Ofcom has been challenged by the Age Verification Providers Association for crediting its enforcement programme for age assurance, as it announced a major UK adult video sharing site, TAPNET, has just implemented age verification measures, three years after the law making it mandatory was passed.
“Kudos to TAPNET!”
Jessica Zucker, Director of Online Safety Policy at Ofcom, was criticised for promoting the company’s late compliance with age verification legislation which the AVPA campaigns to ensure exists across regulators, governments, companies and the market force of age verification technologies.
She commented on the “positive outcomes of constructive regulatory engagement” between regulators like Ofcom, in the media and digital domain, and digital services. The accusation was levelled to the Online Safety Director that companies should comply with their responsibilities to keep children, in particular, safe online before regulatory intervention is necessary.
Ofcom opened an enforcement programme in January to identify UK digital video-sharing sites which operated without complying with the standard for age assurance for users. Whilst seeming to crack down on the visibility of adult content sites to young users, the news of TAPNET implementing the changes enforced by Ofcom only comes to light now despite it approaching nearly 1 year since the investigation was opened on 10 January 2023.
The fact that a law has existed for three years shows no urgency of regulators or companies. Ofcom “considered” the measures that platforms had implemented to gain “assurance of the age of their users and prevent “under-18s/ minors from watching pornographic videos” online, which indicates a divide of companies not complying with the rules as next iterations of the internet like WW3 emerge.
The analysis of RealMe – TAPNET’s pornographic platform – did raise some concerns, Ofcom said, regarding ineffective measures to protect and verify underage users using their service, however the “period of close engagement” to enforce compliance with its requirements still suggests not enough was done soon enough and to avoid intervention.
The comment in retaliation to Ofcom’s press release on LinkedIn argues that “if this approach is taken to the Online Safety Act (by all companies), it would be 2028 before better protection for children is offered online”. This would mean child protections in online spaces would be in fact delayed in practice 7 years behind the ICO’s Age-Appropriate Design Code of 2021, as required by the Data Protection Act (DPA) 2018.
The Code is enforceable under the UK GDPR and DPA laws and imposes a set of standards that must be met by the design of online services in the best interests of a child.
Ofcom’s duties
Ofcom’s role is to meet the legal provisions in Part 4B of the Communications Act 2003 to ensure video-sharing platforms (VSPs) based in the UK “have appropriate systems and processes in place to effectively protect their users from harmful video content in the scope of the VSP regime”.
Ofcom also noted that since January the programme worked closely with platforms to better understand their “approaches and any challenges they faced when considering implementing age assurance measures”. Whilst not responsible for creating the law, they had demonstratable powers to enforce sites’ compliance with the requirements for age assurance solutions and show no tolerance for excuses.
The assessment drew conclusions about the lack of meaningful measures enacted in Schedule 15A of the Act which should have better protected users under the age of 18 from videos containing restricted material, specifically pornographic content.
Arguably only being forced to make the changes with intervention, TAPNET did however in the wake of Ofcom’s report obtain the assurance of the age of RevealMe users by requiring age verification upon entry to the site or authentication through a validated and registered account. The site could not implement a third-party automated age verification tool to the timeline Ofcom require to verify valid user identification documents.
The statement also said: “Tapnet quickly introduced its own interim age verification measure until its longer-term solution was ready to go live”.
Ofcom concluded the company’s “willingness” to address their concerns and “desire” to protect users led them to decide no further investigation was needed. Ofcom overlooked earlier action taken against TAPNET for failing to respond to a freedom of information request, but said it would continue monitoring the site.
On 29 September, 2023, Ofcom announced the extension of the enforcement programme for a further 3 months, expected to end in December. Notified and non-notified adult VSPs were assessed, some gaining certification and others not.
