Digital Economy Act 2017/Part 3

< Digital Economy Act 2017

Part 3 of the Digital Economy Act 2017 creates a legal obligation for sites hosting pornography to conduct Online age verification of their users.

This page is a clause-by-clause breakdown of that Part of the Act.

Section 14 - Obligation to Verify Age

  • s.14(1) - Commercial pornographic sites must verify age.
  • s.14(2) - DCMS has the right to define “commercial” via statutory instrument.
  • s.14(10) - This SI may be annulled by resolution of either House.
  • s.14(11) - This SI must not be made until a draft is approved by both Houses.
  • s.14(5) - Specifically applies EC Directive’s ‘mere conduit’, ‘caching’, and ‘hosting’ exceptions to DE Act. (aka. the 'intermediary liability shields'). Effectively, this means that only site owners will be liable; not hosters, ISPs, or intermediaries like Cloudflare etc.
    • It is worth noting that the "hosting" exception is weaker than the others, but does offer protection for sites like Twitter etc. where they may not be aware they are hosting the content. This exception is weaker as it ceases to apply when the hoster becomes aware, or is made aware, of the content that they are hosting.
  • s.14(6) - AV obligation does not apply to “on-demand programmes”, defined as programmes which are “comparable to the form and content of programmes normally included in television programme services”.

Section 15 - Definition of “Pornographic Material”

  • s.15(1) - Defines “pornographic material” as being anything which the BBFC would issue an 18 certificate for, and that “it is reasonable to assume from its nature that it was produced solely or principally for the purposes of sexual arousal”.

Section 16 - AV Regulator (Designation & Funding)

  • s.16(1) - DCMS has the right to designate any person/body (or jointly designate multiple bodies) as AV regulator.
  • s.16(5) - DCMS must not make a designation unless it is satisfied that the regulator will properly hear appeals via a body sufficiently independent from the regulator.
  • s.16(8) - DCMS may pay grants or loans to regulator to cover costs.

Section 17 - Parliamentary Process for Designation of Regulator

Whole section deals with Parliamentary procedure for designating regulator. Largely moot now. BBFC’s designation is complete and complied with this process.

Section 18 - Regulator’s Power to Require Information

  • s.18(1) - Grants AV regulator the power to obtain information about the owner of a pornographic site from ISPs and other intermediaries.

This is the intent but the actual wording basically grants them the right to obtain such info for the enforcement of any purposes under Part 3 of the Act.

Section 19 - Enforcement by Regulator

  • s.19(1) - AV regulator has the power to impose financial penalties where a site owner has not implemented AV, or where an ISP/intermediary refuses a request for information under Section 18.
  • s.19(2) - AV regulator can serve an enforcement notice where it determines a site is not implementing AV and should be.
    • s.19(7) - Defines “enforcement notice” as a formal notice identifying that the regulator has determined the person is in contravention of their obligations and that they must take steps to fix it.
    • s.19(8) - Notes that an enforcement notice must include the regulator’s rationale for serving the notice, and a reasonable deadline for the person to comply.
    • s.19(9) - Notes that it is a legal obligation for a person to comply with such an enforcement notice.
    • s.19(10) - If a person still does not comply, the regulator may serve financial penalty.
    • s.19(11) - The legal obligation in s.19(9) is also enforceable through a variety of civil proceedings (injunction, specific performance, etc).
  • s.19(3) - AV regulator must not apply the above sections (financial penalty / enforcement notice) to someone without first giving them a chance to respond and argue against it.

Section 20 - Financial Penalties

  • s.20(1) - Regulator has the power to issue financial penalties to the amount that they see fit.
  • s.20(2) - Financial penalties may not exceed the greater of either £250,000; or 5% of that person’s qualifying turnover.
  • s.20(3) - Defines “qualifying turnover” a bit more specifically.
  • s.20(5) - Regulator must have regard to guidance when deciding financial penalty amount.
    • s.20(9) - Regulator publishes this guidance.
    • s.20(10) - and may revise this guidance as they see fit.
    • s.20(12) - DCMS must lay any guidelines or revised guidelines published under this section before Parliament.
      • A little confusing, as this is talking about the DCMS laying these guidelines while all the other subsections talk about the regulator dealing with the guidelines. Sounds like the regulator must communicate its proposed guidelines to the DCMS, who must then lay them before Parliament.
    • s.20(13) - Before publishing guidelines, the regulator must consult the DCMS or others it considers appropriate.

Section 21 - Notice to Payment and Ancillary Service Providers

  • s.21(1) - Regulator has power to serve notice on a party who provides payment or ancillary services to a person who is either not complying with their AV obligations or serving extreme pornography.
  • s.21(2) - Outlines some procedural specifics about the notice.
  • s.21(3) - Regulator must notify the noncompliant party that they have served this kind of notice on the payment/ancillary service provider.
  • s.21(4) - Defines “payment services provider”. Definition is largely as would be expected.
  • s.21(5) - Offers some limited definition of “ancillary service provider”. Essentially defined as anyone who offers services which facilitate the making available of pornographic content in a non-AV-compliant manner. Also includes anyone who advertises on or via any site operated by the non-complying person.

Section 22 - Definition of “Extreme Pornographic Material”

  • Notes that, for the purposes of this Act, the definition of material that counts as “extreme” uses the definition found in Section 63 of the Criminal Justice and Immigration Act 2008.
  • Regulator’s powers to block this material or give notice to payment/ancillary service providers come from Section 23 and Section 21 respectively.
  • Note: It does not appear that the Act grants the regulator the power to issue an enforcement notice for sites hosting extreme material. It seems like the only remedies are blocking and/or notice to payment or ancillary providers.

Section 23 - Regulator’s Powers to Block

  • s.23(1) - The regulator has the right to issue notice to ISPs to block sites which have not complied with their obligation to implement AV, or are making extreme pornography available in the UK.
  • s.23(2) - Outlines the procedural requirements for the notice to comply with.
  • s.23(4) - Notice can specify that the ISP should implement a splash page to give information to people who attempt to access the site that explains why it has been blocked.
  • s.23(5) - Notice can outline a deadline for the ISP to comply.
  • s.23(6) - Notice may be revoked or varied by a subsequent notice.
  • s.23(7) - Regulator has the power to publish a notice publicly any way it wants.
  • s.23(8) - The ISP has a legal duty to comply with a notice.
  • s.23(9) - The ISP’s legal duty is enforceable in civil proceedings (injunction, specific performance, etc.).
  • s.23(10) - Before issuing a notice to block, the regulator must inform the DCMS of its intent to do so, and give notice of their intent to the non-compliant person.

Section 24 - Cannot Issue Notice Which May Prejudice National Security

  • s.24(1) - Before giving a notice to block a site under Section 23, the regulator must consider whether issuing the notice would be detrimental to national security, the prevention or detection of serious crime, or the prevention or detection of an offence listed in Schedule 3 of the Sexual Offences Act 2003.

Section 25 - Guidance from the Regulator

  • s.25(1) - AV regulator is obliged to publish and revise, from time to time, guidance about what types of systems will suffice for the purposes of verifying that a user is 18+, and about the circumstances under which it will treat "services provided in the course of a business as enabling or facilitating the making available of pornographic material or extreme pornographic material."
  • s.25(2) - Regulator must submit to the DCMS the draft guidance about what AV mechanisms will comply.
  • s.25(3) - DCMS must lay that guidance before both Houses.
  • s.25(4) - Regulator must submit to the DCMS the draft guidance about what constitutes an “ancillary service provider” and what “enabling” or “facilitating” the making available of pornographic or extreme pornographic material.
  • s.25(5) - DCMS can approve that guidance personally with or without modifications.
  • s.25(6) - DCMS must lay that guidance before both Houses, along with any modifications they have made and justifications for those modifications.
  • s.25(7) - If either House resolves not to approve either of the two types of guidance above within 40 days of it being laid before Parliament, the regulator must not publish it.
  • s.25(8) - If the House does not resolve to reject the guidance within 40 days, the regulator must publish it.
  • s.25(11) - For the first set of guidance (of either of the two types mentioned above), it must be explicitly approved by both Houses of Parliament.

Section 26 - Exercise of Functions by Regulator

  • s.26(1) - The AV regulator has the right to focus the exercise of their regulatory power principally in relation to persons who make pornographic material to “a large number of persons”, or who “generate a large amount of turnover by doing so”.
  • s.26(2)(a) - The AV regulator has the right to consult with any person it considers appropriate for the purposes of exercising or considering any function under DE Act Part 3.
  • s.26(2)(b) - It may also carry out, commission, or support (financially or otherwise) any research which it considers appropriate for the purposes of exercising its function under DE Act Part 3.
  • s.26(2)(c) - It may publish such research.

Section 27 - DCMS Guidance to Regulator

  • s.27(1) - DCMS has the power to issue guidance to the regulator in relation to the regulator’s functions and may revise the guidance from time-to-time.
  • s.27(2) - Some specifics about what the guidance might cover.
  • s.27(3) - The regulator is obliged to have regard to the guidance.
  • s.27(4) - DCMS must lay any such guidance before both Houses.

Section 28 - Requirements for Notices Given by Regulator

  • This section largely outlines procedural requirements for the issue of notices by the regulator (i.e. Where to serve those notices and when they will be legally considered “served”).
  • Mostly as would be expected.

Section 29 - Report on this Part

  • s.29(1) - Between 12 and 18 months of the “coming into force” of this Part, the DCMS must produce a report on the effectiveness of the regulatory framework provided for in this Part.
  • s.29(3) - Report must be laid before both Houses of Parliament.