opinion

Counting on Age Verification

If you run an adult website, you likely have heard by now that U.K. regulatory body ATVOD (Authority for Television On Demand) is pursuing websites without proper age verification systems in place (including non-U.K. based adult websites), leveling heavy fines and seeking to block payment to these sites by pushing for new banking laws.

“[T]he Obscene Publications Act makes clear that non-U.K. websites which offer unrestricted access to hardcore pornography and which can be accessed from the U.K. are likely to be considered to be operating in breach of U.K. law,” states an ATVOD report. “Such websites offer free content as a ‘shop window’ to attract subscriptions mainly paid by credit and debit card. ATVOD has therefore questioned whether it can be right for businesses which are likely to be operating illegally to draw revenues from U.K. bank and credit card accounts.”

The notion of “relying on truthfulness” is the problem with positive affirmation as a method of age verification.

For adult website operators hoping for a reprieve due to the slowly grinding wheels of justice where laws can change in scope between announcement and being enacted, good news was not forthcoming, as ATVOD chief Pete Johnson not only decried the most common methods used for online age verification, claiming they are “not sufficient,” but also called for the blocking of payments to “foreign” sites (that means you too, America).

“Our recent enforcement activity has sent a clear message that U.K. providers of hardcore pornography on demand must take effective steps to ensure that such material is not accessible to under-18s,” Johnson stated. “Asking visitors to a website to click [on] an ‘I am 18’ button or enter a date of birth or use a debit card is not sufficient — if they are going to offer explicit sex material they must know that their customers are 18, just as they would in the ‘offline’ world.”

It doesn’t take a social scientist to realize that the on- and offline worlds are different, however; and while the in-person presentation of a physical form of government issued identification has long suffered from the scourge of “fake IDs,” ATVOD and other such regulatory bodies and pro-censorship groups somehow feel that reliable age verification past simply asking a website visitor or mobile app user his or her age is routinely possible — and can be done legally in context of the growing number of privacy laws sweeping through the EU and beyond.

Since ATVOD revealed those age verification methods the body finds unacceptable, XBIZ wondered which specific applications or technologies this regulator does find to provide an acceptable level of online age-verification, and sought to examine the various solutions available on the market today, with this look at the current tools and techniques.

It’s important to note at the outset that we are not discussing old school adult website “Age Verification Services (AVS),” which were essentially aggregated paysite networks, and which provided only credit card processing as a form of age verification.

But first, let’s backtrack to the methods that ATVOD claims are insufficient, despite the fact that responsible adult website operators have employed them for years; namely a requirement for a positive affirmation of age, either through clicking a simple “18+” link or via a more detailed statement as required by Larry Walters’ BirthDateVerifier.com — both of which rely upon the honesty of the website visitor to make a true statement as to his or her actual age.

This notion of “relying on truthfulness” is the problem with positive affirmation as a method of age verification, as it may be a foolproof method of preventing minors or other users from being inadvertently exposed to adult oriented material, but it will do nothing to stop a hormone crazed teen from sneaking a peek behind the curtain. Indeed, had the web been around when this author was 17, I suspect I would have clicked the 18+ button while muttering “idiots” under my breath, and felt quite self-satisfied with my cleverness.

At this point, putting the onus on parents who wouldn’t bother supervising younger children’s Internet usage and expecting them to watch their older teen’s surfing habits, rather than “trusting them to do the right thing,” is wishful thinking.

It is also naive and wishful thinking to believe that credit and debit card companies, whose interest literally lies in enslaving youth into a life of debt, will want to limit their use to an 18+ marketplace, and thus open the doorway to this method of age verification.

So what does that leave us with?

Since the U.K. market is today’s frontline for online age verification and one where the processes may be echoed by other nations, it makes sense to study this region’s needs.

ATVOD requires an effective Content Access Control System (CAC System) that can verify a website user is over the age of 18, “at the point of registration or access by the mandatory use of technical tools for age verification,” — this means not only on “tour” pages, but before gaining access to paid members areas — and on free sites such as tubes.

The age verification process is not required on subsequent visits if the visitor is issued a password or PIN number, which is then required for access to age restricted material.

According to ATVOD’s Rules and Guidance, the technical tools which the authority claims may be acceptable for age verification purposes include a “confirmation of credit card ownership or other form of payment where mandatory proof that the holder is 18 or over is required prior to issue,” although the body does not regard a site’s “confirmation of ownership of a Debit, Solo or Electron card or any other card where the card holder is not required to be 18 or over to be verification that a user of a service is aged 18 or over.”

This includes SMS and other phone and “alternative” online payment mechanisms, so sites offering more than traditional MasterCard/Visa cards as payment options take note, as these billing methods are not considered adequate forms of age verification under law.

It is foreseeable that a “credit card only” adult paysite with a warning page and strict content guidelines for its tour, along with measures such as a Restricted To Adults (RTA) website meta-label, would pass ATVOD muster — as long as the other provisions of the body’s mandate were met — providing an accessible entry point into the U.K. market.

ATVOD also allows the use of “a reputable personal digital identity management service which uses checks on an independent and reliable database, such as the electoral roll,” but offers no advice on acceptable service providers, and is similarly vague about “other comparable proof of account ownership which effectively verifies age.”

Commercial service providers include Callcredit (www.callcredit.co.uk), IDology (www.idology.com), Lexis-Nexis (www.lexisnexis.com) and Veratad (www.veratad.com) — each of which offers a unique range of services for online age verification.

Think one size should fit all and that bright line guidance would help?

“ATVOD will consider the adequacy and effectiveness of CAC Systems on a case by case basis and keep them under review in the context of on-demand program services.”

For seasoned players, that disclaimer may not seem very encouraging.

The best guidance one might receive is that “Where they are required, CAC Systems must be fit for purpose and effectively managed so as to ensure that in ATVOD’s opinion persons under the age of eighteen will not normally see or hear material which ‘might seriously impair.’”

That “might seriously impair” bit is open for debate with stakeholders acknowledging that ATVOD could face many fights ahead:

“Current regulation on R18 equivalent material relies on a causal relationship with impairment/harm. The legal test is whether it ‘might seriously impair’ those under 18, thereby providing scope for interpretation,” states a U.K. government impact assessment on R18 Content Access Controls, which notes that “For VOD service providers it is not clear what might seriously impair/harm and therefore determine what content will pass or fail this legal test.”

The report explains that this legal uncertainty will grow as the VOD market grows, and bring with it counterproductive results.

“Increased competition will tend to increase the market pressure to avoid having content behind CAC systems. As such, there will be more pressure to question what might seriously impair,” the report states. “It follows that the present lack of clarity may lead to an increase for potential litigation and potential policy objective failure.”

What is not uncertain, however, is the need for adequate age verification and to make one person accountable for this process.

Just as the U.S.C. § 18 U.S.C. 2257 federal record-keeping requirements demanded the naming of a specific custodian of records for the purposes of accountability, so to does ATVOD’s regulations, which mandate naming the person with “editorial responsibility” for the on demand program service, who will be held responsible “for any required CAC Systems, including ensuring they are operating effectively.”

It’s also important to note that age-verification requirements are not the only problem that adult website owners face with ATVOD regulations, which also mandate that content be retained for specified periods following display, for example; and that registration fees and requirements are also out on the plate — so be prepared for the other shoe to drop — and consult with a qualified attorney in the meantime.

It’s all part of dealing with a governmental agency that believes websites should be treated and regulated like television stations — a sentiment that is sure to grow as other bureaucratic agencies around the world see their power diminish as the Internet continues to overtake TV as consumer’s media source of choice — so whether you care about the U.K. market or not, the topic of minors’ access to age-restricted material is coming to a jurisdiction near you.

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