Ofcom has issued a Final Decision to MintStars Ltd under s368Z4 of the Communication Act 2003 for MintStar’s failure to take and/or implement adequate measures as set out in Schedule 15A of the Act as are appropriate for the purposes of protecting persons under the age of 18 from videos containing restricted material, as required by section 368Z1(1)(a) and/or (2) of the Act.
The requirements to take and implement adequate measures to protect under-18s from restricted material are a central objective of the Video Sharing Platform regime (which predates, but will be replaced by, the Online Safety regime) and reflect the importance of protecting children from accessing harmful material online. Those measures include, specifically, measures to establish and operate systems for obtaining assurance as to the age of potential viewers.
From the evidence obtained during its investigations, Ofcom is satisfied that between November 2023 and 27 August 2024, MintStars did not have adequate measures in place, or implement measures taken in such a way as, to prevent under-18s from accessing restricted material, including pornography.
It found that from November 2023 several changes were made to the functionality of the platform which increased the risk of under-18s accessing restricted material. Ofcom considers that MintStars should have:
- reviewed the access control measures in place in line with the changing functionality and risk profile of the platform, and;
- implemented robust age verification processes which mitigated the effects of the changes made to the platform and effectively prevented under-18s from being able to access restricted material on the platform.
Ofcom has found MintStars’ non-compliance with the relevant duties to be a serious breach of the rules to protect under-18s online. In reaching this view it has considered the factors in Ofcom’s Penalty Guidelines including:
- the size, resources and financial position of the company;
- the duration of MintStars’ contravention;
- the degree of actual and potential harm caused by MintStars’ contravention; and
- the extent to which MintStars acted deliberately, recklessly or for financial gain.
It has imposed a financial penalty of £7,000 on MintStars. This includes a discount of 30% reflecting MintStars’ admission of liability and completion of Ofcom’s settlement process and the resource savings Ofcom achieved as a result.
Given the seriousness of the breach and the importance of protecting children from restricted material, especially of a pornographic nature, Ofcom notes that the penalty had the potential to have been significantly higher. However, considering the relevant factors listed above, Ofcom considers the penalty imposed to be appropriate and proportionate. In addition, MintStars have co-operated throughout the investigation and have now remedied the harm by implementing age assurance technology on their platform.
