Digital Economy Bill

Earl of Erroll Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Thursday 2nd February 2017 Lords Chamber

[Baroness Byford (Con)]

My Lords, I spoke at Second Reading on this aspect of the Bill. I was one of the people who said very clearly that I should much prefer not to have pornography of any sort on any website, because the world would be much better without it. The previous speaker is quite right. The influence that modern communication has on young people is devastating. In some families, it really has been disruptive and led to unfortunate consequences within them.

I welcome the Minister’s statement that they will take this away, think about it and come back again. I reiterate my dismay that again we have another very important Bill from the Commons that really has not been dealt with in the proper manner. I hope that in future the Commons will be allowed more time or will organise itself so that it can do the job it should and can do, and not leave it to this House to be the one saying, “Hang on”.

If you look at the number of amendments tabled to this one Bill, it reinforces the whole position that my noble friend the Minister must deal with, which in many cases should have been dealt with before. I am an old hand here and still feel strongly about this. I do not complain that my right honourable friends at the other end have not had the opportunity to do this—that is how the system works. However, we go on, year after year, saying the same thing and it is high time we got to grips with this. I would like to push a little further on the Minister’s response earlier that the Government will look at this: it is hugely important that they do.

I have slight concerns about Ofcom being perhaps one of those who should undertake this. In some ways, Ofcom is not always as robust as I would like it to be, which is perhaps unfair. Secondly, we certainly need to identify in the Bill before it leaves our House exactly what is to happen: who the enforcer is where there are dual splits within what we seek to do in the Bill. The Bill is hugely important and I hope that the Government will, as they have already indicated, take it away after Committee and think seriously about it. I would hate to think that some of the final detail will come through in secondary legislation, which we cannot alter. We need to get this into primary legislation. I support the comments made by other noble Lords and look forward to the Minister responding and, I hope, being able to take it away and come back, even if that means it happens a little later. It is much better to get it right later than to leave it in its current form.

[The Earl of Erroll (CB)]

My Lords, I will make some brief points. First, on this set of amendments I am afraid I disagree with the noble Baroness: we must get on with this. It will not be perfect on day one but the sooner we get moving the better. We have talked about this for a very long time. That is why I am not really pro these amendments.

On Amendment 55, I agree entirely with my noble friend Lady Howe. She is absolutely right to spot this lacuna: the BBFC will look at this stuff and age verification, but who will enforce it? That is a problem and I was going to raise it later anyway. She was absolutely spot on there. My noble friend Lady Kidron was also absolutely spot on about these sites. Twitter could be classified as commercial because it takes money from pornography sites to promote them. I can get evidence of that. It would be difficult for it to say that it does not promote them.

Very quickly on what the Minister said, I was going to raise under the group starting with Amendment 57 the issue of including prohibited material with the age verification stuff. We should separate protecting children from protecting adults or it will confuse things. The big danger is that if we start using this to protect adults from stuff that they should not see—in other words, some of the adult prohibited material, of which there is quite a lot out there—we run the risk of challenges in court. Everything that the BBFC does not classify because it falls into certain categories is automatically prohibited material. It is not allowed to classify certain acts. I should probably not tell noble Lords about those now as they are pretty unpleasant but they are fairly prevalent in the hardcore pornography out there. If the pornography sites are blocked from supplying adults with what they want, they will just move offshore and get round this. If they do that, there will be no point in doing age verification and we will not protect our children. That will create the first major loophole in the entire thing.

I have this from the pornographers themselves. They know what they are doing. However, they are very happy—and would like—to protect children. If we leave them alone and argue through the Obscene Publications Act and other such things as to what they must stop adults seeing, they will help block children. They are very keen on that. Children just waste their time as they do not have money to spend. At the end of the day, the pornographers want to extract money from people.

I am advised that the real problem is that prohibited material includes content that would be refused a BBFC R18 certificate. The Crown Prosecution Service charging practice is apparently out of sync with recent obscenity case law in the courts. Most non-UK producers and distributors work on common global compliance standards based on Visa and Mastercard’s brand-protection guidelines. Maybe we should start to align with that. We should deal with that separately under the Obscene Publications Act. It will be very easy for the BBFC, the regulator or the enforcer to tell what does not have age verification on the front. That is yes/no—it is very simple. The trouble is that if we get into prohibited material, it will end up before the courts. We will have to go through court procedures and it will take much longer to block the sites. I would remove that from here. I shall leave my other comments to a later stage.

[Lord Ashton of Hyde]

My Lords, I am grateful for those contributions. They address some very important issues, some of which we will deal with now and some of which we will deal with later during the progress of the Bill. To start at the end, the noble Earl, Lord Erroll, made some interesting points regarding the statement that I made. We absolutely acknowledge some of them. I have listened to his suggestions. Our focus here is to protect children. That is what this Bill is for. That is what our manifesto commitment was. When he sees our suggestions, I hope that he will be able to contribute to the debate on Report—but I have noted everything he said.

The introduction of a new law requiring appropriate age verification measures for online pornography is a bold new step. It represents the first stage of ensuring that commercial providers of online pornographic material are rightly held responsible for what they provide and profit from.

Amendment 54B would require the regulator to publish guidance about the overarching duty of care on internet service providers and ancillary service providers, and their responsibility to ensure that all reasonable steps are taken to ensure the safety of a child or young person involved in activities or interaction for which the service provider is responsible. The purpose of our measures is to protect children from pornographic material. Seeking to stretch the framework further to regulate companies on a different basis risks the delivery of our aim. However, that is not to say that we want to ignore the issue. We take the issue of child safety online seriously and engage intensively with the industry through the UK Council for Child Internet Safety to ensure that robust protections are in place.

The Government expect industry to play a leading role in internet safety provisions, as it is best placed to offer safety and protection to children and young people. We know that it is already doing this and has default protections for under-18s, including the use of parental controls and tools to allow users to flag content, protect user privacy as well as educate users on staying safe with information and advice. We will have further opportunities to discuss the role of the industry, including social media and internet service provider filters, later in Committee.

Amendment 54D seeks to introduce a new clause with the requirement that the Secretary of State must consult on the role of the age verification regulator. The clause further seeks that the Secretary of State must lay before each House of Parliament a report on the results of the consultation and the Secretary of State’s conclusions, with any appointments to be subject to approval in each House. The introduction of the measures requiring appropriate age verification for online pornography follows public consultation. We asked about the powers that a regulator should have and there was strong support for a number of responsibilities that we have introduced. The passage of this Bill has provided an important opportunity for debate on this and we have seen the introduction of an important new blocking power for the regulator, which we shall discuss later.

We are grateful to the DPRRC and the Constitution Committee for their reports, which a number of noble Lords mentioned. They made a number of recommendations about the designation of the regulator and how the regulator should fulfil its role. We are carefully considering those and will publish our response before Report.

Amendment 55, in the name of the noble Baroness, Lady Howe, would specify that the Secretary of State is to designate the British Board of Film Classification as the age verification regulator. As the Committee will know, Clauses 17 and 18 provide for the designation of the regulator and we intend to designate the BBFC to carry out most—as the noble Baroness, Lady Howe, reminded us—of the functions of the regulator. Indeed, some noble Lords may have seen the BBFC’s recent presentation to the Children’s Media and the Arts APPG.

--- Later in debate ---

[The Earl of Erroll]

My Lords, I put my name down to one of these amendments because I wanted to talk about appeals. The reason for that is very simple and comes back to what I said earlier. I do not think there should be any question about there being no age verification. That should be almost an absolute offence: if there is no age verification, a site can be blocked, just like that. If the relevant people want to make an appeal, they can do so later and make it as complicated as they like. The main issue has already been raised and I agree entirely with the noble Lord, Lord Morrow, that Clause 23 is ideal. I entirely agree with the point about the foreign sites. They are not going to do anything if we do not block them. They will just mess around and children will get access to adult pornography for goodness knows how long. We need to be able to block immediately sites that do not have age verification.

I refer to appeals as we are muddling up the question of what is pornography with that of what is material that adults are not permitted to view. We need an appeals mechanism as we are going to get wrapped up in the lacunae and the mismatches between the Obscene Publications Act, the court cases and everything else, as I said earlier. We can see a Lady Chatterley-style case going through and taking years. In the meantime, all the non-age verified sites have to do is to keep appealing or whatever. That is not going to work. If we are going to include what is permitted for adults to view in this part of the Bill, we need an appeals process for that, but not an appeals process if the relevant sites do not have age verification in relation to potentially pornographic material. I will talk about that when we discuss the group of amendments commencing with Amendment 57.