Legislation focused on obscenity and indecency will not help to keep children safe online, expert warns

Existing laws that are reliant on a standard of ‘morality’ and obscenity have proven to be ineffective for regulating adult pornography on the internet. They should instead be based around child protection and keeping them away from adult online content, Professor Abhilash Nair from the University of Exeter Law School said at the euCONSENT conference in Athens.

Regulation of lawful adult pornography should focus on access rather than content, he told delegates.

Professor Nair said: “Attempting to transpose traditional laws that centre on the obscenity and indecency of images is simply inappropriate for the internet. Laws that rely on moralistic notions of obscenity and indecency of images will not command the obedience or respect of cyberspace communities.

“We need to prevent children’s access to adult content. Any regulatory framework that has content controls premised on notions of obscenity and indecency, that interferes with the right of adults to consume content, will not succeed in cyberspace.

“The primary purpose of the law should be to ensure children do not access adult content, without hindering the rights of adults to access lawful pornography. It is a delicate balance that the law has failed to strike for nearly three decades in cyberspace. This balance can be achieved only by access-focused regulation, rather than content-focused regulation.”

Professor Nair is currently leading the academic research for the European Commission-funded euCONSENT research project, which aims to create an interoperable solution for age verification and parental consent for child protection on the internet.

At the conference he also warned the lack of regulation on adult pornography in the USA means there is little chance for other countries to rely on traditional obscenity laws to exert any meaningful control to regulate its access within their local jurisdictions.

Professor Nair’s research suggests age verification, whilst envisaged as one of the legitimate measures of protecting children online from harmful content in European legislation (Audiovisual Media Services Directive), has not been effectively used so far and children continue to have unfettered access to pornography, pointing to a potential lacuna in the law.

He said: “Age verification is not a silver bullet for child protection or a substitute for parental/carer responsibility. The law envisages that other appropriate measures are in place to facilitate parental control, such as age ratings, age-gating options or filters, for content that poses a lower risk to children, but harmful content such as pornography calls for stricter measures encompassing age verification. It is also crucially important that age verification solutions are privacy preserving and secure so that adults can continue to exercise their rights to consume lawful pornography online.”