Two questions the BBFC must answer – Open letter to the BBFC

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Open Letter to Patrick Swaffer, President, BBFC

Dear Mr Swaffer

We write to you in your capacity as President of the BBFC concerning that organisations role as the Age Verification regulator and applying the law in Part 3 of the Digital Economy Act 2017.

We would ask that you produce clear guidelines, or revise your existing information regarding the following two points:

1) The issue of text

Your guidance to the industry (https://www.ageverificationregulator.com/industry/faq#8) states:

“All types of pornographic content are within the scope of the legislation. The legislation does not exclude audio or text from its definition of pornography. All providers of commercial online pornography to persons in the UK are required to comply with the age-verification requirement.”

This doesn’t seem to be consistent with the law which states (Digital Economy Act 2018, s15(2)):

“material” means—

(a) a series of visual images shown as a moving picture, with or without sound;

(b) a still image or series of still images, with or without sound; or

(c) sound;”

This clearly excludes text as a medium and we would also refer you to the comments of the responsible Minister, Lord Ashton during the passage of the bill:

“We agree. Our policy intent is child protection, not censorship. Our amendment redefines the scope, taking an approach based on the definition of an “extreme pornographic image” in the Criminal Justice and Immigration Act 2008. This captures grotesque sexual violence, including rape. We have thought long and hard about where we should draw the line. We have adopted two principles. First, as this measure is about protecting children, we do not want to create a new threshold for what adults can or cannot see. This is not the place for that debate. Secondly, we want to ensure that we do not allow the regulator to step on the toes of others involved in policing this territory.”
Report stage, House of Lords, 20th March 2017

Including of text as material covered by the Age Verification provisions would seem to be something where you are extending your powers beyond those authorised by Parliament and the law.

2) The ‘One third’ rule

The Online Pornography (Commercial Basis) Regulations 2018 define which sites will be covered by this legislation and set out a ‘one third’ rule in reg 2(4)

“Subject to paragraph (5), paragraph (3) does not apply in a case where it is reasonable for the age-verification regulator to assume that pornographic material makes up less than one-third of the content of the material made available on or via the internet site or other means (such as an application program) of accessing the internet by means of which the pornographic material is made available.”

There is though no clarity as to how this one third is calculated. It could for example be reasonably based on any of the following:

Total bytes used

Total number of individual images

Number of different pages

Running time of videos

Depending on which criteria is applied could mean a site either does or doesn’t need to comply with the Age Verification legislation.

Site owners who want to ensure they are in compliance with the law need to have clarity on this.

As I’m sure you are aware the Minster responsible, Margot James, has talked about this legislation being in force by Easter, whilst there has been some talk of this being delayed this are now urgent points to be clarified if site owners are to be able to reach conclusions about whether their sites will be required to comply with this law

Yours