The Pornography Review: our response

Baroness Bertin’s independent Pornography Review - Creating a Safer World: the challenge of regulating online pornography - was published on 27 February. It sets out 32 recommendations for the Government, which cover six key themes:

• Tackling violence against women and girls, creating a culture of positive masculinity
• Increasing accountability and onus on platforms for harmful pornographic content
• Protecting those most vulnerable to exploitation and harms
• Strengthening enforcement of pornography offences
• Future-proofing against tech-enabled harms
• Strengthening governance and oversight

This response looks at three aspects of the review: its framing, its online-specific recommendations, and the Government’s response.

Baroness Bertin has delivered a comprehensive piece of analysis which takes a long overdue look at where the gaps are between the online and offline treatment of pornography. Overall, we welcome the report and her analysis.

There are however a couple of significant observations to make about some of the framing in the report and how this might affect its success in changing the pornography landscape in the UK.

Firstly, on freedom of speech: the report references freedom of speech (see, pg 194) as a right that is in tension with the need to ‘provide protection for victims’. Freedom of speech is a right of all individuals, including victims and others who are affected by the content of mainstream pornography. If the broader aims of the Review are to be secured, it is vital to ensure a more expansive and up-to-date approach to freedom of expression, recognising that women’s rights in particular to free speech are adversely impacted by non-consensual, misogynistic and sexually violent content. Insofar as mainstream pornography is considered speech, it - as the House of Lords has remarked “comes well below celebrity gossip in the hierarchy of speech which deserves the protection of the law” (see Belfast City Council v. Miss Behavin’ Limited [2007] HL 19, para 38 - see alsopara 16).

Secondly, the Review makes 28 references to the experience of victims being “anecdotal”. It is regrettable that evidence from an extensive range of stakeholders working in the field of violence against women and girls, and supporting children’s and victims rights, is described as ‘anecdotal’. This is particularly concerning when contrasted with the approach to submissions of industry and industry stakeholders. The front line evidence from civil society is often based on years of experience working with offenders and victims and can offer considerable insights, particularly into emerging forms of abuse.

We look now at the specific recommendations of interest to Network’s remit.

Of particular note for the Online Safety Act regime was Baroness Bertin’s recommendation for a new “Safer Pornography Code”, to prohibit certain pornographic content online – including degrading, violent, and misogynistic content, as well as that which could encourage an interest in child sex abuse – just as it is prohibited in the ‘offline’ world, and mandate platforms to adopt specific safety-by-design measures.

The review also recommends a considerable extension of the powers of Ofcom to regulate the porn industry and a review of the regulatory framework. It also recommends removing some of the other areas of Ofcom’s work so that it can focus on online harms. We support a review of the regulatory focus of Ofcom, and the suggestions for creating a specific online abuse commission - which has also been recommended recently by the Women and Equalities Committee in its report on non-consensual intimate image abuse.

Also in line with the WEC recommendations, Bertin’s review calls for more robust mechanisms to remove non-consensual intimate imagery and to strengthen the criminal law response to image based abuse. We welcome these recommendations in light of the continuing struggle to get material removed and the lack of individual redress mechanisms in the Online Safety Act. Bertin’s recommendation that the pornography industry has “consistent safety protocols, processes, and safeguards in place to ensure that all performers/creators are consenting adults, are of age (18+), and have not been exploited or coerced into creating content” is important in this regard, too.

We welcome the recognition by the review that the business model of mainstream porn platforms aligns with that of other social media companies (p96). In particular, this means that the need to maximise user engagement drives algorithmic recommendations which push the more divisive, polarised, shocking content. Therefore, just as social media shapes users behaviours through algorithmic choices, this is also the case for mainstream pornography platforms.

Bertin also diagnosed a disconnect between the online and offline treatment of pornography with there being considerable gaps in the law regulating online pornography. In particular, the Review highlights that while some areas of pornography content, such as depictions of strangulation and incest, are prohibited offline, there is no regulation of this content online. Further, the Review reports that the current criminal justice response is “ineffective” for tackling illegal pornography online: “Government should conduct its own legislative review of this regime to ensure that legislation and Crown Prosecution Service (CPS) guidance is fit-for-purpose in tackling illegal pornography in the online world”, she advised.

Finally, Baroness Bertin also calls for “clear policy ownership and responsibility across Whitehall on pornography”. She lists six Departments that currently have an interest or role in this policy agenda - Home Office, Ministry of Justice (MoJ), Department for Science, Innovation and Technology (DSIT), Department for Culture, Media and Sport (DCMS), Department for Education (DfE) and Department of Health and Social Care (DHSC) - and recommends that there should just be “one department having oversight on pornography policy” (p42). In Bertin’s view, this should be the Home Office, so that implementation of the Review’s recommendations sits alongside its role in delivering the Government’s Mission to halve Violence Against Women and Girls.

Despite the extensive, detailed and well-evidenced recommendations - and the time it took from the completion of the Review to its publication - the Government’s response, in the form of a letter from three junior Ministers in DSIT, HO and MOJ, and the subsequent Written Ministerial Statement from DSIT are both brief and light on detail. Both make references to things that are already under way in Government but make no commitments to accepting the recommendations nor to undertaking the urgent new work required to implement them.

The response talks of “continuing” to support Ofcom on its existing programme of OSA implementation and enforcement, without engaging with the gaps that Bertin identifies and about which Ofcom can consequently do nothing. It talks of taking urgent action to ensure pornography platforms, law enforcement and prosecutors are taking “all necessary steps” but does not detail how that is different to what they are currently doing. It refers to criminal offences that it is already legislating for, without responding to Bertin’s strong case that more offences are urgently needed. And it entirely ignores her recommendation about consolidating Government leadership on this agenda in the Home Office. The response ends by saying “we will publish your report and commit in Parliament via a written ministerial statement to provide an update on the work of government on the issues raised in your report in due course.”

The WMS repeats the same messages - with some extra detail on measures relating to education - and signs off with the same commitment: “The government will provide a further update on how it is tackling the issues raised in the Review as part of its mission to tackle VAWG in due course.”

This is an extremely disappointing response. Ignoring the substance of the recommendations, refusing to indicate which ones it accepts or not and kicking an implementation plan into the long grass of an “in due course” future date, is an inadequate response to what is a comprehensive review by Baroness Bertin. This response also fails all the individuals and organisations that took extensive time to engage with the DSIT team and Baroness Bertin in the development of the Review. . Such a response would not be permissible in response to a Select Committee report and it should not be acceptable to Parliamentarians, not least when this review has cross-party backing.