Audiovisual Media Services (Amendment) (EU Exit) Regulations 2020

Friday 27th November 2020

(1 year ago)

Lords Chamber

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Department for Digital, Culture, Media and Sport

Motion to Approve

Moved by

Baroness Barran Portrait Baroness Barran
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That the draft Regulations laid before the House on 15 October be approved.

Relevant document: 32nd Report from the Secondary Legislation Scrutiny Committee

Baroness Barran Portrait The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Baroness Barran) (Con)
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My Lords, I am pleased to introduce this instrument, laid in both Houses on 15 October, which is being made under the European Union (Withdrawal) Act 2018. These regulations remedy certain failures of retained EU law arising from the withdrawal of the United Kingdom from the EU. This instrument seeks to maintain, but not expand, Ofcom’s remit to regulate video-sharing platform services. This intervention is necessary to ensure the law remains operable beyond the end of the transition period.

The EU’s audiovisual media services directive, known as the AVMS directive, governs the co-ordination of national legislation on audio-visual media services. The AVMS directive was initially implemented into UK law in 2010, primarily by way of amendments to UK broadcasting legislation. The directive was subsequently revised in 2018. The UK Audiovisual Media Services Regulations 2020, which transposed the revised AVMS directive, were made and laid in Parliament on 30 September. Those regulations came into force on 1 November and introduced, for the first time, rules for video-sharing platform services. The Government have appointed Ofcom as the regulator for these services. The new rules ensure that platforms falling within UK jurisdiction have appropriate systems and processes to protect the public, including minors, from illegal and harmful material.

There were three key requirements placed on video-sharing platforms under the regulations. These were: to take appropriate measures to protect minors under 18 from harmful content, to take appropriate measures to protect the general public from harmful and certain illegal content, and to introduce standards around advertising. I also draw the attention of the House to the report from the Secondary Legislation Scrutiny Committee considering this instrument, and I thank its members for their work.

I will now address the committee’s concerns regarding jurisdiction. The AVMS directive sets out technical rules governing when a platform falls within a country’s jurisdiction. First, there must be a physical presence, or a group undertaking, of the platform in the country. Where there is a physical presence in more than one country, jurisdiction is decided on the basis of factors such as whether the platform is established in that country, whether the platform’s main economic activity is centred in that country, and the hierarchy of group undertakings as set out by the directive.

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. However, 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.

Through this instrument, we are seeking to maintain the same position for Ofcom’s remit beyond the end of the transition period. This position allows Ofcom to regulate video-sharing platforms established in the UK and additionally regulate platforms that have a physical presence in the UK but not in any other country covered by the AVMS directive. Although Ofcom’s remit will not be extended to include platforms established elsewhere in the EU, we believe UK users will indirectly benefit from the EU’s regulation of platforms under the AVMS directive. The regulation under this regime is systems regulation, not content regulation. We therefore expect that as platforms based outside of the UK will set up and invest in systems to comply with the AVMS regulations, it is probable that these same systems will also be introduced for their UK subsidiaries.

In the absence of this instrument, Ofcom would no longer be able to regulate any video-sharing platforms. This would result in an unacceptable regulatory gap and a lack of protection for UK users using these services. Our approach also mitigates the small risk that a video- sharing platform offering services to countries covered by the AVMS directive, but not the UK, would establish itself in the UK in order to circumvent EU law.

While we recognise that most children have a positive experience online, the reality is that the impact of harmful content and activity online can be particularly damaging for children. Over three-quarters of UK adults also express a deep concern about the internet. The UK is one of only three countries to have transposed the revised directive thus far, evidencing our commitment to protecting users online.

These regulations also pave the way for the upcoming online harms regulatory regime. Given that the online harms regulatory framework shares broadly the same objectives as the video-sharing platform regime, it is the Government’s intention that the regulation of video-sharing platforms in the UK will be superseded by the online harms legislation, once the latter comes into force. Further details on the plans for online harms regulation will be set out in the full government response to the consultation on the Online Harms White Paper, which is due to be published later this year, with draft legislation ready in early 2021. With that, I beg to move.

Lord Blunkett Portrait Lord Blunkett (Lab)
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My Lords, it is hard to do justice in an hour, with a three-minute time limit, to something that, on the face of it, looks like a technical adjustment to take account of our departure from the European Union at the beginning of this year and the end of the transition period. I congratulate the Minister on making it sound as though it is just a very boring technical change—but it is not. This is far more fundamental than it appears at face value. While the Minister rightly says that we are seeking to maintain some authority for Ofcom, that authority was integral to the authority that other member states of the European Union had as the key regulators for those platforms with a prime base in those countries. The Minister has admirably spelled this out in a way that made it sound totally benign.

In this instrument we have a recognition that, without the online harms legislation promised by the former Prime Minister Theresa May, we have a major gap not just in maintaining what Ofcom may or may not have been able to do to date but in terms of any control over these video-sharing platforms.

We are talking about Netflix, Facebook and TikTok—and it is indeed “tick-tock”, because time is passing but the fingers have fallen off the face of the clock. Between now and when, at some point, the online harms legislation comes in, we are at the mercy of these big international tech companies in avoiding child abuse and the dangers that go with it, and we are at their behest regarding their co-operation in ensuring that these platforms are not used for counterterrorism purposes and whether they agree to continue complying with regulation.

Given the time available to me, I simply ask the Minister to spell out to the House when she replies just which of these platforms have a prime base in the United Kingdom. Which of their group systems is at such a level that it is counted as having a prime base here? If it is not here, we are entirely reliant on those areas where that prime base is located, and which therefore have the regulatory power to intervene and take action. This is of course one consequence of coming out of a group of 28 countries that can act decisively and with authority in dealing with large, multinational tech giants based elsewhere, primarily in the United States and, for TikTok, in China.

To pretend that this is a technical way of ensuring continuity is, I believe, to mislead the British public. That is alongside the panel that has been set up by DCMS on the future of public service broadcasting, which is packed with people who are not in favour of retaining the security and safeguards of the public service broadcasting regulation that we have at the moment.

We are in a dire position in how we deal with these platforms as opposed to how we deal with normal, traditional broadcasters. While we will not be voting against this particular order, it does flag the dangers of a future without the forthcoming legislation—at some unspecified date—that will provide us with at least some power to deal with the potential harms.

Lord Moynihan Portrait Lord Moynihan (Con)
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My Lords, I declare my interests as set out in the register, particularly as an adviser to Station12, with its interests in content production.

These debates on EU exit regulations are important in their own right, but this one is all the more important because of the wide statutory and regulatory work that is under consideration in this fast-moving technology space, as noted by the noble Lord, Lord Blunkett. I welcome the regulations for what they are—confirmation that the European standard of regulation continues to apply after the end of the transition period—but what I am hoping for today is government recognition that, with technological advancement, with some countries banning some of the platforms, with online harm already a major and growing issue, and with serious crimes occurring, it is really important that the Minister and the Government provide us with absolute confirmation that the new legislation will not be sometime early in 2021 but as early as possible, for all the reasons given by the noble Lord, Lord Blunkett. I hope that consultation will take place with consumer and business groups, that it will be extensive and that, in the words of the Minister in another place, the Government intend to bring forward “a pioneering UK regime”, which will be necessary.

I fully appreciate that these new rules ensure that platforms falling within UK jurisdiction have appropriate systems and processes in place to protect the public, but what will be the consequences of Ofcom licences no longer being recognised to regulate video-sharing platform services in non-ECTT member states when licences issued by non-ECTT member states will no longer be recognised in the UK? In practice, the largest VSPs work outside the UK’s regulatory scope and it is critical, in the context of sexual online threats, that the National Crime Agency will continue to co-ordinate activities closely with colleagues abroad to help the regulators with misinformation warnings and action against criminals. This is an international problem and one that, like Covid-19, pays scant regard to national boundaries. International co-operation, as well as effective domestic law, are essential components of success.

EU broadcast law has recently undergone a sea change, as the Minister said, principally as a result of the revised AVMSD, which has been transposed into UK law by the Audiovisual Media Services Regulations, including the brand-new regime for VSP services. Am I correct in my understanding that, in terms of the end of the transition period, this instrument, at Regulation 4(2), together with recent Ofcom guidance, clarifies that a VSPS will fall under UK jurisdiction where

“it has the required connection with the United Kingdom”—

a somewhat imprecise phrase which could benefit from clarification by the Minister today? In the meantime, I very much welcome these regulations.

Lord Clement-Jones Portrait Lord Clement-Jones (LD) [V]
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My Lords, today’s SI is a bit of a sideshow compared to the important revised AVMS regulations which came into effect on the first of this month, but it is an opportunity to raise a number of issues. I welcome the transposition of these duties on internet platforms into UK law; the noble Lord, Lord Blunkett, spelled out clearly why they are needed. I found the impact assessment for the main regulations refreshingly clear—indeed, it was refreshing to have an impact assessment. My noble friend Lord Foster is in the driving seat for our Benches on these regulations today, so I will confine myself to just a few questions to the Minister.

As the Secondary Legislation Scrutiny Committee asked, who, after the transition period, will regulate to our satisfaction services available in the UK but based elsewhere? Ofcom’s interim plans for regulation of VSPs are limited by country of origin. There are crucial issues about services regulated outside the UK, such as ODPs such as Netflix, regulated in the Netherlands, and VSPs such as YouTube, regulated in Ireland. What happens, in particular, in the event of a no-deal Brexit? That leads to the question of the nature of our future relationship with the ERGA, the European Regulators Group for Audiovisual Media Services, which now has increased importance. The committee rightly says it is vital that these regulations are superseded by new online harms legislation, which we on these Benches have been calling for ever since the publication of the White Paper. Can we expect the overdue response any day?

Do the Government intend their online harms legislation to bring all VSPs that impact on UK consumers under the scope of UK regulation? If not, then the vaunted taking back of control will be a sham. We have seen Ofcom’s interim guidance of 21 October on regulating video-sharing platforms, but what is the point of Ofcom

“developing and publicly consulting on more detailed regulatory guidance for VSPs”

when online harms legislation will supersede the AVMS provisions?

The Government, shamefully, have not implemented Part 3 of the Digital Economy Act. Will we not need age verification in order to comply with the directive? Or do the Government think age assurance is different in kind, as I asked in a Written Question earlier this month? How will we prevent access to restricted material? Moreover, will age verification not be needed to comply with the new age appropriate design code?

With or without a deal, should we not be helping to develop the role of the European Convention on Transfrontier Television? What are the Government’s plans?

Finally, what will be the mechanism for dealing with individual complaints about VSPs? I look forward to the Minister’s reply.

Lord Brougham and Vaux Portrait The Deputy Speaker (Lord Brougham and Vaux) (Con)
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The noble Lord, Lord Singh of Wimbledon, has withdrawn, so I call the noble Baroness, Lady Ritchie of Downpatrick.

Baroness Ritchie of Downpatrick Portrait Baroness Ritchie of Downpatrick (Non-Afl) [V]
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My Lords, I thank the Minister for her explanation of these regulations, which address how on-demand programming and video sharing platforms will be regulated after the Brexit transition period. Like the noble Lords, Lord Clement-Jones and Lord Blunkett, I have certain issues regarding the gap during which there does not seem to be any form of control. When dealing with digital platforms and the potential for child abuse, full regulatory and legislative control is vital, so I have some questions for the Minister.

The House of Lords Secondary Legislation Scrutiny Committee raised some issues, the main one being the lack of an online harms Bill. According to the White Paper published some years ago, it should cover child sexual exploitation, hate speech, terrorist offences, online crime and online bullying and harassment. What is the expected date of this Bill? In her introduction, the Minister said it would be early in 2021. Because of the gravity of the situation, and because of the gap between the end of the transition period on 31 December and whenever this comes into operation, could she specify a date today? During this regulatory gap between the end of the transition period and the implementation of this Act, Ofcom will simply be unable to operate its regulatory function. Are there any plans to provide a temporary power to Ofcom to deal with this regulatory gap until the full legislation is ready for publication, debate, implementation and Royal Assent?

Another area of concern is that both Google and Facebook have their European headquarters in Dublin, where EU regulations will apply, and the new arrangements will apparently not allow Ofcom to intervene where these companies may have UK subsidiaries. Is it not possible, as part of the UK-EU negotiations, to discuss some resolutions in this area, when the issue of the protection of children from sexual exploitation is vital? There are also issues around scamming and people who extort money using these digital platforms. Will Ofcom and the online harms Bill be able to deal with those issues?

Lord Brougham and Vaux Portrait The Deputy Speaker (Lord Brougham and Vaux) (Con)
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The noble Lord, Lord Liddle, has withdrawn, so I call the noble Earl, Lord Erroll.

Earl of Erroll Portrait The Earl of Erroll (CB)
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My Lords, this is only part of a patchwork of regulation and legislation around online harms—very sadly, we do not have the online harms Bill yet. This regulation highlights the whole problem of the UK having jurisdiction over foreign-domiciled—housed or homed overseas—companies. Companies outside the EU can completely dodge it: it does not cover them at all. The noble Lord, Lord Clement-Jones, mentioned the Digital Economy Act. We put a lot of thought, in Part 3 of that Act, into how we could still exert some degree of serious influence over such foreign companies. There was some stuff in there to allow us to ask payment providers, who all rely on getting money, to refuse payments on behalf of things that have breached UK law. I think that is quite a good mechanism, because we have to hit people in the pocket, otherwise they will just get around it.

A lot of this will come down to age-checking; we need a robust, Government-approved age-checking methodology. It is essential to doing anything and moving forwards. That became apparent after the BBFC failed to do anything effectively, although there was British Standard guidance in place to do it. International regulators will need it too; I know the EU and others are very interested in what we are doing in this space. We also need it for other online harms such as purchasing knives, alcohol, corrosive substances and many other things.

It would cost the BSI about £90,000 to take PAS 1296 to a proper, full specification. That could then be used by certification bodies to certify companies’ websites and age-verification providers against a standard. It would also be written in such a way as to be a seed document for an ISO standard, and can then go straight on to becoming—without further cost—an international standard to be used by EU and international regulators in the same way. They could therefore co-operate more easily, particularly if they decided to act against organisations delivering online material to the UK and their own jurisdictions, because they would all have the same concerns about the young.

Four government bodies should take a serious interest in this. Though DCMS is responsible at the moment, and has offered a small amount towards this, the Home Office, the ICO and Ofcom should all contribute a reasonable amount as well, not just pittances. They should put some money into it and probably also have representation on the BSI steering group, so that they back it properly and state so publicly for a change. The Age Verification Providers Association has already promised money, and we can draw in more industry people if the Government support it.

Lord Naseby Portrait Lord Naseby (Con)
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My Lords, by way of background, I was a director of one of the major advertising and marketing agencies in the UK. There has been an explosion of VSPs, which need control.

I notice in paragraph 2.10 of the draft Explanatory Memorandum that a second statutory instrument is due to be laid; can the Minister indicate when that may be? Paragraph 6.2 says that there will be another instrument to deal with “deficiencies”; is the Minister in a position to tell us what the deficiencies are?

Paragraph 7.2 says that Ofcom may or may not have power in the future. It is not much of an incentive to Ofcom to invest properly with senior people if it does not know whether it will carry on with this in future. I suggest to Her Majesty’s Government that there should be a clear statement that Ofcom will be the body dealing with this.

There are also the points on protection, rightly raised by my noble friend. Terrorist content is a real problem in this country from a security point of view, as we know—quite often from what appear to be genuine, sympathetic human rights bodies, some of them operating legally, some not quite so legally and some illegally. We really need to focus on that because, as the document says,

“VSP providers are merely responsible for the organisation of content”.

If that is the situation, who on earth will control it, particularly for VSPs that are produced outside either the European Union or here in the UK? In relation to this Bill, certain countries are well known for producing highly controversial and illegal VSPs. There is a big problem there.

I also have some questions about paragraph 7.13, which says that, where Ofcom

“become aware of serious instances of … harm”,

et cetera, it should take strong “enforcement action”; it has never taken much strong enforcement action in the past, so there is a problem there. It also says that Ofcom will give guidance. Where is the guidance? Is it coming soon or not? People are now planning for the spring, and have probably decided what will happen, so we need clarification on that.

In paragraph 14.1, under “Monitoring & review”, the Government should clarify what they really mean. It says that

“legislation relating to VSPs will be repealed and encompassed within the Online Harms regulatory framework.”

When is that likely to happen?

Lord Bhatia Portrait Lord Bhatia (Non-Afl) [V]
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My Lords, this SI is essential for Ofcom to be able to determine and justify which providers of video-sharing platform services it will regulate. Ofcom will have robust enforcement powers against any serious instances of egregious or illegal harm caused by inadequate regulatory systems of VSPs within UK jurisdiction, when it considers it appropriate to use them. This SI is made under the power in Section 8 of the EUWA to address failures of retained EU law to operate effectively or other deficiencies arising from the withdrawal of the United Kingdom from the EU.

Ofcom will publish guidance in accordance with the Audiovisual Media Services Regulations 2020 and engage with VSPs to help them understand any new obligations. It will also have a duty in legislation to produce guidance on the application of the appropriate measures which VSPs can take to protect users. Ofcom’s guidance will make it clear that VSPs must take into account freedom of expression when designing and implementing their systems to protect users from the required areas of harm.

I have only one worry about this legislation. Increasingly, there are reports of children having their own computers, laptops and iPhones and spending many hours in their bedrooms looking at videos and games. Often, they fall into contact with predators who lead them into victimhood and self-harm. Can the Minister confirm whether Ofcom will have powers to introduce new rules to take legal action against providers, with heavy fines and/or imprisonment?

Lord Loomba Portrait Lord Loomba (CB) [V]
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My Lords, these regulations do not cover audio-visual media providers in certain circumstances and raise issues of jurisdiction, including a lack of jurisdiction for infringement resolution. One area of grave concern is that the regulations should protect minors from harm, such as child sexual exploitation, but until the online harms Bill is published there will be a regulatory gap.

Another key point is the problems surrounding case law, precedent and appeal cases, as discussed this week during the passage of the retained EU case law Regulations. As the noble and learned Lord, Lord Mackay of Clashfern, pointed out during that debate, there is a deficiency in the withdrawal Act with regard to methods

“in place for reaching from, for example, the magistrates’ court in England to the Court of Appeal.”—[Official Report, 25/11/20; col. GC 28.]

Can the Minister say how the courts will reconcile issues of jurisdiction if matters are to be determined by a regulator in another EU country, or if there is no regulatory jurisdiction due to an audio-visual media provider being without a base in an EU country or the UK but the harm is occurring in the UK and being dealt with by the criminal courts in this country? Can she also tell us how our courts will deal with case law if they are not expected to follow EU case law but the regulator covering the harm involved is based in an EU country and bound by EU law, particularly EU case law?

Lord Mann Portrait Lord Mann (Non-Afl)
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My Lords, what sanctions will be applied, and by whom, on those platforms that host audio-visual materials that glorify terrorism or violence against others?

Lord Foster of Bath Portrait Lord Foster of Bath (LD)
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My Lords, earlier versions of the AVMS directive regulated linear and, subsequently, online demand TV. This new version effectively replicates all of that but adds to the existing measures, adding video-sharing platforms and bringing them into scope for regulation. As we have heard, the SI, which came into force on 1 November, appears to be a faithful transposition of it into UK law. I therefore welcome and support it—but, rather like the noble Lord, Lord Moynihan, for what it is. Picking up the point made by the noble Lord, Lord Naseby, I also note that, despite the start date of 1 November, the regulatory regime will not be fully operational until late summer next year. Perhaps the Minister can confirm that I am correct and explain why we have not got on with it sooner.

For far too long, video-sharing platform owners have denied any responsibility for material posted on their sites. They have hidden behind the various safe harbour provisions, such as those contained in the US Digital Millennium Copyright Act. For example, when Paramount Pictures sued YouTube for $1 billion for allowing users to upload Paramount material more than 150,000 times, YouTube got away without paying any damages. Fortunately, that is now changing, and VSPs are beginning to recognise that they have some responsibility—hence, for example, the action taken against the postings of Donald Trump.

Of course, the majority of VSPs serving the UK are headquartered outside the EU—not least in the United States—so it might appear that they are exempt from regulation. However, as the Government and the Minister have pointed out,

“most, if not all, US based prominent VSPs will have some form of physical presence in Europe.”

So, UK users of most VSPs will have the protection ushered in by the SI, though often by other EU regulators rather than by Ofcom. However, future trade deals could undermine this if, for example, American-style safe harbour provisions are insisted upon, as they were by the United States in their recent deal with Canada and Mexico. Can the Minister provide an assurance that in discussions with the US over any trade deal there will be no agreement to dilute these provisions?

The noble Lord, Lord Blunkett, picked up on a point referred to by many other noble Lords, including the noble Baroness, Lady Ritchie, my noble friend Lord Clement-Jones, and the noble Earl, Lord Erroll—that we need a tougher regulation than this will herald in. It is a much lighter regime than could be brought in and, we hope, will be brought in with the online harms legislation. We have had months, in fact years, of delay with getting this legislation, so can the Minister give a categorical assurance that the response to the consultation on online harms will be published before the end of the year and that draft legislation will follow shortly afterwards?

As the Explanatory Memorandum makes clear, online harms legislation will enable us to also deal with the obvious problem of the UK’s inability, post 31 December, to have some say in the regulation of the numerous VSPs, such as YouTube and Facebook, which are heavily used in the UK but regulated in one of the other remaining 27 EU countries. Can the Minister confirm that the forthcoming online harms legislation will include measures that will enable Ofcom to regulate, in respect of online harms, all VSPs that serve UK audiences, regardless of the location of their primary establishment? Given that the Government plan to regulate the commercial behaviour of tech platforms, can she explain what she sees as the relationship, in relation to VSPs, between the role of Ofcom and the new Digital Markets Unit within the CMA?

On another point made by the noble Lord, Lord Moynihan, and my noble friend Lord Clement-Jones, does the Minister acknowledge that, even with such legislation in place, it will clearly be beneficial for the UK to continue to have some means of influencing discussions within the EU about future changes to the AVMSD? At the end of the year we will lose our membership of the EU bodies that bring regulators together, but we could become observers. Can the Minister update us on plans to do that? Can she also tell us whether she thinks it will be sensible for us to have more involvement in developing the work of the ECTT—the European Convention on Transfrontier Television?

Finally, I turn to a point raised by the noble Earl, Lord Erroll. Ofcom, in its regulatory proposals, says that there will be a requirement for what it calls “strict access control measures”—age verification measures—to protect children from restricted material that has the most potential to cause harm. Given the numerous areas in which robust age verification is needed, surely it is important that the Government do not leave this decision to Ofcom alone, as the noble Earl rightly pointed out. For example, it makes sense that measures required by Ofcom are aligned with those that the ICO will use for age appropriate design codes. What steps are the Government taking? Does the Minister believe that access control measures should conform to BSI 1296, and be subject to external audit, assurance and certification? Does she believe that VSPs can be trusted to carry out their own age assurances for high-risk content? I look forward to the Minister’s response, but I welcome and support this limited SI.

Lord Bassam of Brighton Portrait Lord Bassam of Brighton (Lab) [V]
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My Lords, colleagues across the House have posed a number of very awkward questions for the Minister to answer, and I am going to add one or two more of my own. It is worth making a few observations that perhaps take us to the point where we can see an improvement in the patchwork of regulation that we are left with.

As we have seen with a number of recent DCMS instruments, our ability to effectively regulate digital activity will be restricted without broader reciprocal arrangements with the EU and others, as my noble friend Lord Blunkett admirably explained and set out in his comments, which were echoed by the noble Lord, Lord Moynihan, and others across the House.

This SI provides some certainty on matters of jurisdiction after the transition period, which empowers Ofcom to regulate video-sharing platforms where their primary establishment is in the UK—but it does rather leave it at that. It is important today to remind ourselves that the Secondary Legislation Scrutiny Committee said that:

“It is important that the Government will adhere to the legislative timetable provided by the Department, so that the current regulatory gap, which leaves UK users potentially exposed to online harm, can be closed.”

That is a pretty damning observation, and we should be worried by that. We need greater certainty for the sector, and greater certainty as legislators and regulators. Can we be assured that this regulatory gap will be closed pronto? We need the online harms legislation to provide the certainty that we all crave.

VSPs that operate in the UK but are established in other countries may fall under Ofcom’s jurisdiction, but not, as others have observed, if that firm has a presence in the EEA. In that case, power will reside with the European regulator and we will, after the end of this year, be shut out from that—and we need influence.

Paragraph 2.18 of the Explanatory Memorandum notes the particular challenges around TikTok, which is based in China and has no physical presence in either the UK or EEA, and which is therefore currently in a regulatory void. This concern, as others have observed, is covered by the 32nd report of the SLSC. Paragraph 2.19 of the memorandum acknowledges that

“there will only be a small number of VSPs in Ofcom’s jurisdiction.”

Can the Minister estimate how many? Is she confident that Ofcom has the regulatory tools needed?

We find ourselves in a bizarre holding pattern where we will have to make do with these arrangements between the end of the transition period and the emergence of the long-awaited online harms Bill. Can the Minister provide any new information on when that legislation is expected? Will it be subject to pre-legislative scrutiny, as has been suggested in some quarters, and if so can she confirm what that will look like? It would be very helpful to this House and to the other place if we had that opportunity.

We hope we will finally have some news on a deal with the EU in coming days, if one ever gets over the line. However, if ever an area of law needed to be put in place quickly to cover the gaps that exist, this is it, and we need strong arrangements on digital regulation if we are not to be at the mercy of the market. That said, of course we support this instrument, which is making a contribution to providing an urgently needed regulatory regime.

Baroness Barran Portrait Baroness Barran (Con)
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I thank all noble Lords for their contributions and probing questions about these regulations. I will endeavour to answer as many as possible in the coming minutes, but if I cannot answer any at the Dispatch Box I will write to all noble Lords and place a copy of the letter in the House Library. I will start by addressing some of the concerns about the scope and working of these regulations before moving on to the questions about the timing of the online harms Bill.

The noble Lord, Lord Blunkett, my noble friend Lord Moynihan and other noble Lords asked how many video-sharing platforms would be regulated by Ofcom. My understanding is that Ofcom currently anticipates that only a small number of services will fall within the UK’s jurisdiction. We expect this to include platforms such as Vimeo and Twitch. However, it is Ofcom’s role to determine which platforms are in scope, and it will be able to do this once it has engaged fully with platforms and concluded its consultations on guidance and scope. Platforms providing services which fall within UK jurisdictions will be required to notify Ofcom of provision of those services from April 2021.

The noble Lords, Lord Clement-Jones and Lord Foster, asked about our relationship with existing EU and EEA regulators and our reliance on them in this interim period. VSPs established in the EEA will be regulated not by Ofcom but by the EEA state that they are established in. Without that, it would put a duty on Ofcom to regulate large social media platforms such as Facebook, for example, which are established in Ireland but which have a subsidiary here in the UK, and would involve a lot of duplication of effort and perhaps not the best use of resource. Therefore 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. Most of the major US video-sharing platforms have some form of physical presence in the EU, so we would expect them to be regulated under the AVMS directive by a regulator either in the UK or an EU member state.

The noble Lord, Lord Blunkett, asked specifically about TikTok and VSPs based outside the EEA. Again, enforcement will depend on whether it is carried out by a UK regulator on UK jurisdiction. However, if, for example, a VSP was based in China, had no establishment in the UK or parent subsidiary or group undertaking in either the EEA or the UK, it would not fall under UK jurisdiction; indeed, that is just a reflection of the status quo today. If TikTok meets the criteria of being established in the UK, it would in all likelihood be regulated by Ofcom, but we cannot currently confirm whether it would fall under UK regulation. The noble Lord, Lord Bassam, also raised the same points on TikTok.

The noble Lord, Lord Clement-Jones, asked about the appropriate measures that video-sharing platforms will be required to comply with. They are to take appropriate measures to protect minors under 18 from harmful content, to protect the general public from incitement to hatred and violence and certain illegal content, and to introduce standards around advertising. As I am sure that he is aware, the revised AVMS directive sets out a list of 10 appropriate measures that video-sharing platforms may implement to achieve these protection purposes, which includes setting terms and conditions for their users.

My noble friend Lord Naseby asked about the timing of the second statutory instrument that is required to deal with remaining technical deficiencies in UK law relating to the AVMS directive. We intend to lay that instrument later this year using the negative procedure.

The noble Lords, Lord Bhatia and Lord Mann, asked about enforcement. Ofcom has a range of formal enforcement powers, including issuing enforcement notices requiring action if a platform is in breach of its obligations in not taking appropriate measures to protect users or indeed failing to implement those measures adequately. It can impose financial penalties of up to 5% of a service’s qualifying revenue or £250,000, whichever is greater, and in the most serious instances can issue a direction to suspend or restrict a platform provider from providing a service. Specifically on harmful content, this regulatory regime looks at regulation of systems and, with regard to the terrorist content to which the noble Lord, Lord Mann, referred, the responsibility there lies with the Home Office.

The noble Lord, Lord Foster, asked about the relationships of the new digital arm—if that is the right word—of the Competition and Markets Authority. Obviously that was announced very recently, but my understanding is that it will liaise with all the relevant regulators, including of course Ofcom.

I turn to the heart of many of your Lordships’ questions about the timing and approach in the forthcoming online harms Bill. The Government remain firmly committed to making the UK the safest place to be online, and the DCMS and Home Office are working at pace to introduce this legislation. We will publish a full government response to the online harms White Paper consultation later this year, which will include more detailed proposals on online harms regulation and will be published alongside interim voluntary codes on tackling online terrorist and child sexual exploitation and abuse content and activity. We will follow the full government response with legislation which will be ready early next year. I look forward to working with many of your Lordships on that as those plans develop.

The noble Earl, Lord Erroll, and the noble Lord, Lord Foster, asked specifically about age verification and age assurance. Those sit within the crucial wider approach of this Government to addressing online harms, which includes placing a duty of care on companies that host this content. Clearly, age assurance and age verification play an important part, but it is critical that our approach should be future-proofed for any particular technology. We expect Ofcom to decide how this will work through codes of practice, which will be regularly updated.

Both noble Lords referred to PAS 1296; we absolutely recognise that technical standards have an important role to play. That was why we committed funding to support the update of the standard and will promote its use, in line with our support of a standards approach which preserves the voluntary nature of technical standards, while providing a future-proof, clear and innovation-friendly approach for the industry. Companies can take alternative action to achieve those outcomes, as long as the outcome achieved is as good as, or better than, that set out in the code of practice.

I hope that I have addressed most of your Lordships’ questions and, with that, I commend these regulations to the House.

Motion agreed.