predisposition are likely to be unaffected. The 2011 study also found no link between viewing non-violent pornography and sexual aggression among youth; and no link between viewing pornography and risky sexual behaviour.

50 Ofcom's report concludes: "There seems to be no relationship between the availability of pornography and an increase in sex crimes in other countries; in comparison there is more evidence for the opposite effect. Research with adults indicates no relationship between the commission of sex crimes and use of pornography at an early age. Again in comparison there is evidence for the opposite effect."

51 UK academics Dr Clarissa Smith, Dr Feona Attwood and Dr Martin Barker recently published preliminary findings on a survey of 5,490 people who look at porn. They found that: "The peak period for viewing porn appears to be older than many people assume. The peak age for extreme and high importance for viewing porn is 26-35, while the age at which it has the lowest importance is 18-25. That's really interesting! It suggests to us a generational shift in the significance of pornography."

52 Thanks to the Porn Research project we also have recent evidence on the subjective experience of the minority of under 18s who do deliberately seek out and view porn. 97 respondents to the Porn Research survey (1.8%) identified themselves as being in the "under 18" age bracket, although under 18s had not been been directly targeted in the research. Young people cited "because I feel horny" as the most common reason for searching out porn, and were less likely than older age groups to look at porn frequently, or consider it have importance in their lives; "I don’t take it seriously but it’s pretty nice" was a common reaction. Reasons for looking at pornography varied widely within the under 18 respondents, from "It’s too soon for a sexual relationship" to "I’m just curious and still exploring myself".

53 Dr Clarissa Smith takes issue with the tendency to view under 18s as vulnerable and indiscriminating viewers who might easily be harmed by looking at porn. Some young respondents reflected and mocked this rhetoric with satirical answers, playing knowingly on the discourse that sees porn as damaging, and themselves as helpless victims. Smith writes, "Even if a proportion of our respondents gave these 'defiant' and 'rejecting' answers, they do so at some length, indicating a real desire to have their say on the topic. In this, these challenging answers correspond with the majority of the responses we received from the under-18s - far from being unthinking, uncritical and unreflexive 'victims' of pornography, these young people gave lengthy responses, demonstrating their own awareness of themselves as engaging in sexually explicit materials, how those materials might fit with their experiences in this stage of their lives and their understanding of themselves as often excluded from discussion on the basis of their supposed lack of experience."

54 The need for age verification is based on assumptions that when young people access porn it risks normalising behaviour that might be harmful to their development (cf. the consultation published by the DCMS in March 2016). This is only provably true if increased openness to sexual activity is defined as harmful. Ofcom's overview of the evidence (2005) unpacks this: "There is some evidence that indicates that sexual material influences the moral development of young people under the age of 18. In other words, that through exposure to pornography young people become more cynical towards traditional relationships (marriage) and become sexually active at a younger age." It is perfectly possible for young people to engage in sexual activity in a consensual, healthy way. Defining sex positivity and cynicism about marriage as evidence of "developmental harm" is rhetoric that belongs in a religious tract, not evidence-based legislative policy.

55 Shoddy statistics and exaggerated claims have always been at the heart of panics about pornography. The reliance of the proposed regulatory framework on rhetoric over evidence is indicated by conclusions from the DCMS report, which finds insufficient proof of harm, but makes it clear that the UK Council for Child Internet Safety have no intention of letting lack of evidence get in the way of implementing a Conservative Party manifesto promise: "The policy position underpinning this project specification is that pornography causes harm to children and we understand that we are not expected to challenge this. However, we would like to emphasise that the relatively limited academic evidence of harm means that any policy interventions should proceed on the basis of a precautionary principle, namely seeking to avoid possible risks in the absence of certainty." The very evidence commissioned by the DCMS shows that online porn is not the primary route by which under 18s access sexual images; when they do find it, they are mostly not distressed or concerned by it; and there is no proof that it causes harm. The evidence cited in support of age verification therefore does not support it: this is an example of policy informing evidence, rather than evidence informing policy.

October 2016


[1] https://wiki.openrightsgroup.org/wiki/Age_Verification_amendment

[2] NSPCC accused of risking its reputation and 'whipping up moral panic' with study into porn addiction among children http://www.independent.co.uk/news/uk/home-news/nspcc-accused-of-risking-its-reputation-and-whipping-up-moral-panic-with-child-porn-addiction-study-10171195.html

[3] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/500701/Report_of_DCMS_Expert_Panel__Autumn_2015__FINAL_.pdf

[4] http://stakeholders.ofcom.org.uk/binaries/research/radio-research/r18.pdf

[5] EU Kids Online survey, 2010 http:[email protected]/research/EUKidsOnline/EU%20Kids%20II%20(2009-11)/EUKidsOnlineIIReports/Final%20report.pdf

[6] http://eprints.ioe.ac.uk/145/1/Buckinghammedialiteracy.pdf , also https://www.asa.org.uk/Resource-Centre/~/media/Files/ASA/Reports/ASA_Young_people_media_personal_relationships_Nov_2003.ashx

[7] "Teenage Kicks: Young People’s Engagements with Pornography, Some Results from Pornresearch.org Questionnaire", Dr Clarissa Smith. See also Annex 1. http://pandorablake.com/static/cms-uploads/ClarissaSmith-ExplicitChapterJan2014.pdf

[8] See the work of sex educator Justin Hancock, e.g. http://bishtraining.com/does-porn-harm-young-people

[9] Security expert Alec Muffett has a full analysis here: https:[email protected]/a-sequence-of-spankingly-bad-ideas-483cecf4ba89#.se2je3qa4

[10] See the evidence submitted by The Open Rights Group.

[11] https://www.openrightsgroup.org/blog/2016/fig-leafs-for-privacy-in-age-verification

[12] http://backlash.org.uk

[13] https://wiki.openrightsgroup.org/wiki/Age_Verification_amendment

[14] http://www.moneysavingexpert.com/family/make-money-surveys

[15] http:[email protected]/research/EUKidsOnline/EU%20Kids%20II%20(2009-11)/National%20reports/UKReport.pdf

[16] http://stakeholders.ofcom.org.uk/binaries/internet/internet-safety-measures.pdf

[17] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/500701/Report_of_DCMS_Expert_Panel__Autumn_2015__FINAL_.pdf

[18] http:[email protected]/research/EUKidsOnline/EU%20Kids%20II%20(2009-11)/EUKidsOnlineIIReports/Final%20report.pdf

[19] http://www.economist.com/blogs/graphicdetail/2016/04/daily-chart-6

[20] http://stakeholders.ofcom.org.uk/binaries/research/radio-research/r18.pdf

[21] http://www.legislation.gov.uk/uksi/2014/2916/pdfs/uksiem_20142916_en.pdf

[22] http://www.ncbi.nlm.nih.gov/pubmed/21046607

[23] https://books.google.co.uk/books?id=WX1DAAAAQBAJ&lpg=PA158&ots=eYXQxQVtYI&dq=Ybarra%2C%20M.%20L.%2C%20Mitchell%2C%20K.%20J.%2C%20Hamburger%2C%20M.%2C%20Diener-West%2C%20M.%2C%20%26%20Leaf%2C%20P.%20J.%20(2011).%20X-rated%20material%20and%20perpetration%20of%20sexually%20aggressive%20behavior%20among%20children%20and%20adolescents%3A%20is%20there%20a%20link%3F.%20Aggressive%20Behavior%2C%2037(1)%2C%201-18.&pg=PA149#v=onepage&q&f=false

Prepared 21st October 2016

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