In defence of the Online Safety Act
The legislation is flawed, but a welcome step
The Online Safety Act has become a bogeyman for the right. Kemi Badenoch bemoaned it from its inception, and as Nigel Farage calls for its repeal at home, the richest man in the world and the President of the United States invoke its demise from across the Atlantic. Many of my own friends in media and policy circles see the Act as unleashing an Orwellian cyber-surveillance state or presenting a vehicle for Rotherham-style coverups and media suppression. Yet with its duty for adult content hosts to age verify users, the Act is one of Britain’s only attempts to protect children from the horrors of the murky ocean that is the internet. There are few hills I’d rather die on than protecting children. Surely stemming the tide of obscene material flowing into innocent eyes should be prioritised over liberal preoccupations like free speech. None of this is to say that the Act is perfect, far from it, but rather than calling for repeal we should be looking to reform the Online Safety Act. The Act is less restrictive of political speech than some would have us believe, even if framing “harm” so broadly risks a chilling effect. In an ideal form, the Act would focus on a narrower range of harms but be more tightly drafted to ensure that enforcement of the age verification provisions is effective. In such a form, the Act would protect both political expression and the most vulnerable in society.
The extent of children’s exposure to pornography is unthinkable to most boomer Tories. By the age of 13, at least half of children had accessed hardcore porn according to a 2023 report produced for the children’s commissioner for England. The same report suggests that 79 per cent of current 18 to 21-year-olds had consumed violent pornography whilst they were children. The commissioner reported hearing first-hand the heartbreaking story of a 12-year-old girl who was strangled by her boyfriend during their first kiss because porn had taught him that was normal. Liberals continue to delude themselves with the educational fallacy, assuming that mandatory “consent workshops” will dispel campus sexual abuse. In reality, predatory behaviour is likely the result of deeply ingrained damage from binge watching extreme content when the brain is most malleable. This, before embarking on a period of three years that modern society has, in its infinite wisdom, given over to sexual licence as much as learning.
Not preventing under-eighteens from accessing pornography is child abuse
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As well as encouraging harmful attitudes within relationships, the normalisation of porn feeds young people into the exploitative sex industry. The work of Laila Mickelwait and the Justice Defence Fund has revealed that mainstream porn sites hosted vast amounts of child sexual abuse material and non-consensual sex videos, and it is increasingly clear that they did so knowingly. The danger is only growing as sites like OnlyFans democratise the creation of porn. The call of homemade porn will be hard to resist for attractive young women who may find themselves making more money than their end-of-career parents, with some OnlyFans “models” taking home over £600,000 a month. Even before young people find themselves monetising sex tapes for a mass audience, they are making and circulating explicit content through smartphones. The 2023 report claims 51 per cent of girls aged 16-21 had been shown explicit content involving people they knew in real life. This cycle of abuse starts with children repeatedly encountering porn online and normalising it.
Laws never stop the actions they declare themselves to prohibit, they merely reduce their frequency. It is on this basis that we should judge the success or failure of the Online Safety Act. Observers on all sides have noted that so far age verification has been about as effective as a dike made of leerdammer. Still, a half-finished wall is better than no wall at all. Where the Act is set to be a game changer is in preventing inadvertent access. It will ensure that children encounter porn at a later age and reduce the numbers of children viewing it overall. It also allows for more robust safeguards to be enacted.
And there’s no getting around the fact that far more does need to be done. Many sites have failed to implement adequate verification measures, and all manner of bypasses have been discovered, including the use of VPNs and employing AI to generate (barely plausible) fake IDs and 3D faces. All of this could be fixed with tighter drafting. In its current form, the Act is agnostic on the method of age verification, provided it is more than self-declaration. It should instead specify a single strong verification method. The government itself is surely the expert in identity verification, and constantly validates documents for official purposes; to abdicate responsibility for this function under the Act is unhelpful. In future, it could simply roll out its own approved software, referred to in the relevant provision, to match passports with national registries. Naturally, VPNs could be gated with the same age verification requirements as porn sites through another small tweak.
In need of more urgent attention than weak verification systems are loopholes in the scope of the obligation itself. It does not apply to search engines, meaning that explicit images can still be returned even if sites hosting videos are age restricted. Likewise, while the Act does have extraterritorial effect, it only applies to sites that have a substantial number of British users. This means that children could circumvent restrictions by searching content on foreign search engines like Yandex, which will return predominantly overseas sites but can be switched to English language through a default browser plug-in. Again, all of this could be easily resolved with drafting changes, mainly to Part 5 of the Act and certain definitions.
In contrast to the scope of age verification, which should be broadened, the definition of harm itself must be narrowed to pornography and self-harm content like suicide coaching. Critics from the right are correct to see the potential for abuse when leaving the interpretation of “harmful” to private companies and a potentially hostile quango. In a better manifestation, we would remove the risk of political shadow banning by focusing on a small number of well-defined harms around which there is a high degree of consensus.
Nevertheless, fears about the Act’s effect on fundamental freedoms are exaggerated. No doubt there will be eye-catching misjudgements in the early days of implementation, but duties to preserve users’ freedom of expression are expressly wired into the document. There will be room for legal challenge, adjustment and, if the worst comes to worst, you can rely on Article 10 of the ECHR to challenge the Act’s interpretation under the Human Rights Act. Many of the most politically sensitive sites, like YouTube, already had substantial private content moderation before the Act and faced accusations of political bias. The Act actually presents a clearer basis to challenge these systems than when they were a matter of private contract. Whilst I have my misgivings about the “disinformation” offence in section 179, it is unlikely to result in many prosecutions. Demonstrating that a defendant subjectively knew information they transmitted to be false and intended it to cause harm, each to the criminal standard of proof, will be challenging. Privacy worries specific to the Act seem farcical in the post-Snowden era — if the security services were bulk collecting webcam images on an untargeted basis as early as 2013, then one imagines they don’t need new legal authorities to check your browsing history. And where were these privacy advocates when the same age verification measures were rolled out for online gambling in 2019?
Breaking from the groupthink of political allies is a challenge, but as a like-minded friend recently quipped to me: “I don’t think you’re ever going to regret coming out against showing children pornography”. Not preventing under-eighteens from accessing pornography is child abuse, and it is a form of abuse so widespread that it passes without comment. The Online Safety Act is a valuable early step in a war against the sexualisation of children which is yet to be properly fought. The energies of conservatives are best spent reforming the Act to narrow its focus to key harms and plug loopholes that still allow children to encounter harmful content. This legislation is unusual in furthering the objectives of social conservatives whilst also garnering support from the left and it therefore presents opportunities. It could be leveraged to address the harms of smartphones for developing brains, or to open up conversations about our dormant obscenity laws, de-fanged by the courts. There was a time, not so long ago, when we understood that certain images were too depraved and degrading even for adult eyes, and that wisdom may have life in it yet. Instead of taking up this challenge, once again the children of the 60s endanger the welfare of kids in the service of liberal individualism. We are seldom presented with such a bipartisan opportunity to serve the common good — let us not squander it.
