Age and Online Access

August 2, 2015

Three things have recently tempted me back to ride an old hobbyhorse.

First, I saw the very interesting account and analysis by Robin Hopkins on the {Panopticon blog:} of the Northern Ireland case of {i}HL v Facebook{/i} {[2015] NIQB 61:}. Then I found myself readily conspiring with the parent of a 10-year-old to find a way past a block on the child’s access to Google Hangout, where it was clear that all her friends were already registered and that it would be ‘the end of worthwhile life’ if she did not get back on. Then I read the Prime Minister’s {commitment to introduce age verification mechanisms to restrict under 18s’ access to pornographic websites:}.

The case report in the blog post must surely reinforce the views of those who are concerned that there is a problem with access to online material at inappropriate ages. In {i}HL v Facebook{/i} the High Court of Justice in Northern Ireland is dealing with a claim made on behalf of a young person which relates to postings that she made on her Facebook page from the age of 11 onwards. Those postings were of an entirely inappropriate sexual nature and they prompted responses from others of the same inappropriate sexual nature. The claim is that Facebook’s failures make it responsible for the damage caused by her being exposed to these sexual predators. In addition to interesting data protection and jurisdictional issues, the central claim in the case (which is in its very early stages) is explained by the judge as follows:
‘{i}Facebook owed her a duty of care and was negligent in that it failed to have a proper system in place for registration of a Facebook account so that it was impossible or at the very least difficult for a child to register by misrepresenting her age. It is suggested that those precautions are to be seen in the context that by registering an account and using Facebook the child might be exposing herself to sexual predators or other grave risks affecting her emotional and physical health such as exposure to videos of beheadings or sites with content of necrophilia, paedophilia or suicide. It is also alleged that the first and second defendants were negligent in that they did not have a proper system in place for monitoring their social network platform for use by children or young persons. The defendants are obviously aware that children who should not be using Facebook are doing so and that they are doing so by the simple device when opening an account of misrepresenting their age. Such misrepresentation on the part of the children, it is submitted, is clearly foreseeable and clearly takes place. The response of the first and second defendants is that they have a 24/7 system of reporting so that if anyone is concerned about a child having access to Facebook they can report it to Facebook and Facebook will then react by closing the account. Such a system depends on a report. Such a system can be evaded by the expedient used, as in this case, by the child of going on line and opening a new account in her own name but changing the spelling of one or two letters in her name. So the plaintiff alleges that Facebook should have had, but do not have, a system in place for preventing a child adopting such a strategy. That those persons who Facebook employ to deal with reports of under-age use should be trained in the necessary follow-up steps to prevent a child, whose account they have closed down, from immediately opening a new account{/i}.’

The Facebook defence seems at first sight to be capable of being summarised (very crudely) as ‘we cannot prevent under-age access – it’s too hard’. Bear in mind that the Facebook age limit is 13, an age which seems to have been plucked from thin air. Bear in mind too that there was some evidence in {i}HL v Facebook{/i} that Facebook deletes 20,000 under-age accounts {i}a day{/i}.

My personal brush with undermining age limits does me no credit and I won’t linger. Suffice it to say that none of the conspirators concerned with undermining the Google account age limits were hackers or can claim any computer expertise. All the conspiring adults should have known better and are (with one obvious exception) virtuous and responsible members of society. The real lesson is that it was easy.

So, in light of my recent personal experience, when the Prime Minister reiterated his commitment to age controls, I was very ready to listen to those who said that it was mere rhetoric and it could not be done. But, I had also just read {i}HL v Facebook{/i} and anyway I feel that the ISPs and social media providers have had a free ride for too long; some of their protestations remind me of that famous definition of a baby: ‘a loud noise at one end and no sense of responsibility at the other’.

The idea that 12-year-olds are accessing websites that show sex in a depraved and grubby form is abhorrent. The barriers to doing anything about that appear insuperable. I have no solution but I am not happy about giving up trying to find one either. I think that we can at least start reducing the areas for debate in three ways.

First, is there any sensible person who really believes that the right age for setting limits on access to online pornography is 18? Did David Cameron really never look at anything that {i}at the time{/i} would have been considered to be pornographic at an earlier age? What a protected childhood he must have had if he didn’t. Let’s have a grown-up debate about age limits, looking at Gillick competence, the age of consent, Facebook’s terms and conditions and the realities of teen sexual development. I have a nasty feeling that the age of 18 was picked because it was deemed to be enforceable not because it is in any way sensible. Infantile infantilising of teens should be off the table.

Do we have the foggiest idea what we, and especially the Prime Minister, mean when we use the term ‘pornography’? The definition seems to have moved on somewhat in the last 50 years because we would be blocking access to iplayer and putting {i}The Sun{/i} on the top shelf if it hadn’t. Does the Prime Minister really mean extreme pornographic images as defined in the Criminal Justice and Immigration Act 2008, s 63? He cannot because possession of such images is an offence for anyone. What about the definition in the Sexual Offences Act 2003, s 51, which defines pornography as the recording of an indecent image of a person? Maybe that’s what he had in mind, but we are left with defining ‘indecent’ and all these meanings are incredibly dependent on context and the background of the viewer, including of course the viewer’s age. Does the Prime Minister really think that any image of people having sex is indecent? He might do worse than read Taming the Beast on his holidays (reviewed {here:}).

I cannot wait for an illustrated clarification (accessible only to adults obviously). We should not be starting the debate on controls until we have got past definitions of pornography that rely more on the semantics of Humpty Dumpty than normal rules of interpretation.

Finally, let us at least see an age-limit verification system working in the wild before we ask the ISPs to adopt one. Research showing whether any of the numerous parental controls that are currently in place actually work might be thought to be a necessary ingredient before legislating. That might then rip the heart out of the debate about practicality. Unless of course the real objective is not to do anything about access but to appear to be doing something. Perish the thought.