BDB Pitmans secures permission for watershed online harm challenge

Richard Langley Senior Partner

BDB Pitmans has secured permission to proceed with a legal challenge that could have significant implications on the Government’s obligations to implement legislation passed by Parliament.

The challenge, supported by the Children’s Charities’ Coalition on Internet Safety, including the NSPCC, Barnardo’s and the Children’s Society, argues that the Secretary of State for Digital, Culture, Media and Sport did not have the legal authority to abandon implementation of online porn verification laws last October.

In a hearing in the High Court on the 16 July 2020, Mrs Justice Lieven ruled that the challenge should go ahead as it was arguable the Secretary of State did not have the power to unilaterally decide that Part 3 of the Digital Economy Act 2017 (The Act) should not be brought into force.

Richard Langley, Partner at BDB Pitmans said:

‘It is not for ministers to decide whether or not to implement laws passed by Parliament. The government may be able to choose when to bring legislation into force but not just to abandon it altogether.’

Parliament decided that age verification was an important step to ensure children are protected from harmful online content, and for reasons which are unclear the Government announced that it was not going to proceed with it.’

The Court heard that the government has refused to deny the reason for the decision not to implement the Act was connected to the impending General Election.

Sir James Eadie QC, on behalf of the government, argued that there had been a ‘material change’ in circumstances which, he said, allowed the Secretary of State to make such a determination – but failed to identify what that material change was. Three factors that were identified as ‘material changes’ had been discussed in Parliament prior to the Act being enacted, and one was the Online Harms White Paper. However, the Online Harms White Paper’s scope is only those sites which enable users to share content and would not encompass all commercial pornography sites.

This will all be at issue in the future hearing, but the Court was persuaded that it was certainly arguable that the Secretary of State had unlawfully tried to effectively overrule Parliament’s intentions.

On the next steps, Richard Langley, Partner at BDB Pitmans, said:

‘We now look forward to receiving the full story behind the decision now the court has agreed that it needs to be subject to close scrutiny.’

The Act was designed to protect children from online pornography by introducing age checks for all adult websites accessible to UK internet users. It was introduced to Parliament in 2016 and received Royal Assent on 27 April 2017.

The Act was initially announced to be implemented by Easter 2019. It was postponed until the following summer before a further delay was announced. Last October (2019), the Secretary of State, Nicky Morgan, announced the government had concluded that this part of the law should never be implemented.

The Claimants are looking forward to receiving the government’s disclosure of its reasons and motivations for the decision in full; to date the government has only purported to provide partial reasons for the late change of heart regarding age verification for commercial pornography sites.