The possibility of the UK Government enacting age verification soon for porn may be getting closer. Some of the companies who hoped to provide the age verification system are seeking a judicial review. This could force the Government to act.
Our colleague John Carr takes up this story in his recent Desiderata blog.
R v Secretary of State for the Home Department, ex Parte Fire Brigades Union is a famous case from 1995. It was decided by our Supreme Court (then still called the Judicial Committee of the House of Lords). The Government lost.
Under an Act of Parliament of 1988 the Government was meant to bring forward a new criminal injuries compensation scheme. It was specifically in respect of fire fighters. The way things were left under the Act the scheme was to be introduced on “such day as the Secretary of State may by statutory instrument appoint”.
Long story short, the Government subsequently announced that it was not going to announce a date. In effect by an administrative decision they had frustrated the clearly expressed will of Parliament.
Key excerpts from the court’s decision (pardon the archaic English legalese) are as follows
“It might come as a surprise to the man on the Clapham omnibus that legislative provisions in an Act of Parliament, which have passed both House of Parliament and received Royal Assent, can be set aside in this way by a member of the executive.”
and even more tellingly
” True, [the Sections] do not have statutory force. But that does not mean they are writ in water. They contain a statement of Parliamentary intention, even though they create no enforceable rights. Approaching the matter in that way, I would read section 171 as providing that sections 108 to 117 shall come into force when the Home Secretary chooses, and not that they may come into force if he chooses. In other words, section 171 confers a power to say when, but not whether.”
Is this ringing any bells?
It should. It is very close to what happened with the statutory provisions relating to age verification for commercial pornography sites. These are enshrined in Part 3 of the Digital Economy Act 2017.
Several companies spent a lot of money getting ready for the commencement of the new policy. Everything was in place. Then, out of the blue, so to speak, on 16th October 2019, the Government announced a halt. Not an abandonment as such but, in effect, an adjournment sine die.
Frying different fish
At the time the Government made the announcement they had one overriding political objective. To secure a General Election.
Because of the then Parliamentary arithmetic the timing of such an election was not in their gift. In some quarters the suspicion therefore is someone in No.10 started to fret. Suppose they suddenly managed to get Parliament’s agreement to hold an election (which they did) and the new regime of age verification for commercial porn sites kicked in just before or even during the election campaign (which it might have done)?
“Boris the Porn Killer”
Could “Boris the Porn Killer” supplant “Get Brexit Done” as a key theme of the election? Very unlikely. Even so might millions of men be angry that their porn supply had been cut off or interrupted while they completed the age verification process? What if there were unseen glitches that emerged? Who would be blamed? Could it adversely affect votes in some marginal seats? Politics can be a murky business sometimes (but don’t tell anyone I said that).
Did a timid soul in the Conservative Party leadership decide it was best to take no chances. Just pull it. Utter a few warm words about not junking the policy. Say something about wrapping it up with a wider and more ambitious initiative (which is what they did).
This is just a theory that is doing the rounds. But we may be about to find out if there is any substance to it. The trade association which represents some of the companies that spent millions getting ready are seeking a judicial review. A number of individual companies are also suing for compensation. It is understood their claims run to around £3 million. Add to that the amounts thought to have been spent by the nominated Regulator (BBFC) and the Government itself and you get to around £5 million.
If the Government has to pay up that’s a lot of money to spend on a pusillanimous and unprincipled panic.
The judicial review was discussed in this article in The Telegraph.
Tech companies launch legal action to force Government to bring in under 18s porn ban
Tech companies have launched legal action to force the Government to bring in the porn age ban. This is a move supported by children’s charities.
Four age verification companies lodged a judicial review at the High Court Thursday challenging the Culture Secretary’s decision to shelve the scheme to impose age checks on all porn sites viewed in the UK.
The Telegraph understands the companies are arguing the decision was an “abuse of power” as the move had been approved by parliament. They are also claiming damages, understood to be in the region of £3 million, for losses sustained developing age verification technology.
The age verification scheme was initially passed as part of the Digital Economy Act in December 2018 and mandated that all adult sites had to have age checks proving UK users were over 18. However, its implementation was repeatedly delayed throughout 2019.
In October, Culture Secretary Baroness Nicky Morgan announced she was suspending the age check scheme and would look to incorporate it into proposed online harms legislation that aims to create a new online regulator. The Government has said it aims to publish draft legislation this year, but it could take two to three years before the regulator is up and running.
At the time the secretary of state said she wanted to look at closing a loophole that would have allowed minors to still view pornography on social media sites.
Companies wanting age verification soon
The four companies behind the judicial review – AgeChecked Ltd, VeriMe, AVYourself and AVSecure – are arguing the secretary of state only had power to choose when the scheme came into force, not scrap it in the form passed by Parliament.
The legal action has been backed by the Children’s Charities’ Coalition for Internet Safety (CCCIS), which represents UK children’s organisations.
John Carr OBE, secretary of the CCCIS, said: “If a judicial review is the only way of getting better protection for children then we are all in favour but it should never have come to this. Everything was in place and ready to go. Children who could have been protected from truly horrific sexual images will instead be exposed to them. That cannot be right.”
Following the action, a spokesman for the Department for Digital, Culture, Media and Sport spokesperson said: “We are unable to comment on any legal proceedings against the department. The Government is committed to ensuring that children are protected from accessing harmful content online.”
The AV companies are claiming damages as part of the legal challenge saying they sank millions into getting the developing verification technology to the detailed standards set out by the Government’s chosen regulator, the British Board of Film Classification.
The CEO of AVSecure, Stuart Lawley, a British tech entrepreneur who made his fortune in the dotcom boom, said he had personally “lost millions” creating the technology.
He said the company, which is behind other parental control apps such as Ageblock, had been preparing for up to 10 million people signing up for the service on day one.
Mr Lawley told The Telegraph: “It is time for [the Government] to do the right thing. We would sooner they issue a new start date and I would drop my claims and get on with it.
“We are millions of pounds out of pocket, me personally millions, we have people who don’t have jobs anymore as a result of this.”
Escaping the Porn Epidemic
The importance of of Age Verification is illustrated in a recent video available from the ageverification.co.uk website.
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