Following the conclusion of their consultation period, the BBFC have issued new age verification guidance that has been laid before Parliament. It is unclear why, if the government now recognises that privacy protections
like this are needed, the government would also leave the requirements as voluntary.
Summary
The new code has some important improvements, notably the introduction of a voluntary scheme for privacy, close to or based on a GDPR Code of Conduct. This is a good idea, but should not be put in place as a voluntary
arrangement. Companies may not want the attention of a regulator, or may simply wish to apply lower or different standards, and ignore it. It is unclear why, if the government now recognises that privacy protections like this are needed, the
government would also leave the requirements as voluntary.
We are also concerned that the voluntary scheme may not be up and running before the AV requirement is put in place. Given that 25 million UK adults are expected to sign up to these products within a few months of its
launch, this would be very unhelpful.
Parliament should now:
Ask the government why the privacy scheme is to be voluntary, if the risks of relying on general data protection law are now recognised;
Ask for assurance from BBFC that the voluntary scheme will cover the all of the major operators; and
Ask for assurance from BBFC and DCMS that the voluntary privacy scheme will be up and running before obliging operators to put Age Verification measures in place.
The Digital Economy Act does not allow the BBFC to judge age verification tools by any standard other than whether or not they sufficiently verify age. We asked that the BBFC persuade the DCMS that statutory requirements for
privacy and security were required for age verification tools.
The BBFC have clearly acknowledged privacy and security concerns with age verification in their response. However, the BBFC indicate in their response that they have been working with the ICO and DCMS to create a
voluntary certification scheme for age verification providers:
"This voluntary certification scheme will mean that age-verification providers may choose to be independently audited by a third party and then certified by the Age-verification Regulator. The third party's audit will
include an assessment of an age-verification solution's compliance with strict privacy and data security requirements."
The lack of a requirement for additional and specific privacy regulation in the Digital Economy Act is the cause for this voluntary approach.
While a voluntary scheme above is likely to be of some assistance in promoting better standards among age verification providers, the "strict privacy and data security requirements" which the voluntary scheme
mentions are not a statutory requirement, leaving some consumers at greater risk than others.
Sensitive Personal Data
The data handled by age verification systems is sensitive personal data. Age verification services must directly identify users in order to accurately verify age. Users will be viewing pornographic content, and the data
about what specific content a user views is highly personal and sensitive. This has potentially disastrous consequences for individuals and families if the data is lost, leaked, or stolen.
Following a hack affecting Ashley Madison -- a dating website for extramarital affairs -- a number of the site's users were driven to suicide as a result of the public exposure of their sexual activities and interests.
For the purposes of GDPR, data handled by age verification systems falls under the criteria for sensitive personal data, as it amounts to "data concerning a natural person's sex life or sexual orientation".
Scheduling Concerns
It is of critical importance that any accreditation scheme for age verification providers, or GDPR code of conduct if one is established, is in place and functional before enforcement of the age verification provisions in
the Digital Economy Act commences. All of the major providers who are expected to dominate the age verification market should undergo their audit under the scheme before consumers will be expected to use the tool. This is especially true when
considering the fact that MindGeek have indicated their expectation that 20-25 million UK adults will sign up to their tool within the first few months of operation. A voluntary accreditation scheme that begins enforcement after all these people
have already signed up would be unhelpful.
Consumers should be empowered to make informed decisions about the age verification tools that they choose from the very first day of enforcement. No delays are acceptable if users are expected to rely upon the scheme to
inform themselves about the safety of their data. If this cannot be achieved prior to the start of expected enforcement of the DE Act's provisions, then the planned date for enforcement should be moved back to allow for the accreditation to be
completed.
Issues with Lack of Consumer Choice
It is of vital importance that consumers, if they must verify their age, are given a choice of age verification providers when visiting a site. This enables users to choose which provider they trust with their highly
sensitive age verification data and prevents one actor from dominating the market and thereby promoting detrimental practices with data. The BBFC also acknowledge the importance of this in their guidance, noting in 3.8:
"Although not a requirement under section 14(1) the BBFC recommends that online commercial pornography services offer a choice of age-verification methods for the end-user".
This does not go far enough to acknowledge the potential issues that may arise in a fragmented market where pornographic sites are free to offer only a single tool if they desire.
Without a statutory requirement for sites to offer all appropriate and available tools for age verification and log in purposes, it is likely that a market will be established in which one or two tools dominate. Smaller
sites will then be forced to adopt these dominant tools as well, to avoid friction with consumers who would otherwise be required to sign up to a new provider.
This kind of market for age verification tools will provide little room for a smaller provider with a greater commitment to privacy or security to survive and robs users of the ability to choose who they trust with their
data.
We already called for it to be made a statutory requirement that pornographic sites must offer a choice of providers to consumers who must age verify, however this suggestion has not been taken up.
We note that the BBFC has been working with the ICO and DCMS to produce a voluntary code of conduct. Perhaps a potential alternative solution would be to ensure that a site is only considered compliant if it offers users a
number of tools which has been accredited under the additional privacy and security requirements of the voluntary scheme.
GDPR Codes of Conduct
A GDPR "Code of Conduct" is a mechanism for providing guidelines to organisations who process data in particular ways, and allows them to demonstrate compliance with the requirements of the GDPR.
A code of conduct is voluntary, but compliance is continually monitored by an appropriate body who are accredited by a supervisory authority. In this case, the "accredited body" would likely be the BBFC, and the
"supervisory authority" would be the ICO. The code of conduct allows for certifications, seals and marks which indicate clearly to consumers that a service or product complies with the code.
Codes of conduct are expected to provide more specific guidance on exactly how data may be processed or stored. In the case of age verification data, the code could contain stipulations on:
Appropriate pseudonymisation of stored data;
Data and metadata retention periods;
Data minimisation recommendations;
Appropriate security measures for data storage;
Security breach notification procedures;
Re-use of data for other purposes.
The BBFC's proposed "voluntary standard" regime appears to be similar to a GDPR code of conduct, though it remains to be seen how specific the stipulations in the BBFC's standard are. A code of conduct would also
involve being entered into the ICO's public register of UK approved codes of conduct, and the EPDB's public register for all codes of conduct in the EU.
Similarly, GDPR Recital 99 notes that "relevant stakeholders, including data subjects" should be consulted during the drafting period of a code of conduct - a requirement which is not in place for the BBFC's
voluntary scheme.
It is possible that the BBFC have opted to create this voluntary scheme for age verification providers rather than use a code of conduct, because they felt they may not meet the GDPR requirements to be considered as an
appropriate body to monitor compliance. Compliance must be monitored by a body who has demonstrated:
Their expertise in relation to the subject-matter;
They have established procedures to assess the ability of data processors to apply the code of conduct;
They have the ability to deal with complaints about infringements; and
Their tasks do not amount to a conflict of interest.
Parties Involved in the Code of Conduct Process
As noted by GDPR Recital 99, a consultation should be a public process which involves stakeholders and data subjects, and their responses should be taken into account during the drafting period:
"When drawing up a code of conduct, or when amending or extending such a code, associations and other bodies representing categories of controllers or processors should consult relevant stakeholders, including data
subjects where feasible , and have regard to submissions received and views expressed in response to such consultations."
The code of conduct must be approved by a relevant supervisory authority (in this case the ICO).
An accredited body (BBFC) that establishes a code of conduct and monitors compliance is able to establish their own structures and procedures under GDPR Article 41 to handle complaints regarding infringements of the code, or
regarding the way it has been implemented. BBFC would be liable for failures to regulate the code properly under Article 41(4),
[1] however DCMS appear to have accepted the principle that the government would need to protect BBFC from such liabilities.
[2]
GDPR Codes of Conduct and Risk Management
Below is a table of risks created by age verification which we identified during the consultation process. For each risk, we have considered whether a GDPR code of conduct may help to mitigate the effects of it.
Risk
CoC Appropriate?
Details
User identity may be correlated with viewed content.
Partially
This risk can never be entirely mitigated if AV is to go ahead, but a CoC could contain very strict restrictions on what identifying data could be stored after a successful age verification.
Identity may be associated to an IP address, location or device.
No
It would be very difficult for a CoC to mitigate this risk as the only safe mitigation would be not to collect user identity information.
An age verification provider could track users across all the websites it's tool is offered on.
Yes
Strict rules could be put in place about what data an age verification provider may store, and what data it is forbidden from storing.
Users may be incentivised to consent to further processing of their data in exchange for rewards (content, discounts etc.)
Yes
Age verification tools could be expressly forbidden from offering anything in exchange for user consent.
Leaked data creates major risks for identified individuals and cannot be revoked or adequately compensated for.
Partially
A CoC can never fully mitigate this risk if any data is being collected, but it could contain strict prohibitions on storing certain information and specify retention periods after which data must be destroyed, which may
mitigate the impacts of a data breach.
Risks to the user of access via shared computers if viewing history is stored alongside age verification data.
Yes
A CoC could specify that any accounts for pornographic websites which may track viewed content must be strictly separate and not in any visible way linked to a user's age verification account or data that confirms their
identity.
Age verification systems are likely to trade off convenience for security. (No 2FA, auto-login, etc.)
Yes
A CoC could stipulate that login cookies that "remember" a returning user must only persist for a short time period, and should recommend or enforce two-factor authentication.
The need to re-login to age verification services to access pornography in "private browsing" mode may lead people to avoid using this feature and generate much more data which is then stored.
No
A CoC cannot fix this issue. Private browsing by nature will not store any login cookies or other objects and will require the user to re-authenticate with age verification providers every time they wish to view adult
content.
Users may turn to alternative tools to avoid age verification, which carry their own security risks. (Especially "free" VPN services or peer-to-peer networks).
No
Many UK adults, although over 18, will be uncomfortable with the need to submit identity documents to verify their age and will seek alternative means to access content. It is unlikely that many of these individuals will
be persuaded by an accreditation under a GDPR code.
Age verification login details may be traded and shared among teenagers or younger children, which could lead to bullying or "outing" if such details are linked to viewed content.
Yes
Strict rules could be put in place about what data an age verification provider may store, and what data it is forbidden from storing.
Child abusers could use their access to age verified content as an adult as leverage to create and exploit relationships with children and teenagers seeking access to such content (grooming).
No
This risk will exist as long as age verification is providing a successful barrier to accessing such content for under-18s who wish to do so.
The sensitivity of content dealt with by age verification services means that users who fall victim to phishing scams or fraud have a lower propensity to report it to the relevant authorities.
Partially
A CoC or education campaign may help consumers identify trustworthy services, but it can not fix the core issue, which is that users are being socialised into it being "normal" to input their identity details
into websites in exchange for pornography. Phishing scams resulting from age verification will appear and will be common, and the sensitivity of the content involved is a disincentive to reporting it.
The use of credit cards as an age verification mechanism creates an opportunity for fraudulent sites to engage in credit card theft.
No
Phishing and fraud will be common. A code of conduct which lists compliant sites and tools externally on the ICO website may be useful, but a phishing site may simply pretend to be another (compliant) tool, or rely on the
fact that users are unlikely to check with the ICO every time they wish to view pornographic content.
The rush to get age verification tools to market means they may take significant shortcuts when it comes to privacy and security.
Yes
A CoC could assist in solving this issue if tools are given time to be assessed for compliance before the age verification regime commences .
A single age verification provider may come to dominate the market, leaving users little choice but to accept whatever terms the provider offers.
Partially
Practically, a CoC could mitigate some of the effects of an age verification tool monopoly if the dominant tool is accredited under the Code. However, this relies on users being empowered to demand compliance with a CoC,
and it is possible that users will instead be left with a "take it or leave it" situation where the dominant tool is not CoC accredited.
Allowing pornography "monopolies" such as MindGeek to operate age verification tools is a conflict of interest.
Partially
As the BBFC note in their consultation response, it would not be reasonable to prohibit a pornographic content provider from running an age verification service as it would prevent any site from running their own tool.
However, under a CoC it is possible that a degree of separation could be enforced that requires an age verification tools to adhere to strict rules about the use of data, which could mitigate the effects of a large pornographic content
provider attempting to collect as much user data as possible for their own business purposes.
[1] "Infringements of the following provisions shall, in accordance with paragraph 2, be subject to administrative fines up to 10 000 000 EUR, or in the case of an undertaking, up to 2
% of the total worldwide annual turnover of the preceding financial year, whichever is higher: the obligations of the monitoring body pursuant to Article 41(4)."
[2] "contingent liability will provide indemnity to the British Board of Film Classification (BBFC) against legal proceedings brought against the BBFC in its role as the age
verification regulator for online pornography."
The Grinch is a 2018 China / USA children's cartoon comedy by Yarrow Cheney and Scott Mosier.
Starring Benedict Cumberbatch.
BBFC category cuts were required for a U rated cinema releases in 2018.
UK: 2D and 3D versions including Short Yellow is the New Black passed U for mild slapstick, very mild bad language after 1s of BBFC category cuts ( 89:55s ) :
2018 cinema release
The BBFC commented:
The work had Cuts for Category cuts made. Company chose to remove a use of mild bad language in order to obtain a U classification. An uncut PG was available.
Summary Notes
For their eighth fully animated feature, Illumination and Universal Pictures present The Grinch, based on Dr. Seuss' beloved holiday classic. The Grinch tells the story of a cynical grump who goes on a mission to steal Christmas, only to have
his heart changed by a young girl's generous holiday spirit. Funny, heartwarming, and visually stunning, it's a universal story about the spirit of Christmas and the indomitable power of optimism. Academy AwardŽ nominee Benedict Cumberbatch
lends his voice to the infamous Grinch, who lives a solitary life inside a cave on Mt. Crumpet with only his loyal dog, Max, for company. With a cave rigged with inventions and contraptions for his day-to-day needs, the Grinch only sees his
neighbors in Whoville when he runs out of food. Each year at Christmas they disrupt his tranquil solitude with their increasingly bigger, brighter, and louder celebrations. When the Whos declare they are going to make Christmas three times
bigger this year, the Grinch ...
Update: Assinine decision
2nd November 2018. Thanks to Hadyn
The BBFC commented on Twitter:
A few uses of the word 'ass' in a song were removed.
Scarborough Borough Council's licensing sub-committee has just granted A Northern Soul a 12A rating, changing a decision by the BBFC.
The Council has joined Hull, Lambeth, Leeds, Liverpool, Sheffield, Southampton, Hackney, Bradford and Calderdale as councils that have downgraded the film to 12A.
The ruling means that the film can now be shown at the Stephen Joseph Theatre on October 16 to anyone aged over 12. Children under 12 can also attend if they are accompanied by an adult.
The BBFC wrote in the minutes of its September board meeting:
A Northern Soul is a UK documentary classified 15 for cinema release for around twenty uses of strong language. Prior to its submission to the BBFC Sheffield City Council classified the film 12A, for its premiere, as did Hull City
Council. The film's director complained in the media about the BBFC's decision. A letter co-signed by three Hull MPs was sent to the BBFC requesting that the 15 classification be reviewed, to which David Austin responded. The film is now
classified 12A by seven local authorities (Sheffield, Hull, Leeds, Liverpool, Halifax, Southampton and Lambeth).
Update: Nottingham too
25th October 2018. See article
Nottingham City Council has joined the group of councils that has disagreed with the BBFC 15 rating for the documentary, A Northern Soul. The film will be released locally with a Nottingham 12A rating.
Valkyrie Drive: Mermaid is a 2015 Japan adult action anime TV series
Starring Yuka Iguchi, Mikako Izawa and Yurika Kubo.
Cut by the BBFC for home video in 2018.
Summary Notes
A virgin girl named Mamori who arrives on an island must compete in battle using special powers only activated through her sexual activity with the other girls on the island.
UK: BBFC details not yet published but the BBFC has revealed cuts in a board meeting minute:
Valkyrie Drive: Mermaid [Season 1, Episodes 1 -12] is a Japanese anime series submitted for DVD classification with an 18 request.
Two of the main characters are described as being 15-years-old and 16-years-old respectively. They are shown engaging in sexual activity, both with each other and with other characters. They are also sexualised.
Sections of the submission were viewed by the Chief Executive, the Head of DEA, the Head of Compliance and the Compliance Manager. It was concluded that the submission is not in violation of the Coroners and Justice Act 2009 but that the scenes
showing the children engaged in sexual activity, or otherwise being sexualised, are in violation of the harm provisions of the Video Recordings Act 1984 and the BBFC's Guidelines which prohibit portrayals of children in sexualised or abusive
contexts. Accordingly, a general cuts list has been issued instructing the distributor to remove all such material throughout.
There's loads of new information today about the upcoming internet porn censorship regime to be coordinated by the BBFC.
The BBFC has launched a new website,
ageverificationregulator.com , perhaps to distance itself a bit from its film censorship work.
The BBFC has made a few changes to its approach since the rather ropey document published prior to the BBFC's public consultation. In general the BBFC seems a little more pragmatic about trying to get adult porn users to buy into the age
verification way of thinking. The BBFC seems supportive of the anonymously bought porn access card from the local store, and has taken a strong stance against age verification providers who reprehensibly want to record people's porn browsing,
claiming a need to provide an audit trail.
The BBFC has also decided to offer a service to certify age verification providers in the way that they protect people's data. This is again probably targeted at making adult porn users a bit more confident in handing over ID.
The BBFC tone is a little bit more acknowledging of people's privacy concerns, but it's the government's law being implemented by the BBFC, that allows the recipients of the data to use it more or less how they like. Once you tick the 'take it or
leave it' consent box allowing the AV provider 'to make your user experience better' then they can do what they like with your data (although GDPR does kindly let you later withdraw that consent and see what they have got on you).
Another theme that runs through the site is a rather ironic acceptance that, for all the devastation that will befall the UK porn industry, for all the lives ruined by people having their porn viewing outed, for all the lives ruined by fraud and
identity theft, that somehow the regime is only about stopping young children 'stumbling on porn'... because the older, more determined, children will still know how to find it anyway.
So the BBFC has laid out its stall, and its a little more conciliatory to porn users, but I for one will never hand over any ID data to anyone connected with a servicing porn websites. I suspect that many others will feel the same. If you can't
trust the biggest companies in the business with your data, what hope is there for anyone else.
There's no word yet on when all this will come into force, but the schedule seems to be 3 months after the BBFC scheme has been approved by Parliament. This approval seems scheduled to be debated in Parliament in early November, eg on 5th
November there will be a House of Lords session:
Implementation by the British Board of Film Classification of age-verifications to prevent children accessing pornographic websites 203 Baroness Benjamin Oral questions
So the earliest it could come into force is about mid February.
The BBFC has published its Age Verification Guidance document that will underipin the implementation of internet porn censorship in the UK.
Perhaps a key section is:
5. The criteria against which the BBFC will assess that an age-verification arrangement meets the requirement under section 14(1) to secure that pornographic material is not normally accessible by those under 18 are set out below:
a. an effective control mechanism at the point of registration or access to pornographic content by the end-user which verifies that the user is aged 18 or over at the point of registration or access
b use of age-verification data that cannot be reasonably known by another person, without theft or fraudulent use of data or identification documents nor readily obtained or predicted by another person
c. a requirement that either a user age-verify each visit or access is restricted by controls, manual or electronic, such as, but not limited to, password or personal identification numbers. A consumer must be logged out by default unless they
positively opt-in for their log in information to be remembered
d. the inclusion of measures which authenticate age-verification data and measures which are effective at preventing use by non-human operators including algorithms
It is fascinating as to why the BBFC feels that bots need to be banned, perhaps they need to be 18 years old too, before they can access porn. I am not sure if porn sites will appreciate Goggle-bot being banned from their sites. I love the idea
that the word 'algorithms' has been elevated to some sort of living entity.
It all smacks of being written by people who don't know what they are talking about.
In a quick read I thought the following paragraph was important:
9. In the interests of data minimisation and data protection, the BBFC does not require that age-verification arrangements maintain data for the purposes of providing an audit trail in order to meet the requirements of the act.
It rather suggests that the BBFC pragmatically accept that convenience and buy-in from porn-users is more important than making life dangerous for everybody, just n case a few teenagers get hold of an access code.
The British Board of Film Classification was designated as the age-verification regulator under Part 3 of the Digital Economy Act on 21 February 2018. The BBFC launched its consultation on the draft Guidance on Age-verification Arrangements and
draft Guidance on Ancillary Service Providers on 26 March 2018. The consultation was available on the BBFC's website and asked for comments on the technical aspects on how the BBFC intends to approach its role and functions as the
age-verification regulator. The consultation ran for 4 weeks and closed on 23 April 2018, although late submissions were accepted until 8 May 2018.
There were a total of 624 responses to the consultation. The vast majority of those (584) were submitted by individuals, with 40 submitted by organisations. 623 responses were received via email, and one was received by post. Where express
consent has been given for their publication, the BBFC has published responses in a separate document. Response summaries from key stakeholders are in part 4 of this document.
Responses from stakeholders such as children's charities, age-verification providers and internet service providers were broadly supportive of the BBFC's approach and age-verification standards. Some responses from these groups asked for
clarification to some points. The BBFC has made a number of amendments to the guidance as a result. These are outlined in chapter 2 of this document. Responses to questions raised are covered in chapter 3 of this document.
A significant number of responses, particularly from individuals and campaign groups, raised concerns about the introduction of age-verification, and set out objections to the legislation and regulatory regime in principle. Issues included
infringement of freedom of expression, censorship, problematic enforcement powers and an unmanageable scale of operation. The government's consultation on age-verification in 2016 addressed many of these issues of principle. More information
about why age-verification has been introduced, and the considerations given to the regulatory framework and enforcement powers can be found in the 2016 consultation response by the Department for Digital Culture Media and Sport1.
Scarborough Borough Council's licensing sub-committee has just granted A Northern Soul a 12A rating, changing a decision by the BBFC.
Update: Nottingham too
Valkyrie Drive: Mermaid is a 2015 Japan adult action anime TV series 
