Audiovisual Media Services (Amendment) Regulations 2021
(3 years ago)
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Baroness Barran
That the Grand Committee do consider the Audiovisual Media Services (Amendment) Regulations 2021.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Baroness Barran) (Con)
My Lords, I am pleased to introduce this instrument, which was laid in both Houses on 25 February and is being made under the European Union (Withdrawal) Act 2018. This instrument will remedy certain failures of retained EU law arising from the withdrawal of the United Kingdom from the EU. It addresses minor and technical issues in domestic law after transposition of the audio-visual media services directive by the Audiovisual Media Services Regulations 2020, and is necessary to ensure that the law remains fit for purpose beyond the end of the transition period.
These regulations amend references to EU legislation, substituting domestic law references and making references to EU legislation ambulatory where appropriate. They also remove the requirement for Ofcom to notify the European Commission of services in scope falling within the UK’s jurisdiction, and address Ofcom’s co-operation with EU member state regulators.
I will now look at the regulations in more detail. The audio-visual media services directive, also known as the AVMS directive, is long-standing EU legislation that co-ordinates the regulation of audio-visual media services. The AVMS directive was revised in 2018 to take into account changes to the media landscape since the last revision of the directive in 2010.
The UK’s Audiovisual Media Services Regulations 2020, which transposed the revised AVMS directive, were made and laid in Parliament on 30 September 2020. Those regulations came into force on 1 November 2020. They introduced rules for video-sharing platform services for the first time, with Ofcom as the national regulatory authority for video-sharing platforms falling under the UK’s jurisdiction. The new rules for video-sharing platforms stipulate that platforms which have the required connection with the UK must have appropriate systems and processes to protect the public, including minors, from illegal and harmful material. The “required connection with the UK” means that if the platform provider is established in the UK, or if a group undertaking of the provider is established in the UK and the service is not regulated by another EEA country, Ofcom will in those circumstances have jurisdiction to regulate the video-sharing platform service.
Three key requirements have been placed on video-sharing platforms: first, to take appropriate measures to protect minors aged under 18 from harmful content; secondly, to take appropriate measures to protect the general public from material inciting hatred or violence, and certain illegal content; and thirdly, to introduce standards around advertising.
Ofcom is currently actively engaging with platforms that may be affected and has published guidance on scope and jurisdiction. In March, Ofcom published draft guidance for consultation on the list of measures that video-sharing platforms can take to protect users from harmful material. More vigorous regulation will commence once all guidance on video-sharing platform regulation has been published later this year.
I now draw the attention of the Committee to the report from the Secondary Legislation Scrutiny Committee considering this instrument, and thank it for its work. The committee’s helpful report flagged two key areas: first, Ofcom’s power to co-operate with EU regulators and, secondly, the delay in the introduction of the online safety Bill.
I will first address the committee’s concern that replacing Ofcom’s duty to co-operate with a power to co-operate with EU regulators could result in uncertainty regarding enforcement for platforms whose services are used in the UK but where the platform is based and regulated outside of the UK.
Co-operation and sharing information between national regulatory authorities is helpful for the purpose of enabling authorities to fulfil their functions in the most efficient and joined-up way, and to collaborate on matters of common interest. In this post-transition period, co-operation continues to be important and this instrument provides Ofcom with the power to co-operate with its EU member-state counterparts. Engagement with other national regulatory authorities will be helpful to resolve any jurisdictional issues and help ensure that UK users are protected from illegal material appearing on a video-sharing platform where the provider of the platform does not have the required connection with the UK.
Ofcom will be able to use this power in a number of circumstances: addressing jurisdictional matters, such as determining where a provider is established; co-ordinating enforcement action; engaging to ensure cross-border compliance; and exchanging regulatory best practice. Without that power, Ofcom would be able to engage only in non-case specific informal co-operation with other EU regulators—for example, exchanging regulatory best practice rather than co-ordinating enforcement action. This could result in a lack of transparency between regulators and could lead to less effective protection of UK users, including minors.
Although this instrument does not guarantee that EU counterparts will reciprocate and co-operate with Ofcom, these regulations show a willingness on the part of the UK Government that Ofcom should engage and promote collaboration in this important area of online safety. Leaving a duty to co-operate in place would be inappropriate because of the lack of reciprocity from EU member states, and would provide no incentive for EU national regulatory authorities to co-operate with Ofcom.
I will now address the committee’s concerns about the timing and introduction of the online safety Bill. While we recognise the importance of being online and the benefits that this can bring, we acknowledge that online safety is a major concern. There are serious risks that users, especially children, currently face when they are online, and the prevalence of the most serious illegal content and activity online is unacceptable. We are working at pace to prepare online safety legislation, which will be ready this year. In the meantime, we are working closely with Ofcom and will continue to engage with parliamentarians as we prepare the legislation.
The current regulation of video-sharing platforms shares broadly the same objectives as the upcoming online safety legislation. In particular, it places requirements on UK-established video-sharing platforms to have systems in place to protect their users. The online safety regime will be broader and is expected to apply to a much wider range of online platforms. It is therefore the Government’s intention that the UK video-sharing platform regime in Part 4B of the Communications Act 2003 will be repealed and superseded by the online safety legislation once the latter has been implemented. Ahead of the repeal, Ofcom, through regulating video-sharing platforms, is gaining invaluable knowledge about systems regulation and how best to keep UK users safe online. This knowledge and experience will help the Government to meet our objective to make the UK the safest place in the world to be online.
Lord Blunkett (Lab)
My Lords, I appreciate the explanation given by the Minister. I have to mind the old joke about déjà vu all over again, because we have been here and will undoubtedly be here again to discuss the necessary measures that, I hope, will emerge from the online harms legislation, which we are all anticipating and looking forward to scrutinising following the Queen’s Speech in May. We are looking forward to it, because the situation that we face at the moment, as outlined by the Minister, is totally unsatisfactory.
I appreciate that this is just a technical measure, and that is why I can be brief. However, the technicality of providing a power to Ofcom to collaborate and share illustrates the paucity of any real measures that we have to hand to be able to deal with the situation whereby a platform is outside the UK but is beaming into and is used extensively in the UK. That is the problem, as we all know, with this technical regulation. Very few, if any, of the major platforms that we are talking about fall into the category of being overseen by Ofcom, and we need collaboration across Europe and the world to deal satisfactorily with online harms.
That has been thrown into contrast by one of the continuing emotional spasms during the recess—namely, the issue of whether boys are a dangerous species in our schools. I do not underplay it; I have written about it, and do not want to be misinterpreted. There is a real problem. But the problem, in part at least, springs from pornographic material that, sadly, is available for young people to access, and the distorted view of relationships, including sexual and emotional relationships, which are affected by it.
I wanted to put on record this afternoon that it will be absolutely crucial that we get the new legislation right and ensure that the powers will be available, whether the major platforms and big tech like it or not, in order to be able to protect our citizens, and particularly our young people, from the harms that they currently face.
Lord Foster of Bath (LD)
My Lords, last November, when we debated the earlier SI, I welcomed it but raised a number of concerns. Frankly, today’s extra-technical fixes do not allay those concerns. A critical concern was about who would regulate to our satisfaction services that are available in the UK but are based elsewhere. The Minister said in November:
“Under the revised AVMS directive, each EU member state and the UK is responsible for regulating only the video-sharing platforms that fall within its jurisdiction. There will be only one country that has jurisdiction for each platform at any one time.”—[Official Report, 27/11/20; col. 440.]
So we have no say in the regulation of on-demand platforms, such as Netflix, which will be regulated in the Netherlands, and video-sharing platforms, such as YouTube, which will be regulated in Ireland.
Today’s SI does not help. It merely replaces the duty on Ofcom to co-operate with EU regulators with a power for Ofcom to do so. As the Minister explained last November,
“Ofcom will rely on informal co-operation with the relevant EU regulatory authorities for information regarding determination of jurisdiction and discussions on co-operation and consistency of approaches towards video-sharing platform regulations”.—[Official Report, 27/11/20; col. 451.]
So it is down to informal co-operation rather than, as previously, having membership of the European Regulators Group for Audiovisual Media Services, which sets the rules for how all other EU regulators will operate.
I have frequently asked whether Ofcom will seek at least observer status of ERGA so that we may have something a little more than “informal co-operation”. Can the Minister tell us whether the Government are urging Ofcom to do so? Of course, if it were significantly updated to cover ODPs and VSPs, the Council of Europe’s Convention on Transfrontier Television could provide a way for us to have a greater say, as, along with most EU countries, we remain in membership of the council. Are the Government considering this? Can she outline the intended regulatory regime once we have our much-awaited online harms legislation?
Last November, I asked the Minister:
“Do the Government intend their online harms legislation to bring all VSPs that impact on UK consumers under the scope of UK regulation?” —[Official Report, 27/11/20; col. 444.]
I did not get an answer then. Can she tell us now? If the answer is no, surely the much-vaunted taking back control will be a sham.
Finally, I ask the Minister to reflect on something else she said back in November, when she commented that
“if a platform has no physical presence in any country covered by the AVMS directive, then no country will have jurisdiction over it, even if the platform provides services in those countries.” —[Official Report, 27/11/20; col. 440.]
Are we really to believe that if a service provided to UK customers is based outside the EU or UK—say, in China—we will have no power to regulate it? I hope she can explain.
Lord Kirkhope of Harrogate (Con) [V]
My Lords, the regulations are obviously necessary. However, the powers cover only those platforms that fall within UK jurisdiction, as has already been said, and where it is necessary to protect the public, including, especially, children, from illegal or harmful material. We are immediately in difficult territory. In order to become subject to control, the definition is limited to those VSPs that either display a physical presence in the UK or are based or established here. Those companies with a presence elsewhere cannot be controlled, and only one country can have control at any time. Many of the VSPs are international concerns, as we know, such as Facebook or YouTube, where video material is widely propagated. Examples of child sexual abuse being displayed are, sadly, becoming more common, and the Internet Watch Foundation, with which I am connected, has drawn attention to the growth of undesirable content.
Also, the regulations on the powers of Ofcom do little to control online advertising, which is another source of concern in the need to protect children, in contrast to TV advertising, which is controlled. Few of the most widely patronised VSPs meet our requirements for Ofcom or government attention or control. Many of the most popular, including Facebook and YouTube, but also Instagram and Twitter, are outside our jurisdiction. Some are based in EU countries, including Ireland. That leaves us unable to intervene effectively and our citizens in danger. Can my noble friend advise how else we can gain more control in view of the rules that we now accept? The new online harms Bill, which we are promised, is still awaited with interest, and perhaps we can hear today from my noble friend how it might deal with the obvious limitations we currently have.
I have been arguing in the field of technological legislation that we should try to ensure that it is smart legislation—that is, updatable, like the software we use in computers and cars. If it is not, technologically will inevitably always be ahead of the regulators and any desirable controls the Government might need to protect us. In view of the fact that the EU and other countries have their own criteria to apply to online content, which might be very different to our own, what steps are being taken to try to maintain that common approach, with common limits on acceptability of content?
Ofcom is on record as saying that it will prioritise only the most serious potential breaches arising following our leaving the EU until it has fresh and comprehensive guidance. Does my noble friend not believe that clearer guidance should now be given? This is an area of our lives which will not wait and where we need always to be up there with those who provide these services. Online services can be a force for good, just like TV and radio communications, but there is evidence that they can be accessed by those whose aims are less beneficent and, in some cases, criminal. We cannot preside over such uses.
Baroness Wheatcroft (CB) [V]
My Lords, I thank the Minister for the straightforward way in which she introduced this statutory instrument. It is, as she said, a technical instrument and I even welcome it in part. It is a positive that the UK will continue its commitment to the European works regime. As a generator of content, our creative industry will be a beneficiary of this regime and it makes sense to continue that involvement.
However, I can only echo the concerns expressed by others this afternoon about the limitations left unanswered by this legislation. With so much content being generated by platforms based outside the UK, our users of social media in particular and platforms generally are being left highly vulnerable to what is produced that is not regulated from the UK. This is a matter not just of the pornography that is being piped out and, as the noble Lord, Lord Blunkett, said, inflicting damage on our youngsters. An immense amount of really dangerous stuff about suicide gets circulated online. On anorexia, thinness websites are pushing our young ladies into starving themselves. It is really appalling. It will not be stopped by the regulators in other countries and I am afraid that our regulators will not be able to do it.
We have heard many times already this afternoon about the long-awaited online harms Bill, but when will it actually hit the statute book? How extensive will it be? Anyhow, I query whether Ofcom will be ready to deal with it when it arrives. From looking at its website, it is desperately trying to recruit people to deal with this. It still needs a principal to deal with online harms —somebody who can build and lead a multidisciplinary force across Ofcom to deliver high-quality policy and advice on complex issues. It is still hunting for a policy manager to support the development of its approach to regulating online harms. Can the Minister reassure us that Ofcom will be able to fulfil the duties being imposed on it to protect our country from online harms?
Baroness McIntosh of Pickering (Con)
My Lords, I welcome my noble friend the Minister to her place and thank for the very clear exposition of and background to the regulations before us. I declare my interest as on the register as chairman of the Proof of Age Standards Scheme board.
I will make two points and ask my noble friend a question on each. Is she in a position to give us the timetable for the online harms Bill, in particular as regards identifying and proving the age of minors to ensure that they are not subject to harmful images and content online? What discussions has she had with her opposite number in the Home Office, in particular my noble friend Lady Williams, with whom we have been working closely at PASS in this regard, to establish a digital ID and to verify how proof of age for the purposes of such a digital ID for young people can be set up? It is extremely important that these departments co-operate and work very closely together in this regard. I would welcome an early meeting with my noble friend if that is potentially helpful.
Secondly, on the issue raised by the noble Lords, Lord Blunkett and Lord Foster, and others who have spoken so far, all making the same point, how do the Government intend to resolve the question of jurisdiction and the potential for video service providers to escape the control of Ofcom, although offering services in the UK? What provision do the Government intend to make in that regard?
Finally, paragraph 7.2 on page 4 of the Explanatory Memorandum says:
“The references in the transposing Regulations which are being fixed include amending and substituting references to EU legislation with references to domestic law”.
The duty on Ofcom to co-operate with the European Commission, and presumably other member state bodies, is therefore being replaced with powers for it to co-operate with EU regulators. How does my noble friend expect that these changes will be made? Personally, I regret that there is a downgrade from a duty to powers for it to co-operate. I will follow this very closely.
Lord McNally (LD)
My Lords, as the noble Lord, Lord Blunkett, indicated, this debate is but one small piece of a larger jigsaw which Parliament will have to put together in the new Session in May. I pay tribute to the Secretary of State and his colleagues, including the noble Baroness, Lady Barran, for the painstaking way in which they have gone about consultation and involvement in preparing for the online harms legislation. I hope that they will go one step further by including pre-legislative scrutiny in the process by which the proposals will be brought forward.
Nineteen years ago I sat on the Puttnam committee, the Joint Committee of both Houses which gave pre-legislative scrutiny to what became the Communications Act 2003. That pre-legislative scrutiny made for a better Bill. The SI before us makes a number of tweaks to that Act, which was, of course, the legislation which created Ofcom. I remember that pundits at the time were predicting that the media vested interests would overwhelm Ofcom—or, as it was indelicately put then, “Murdoch’s lawyers will have them for breakfast”. This proved not to be the case, but there is no doubt that the same vested interests will be at work trying to draw the teeth of legislation designed to limit their powers to make money. As my noble friend Lord Foster and the noble Lord, Lord Kirkhope, indicated, who regulates what could turn out to be a lawyer-fest.
The Communications Act 2003, which we are amending today, contains the crucial Puttnam amendment, imposing on Ofcom the statutory duty to further the interests of citizens. That has been crucial in ensuring that regulatory decisions are not dictated by market criteria but governed by proper considerations of the broader public interest. It is essential that the Puttnam protections appear in the new Act. That statutory duty becomes even more important as Ofcom takes on the role of online regulator. As the noble Baroness, Lady Wheatcroft, outlined, it will be essential in reinforcing its ability to protect citizens, including children and the vulnerable, from a range of social harms as well as the threats to our democracy via fake news and disinformation.
Ofcom’s willingness to shoulder those responsibilities and the way it works with our other regulators—the ICO, the CMA and the Financial Conduct Authority—in the newly created digital regulation co-operation forum will depend on the effectiveness of the protection we now seek against internet harm. The protection of the citizen and of the wider public interest must remain part of the architecture of the regulatory system that we seek to put in place.
Lord Holmes of Richmond (Con) [V]
My Lords, it is a pleasure to participate in this short debate. I congratulate my noble friend the Minister on the way that she introduced the regulations. In doing so, I declare my relevant interest as a board member at Channel Four Television Corporation.
These are technical regulations, so forgive me if my questions are of a somewhat technical nature. What mechanisms and technologies are currently in place to ensure that the power to co-operate can be exercised effectively and in real time? To echo my noble friend Lady Wheatcroft’s point, does the Minister believe that Ofcom currently has the resources and expertise required in this area in terms of individuals, and the hard and soft resources to back this up?
In her opening, the Minister set out the learnings that would come through Ofcom’s engagement with VSPs. How will those learnings feed into the online harms legislation process and can a mechanism be established to ensure that they can be fed into any pre-legislative scrutiny in real time, because they could be invaluable to that process? I agree with my noble friend Lady McIntosh that, as with so much that we are considering now, a lot of this tracks back to the need for a distributed digital ID. Can the Minister outline some of the work going on in her department? What can be done to accelerate that and what proofs of concept may be undertaken that could be particular to the issues we are discussing?
Does the Minister agree that we have world-class broadcasters and content producers in the UK, and that it is essential that we have world-class online harms legislation? Will she conclude the debate by giving us a date for when the legislation will be introduced?
Lord Clement-Jones (LD)
My Lords, it is ironic that we keep coming back to this set of audio-visual media services regulations, yet this regime is only ephemeral and rather limited in scope. Schedule 15A was inserted only in November, as the Minister said, and is destined to be repealed, we hope, within a short space of time. This is really a dry run, as the Minister accepted, for what we are expecting to be the much wider scope of the online harms legislation, due, we hope, shortly after the Queen’s Speech, at least in draft. That is why we need to kick the tyres pretty hard at this stage on the way in which Ofcom plans to regulate and on the provisions of this SI.
As my noble friend Lord Foster asked, how many on-demand and VSP services are now covered, or have been since 6 April? He also asked what the Government intend as regards VSPs not based in the UK when the new online harms legislation is introduced. The Minister used the phrase “wider ambit”. Is that a commitment? We can, of course, talk about the provisions of the regulations themselves, the duty of co-operation and so on. She referred to the findings of the Secondary Legislation Scrutiny Committee and its view that the SI created some uncertainty.
The Minister was not wholly convincing in pushing back on the fact that the powers are essentially informal. There are not duties that require formal mechanisms of co-operation, least of all those belonging to the association of regulators mentioned by my noble friend Lord Foster. Perhaps the Minister can also talk about the consequences of the “ambulatory” definition of “European works”. There seems to be some confusion about the way in which that will operate. It is important to have transparency between the regulators and a commitment by the Government to make sure that our legislation is on all fours, at least during the interim period and probably for some time thereafter. I agree with the noble Baroness, Lady Wheatcroft, about the concerns over the timing of the introduction of the online harms legislation.
We should all be interested today in the substance of the Ofcom consultation on the video-sharing platform guidance. Of course, we are all concerned about the question of freedom of expression, but Ofcom in its consultation said
“The VSP Regime does not set standards for content which providers should meet”.
Is that going to be the online harms approach? I very much hope that we will go further and adopt the risk assessment and management approach discussed later in the VSP consultation by Ofcom. That would fulfil what my noble friend Lord McNally referred to as the Puttnam criteria.
The noble Baroness, Lady McIntosh, mentioned age verification. Ofcom said:
“For VSPs which specialise in, or have a high prevalence of pornography, we think robust and privacy preserving forms of age verification are key to providing necessary protections for under-18s”.
I entirely agree with that, and with what the noble Lord, Lord Blunkett, had to say. But will this be mandatory or a matter of judgment? What sanctions will there be if age verification is not introduced?
It is evident from the answer to the recent Written Question from my noble friend Lady Grender that user-generated content will be more heavily regulated than commercial pornography sites which do not carry user-generated content. Is that the Government’s settled approach? If so, they will have a fight on their hands, especially in the light of BBFC research which showed that parents agreed with a statement that there should be robust age-verification controls.
I could go through age ratings and the DRCF workplan mentioned by my noble friend Lord McNally. I strongly support the proposal for a centre of excellence. The dispute resolution mechanisms discussion is also of great interest, and I declare an interest as chair of the board of Ombudsman Services Ltd. The Government have said that they do
“not intend to establish an independent resolution mechanism”.
Ofcom clearly considers it important to have independence, and I hope that the Government will have changed their mind by the time we come to the online harms legislation. Furthermore, Ofcom’s statements are very cogent about media literacy, but where is the Government’s strategy?
Finally, are Ofcom’s enforcement guidelines fit for purpose in regulating VSPs? What kind of assessment has been made of them and what assurance can the Government give? I have great confidence in the way in which Ofcom is steering its activities towards preparing for online harms regulation. I am not so sure about the Government, however, given the regulatory framework and the policies that they are adopting.
Lord Bassam of Brighton (Lab) [V]
My Lords, the noble Lord, Lord Clement-Jones, is right to say that this afternoon’s discussion is something of a dry run. If that is the case, there will be anxious people around the world concerned to know exactly what we are going to get in the online harms Bill, when it is forthcoming.
In a previous debate, I raised the question of how we would regulate the big players such as YouTube when they are established elsewhere if they are regulated entirely by the EU and outside our jurisdiction. That question has cropped up again today. I welcome the fact that colleagues across the House have begun asking the Government more about that issue, because it is a very important one. I look forward to the Minister’s response on that.
Noble Lords have said this afternoon in no uncertain terms that they find the current situation highly unsatisfactory. Reference was made to resources by the noble Baroness, Lady Wheatcroft, while the noble Baroness, Lady McIntosh, asked about jurisdiction. The noble Lord, Lord Kirkhope, was clearly concerned to ensure that we have the online harms Bill brought forward sooner rather than later. While the noble Lord, Lord McNally, was happy to see detailed consultation carried out, I think that he also would like to see some of that during the pre-legislative process, so we can all understand how the legislation will work.
I, like the noble Lord, Lord Holmes, want—[Inaudible]—online regulation, and that is the view of my party. So while the changes made by this statutory instrument were not felt to be day-one critical, it was always inevitable that they would have to be made to ensure that Ofcom’s powers and duties reflect the new informal relationship between the UK and the EU and EEA regulators, and the fact that the UK no longer needs to notify the European Commission of certain changes.
As noted by the Secondary Legislation Scrutiny Committee, however, there was a recommendation for this instrument to be upgraded from the negative procedure to the affirmative. We welcome the fact that the Government accepted this recommendation, but the fact remains that there is too little information on the proposed timetable for the online safety Bill for us to be entirely reassured. I hope that the Minister will address those concerns and perhaps give us a timetable for pre-legislative scrutiny and the final introduction of the Bill. Can she do that this afternoon? We need to have some certainty. Does the Minister also accept that the current regulatory vacuum, where significant video-sharing platforms operate but are entirely outside our jurisdiction, rather undermines the Government’s commitment to protect users?
We welcome the Government’s plan to introduce a duty of care on online service providers, but while legislation exists only in draft form this does nothing to keep users, particularly younger ones, safe at present, despite various voluntary initiatives. We continue to see worrying cases of users encountering harmful and inaccurate content online.
Paragraph 2.13 of the Explanatory Memorandum notes:
“Guidance issued by the European Commission will continue to have relevance in the UK should it be updated.”
This makes sense, but it could be argued that this approach is inconsistent with the handling of similar guidance in some other policy areas. What was the rationale for this specific decision? DCMS says that the new ambulatory reference will fall away if the EU opts to adopt an entirely new definition or guidance. Can the Minister put on record her understanding of the current regime and the level of regard UK bodies should have for it in the light of this statutory instrument? What future changes to the EU guidance would DCMS consider inappropriate in the UK context?
Paragraph 2.15 of the Explanatory Memorandum says that the Government are giving Ofcom statutory powers to co-operate with EU and EEA regulators in part because
“it is hoped it will incentivise other regulators to co-operate with Ofcom.”
What has this co-operation been like during the first three months of the new relationship? Does the Minister accept that we have become dependent on the good will of others, something that we are increasingly needing to rely on in our new relationship with the EU? I look forward to hearing the Minister’s responses to this and the other important points raised from across the Committee today.
Baroness Barran (Con)
My Lords, I start by thanking all noble Lords for their valuable and insightful contributions to this debate. I will do my best to answer the points raised in the time allowed, but if I run out of time I will of course write to your Lordships.
A number of noble Lords, including the noble Lord, Lord Blunkett, and my noble friends Lord Holmes and Lord Kirkhope asked how this approach would work in practice in terms of co-ordination with EU regulators. I believe that I covered some of this in my opening remarks. I would just add that the UK and the EU have similar objectives regarding online harms and continue to share similar values. Both the digital services Act and the online safety legislation will set out new expectations on companies to ensure that they have proportionate systems and processes in place to mitigate risk and to keep their users safe online. We are committed to working with our European and international partners, as well as businesses themselves, to understand how we can implement these existing frameworks better. However, I would like to be clear, in response to many noble Lords’ requests for clarification on jurisdiction, that our forthcoming online safety regime will regulate platforms irrespective of jurisdiction.
The noble Lord, Lord Clement-Jones, asked which platforms would be regulated by this new instrument. From 6 April this year, VSP providers in UK jurisdictions have been legally obliged to notify their services to Ofcom. Existing providers have one month—until 6 May —to notify their services, and the list of providers will be published shortly thereafter. We expect, and this is very important in light of the very valid concerns that your Lordships raised, that this will include some smaller platforms that have never previously been in scope of regulation.
A number of questions were asked about ambulatory references. These ensure that UK law reflects updates to the definition of European works and/or the relevant guidance attached to that, so that when the EU makes changes to legislation, a full legislative process has to be gone through and the UK will therefore get a reasonably lengthy period of notice in which to consider whether or not to disapply the ambulatory reference. As a matter of policy, however, the UK wants to keep close to the EU on the definition of European works, which is why the definition is ambulatory. It is also a technical definition and has links to the European Convention on Transfrontier Television, to which the UK is a party.
A number of questions, including from the noble Lord, Lord Clement-Jones, were asked about the use of age-assurance and age-verification measures within the video-sharing platform regime. Age assurance is one possible appropriate measure in the VSP framework. In order to comply with the VSP regime, age-assurance measures may be adopted by VSPs, along with other measures such as age ratings and parental controls. When considering which measures are needed to protect users adequately, platform providers must consider what is practicable and proportionate, which includes taking into account the rights of users.
Ofcom is committed to promoting best practice in this area within the VSP regime, and its guidance is consistent with the guidance on establishing age within the Information Commissioner’s age-appropriate design code. Throughout the duration of the regime, Ofcom will work with the ICO to provide clarity on roles and coherence in approach. I can tell the noble Lord, Lord McNally, that this will be done with a risk-based approach, both in this regime and in the forthcoming online safety regime.
The noble Baroness, Lady Wheatcroft, asked whether Ofcom had sufficient resources to fulfil its role. Ahead of the online safety Bill we are working closely with the regulator to understand the challenges that it faces, and we are working to ensure that it has the resources, processes and expertise to start building its capability as an effective regulator of VSPs and of course, importantly, as the future online safety regulator.
My noble friend Lady McIntosh of Pickering and the noble Lord, Lord Bassam of Brighton, asked again about jurisdiction and the regulation of platforms not established in the UK. VSPs that are not established in the UK will be regulated not by Ofcom but rather by the EEA state in which they are established. Ofcom will regulate VSPs that are not established in the UK but have a group undertaking in the UK, if the VSP does not fall under the jurisdiction of an EEA state. We hope that the regulation provided by other EU member states will be effective enough to provide protection to UK users in the interim. But, as I said earlier, our online safety regulation is intended to be the long-term regulatory framework.
Lastly in relation to this instrument, my noble friend Lord Kirkhope asked about the regulation of advertising. Under the VSP regime, the requirements placed on providers with regard to restricted material and relevant harmful material in videos apply to adverts as well.
In the time remaining, I will turn to the online harms legislation. Most noble Lords asked me to clarify the timing of the online safety Bill. We are working at pace to prepare the legislation, which will be ready this year. As for pre-legislative scrutiny, I thank the noble Lord, Lord McNally, for his kind remarks about our engagement with parliamentarians, which we have found extremely useful. We will make a final decision on pre-legislative scrutiny nearer the time of introduction, but your Lordships will have heard the Secretary of State say that he is minded to undertake it.
A number of noble Lords asked for clarification on what would be included in the new regulatory framework. In brief, the framework will prioritise action to tackle illegal content and the protection of children. All companies in scope will need to tackle illegal content on their services and protect children. The noble Baroness, Lady Wheatcroft, cited some of the most troubling examples of legal but harmful content. In that case, companies will be required to set out clearly what content and behaviour are acceptable on their services.
I fear that I am running out of time and have not answered all noble Lords’ questions. I will follow up in writing. As I have set out clearly today, these regulations are required to fix the remaining issues of the transposition of the AVMS directive to ensure that the law remains clear and operable beyond the transition period. This instrument will allow Ofcom to continue regulating video-sharing platforms effectively and will give it the power to co-operate with EU regulators when it is appropriate to do so. This will help to ensure that online users, particularly those under the age of 18, will benefit from the protection from illegal and harmful content provided by Ofcom’s regulation of video-sharing platforms ahead of the upcoming online safety legislation. With that, I commend the regulations to the Committee.