Is the government misleading the Lords about blocking Twitter?
The Bill is even worse than we illustrated. The definition of a “pornographic website” in Clause 15 (2) is purely a site that operates on a “commercial basis”. This could catch any site—including Twitter, Reddit, Tumblr—where pornography can be found. The practical limit would therefore purely be down to the discretion of the regulator, the BBFC, as to the kind of commercial sites they wanted to force to use Age Verification. However, the BBFC does not seem to want to require Twitter or Reddit to apply age verification—at least, not yet.
However, we also got one part wrong last week. In relation to Twitter, Reddit and other websites where porn sites might promote their content, the Bill contains a power to notify these “ancillary services” but has no specific power to enforce the notifications.
In other words, they expect Twitter, Google, Facebook, Tumblr and other companies to voluntarily block accounts within the UK, without a specific legal basis for their action.
This would create a toxic situation for these companies. If they fail to “act” on the “notifications”, these services will leave themselves open to the accusation that they are failing to protect children, or actively “supplying” pornography to minors.
On the other hand, if they act on these notices, they will rightly be accused by ourselves and those that are censored of acting in an unaccountable, arbitrary manner. They will not have been legally obliged to act by a court; similar content will remain unblocked; and there will be no clear remedy for someone who wished to contest a “notification”. Liability for the blocks would remain with the company, rather than the BBFC.
The government has not been clear with the Lords that this highly unclear situation is the likely result of notifications to Twitter—rather than account blocks, as they have suggested.
There are very good reasons not to block accounts after a mere notification. For instance in this case, although sites can contest a classification at the BBFC, and an internal appeals process will exist, there is no external appeal available, other than embarking on an expensive judicial review. It is not clear that a classification as pornography should automatically lead to action by ancillary services, not least because compliance automatically results in the same content being made available. To be clear, the bill does not aim to remove pornography from Twitter, Reddit users or search engines.
Why then, has the government drafted a bill with this power to notify “ancillary services”, but no method to enforce? The reason appears to be that payment providers in particular have a long standing agreement amongst themselves that they will halt payments when they are notified that someone is taking payments for unlawful activity. Similarly, large online ad networks have a similar process of accepting notifications.
There is therefore no need to create enforcement mechanisms for these two kinds of “ancillary providers”. (There are pitfalls with their approach—it can lead to censorship and unwarranted damage to businesses—but let us leave that debate aside for now.)
It seems clear that, when the bill was written, there was no expectation that “ancillary providers” would include Twitter, Yahoo, or Google, so no enofrcement power was created.
The government, in their haste, has agreed with the BBFC that they should be able to notify Twitter, Google, Yahoo and other platforms. They have agreed that BBFC need not take on a role of enforcement through court orders.
The key point is that the Lords are being misled by the government as things stand. Neither the BBFC or government have explored with Parliamentarians what the consequences of expanding the notion of “ancillary providers” is.
The Lords need to be told that this change means that:
- the notices are unenforceable against Internet platforms;
- they will lead to public disputes with the companies;
- they make BBFC’s decisions relating to ancillary providers highly unaccountable as legal responsibility for account blocks rest with the platforms.
It appears that the BBFC do not wish to be cast in the role of “national censor”. They believe that their role is one of classification, rather than enforcement. However, the fact that they also wish to directly block websites via ISPs rather flies in the face of their self-perception, as censorship is most clearly what they will be engaging in. Their self-perception is also not a reason to pass the legal buck onto Internet platforms who have no role in deciding whether a site fails to meet regulatory requirements.
This mess is the result of rushing to legislate without understanding the problems involved. The obvious thing to do is to limit the impact of the “ancillary services” approach by narrowing the definition to exclude all but payment providers and ad networks. The alternative—to create enforcement powers against a range of organisations—would need to establish full accountability for the duties imposed on ancillary providers in a court, something that the BBFC seems to wish to avoid.
Or of course, the government could try to roll back its mistaken approach entirely, and give up on censorship as a punishment: that would be the right thing to do. Please sign our petition if you agree.