Posted at 12:29 on 28 Sep 2016 by Pandora Blake
Last month I attended the second meeting of the newly reinstated Adult Provider Network - an adult industry trade association formed last month to co-ordinate responses to the Digital Economy Bill. It was an absolutely fascinating meeting, and I learned a lot. Read on to discover how this will actually affect your business if you run a UK porn site, why the bill potentially discriminates against the visually impaired, and how the bill risks creating a new trade barrier between UK industry and overseas.
Who are the Adult Provider Network?
The APN was recently resurrected as a trade association to represent the interests of the adult industry in Parliamentary discussions around the Digital Economy Bill, specifically the new regulations around mandatory age verification for online porn. In its former life, the APN was part of an industry forum representing video-on-demand providers; now that it's been reformed, its remit is broader, including multiple types of business operating within - and ancillary to - the adult industry. The name is being reused as it's already known in Westminster circles, and has established credibility.
The Committee includes Chris Ratcliff of Portland TV and the Digital Policy Alliance, who chaired the meeting; Terry Stephens of the UK Adult Producer Network, and David Cooke, Digital Media Director of MindGeek. The intention of the APN is to create a united voice to represent the interests of the industry in Westminster; legitimising the adult industry to parliamentarians, influencing policy, and helping producers find cost-effective solutions to new legislation, share knowledge and work together.
There were about twelve people at the meeting. Other than me, there were only two other women in the room - sexual freedom campaigner Charlotte Rose, and Kate Strickland. There are currently no women on the committee.
Proposed amendments to the Digital Economy Bill
We discussed the Digital Economy Bill, which has just had its second reading in Parliament, and debated possible amendments for which we would like to push. Although a majority of respondents to the government consultation earlier this year were against bringing in mandatory age verification, the proposals are going ahead regardless. Age verification was a Conservative manifesto pledge, and who cares what the majority of people think, right?
As the meeting opened Chris Ratcliff stated that it's too late for us to argue against age verification, and so instead we need to focus our attention on damage limitation, and strategising to protect the industry. As a civil liberties and sexual freedom campaigner, I would add to that: strategising to protect our collective and individual freedoms is, I would argue, even more important.
We quickly reached consensus on a proposed amendment that content classifiable as 18 should be allowed to be publically visible - that is, on the open internet, accessible by any user without needing to verify their age. At present, the bill requires that both 18 and R18 content must be placed behind age checks. This lowers the ceiling for age verification from the previous set of requirements brought in under ATVOD. Until now, although R18 content has had to be behind a credit card paywall, it's been legal to have 18-classifiable content publically visible. That makes sense, as 18 content such as Game of Thrones is available to watch on TV, and on online TV networks such as Sky. Lowering the ceiling for specifically online porn, but not mainstream broadcasting, would make online content out of sync with offline content; one doesn't have to prove one's age to watch 18 materal on television (and even if you are over 18, you still can't watch R18 material on TV). Bringing online media in line with the existing regulations for offline material was one of the stated intentions of this bill, and so demanding online porn sites age verify users to view for 18 content is inconsistent. It would also perpetuate a double standard that stigmatises "erotic" content over other forms of 18-classifiable content, and maintains an arbitrary and classist distinction between "art" and "porn".
We also debated the inclusion of the word "commercial" in the definition of the scope of the bill. The current wording of the legislation applies to any sites making pornographic content available "on a commercial basis". Many of those present at the meeting want to remove the word "commercial" from this clause. This would mean that anyone publishing adult content online for any reason would need to age verify their viewers, including social media sites like Twitter and Tumblr, sex bloggers, and amateur hobbyists who make no money from their endeavours.
I opposed this proposal. Most amateur sex blogs have low traffic volume and are mostly visited by community members who operate similar sites; they are not aggressively marketed, and under 18s would not normally find them. Tumblr hides adult content from public search, and Twitter bans nudity from profile pics and cover photos, and has the option of setting privacy controls to not show sensitive content; both these sites already have provisions in place to ensure that under 18s would not normally see adult material.
Forcing non-commercial sites, who receive no income from publishing or sharing adult content online, to install expensive and privacy-compromising age verification software would fundamentally infringe the right to freedom of expression. As adults, we have the right to express ourselves, and that includes self-expression about our sexualities. It makes no sense to impose commercial regulations on the activities of hobbyists - the costs involved in carrying out age checks would be prohibitive, and would make it impossible for most people to post adult content online unless they had vast riches to burn on doing so. The internet has facilitated social progress, including greater understanding acceptance of LGBTQ people and other sexual minorities, partly because of the opportunity to learn and discover what others post online about their personal lives. To shut these communities down would be to deprive ourselves of opportunities for learning and growth, and greatly diminish the richness, diversity and tolerance of our culture.
The discussion raised a number of unanswered questions. The biggest is the identity of the regulator, to whom a lot of power is devolved by the current wording of the bill. It's concerning to me that so much power will rest in the hands of an as yet unknown individual or organisation, who will not be democratically elected but appointed by Karen Bradley, the Secretary of State for Culture, Media and Sport.
The BBFC and Ofcom were both mentioned as possibilities; both publically funded bodies. Personally I find the idea of a public organisation - along with the public accountability that comes with it - far more palatable than the idea of another private company like ATVOD. Ratcliff, however, seemed to feel that a publically funded regulator was unlikely. Enforcing the regulations laid out in the Digital Economy Bill will be an expensive endeavour - not only keeping watch on adult sites operated from within the UK, but on all adult sites worldwide - and requiring some fiddly manouvering to put enough pressure on non-UK sites to persuade them to comply. Will the UK public consent to their tax money being spent this way? If not, then the regulator will have to self-fund, as ATVOD did, by levying fees from UK adult site owners, and imposing fines on non-compliant site operators. It seems to me that running such an organisation on a non-profit, publically accountable basis would be far wiser than giving a privately-owned corporation the power to generate capital via aggressive enforcement. We've already seen how that works out.
Age verification solutions
So how will age verification work in practice? I'm not familiar with many of the current technologies, although I'm going to the software forum organised by the Adult Provider Network on October 6 to learn more about solutions such as VeriMe, Yoti, AgeChecked and others.
As I understand it, there are currently several ways to verify the age of a site visitor. The most simple - and most risky in terms of data collection and surveillance - is to connect age to identity. If the user provides their passport, driving license, or their name, address or date of birth to a given website, these details can be checked against records held by official agencies (such as the passport office, DVLA or the electoral register) to confirm that the details match an existing record for someone over the age of 18. However, doing it this way is a massive breach of personal privacy. The end result is that individual websites retain confidential details of every site visitor - and each user would leave a data trail across the web of all the adult sites they had visited, adding up to a comprehensive list of their sexual tastes. Few people want this. We all have the right to personal privacy, especially when it comes to matters of sexual fantasy and exploration. Worse, such a database could be mined by corporations, sold to advertisers, or hacked and leaked - as with the infamous Ashley Madison data breach. No such system would be immune to such leaks.
The cost of such checks are also prohibitive for site owners. Using the credit check system to verify age costs something like 60p per age check - if you have even a thousand site visitors a day (which would mean you were running a small hobby website that probably didn't make much money), this would add £600/day to your running costs: enough to instantly bankrupt most small websites. (I've also heard that the 60p/check price only applies to very large websites; for smaller sites such as our 1000 visitors a day one, the cost might be more like £1.50-£2 per check. You can imagine how quickly that would add up.)
However, there are more cost effective solutions available. For instance, the VeriMe system, which is based on your mobile phone number, apparently costs around 20p per check. When you get your mobile phone, at some point you show ID to your phone company to verify your age, and then you are listed as being over 18 on their system. Later, you visit an adult site and are asked for age verification. You enter your phone number, and the site contacts your phone company, asks "is this person over 18?" and receive a yes or no answer. This minimises the amount of data exchanged - your phone company might know your name, address and date of birth, but the website never needs to. However, it would still involve a list of phone numbers easily traceable to real identities being listed on adult sites, with all the same concomitant risk of data breaches and misuse.
Despite these risks, Chris Ratcliff told us that over the last few years users have become much more accepting of age verification systems. Since he introduced age checks to his website Portland TV four years ago, the bounce rate has dropped from an initial 54% to only 4%. Users are given the option of verifying by real name, address, or mobile number; 45% choose to do it by mobile.
So the cost to the site owner varies depending on the method chosen; credit checks cost more, but an age check by mobile number costs less. Still, even doing it by mobile number our hypothetical hobby site with one thousand visitors a day would still be spending £200/day on age verification. Most of the niche adult websites I've worked for in the fetish scene have one or two hundred members a month, spending around £20 each - that's a turnover of between £2000-£4000/month, out of which you need to pay for production, bandwidth and any employees who help you with editing and promotion if you don't want to work 70 hour weeks yourself. I don't know any adult website who could afford to pay £6000/month to age verify 1000 users per day, especially when those users may well not end up being paying customers.
A new kind of trade barrier
When we discussed these aspects of the bill, I realised something that so far, no-one else seemed to have picked up on. Here's the wording:
15 (1) A person must not make pornographic material available on the internet on a commercial basis to persons in the United Kingdom except in a way that secures that, at any given time, the material is not normally accessible by persons under the age of 18.
When I asked how this would play out in practice, those who have been involved in Westminster discussions during the development of the age verification policy, such as Chris Ratcliff and David Cooke, agreed that it would play out as follows. If your site is based in the UK, all your users have to age verify - even those based overseas. Ratcliff confirmed that since the ATVOD regime, his site has had to age verify all users, not just those based in the UK. By contrast, if your site is based outside the UK, only your UK users have to age verify. David Cooke works for MindGeek, which is based in Canada, and they are preparing to start age verifying their UK users, but not site users based in other countries. Their intention is to track the IP of site visitors, detect which country they are visiting from, and show two landing pages; one for UK users, requiring age verification, and one for everyone else.
If this interpretation is correct, then the costs of implementing age verification will be much lower for overseas sites than for UK sites. Let's go back to our hypothetical site with a thousand visitors per day. If it's based in the UK, and it's paying 20p to age verify each user, then that adds £200/day to their running costs. If the same site is based overseas, and only 25% of their site visitors are from the UK, then they're only paying an extra £50/day to comply with age verification. This creates a significant trade barrier, making it more expensive for UK adult businesses to operate than those based overseas, and disadvantaging UK industry in the global market.
The UK adult industry brings money into the treasury; many of our customers are international, and we pay tax, hire local workers and contribute substantially to the UK economy. Bankrupting large numbers of small businesses, and drastically handicapping the performance of large businesses compared to their overseas competitors, is not going to do the UK economy any good whatsoever. The likely outcome of this law will be to hobble UK trade, reduce the flow of cash into the country from overseas, and put large numbers of porn industry workers and site owners out of work.
The MindGeek Solution
Age verification, then, would currently be cost prohibitive for most UK businesses, with age check solution services charging the site owner to receive site visitors regardless of whether those visitors become paying customers, and massively increasing their running costs to the point where many small companies will be put out of business. It's not surprising, therefore, that there was a great deal of interest among APN attendees in alternative solutions that would make age checking more affordable.
One potential model is that of a "digital token" - a single age-verified login which is created once, and can then be re-used on any website using the same age verification system. It is in the interests of both site owners, who want to keep costs down, and users, who want to avoid sharing their details more than necessary, to federate data and avoid users repeatedly re-verifying.
To this end, MindGeek - the biggest multinational corporation in the adult industry, which owns PornHube, RedTube and most of the major tube sites, as well as Brazzers and many other production companies - has been developing an age verification system that would provide this solution. Their system is called AgeID, and it would take advantage of the vast traffic received by sites like PornHub to age verify people when they first seek out free porn on tube sites. When the same user then visits a porn site run by a production studio, they will already have an age-verified porn login, and their PornHub username and password will allow them access to any other porn site using the AgeID system.
This is very smart of MindGeek. It will allow them to offer discounted age checks to porn sites who use their system (David Cooke gave us a rough quote of 4p per age check; significantly cheaper than any website doing their own age verification), at the same time enabling MindGeek to generate income from the age verification system they would have had to install anyway. It's a clever business move for them; and it also goes some way towards explaining why MindGeek representatives have been so closely involved with the development of the age verification policy in Westminster.
In privacy terms, a federated system like AgeID would have benefits. When the user first visits a MindGeek site, they would be given a choice between different companies offering methods to verify their identity - phone number, ID documents, name and address, and so on. The user makes their choice, and MindGeek forwards them to the nominated company, where the user enters relevant data - let's say their mobile phone number. The company offering mobile phone age checks (e.g. Telecom2) sees the number, but MindGeek doesn't; and allegedy Telecom2 doesn't retain the number after returning "yes" or "no" to MindGeek. So now this user has an age verified digital login, and only Telecom2 has seen their identifying details; MindGeek never knows who they are, and nor does any other porn site.
Still, the AgeID solution isn't perfect. The relationship between MindGeek and the rest of the adult industry is a tense one, as many porn producers see the tube sites as responsible for the rise of piracy and the decline of membership sites. It's unclear how many porn sites would be willing to increase MindGeek's market share by allowing them to act as the gatekeepers of online porn. However, cost might well be the deciding factor.
As far as users' privacy is concerned, most people aren't particularly careful: if the AgeID login involves an email address, it usually wouldn't take much sleuthing to find out someone's identity. And even if MindGeek and other porn sites never see your data, using the same username and password on every adult site will still leave a trail that amounts to a database of your personal sexual tastes - and that data would be owned by MindGeek.
Audio porn - a new prohibited category
The bill defines "online pornography" as including video with and without audio, still images with and without audio, and audio alone. This actually constitutes a new definition of pornography, and so is fascinating from a legal perspective. Adding audio to the list is especially interesting; to date Ofcom's guidance for broadcasters on what types of language or content should be avoided on radio (which only apply when children are likely to be listening has been pretty broad); there are no prohibitions against, say, offensive language when children are not likely to be listening. As I understand it, the Obscene Publications Act does not include audio; and the BBFC does not maintain guidelines on classifying audio. On what basis, then, will the suitability of online audio for under 18s be judged?
Under this definition premium rate phone sex services are likely to be included in the remit of the bill, as well as pre-recorded audio. Audio porn is not particularly common; I'm the only pornographer I know who produces narrative audio recordings of erotic stories for publication on my membership site. I like it because it provides broader possibilities for scenario and setting, and lower production costs; and listeners like the sensual intimacy of a voice narrating naughty stories into their ears, and the opportunities to use their imaginations to flesh out the scene described. Audio porn also has the benefit of being accessible to the sight impaired - a not insignificant market segment (to give you a starting point, an estimated 22.5 million adult Americans report experiencing vision loss).
To this end, MindGeek megasite PornHub - the biggest porn site on the internet - launched a "described video" feature in June, with voice actors describing 50 of the site's most-watched videos for the benefit of visually impaired users. There are many others catering to this demographic, such as SonicErotica; and podfic is a thriving part of the fanfic community, with nearly 120 000 examples listed on one popular fansite, and other exclusively audiofic sites have vast archives.
The accessibility aspect raises interesting questions. At present - thankfully - the Digital Economy Bill does not require age verification for written text. But what about sight-impaired people using a screen reader to narrate text to them? Will this count as "audio", and thereby fall within the scope of the bill? If so, then this legislation would impose substantially heavier restrictions for visually impaired people than for sighted people, in a move that would be catastrophically ableist and unjust. People with disabilities already struggle to be recognised as full adults with a diverse range of sexualities, like anyone else; implementing this sort of double standard would increase the infantilisation of adults with disabilities in UK law, and establish a regressive and dangerous precedent. I haven't seen this aspect of the Digital Economy Bill mentioned in the debates so far; clarity would be very welcome.
The most concerning moment in the meeting for me came when the topic of ISP blocking was raised. The question of whether ISP blocking might serve as an ultimate sanction for non-compliant overseas sites was already addressed in the DCMS response to the age verification consultation:
Several respondents - individuals, charities, and pornography providers themselves - suggested that blocking at Internet Service Provider (ISP) level should be part of the enforcement process, arguing that this would act as a strong lever over foreign providers to comply, and also to increase protection for children from non-age-verified sites. However, the Government's clear position is that blocking of infringing sites would be disproportionate, and would not be consistent with how other harmful and/or illegal content is dealt with.
However, at the APN meeting the issue was raised again, with a majority of attendees wanting to push for ISP blocking as an ultimate sanction. I have to confess I don't understand this: it seems like turkeys arguing for Christmas. I think the reasoning behind it is that pornography providers want to ensure their overseas competitors are forced to comply with the same limiting, expensive regulation as they are. But the solution to a bad law isn't to make it worse. Any powers granted to this current government will also be granted to any future government. Do we really want an undemocratically appointed regulator to be given powers to block overseas sites from being viewed from the UK? These sites wouldn't be publishing videos of child molestation or beheadings: they would be publishing legal adult content. The UK regulator will have the power to contact the infringing site's "ancillary service providers" - credit card processors, advertisers and hosting companies - and demand they withdraw services from the non-compliant site, thus cutting off their flow of income. If we also grant the regulator the power to start ISP blocking non-compliant sites, it would lead to a UK-wide porn firewall comparable to that in place in Saudi Arabia, China and Iran. Is that really the sort of country we want to live in?
Granting a UK civil authority this sort of control is an incredibly dangerous precedent to set. As security expert Bruce Schneier has said, technology changes slowly, but political intentions can change very quickly. In 2000, he wrote in his book Secrets and Lies about police surveillance technologies, "Once the technology is in place, there will always be the temptation to use it. And it is poor civic hygiene to install technologies that could someday facilitate a police state." Adding ISP blocking to the Digital Economy Bill would grant extraordinary international powers of internet control to a UK organisation without any democratic process. Once those powers are in place, the temptation to use them will be overwhelming.
As far as I'm concerned, the biggest issue with the Digital Economy Bill is that it reinforces the ruling created with the AVMS regulation in 2014 that content classifiable as R18 is the highest level legally publishable online; any content that would not be classifiable is not legal to publish. The problem is that the R18 category is several years out of date with UK case law on the Obscene Publications Act, and woefully out of touch with public opinion.
The reasons given for not permitting stronger content to be classifiable is that it might harm children. Quite aside from the fact that this claim contradicts all the available evidence, it also makes no sense at all once age verification is in place. If all explicit content is tucked out of sight behind age checks, there is absolutely no reason to arbitrarily limit what content can and can't be shown to interested, consenting adults. Chris Ratcliff argued that age verification should be embraced by the adult industry as an anti-censorship protection, creating structures that maintain the rights of adults to view adult content. Is this law attempting to protect minors, or adults? The stated of the intention of section of the Digital Economy Bill is to protect under-18s; not to protect adults from themselves.
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