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Age verification: new definition of "commercial" sites

Posted at 21:10 on 11 Oct 2018 by Pandora / Blake

Tags: age verification, BBFC, DCMS, Digital Economy Act, in the news, politics, porn, sex worker rights

Circumstances in which pornographic material is to be regarded as being made available on a commercial basis

The latest (and, I think, final) update to the Digital Economy Act has been laid in draft for approval: a Statutory Instrument defining the scope of "making pornographic material on a commercial basis". In the Online Pornography (Commercial Basis) Regulations 2018, the Government specify in more detail which websites will have to comply with age verification:

  • Only websites where at least 33% of the content is pornographic material;
  • And only if the website is marketed as a pornographic website.

If your website is not "marketed as an internet site... by means of which pornographic material is made available to persons in the United Kingdom" (ie it's not advertised as being a porn site) and if "pornographic material makes up less than one-third of the content", the website is exempt from age verification and does not have to comply.

Bear in mind that in law, "pornographic" means either that it would be classified as R18 by the BBFC or would be refused classification, or that if would be classified as 18 and is produced solely for the purposes of sexual arousal. "Extreme pornography" (as defined by the CJIA 2009) is prohibited even behind age verification.

How exactly the quantity of "content" of a website is going to be measured in order to ascertain whether the porn on it makes up one third or not is an interesting question. Number of pages? Number of photos? Number of videos? Minutes of video? Kilobytes? Pixels?? What if a site publishes a video of paint drying for 100 hours - does that mean they no longer have to comply?

Aside from the ambiguity as to how this will be determined, I'm heartened by this limitation. It is a positive step towards defining the scope of the law in (relatively) clear terms, which will hopefully reduce the chilling effect of age verification and help marginal websites to know whether or not they need to comply. Age verification will be time consuming and costly for website owners and users, so a proportionate approach needs to make it easy for sites that don't need to comply to know this in advance, to avoid wasting business owner's time and money, and putting their income - and their users' privacy - needlessly at risk. Any more needlessly than age verification in general, that is.

I think (and hope) that this is good news for sex workers who advertise online, as a sex worker's brochure website will not be marketed as porn, even if some of the content might be classifiable as such. However, people who run niche community sites, sex forums and sex blogs which receive any income might conceivably be marketed as pornographic, and if so they would have to comply. Any site which is clearly marketed as porn will have to comply, regardless of the how much non-porn content is posted. (Which is disappointing: I was hoping that Dreams of Spanking's extended build-ups and plotlines might enable me to wiggle out of it.)

This Statutory Instrument was laid in draft before Parliament yesterday. There should be a Commons committee debate, and then there needs to be a vote in each House to formally approve the draft before ministers sign it into law. The text can't be amended, so what you see is what you get. 

(Thanks to Rich Greenhill and Neil Brown for the information.)

Edit: I initially misread the guidelines as suggesting that a porn site could exempt themselves from the rules by gaming the ratio of porn to non-porn content to slip below the 33% margin, even if that site was marketed as pornographic. This was mistaken and has been corrected.

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