Online Safety Bill

The Online Safety Bill today received its second reading in the House of Lords. The aim of the bill, which follows the recommendations of the Independent Parliamentary Enquiry into Online Child Protection, is to “make provision about the promotion of online safety” and as the preamble makes clear this extends to mobile phone operators as well as to those providing fixed/landline links. The bill is quite short, just six sections long, and provides for obligations to be placed in relation to 2 groups: those providing Internet connection (as understood in the Communications Act 2003); and those manufacturing “devices”. As regards the first group, the default position is that services provided by “Internet service providers, exclude pornographic images unless the subscriber is 18 or over and opts-in to such content. The justification for an opt- in system is that the installation and maintenance of parental control systems is complex and time-consuming and therefore less likely to be used, or to be used effectively. As regards the second, this obliges manufacturers of “electronic devices” with a means of filtering content at the time the devices purchased.

While the definitions for “image” and “pornographic” to match section 63 of the Criminal Justice and Immigration Act 2008, the practical application of that test in each case is potentially problematic, as definitions of pornography may be both context and person specific. This is both a question of the identification of what is considered pornography and the level of filtering technology to be made available. As regards the definition of pornography, there is the additional point that the definition in section 63 of the Criminal Justice and Immigration act is aimed at images of extreme pornography: the question was raised in the Lords as to whether the opt in system should apply more widely to include highly sexualised and graphic images.   Looking at the obligation on manufacturers of “electronic devices”, it is worth noting that “electronic device” is defined broadly: the definition looks to the function of the device, not its main purpose, and covers all devices capable of connecting to an Internet access service and downloading content. Further, the issue of filtering, and the problem of over-filtering, remains problematic. One issue that was raised in the Lords is the question of whether the unsubtle nature of filtering, and the fact that filters may catch far more content than intended, may end up with parents choosing to opt-in. The alternative proposed was that “electronic devices” should require purchasers to set the levels themselves. Ultimately, this comes down to the assessment of whether the average purchaser is not only capable but comfortable with accessing and setting such controls.

 

The question of children’s access to online pornography has been a concern to some considerable time. Against that background, it is also worth noting in the current context that Baroness Howe argued that the industry initiatives developed by the ISPs on the one hand and mobile phone operators on the other have both been ineffective.

Professor Lorna Woods

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