This week a new Digital Economy Bill [PDF] has been tabled before the United Kingdom Parliament, tackling a diverse range of topics related to electronic communications infrastructure and services. Two of these give us serious concern, the first being a new regime restricting access to online pornography, and the other an expansion of criminal liability for copyright infringement.

New Internet Censorship Body

The new provisions would require commercial websites that are accessible within the United Kingdom to use age verification gateways before allowing access to pornographic content. Pornographic content includes video material or clips "produced solely or principally for the purposes of sexual arousal", and that have been either previously been rated 18 or R18 by the UK's Video Standards Council (VSC, equivalent to the MPAA with its R and NC17 ratings), or that it is "reasonable to assume… would have been" given those ratings if they had been submitted for VSC classification. The hypothetical classification that material "would have been" given is not judged by the VSC however, but by a new "age verification regulator".

By creating a new and separate Internet regulator to make these hypothetical determinations, we are bound to see decisions being made that are inconsistent with the actual classification decisions made by the VSC, whose work is difficult and contentious enough already. Worse, the possible impact of the law extends beyond video hosting websites, but also extends to payment services providers, hosting providers, and advertisers on those websites, whether they are based in the United Kingdom or overseas. Adding to the fact that the bill also doesn't specify what kind of age verification system is required, the result will be a mess of legal uncertainty for websites conducting business in the UK going forward.

The widespread use of age declaration dialogs on adult websites already shields minors from accidental exposure to adult content. Going further and requiring proof to back up these declarations, as the bill appears to do, is a step too far. It provides only minimal additional protection for children against exposure to age-inappropriate material, but at the cost of making anonymous access to adult content impossible. Due to the stigma that continues to be associated with pornography, and the risk of embarrassment or worse if one's consumption of it becomes public, many adults will only choose to access such material anonymously. If this bill should pass, many will simply flock to overseas websites that don't care about complying with UK law, rendering the bill not only harmful to UK online businesses, but also ineffective.

Penalties for Online Copyright Infringement Massively Increased

Separately, the Digital Economy Bill also deals with online copyright infringement, expanding both the scope of protection and the penalties for infringement. In the first of these changes, it expands the offense of making copyright work available online for non-commercial purposes without authorization. Under the current law, a non-commercial infringement is only an offense if it occurs "to such an extent as to affect prejudicially the owner of the copyright". Under the proposed new law, the offense is committed merely if the infringer believes that their action "will expose the owner of the copyright to a risk of loss", meaning "not getting what one might get". This is a much lower standard, which will result in many more infringements being treated as criminal, on the basis of the speculative risk of possible lost sales.

Secondly, the Bill also increases the penalties for online infringement by five times, from a maximum of two years imprisonment to a full ten years. This changes is proposed despite clear evidence from an earlier public consultation that most people considered a ten year prison term for copyright infringement to be excessive. For those who like to relate online copyright infringement to stealing a car, it might be worth noting that the maximum penalty for aggravated vehicle-taking under UK law is only two years.

It is still not too late for the Digital Economy Bill to be amended following its first reading in the Parliament this week. British readers should contact their representatives and ask them to raise the problems that we have identified during debate on the Bill. To recap, disallowing anonymous access to pornographic videos in the United Kingdom would effectively curtail the right of millions of adults to safely access adult content online, at significant cost to online businesses, and with little ultimate impact given the continued availability of such material from overseas. And new rules that would lower the threshold of criminality of online copyright infringement while raising the penalties, are disproportionate and will result in punitive sanctions being applied to infringements that may caused little if any actual harm.

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