Particulars of Proposed Designation of Age-Verification Regulator

(Limited Text - Ministerial Extracts only)

Thursday 1st February 2018 Lords Chamber

Moved by

[Lord Ashton of Hyde]

That the Paper laid before the House on 14 December 2017 be approved.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, the Digital Economy Act introduced the requirement for commercial providers of online pornography to have robust age-verification controls in place to prevent children and young people under the age of 18 accessing pornographic material. Before considering the specific points related to this debate, I want to remind the House why we introduced this requirement.

In the offline world, there are strict rules to prevent children accessing adult content, but the same is not true in the online world. A large amount of pornography is available on the internet in the UK for free, with little or no protection to ensure that those accessing it are old enough to do so. This is changing the way young people understand healthy relationships, sex and consent. A 2016 report commissioned by the Children’s Commissioner and the NSPCC makes this clear: over half of the children sampled had been exposed to online pornography by the age of 15; nearly half of boys thought pornography was “realistic”; and just under half wished to emulate what they had seen. The introduction of a requirement for age-verification controls is a bold step to tackle these issues and it demonstrates our commitment to making the UK the safest place in the world to be online.

Section 16 of the Digital Economy Act states that the Secretary of State may designate by notice the age-verification regulator, and may specify which functions under the Act the age-verification regulator should hold. I am therefore seeking this House’s approval to designate the British Board of Film Classification as the age-verification regulator. We believe that the BBFC is best placed to carry out this important role, because it has unparalleled expertise in this area.

The BBFC has been classifying films for cinema release since 1912 and video content since 1984. In doing so, it has established a trusted reputation for making difficult editorial judgments and giving consumers, particularly parents and children, clear information about age-appropriate content. Importantly, the BBFC is currently responsible for classifying adult material for sale offline, including judging when content should be rated R18 and therefore available for sale only in licensed sex shops. Moreover, the BBFC understands how new technology is changing the way people access content. It provides the current framework for filtering content on mobile networks, which has been highly successful in preventing children accessing pornography on their mobile phones.

--- Later in debate ---

The second point here, which was touched on by the noble Lord, Lord Clement-Jones, is that I still worry about the question of appeals in relation to this new age-verification system. In the Digital Economy Bill we applied considerable pressure to try to get a separate regulator appointed as the appeals body; indeed, we suggested that Ofcom would be appropriate for that. That was not successful at the time, and now we have a situation where the BBFC is the organisation of first instance but also the body for appeals. In the document before us there is considerable detail about how it will do that. I do not object to the way that that is proceeding, but I do not think it is right that the body is both judge and jury in its own case. For films, there is already an appeals system against the BBFC’s classifications but it comes under local authorities, and it is outside the control of the BBFC to run it. For videos, the independent Video Appeals Committee had a long and distinguished presence, before video disappeared, in relation to the decisions that it made. So the body itself already accepts in some senses that it should not be both the first-instance court and the appeals court, but that is not the way that the Government are going. I look forward to hearing the Minister’s response.

[Lord Ashton of Hyde]

My Lords, I am grateful to the noble Lords, Lord Stevenson and Lord Clement-Jones. There is a sense of déjà vu from the Digital Economy Act; we are continuing some of the discussions that we had then, and I am happy to do so. However, it is important to bear in mind what we are doing today, which is designating the BBFC. I hope we will come to other issues in the coming weeks. I will get into the definition of “soon” later.

[Lord Clement-Jones]

I apologise for interrupting the Minister. Perhaps he can explain why we are not doing this all in one fell swoop. It seems rather bitty. The draft guidance seems to be on the web, and certainly it seems to be all there, so why are we not trying to deal with this in a holistic way?

[Lord Ashton of Hyde]

The answer is that until the regulator is designated, it cannot issue guidance.

[Lord Clement-Jones]

My Lords, I was thinking of the government guidance.

[Lord Ashton of Hyde]

We have the government guidance that the Secretary of State has issued. The important issue, which I was going to come to in answering the noble Lord’s question, is that this is a series of steps that involves consultation and then issuing guidance. Until the regulator is designated, it cannot begin to consult or issue guidance. It is a sequential process. There is no question that we want to get on with this; we are not trying to delay it. We are conscious that this needs to be done as soon as possible, and I will come to the steps that might explain that further.

The noble Lord, Lord Clement-Jones, was asking about how the system is going to operate and the level of detail. As I said, the Secretary of State’s guidance to the regulator is there for as and when it is designated, but then the regulator is required to publish its guidance on the age-verification arrangements that it will treat as compliant. So, as I was saying, once the BBFC has been designated, that draft guidance will be laid before Parliament. The noble Lord will be able to raise his objections or queries then, when he has seen the guidance that the regulator itself has made. Until that happens, it cannot either consult or lay the guidance. Parliament can then scrutinise it. That will involve the affirmative procedure in both Houses, so that will be an appropriate point to debate the issues.

We have absolutely understood the need for things like privacy. We understand that it is important to outline those issues and priorities in the Secretary of State’s guidance to the regulator, as and when it is designated. It is then up to the regulator to get into the detail of what it will consider compliant. There is no question that it will choose a particular method. It will set criteria. There will not just be one system, for example; it will make sure that its criteria are clear in the guidance. As I say, we will have a chance to debate that.

The noble Earl, Lord Erroll, talked about when the powers are going to come into force. As I said, we want to do that as quickly as possible. In fact the current Secretary of State said it was his ambition to complete it within a year, although that is going to be difficult. We want to get it right; we want the process of consultation and guidance to be done properly. Of course, there was the small matter of purdah and an election in the way. Now, however, if this House approves the regulator today, we will be well on the way to doing that, and we are definitely trying to do it as quickly as possible.

We take data protection and privacy very seriously. The age verification arrangements should be concerned with verifying only age, not identity; we absolutely agree with that. Providers of age-verification controls will be subject to data protection laws—the GDPR—from 25 May, and the BBFC will work with the Information Commissioner’s Office to ensure that its standards are met by age verification providers, particularly with regard to security, data minimisation and privacy by design. So the ICO is there to uphold the law and enforce data protection law and the GDPR. To go further on that point, the noble Lord, Lord Clement-Jones, mentioned the relationship. The BBFC and the ICO are going to agree a memorandum of understanding to ensure and clarify how they are going to work together and separate their various responsibilities.

I know the noble Lord, Lord Stevenson, is not entirely happy with some of the arrangements; we debated some of them on the Digital Economy Bill. He also mentioned definitions and said one of the things that the regulator—that is, the BBFC if it is designated—will have to do is regulate the definition of extreme pornography that is unlawful even if it has age verification in place. That is not really the subject of debate today. Noble Lords will have an opportunity to discuss that when the regulations come—

[Lord Stevenson of Balmacara]

I know the Minister was struggling with the wording there but this is really quite important. I thought he might have suggested that it would be up to the BBFC to define what was or was not permissible to view. I hope he is not saying that. I imagine the assumption is that there is a law of obscenity. Obviously it is interpreted through the courts in a way that is not entirely consistent in every case, but the law has to be the law and it must not be up to the BBFC to change the definitions.

[Lord Ashton of Hyde]

The noble Lord is absolutely right, and I apologise if I misled anyone. It is not the BBFC’s job to determine what is lawful. It is meant to implement the law. The debate that I think we will have when the regulations come to this House will be on the decisions that will have been taken on what is pornography available for commercial purposes. The definition of what is unlawful will be under the extreme pornography definition within the existing Act.

[The Earl of Erroll]

Leading on from that, I remember from the debates that the trouble was that the Obscene Publications Act was not aligned with the CPS guidance or with various other things. I presume therefore that some work will be done on this in the near future, otherwise I suspect that the BBFC will get into trouble. At the same time, because age verification may come into this too, presumably we will also try to align the internet stuff, which is what we have been talking about in the Digital Economy Act—broadcast, which is regulated differently, and video on demand, which I think is Ofcom’s responsibility at the moment. We really do not want different rules across all of those, so I hope we are going to get on with that.

[Lord Ashton of Hyde]

We debated this extensively during the passage of the Digital Economy Bill. Parliament agreed with the very clear definition of extreme pornography, which is based on the Criminal Justice and Immigration Act 2008. That is what it will opine on. The primary legislation—the Digital Economy Act—requires the Secretary of State to consult on the impact and effectiveness of the regulatory framework, including the definitions used, within 18 months of the powers coming into force. That will be the time to do it. What I meant about it not being the subject of debate today is that this regulation is very clearly to define the regulator, and we say it should be the BBFC. I am not trying to duck the issues that are still there, but they will come back and I am sure I will have to deal with them—unless I am late for something.

The other issue mentioned by the noble Lord, Lord Stevenson—which I fear we will not agree on today—is the structure of the BBFC. He did say that he did not want a full response; I will just say that the BBFC is set up as an independent non-governmental body with a corporate structure, but it is a not-for-profit corporate structure. We have agreed funding arrangements for the BBFC for the purposes of the age-verification regulator. The funding is ring-fenced for this function. We have agreed a set-up cost of just under £1 million and a running cost of £800,000 for the first year. No other sources of funding will be required to carry out this work, so there is absolutely no question of influence from industry organisations, as there is for its existing work—it will be ring-fenced. As far as surplus is concerned, it is relatively common for non-profit organisations to keep a surplus and to do things such as investing in major projects or equipment. We think that, because the BBFC has been doing a similar job and making very difficult judgments on these things since 1912, it is the most suitable body.

We are content—and the previous Secretary of State was satisfied—that, with this structure, including the appeals structure, we have done our best to ensure that the arrangements will be sufficiently independent. I am thankful to the noble Lord, Lord Clement-Jones, for his support on that. There will be an independent appeals panel, which will not include the regulator, the Government or the affected industries. The BBFC will play no part in deciding the chair or membership of the independent appeals panel; this will be the role of the independent appointments board, so there is a clear division between the BBFC and appointments board, which will ensure its independence. Interestingly, the BBFC in its other role has had remarkably few appeals. Since 1985, there has been a total of 21 appeals, nine of which were ruled in the BBFC’s favour, nine against, and the remaining three were withdrawn. Since 2007, no appeals have been made to the BBFC.

I think I have addressed most of the issues raised. The noble Lord, Lord Stevenson, mentioned some of the more philosophical issues on this—I agree with him; the data ethics body may be a place for that—and I can assure noble Lords that we will come back to some of these more difficult issues. In the meantime, to go back to where I started, today’s job is only to designate the BBFC as the regulator. I hope that, after what I have said, the House will agree that it is the best body to take on the role, and I therefore beg to move.

Motion agreed.