Should We Have a ‘Porn Passport’ to Verify Age for Online Pornography in Australia?

The Federal Government has chosen not to impose their own age verification system which would make people prove they are old enough to watch pornography, instead choosing to rely on existing measures and preferring to let the industry police itself.

In a report commissioned by the Government, the e-Safety Commission recommended a pilot of such an age verification technology which has been referred to as a ‘porn passport’.

It would involve technology which generates electronic access ‘tokens’ to those who can prove they are above the age of consent.

The e-Safety Commissioner, Julie Inman Grant, submitted her recommendation on age verification to the government in March. This was based on findings that current age verification tools are ‘immature but developing’.

Ultimately, Grant suggested a trial of such technology should be implemented rather than introducing legislation to mandate it, at this stage.

However, the Australian Government has declined to go down this avenue. Instead, it has asked for Grant to work with the adult industry to develop new industry codes to deal with children’s access to online pornography.

This will include educating parents on how to implement filtering software and limit children’s access to such material or sites that are not appropriate.

Following the conclusion of the industry codes process, the Government will seek further information on consideration of a pilot as recommended by the eSafety Commissioner.

In order for the technology to work effectively, there are numerous challenges as most pornography sites are hosted outside Australia. There has also been backlash from the industry and privacy advocates as age verification could necessitate adults providing personal information to access pornography.

Children’s advocates have expressed concerns at the current system, noting research by the e-Safety Commission has found that 75% of 16- to 18-year-olds had viewed online pornography, with a third of teenagers first seeing it before they were 13.

Countries across the world, including France, have implemented age verification technology due to the risks of children being exposed to pornography at an early age, and how content often involves gendered violence.

Pornography Laws Australia

In Australia, it is generally legal for an adult to watch pornography which depicts a consenting adult or adults.

The Online Safety Act 2021 (Cth) imposes numerous obligations on those who host online material (i.e., website owners), seeking to ensure that harmful content is not made available to the public, especially children.

Pornographic material is regulated under the National Classification Code. It will either be classified as X18+ (legal adult pornography) or RC (‘refused classification’) (which includes illegal pornography).

Under the Act, a website which contains material that is has been or is likely to be classified X18+ (legal adult pornography) must be behind a ‘restricted access system’, as per section 108.

This is designed to protect against access to the relevant content by children.

Services that will be obligated to meet the requirements of a restricted access system include designated internet services, social media services, and relevant electronic services that are providing access to material from Australia.

It also applies to Australian hosting service providers who are required to either stop hosting the material or take reasonable steps to ensure access to Restricted Material is limited to adults.

The access‑control system must incorporate reasonable steps to confirm that an applicant is at least 18 years of age. However, it is important to note that this current measure does not go so far as to mandate that people provide personal information to verify that they are over 18 years old.

The eSafety Commissioner can issue removal notices to hosting sites requiring them to take all reasonable steps to remove illegal or restricted content.

It is important to note that serious penalties apply for accessing, possessing, or transmitting pornography which involves a person who is, appears to be or is implied to be a child.

This is referred to as ‘child abuse material’ and offences apply on a state and federal level.

In New South Wales, section 91FB of the Crimes Act 1900 (NSW) defines “child abuse material” as material that depicts or describes, in a way that reasonable person would regard as being, in all the circumstances, offensive, such as a person who is, appears to be or is implied to be, a child:

• as a victim of torture, cruelty, or physical abuse,
• engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons),
• in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity.

It also includes that depicting the private parts of a person who is, appears to be or is implied to be, a child. A ‘child’ means a person under the age of 16 years.

Matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include:

• the standards of morality, decency and propriety generally accepted by reasonable adults,
• the literary, artistic, or educational merit (if any) of the material,
• the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and
• the general character of the material (including whether it is of a medical, legal or scientific character).

Section 91H criminalises the production, dissemination, or possession of child abuse material.

‘Dissemination’ includes:

• Sending, supplying, exhibiting, transmitting, or communicating to another
• Making available for access by another, and
• Entering an agreement or arrangement to do so.

‘Production’ includes:

• filming, photographing, printing or otherwise making,
• altering or manipulating, and
• entering an agreement or arrangement to do so.

The maximum penalty applicable if found guilty of the offence is 10 years imprisonment.

Under Commonwealth law which applies across Australia, section 474.22 of the Criminal Code Act 1995 (Cth) it is an offence to use a carriage service to:

• access child abuse material,
• cause child abuse material to be transmitted to you,
• transmit, make available, publish, distribute, advertise, or promote child abuse material, or
• solicit child abuse material.

Section 7 of the Telecommunications Act 1997 (Cth) defines carriage service as ‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’.

This can include services such as internet websites, text messages, social media messages, and emails.

A maximum penalty of 15 years imprisonment is applicable.

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