The Online Pornography (Commercial Basis) Regulations 2019 SI 2019/23 have been made under the Digital Economy Act 2017 and come into force on the day that subsection (1) of section 14 of the Digital Economy Act 2017 comes fully into force.
A person contravenes section 14(1) of the Digital Economy Act 2017 if the person makes pornographic material available on the internet to persons in the United Kingdom on a commercial basis other than in a way that secures that, at any given time, the material is not normally accessible by persons under the age of 18.
The Regulations set out, for the purposes of Part 3 of the 2017 Act, the circumstances in which pornographic material is to be regarded as made available on a commercial basis.
Pornographic material is to be regarded as made available on a commercial basis if access to that material is available only upon payment (regulation 2(2)).
Pornographic material that is made available free of charge is to be regarded as made available on a commercial basis if the person making it available receives a payment, reward or other benefit in connection with making it available on the internet (regulation 2(3)). However, the material will not be considered to be made available on a commercial basis if it is reasonable for the age-verification regulator to assume that pornographic material makes up less than one-third of the content of the internet site or other means of accessing the internet (such as an application program) on or via which the material is made available (regulation 2(4)). There is an exception to this in regulation 2(5), which provides that regulation 2(4) does not apply if the internet site or other means of accessing the internet is marketed as making available pornographic material to persons in the UK.
‘Pornographic material’ is defined in section 15(1) of the Digital Economy Act 2017. ‘Material’ is defined in section 15(2) of that Act.
