Internet News

One of our priorities for the second year of the video-sharing platform (VSP) regime is to promote the implementation of robust age assurance, so that children are protected from the most harmful content. In October 2022, we published our report on the first year of VSP regulation . The report highlighted that many platforms that specialise in videos containing pornographic material (or "adult VSPs") do not appear to have measures that are robust enough to stop children accessing pornographic material.

Today Ofcom is opening an enforcement programme into age assurance measures across the adult VSP sector.

Our objectives for this programme are:

• to assess the age assurance measures implemented by notified adult VSPs, to ensure they are sufficiently robust to prevent under-18s from accessing videos containing pornographic material;

• to identify whether there are other platforms in the adult VSP sector that may fall in scope of the VSP regime but:

  • have not yet notified their service to Ofcom, as required under the VSP framework (see more below); and

  • may not have appropriate measures in place to protect under-18s from pornographic content; and

• to understand from providers of adult VSP services the challenges they have faced when considering implementing any age assurance measures. This will also help us build a picture of what measures work and are proportionate to expect from different VSPs, in line with our strategic priority of driving forward the implementation of robust age assurance.

The programme will seek to determine the scale of any compliance concerns in respect of notified and non-notified adult VSPs. We will then decide whether any further action (including enforcement) is needed, and how best to address potential harm.

Notable porn websites operating in France have suffered two legal defeats.

In the first case, a priority question of constitutionality (QPC) had been addressed to the Court of Cassation. MindGeek, which publishes Pornhub, argued that ISP blocking of their websites, as ordered by France's internet censors of the Audiovisual and Digital Communication Regulatory Authority (Arcom), was an affront to freedom of speech in France.

In its verdict of January 5, the Court of Cassation swept aside this QPC:

The question posed is not of a serious nature. Considering that the legal framework in question is sufficiently clear and precise to exclude any risk of arbitrariness . Nor is there any disproportionate harm to the objectives pursued.

The attack on freedom of expression, by imposing the use of a device for verifying the age of the person accessing pornographic content, other than a simple declaration of majority, is necessary, appropriate and proportionate to the objective of protecting minors.

Meanwhile YouPorn and RedTube lost an administrative challenge to the rather circuitous way that French authorities have specified the laws requiring age/identity verification to view porn websites.

The Online Safety Bill is currently going back to Report Stage in the Commons on 16 th January, and is widely expected to be in the Lords for the end of the month, or beginning of February. We anticipate it could complete its legislative passage by June.

At the end of last year, a widely publicised change to the Online Safety Bill took out the so-called "legal but harmful" clauses for adults. The government has claimed this is protecting free speech.

However, in their place, new clauses have been shunted in that create a regime for state-mandated enforcement of tech companies' terms and conditions. It raises new concerns around embedded power for the tech companies and a worrying lack of transparency around the way that the regulator, Ofcom, will act as enforcer-in-chief.

Whatever they say goes

It is not a good look for free speech. It does not alter the underlying framework of the Bill that establishes rules by which private companies will police our content. On the other hand, it does create a shift in emphasis away from merely "taking down" troublesome content, and towards "acting against users".

For policy geeks, the change removed Clauses 12 and 13 of the Bill, concerning "content harmful to adults". The clauses regarding harmful content for children, Clauses 10 and 11, remain.

The two deleted clauses have been replaced by five new clauses addressing the terms of service of the tech companies. If their terms of service say they will "act against" content of "a particular kind", then they will follow through and do so. This will be enforced by Ofcom.

The new clauses emphatically refer to "restricting users' access" as well as taking down their content, or banning users from the service. The language of "restricting access" is troubling because the implied meaning suggests a policy of limiting free speech, not protecting it. This is an apparent shift in emphasis away from taking down troublesome content, to preventing users from seeing it in the first place. It is an environment of sanctions rather than rights and freedoms.

There is no definition of "a particular kind" and it is up to the tech companies to identify the content they would restrict. Indeed, they could restrict access to whatever they like, as long as they tell users in the terms of service.

The political pressure will be on them to restrict the content that the government dictates. It will not be done by the law, but by backroom chats, nods and winks over emails between the companies, Ofcom and government Ministries.

Joining the dots, Ofcom has a legal duty to "produce guidance" for the tech companies with regard to compliance. Ofcom takes direction from the two responsible Ministries, DCMS and the Home Office. A quick call with expression of the Minister's concerns could be used to apply pressure, with the advantage that it would skirt around publicly accountable procedures. "Yes, Minister" would morph into real life.

Restricting access to content

The new clauses do attempt to define "restricting users access to content". It occurs when a tech company "takes a measure which has the effect that a user is unable to access content without taking a prior step" or "content is temporarily hidden from a user". It's a definition that gives plenty of room for tech companies to be inventive about new types of restrictions. It does seem to bring in the concept of age-gating, which is a restriction on access, requiring people to take the step of establishing their identity or age-group, before being allowed access.

The new provisions also state that tech companies "must not act against users except in accordance with their terms and conditions", but the repetition of restrictive language suggests that the expectation is that they will restrict. There is no recognition of users' freedom of expression rights, and they may only complain about breach of contract, not breach of rights.

These restrictive clauses should also be seen in light of another little twist of language by the Bill's drafters: "relevant content". This is any content posted by users onto online platforms, but it is also any content capable of being searched by search engines, which are in scope of the Bill. The mind boggles at how much over-reach this Bill could achieve. How many innocent websites could find themselves demoted or down-ranked on the basis of the government whim of the day?

"Relevant content" is applicable when users seek to complain. But how can users complain about their website being down-ranked in a search listing when they don't have any confirmation that it has happened? The Bill makes no provision for users to be informed about "restricted access".

The change fails to take account of the potential cross-border effects, that will especially affect search functions. The Bill limits its jurisdiction to what it calls "UK-linked" content or web services. The definition is imprecise and includes content that is accessible from the UK. Online platform terms and conditions are usually written for a global user base. It's not clear if this provision could over-reach into other jurisdictions, potentially banning lawful content or users elsewhere.

Failure of policy-making

It reflects a failure of policy-making. These platforms are important vehicles for the global dissemination of information, knowledge and news. The restrictions that online platforms have in their armoury will limit the dissemination of users' content, in ways that are invisible and draconian. For example, they could use shadow bans, which operate by limiting ways that content is shown in newsfeeds and timelines. The original version of the Bill as introduced to Parliament did acknowledge this, and even allowed user to complain about them. The current version does not.

Overall, this is a failure to recognise that the vast majority of users are speaking lawfully. The pre-Christmas change to the Bill puts them at risk not only of their content being taken down but their access being restricted. Freedom of expression is a right to speak and to be informed. This change affects both.

Taiwan's Legislature has passed draft amendments to restrict the use of technology-enabled sexual images and video. The new laws will make the production and spread of such fake or manipulated images and video for profit a crime punishable by a jail term of up to seven years.

The draft bills were proposed after the arrest in 2021 of a Taiwanese YouTuber for making and selling deepfake pornographic videos of dozens of prominent women, including female politicians.

Under the approved legislation, producing sexual material involving images or video of another individual without that person's consent is subject to a maximum of three years in prison, while the unauthorized distribution of such material can result in a prison term of six months to five years. Anyone found guilty of distributing such content for profit faces an additional punishment of up to one half of the prescribed sentence.

Ireland's new internet censorship regime will be overseen by an Online Safety Commissioner (OSC), who will create binding online censorship rules to hold designated online service providers Providers to account for how they censor content. The OSC is also empowered under the Act to introduce an individual complaints mechanism.

Harmful content is set out in Part 11 of the new Act:

1. Offence Specific Categories sets out 42 different offences. A large proportion of these offences are offences against children, or provisions protecting the identification of child victims or child offenders. Notably the Act appears to be silent as regards identifying a child who is subject to an Order or proceedings under the Child Care Act 1991.
2. Other Categories of Harmful Online Content are set out as a two-tier category:

• (a) The Online Content must be content which bullies or humiliates another person; promotes or encourages behaviour that characterises a feeding or eating disorder; promotes or encourages self-harm or suicide; makes available knowledge of methods of self-harm or suicide.
• (b) Online Content must meet the risk test if it gives rise to: (a) any risk to a person's life; or (b) a risk of significant harm to a person's physical or mental health, where the harm is reasonably foreseeable.

This part of the Act deals with age-inappropriate content yet the Act does not provide for any age-verification measures. Earlier drafts of the Act sought to introduce robust measures to ensure a minimum age verification of account holders of 15 years old. This provision did not survive to enactment stage.