The Authority for Television on Demand (“ATVOD”) has been at the forefront of maximizing protection of minors from harmful media content since it was designated as the regulator of UK on-demand services in 2010. We regulate the editorial content of ‘On Demand Programme Services’ (“ODPS”), which covers a wide range of video on demand services, from catch-up TV to movie services to pornography. Crucially, we regulate these services however they’re delivered, as long as it’s via an ‘electronic communications network’. This means that a lot of the services we regulate are websites, and we enforce statutory rules to ensure that UK operators of adult websites keep hardcore pornography beyond the reach of under-18s.
ATVOD’s duties and powers derive from the Communications Act 2003 as amended by the Audiovisual Media Services Regulation 2009, 2010, and 2014. These Regulations themselves implement EU law – the Audiovisual Media Services Directive (AVMSD). Services regulated by ATVOD have to comply with statutory rules covering issues such as child protection, incitement to hatred, and commercial references (i.e. sponsorship and product placement).
What are the implications of AVMSD for age verification? Well the Directive states that some potentially harmful material (material which ‘might seriously impair the physical, mental or moral development of minors’) can only be made available on an ODPS in a way which ensures that minors won’t normally hear or see the material. UK law specifies that ‘minors’ are those under 18 and that such harmful material includes hardcore pornography which would be given an ‘R18’ classification by the BBFC. Such ‘specially restricted material’ must be made available ‘in a manner which secures that persons under the age of 18 will not normally see or hear it’. So if you run an adult video on demand website from the UK, children should not normally be able to access any hardcore pornographic content on it.
There are a number of issues here – we recognise adults’ rights to access legal pornography, so how is this balanced against child protection? What does ‘secure’ mean, or ‘will not normally see or hear it’? After all, if content is to be accessible to adults, we can’t realistically guarantee that no child will ever be able to access it. ATVOD has taken an established approach to age verification in this regard, following the Gambling Commission in its regulation of age restricted websites. We require that such websites have in place an effective Content Access Control System (“CAC System”) which verifies that the user is aged 18 or over at the point of registration or access by the mandatory use of technical tools for age verification and, if age verification does not take place each time the user returns to the service, controls further access to such content when the user returns to the service by the use of mandatory security controls such as passwords or PIN numbers.
It wouldn’t be appropriate for ATVOD to endorse particular commercial schemes, but we do give examples of the type of tools which might be acceptable for age verification purposes. These include confirmation of credit card ownership or another form of payment which requires proof that the holder is at least 18 prior to issue (so not debit cards, as you can be under 18 and own one). Or we would accept a reputable personal digital identity management service which uses checks on an independent and reliable database, such as the electoral roll. We’ve recently amended our guidance in line with developments in age verification tools, to make clear that we would also accept proof of possession and ownership of an effectively age-verified mobile phone – a SIM card for which the account holder has presented proof of identity and age. The crucial point here is that there needs to be a closed loop in the age verification process –an effective CAC system must establish that the owner of the effectively age-verified phone is the person attempting to access content – for example by demonstrating possession of the phone and awareness of the attempted access, most typically through an exchange of text messages. We assess the effectiveness of such tools on a case by case basis and keep them under review.
All well and good for the services we regulate, and for their customers. But if the service is run from outside the UK no such obligation exists – and of course this includes the vast majority of pornographic websites potentially accessible by UK children.
It’s an obvious issue, and one which has not escaped political scrutiny. The new government has promised to ensure that children are better protected from online pornography, with the Prime Minister recently commenting that he wants to see ‘age restrictions put into place or these websites will face being shut down’.
ATVOD continues to encourage policy makers to consider how children might be better protected, and therefore welcomes the forthcoming government consultation on how best to introduce measures to further restrict under-18s’ access to pornographic websites, operated both from the UK and overseas.
Pete Johnson
CEO, ATVOD
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