Online Safety Bill

Lord Bethell Excerpts

Committee stage
Thursday 22nd June 2023 Lords Chamber

Moved by

[Lord Bethell]

217: After Clause 118, insert the following new Clause—
“Notice by OFCOM to payment-services providers and ancillary services
(1) Where OFCOM have issued a provisional notice of contravention to a regulated service, which specifies the person has failed, or is failing, to comply with a duty or requirement in section 72 (duties about regulated provider pornographic content), it must give notice of that fact to any payment-services provider or ancillary service.(2) A notice under subsection (1) must—(a) identify the regulated service in such manner as OFCOM considers appropriate,(b) state whether the provisional notice of contravention relates to a duty under subsection (2) or (3) of section 72, or duties under both,(c) give OFCOM’s reasons for their opinion that the regulated service has failed, or is failing, to comply with it, and(d) provide such further particulars as OFCOM consider appropriate.(3) When OFCOM give notice under this section, OFCOM must inform the regulated service, by notice, that they have done so.(4) In this section—“ancillary service” has the same meaning as in section 131(11);“payment-services provider” means a person who appears to OFCOM to provide services, in the course of a business, which enable funds to be transferred in connection with the payment by any person for access to pornographic content made available on the internet by the regulated service;“pornographic content” has the meaning given by section 70(2);“provisional notice of contravention” has the same meaning as in section 118(1).”Member’s explanatory statement
This new Clause requires OFCOM to notify payment-service providers and ancillary services of a regulated service which is found to have breached duties relating to pornographic content.

[Lord Bethell (Con)]

My Lords, I will speak to Amendment 217 in my name. I express my deep gratitude to the noble Baronesses, Lady Benjamin and Lady Ritchie of Downpatrick, and the noble Lord, Lord Curry of Kirkharle, for adding their names in support. I will also address other amendments in this group that bring about business-disruption measures that enforce compliance with the important measures on pornography and harm that we have scrutinised already and will debate—briefly, I expect—at the end of today.

Amendment 217 is modest, but I believe it could make a big difference. It seeks to use the commercial interests of the pornography sites to change their behaviours by ensuring that their important supply chains are informed of breaches in regulations when they have happened. We know that this works because we have seen it work already. It has been widely reported that, at the start of December 2020, Pornhub, the famous porn site, said in its search bar that it was hosting 13.5 million clips. Then, on 14 December, that figure was dramatically reduced overnight to 5 million. What had happened was that Pornhub had removed two-thirds of the videos because of a decision by its payment companies, Visa and Mastercard, on 10 December, that they would withdraw payment services from Pornhub’s parent company, MindGeek.

That very important decision followed high-profile press reports, including in the New York Times, that Pornhub hosted vile videos of child abuse, rape and revenge pornography, and videos of people who had not consented to being recorded. These were illegal recordings—Mastercard said that its own investigation confirmed that the site was hosting illegal content. So, quite simply, the scrutiny of the nature of much of Pornhub’s content became too much for those payment companies. To protect themselves and to avoid being tarred by association, Visa and Mastercard had to act, which in turn meant that Pornhub had to act. This is the commercial reality of how the internet will be policed, whether we like it or not. It may well be that commercial interests can drive changes in behaviour much more quickly than blunt regulatory action. At the end of the day, I am interested just in measures that protect children, however they work—and this amendment facilitates effective action.

Payment and ancillary service providers can act in ways that Governments cannot easily do. The Bill could not require such actions as its duties extend only to the platforms themselves and the regulator, not ancillary services essential to the business model; but it can facilitate such interventions by making breaches of regulation transparent to the world. To enable this, the amendment would require Ofcom to notify financial and ancillary services of any breaches of regulations—no ifs or buts, no exemptions and no hiding the bad results. This notification is part and parcel of the process of issuing a provisional notice of contravention in any case, much like when Ofcom gives a notice under Section 110(1). The regulations say that

“OFCOM must carry out a review of the provider’s compliance with the notice”.

This discretion is at the point of choosing to give the notice. All that the process then entails is directed.

There is a significant limitation to this version of the amendment: it applies only to pornography providers covered by Part 5. That is deliberate. Of course, I would like to see it apply to all services with any pornographic content, which I hope will be included in changes that we will see in primary priority content. I will take a moment to flag to the Minister that amendments to this amendment may be needed if there are perhaps—I speak hopefully here—government amendments to the Bill that tweak the Part 3 and Part 5 distinctions before Report. Amendment 217 places no duties on providers of payment or ancillary services themselves; it simply gives them a right to be informed. It is about transparency and awareness, which are fundamental tenets of the Bill. For that reason, I very much hope that the Minister will commit to embracing this simple and proportionate measure.

This transparency measure becomes more pertinent and relevant when we look at other measures in this group, particularly those that introduce service-restriction measures. As other noble Lords will explain in more detail, I hope, these will allow Ofcom to require the supply chain of companies that support the internet industry—they are often reputable players that can be reached by our UK courts—to cut off essential support services to those who make transgressions. These might include services like hosting and search and, as I mentioned, payment companies like Mastercard and Visa. Without revenue from UK customers, there is little point in any service trying to find ways around access blocks.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

I thank the noble Lord.

The term “blocking” is used to describe measures that will significantly impede or restrict access to non-compliant services—for example, internet service providers blocking websites or app stores blocking certain applications. These measures will be used only in exceptional circumstances, where the service has committed serious failures in meeting its duties and where no other action would reasonably prevent online harm to users in the UK.

My noble friend Lord Bethell’s Amendments 218F and 218L seek to ensure that Ofcom can request that an interim service or access restriction order endures for a period of six months in cases where a service hosts pornographic content. I reassure him that the court will already be able to make an order which can last up to six months. Indeed, the court’s interim order can have effect until either the date on which the court makes a service or access restriction order, or an expiry date specified by the court in the order. It is important that sanctions be determined on a case-by-case basis, which is why no limitations are set for these measures in the Bill.

As my noble friend knows, in the Bill there are clear duties on providers to ensure that children are not able to access pornography, which Ofcom will have a robust set of powers to enforce. It is important, however, that Ofcom’s powers and its approach to enforcement apply equally and consistently across the range of harms in scope of the Bill, rather than singling out one form of content in particular.

I hope that that is useful to noble Lords, along with the commitment to write on the further points which were raised. With that, I urge my noble friend to withdraw his amendment.

[Lord Bethell (Con)]

My Lords, to be honest, this debate has been an incredible relief to me. Here we have been taking a step away from some of the high-level conversations we had about what we mean by the internet and safety, looking at the far horizon, and instead looking at the moment when the Bill has real traction to try to change behaviours and improve the environment of the internet. I am extremely grateful to the Minister for his fulsome reply on a number of the issues.

The reason why it is so important is the two big areas where enforcement and compliance are going to be really tricky. First, there is Ofcom’s new relationship with the really big behemoths of the internet. It has a long tradition of partnership with big companies such as ITV, the radio sector—with the licensed authorities. However, of course it has licences, and it can pull them. I have worked for some of those companies, and it is quite a thing to go to see your regulator when you know that it can pull your licence. Obviously, that is within legal reason, but at the end of the day it owns your licence, and that is different to having a conversation where it does not.

The second class is the Wild West: the people living in open breach of regular societal norms who care not for the intentions of either the regulator, the Government or even mainstream society. Bringing those people back into reasonable behaviour will be a hell of a thing. My noble friend Lord Grade spoke, reasonably but with a degree of trepidation, about the challenge faced by Ofcom there. I am extremely grateful to the Minister for addressing those points.

Ofcom will step up to having a place next to the FCA and the MHRA. The noble Lord, Lord Curry, spoke about some of the qualities needed of one of the big three regulators. Having had some ministerial oversight of the MHRA, I can tell your Lordships that it has absolutely no hesitation about tackling big pharmaceutical companies and is very quick, decisive and clear. It wields a big stick—or, to use the phrase of the noble Baroness, Lady Merron, big teeth—in order to conduct that. That is why I ask the Minister just to keep in mind some of the recommendations embedded in these amendments.

The noble Baroness, Lady Kidron, mentioned illegal content, and I appreciate the candour of the Minister’s reply. However, business disruption measures offer an opportunity to address the challenge of illegal content, which is something that I know the Secretary of State has spoken about very interestingly, in terms of perhaps commissioning some kind of review. If such a thing were to happen, I ask that business disruption measures and some way of employing them might be brought into that.

We should look again at enforcement and compliance. I appreciate the Minister saying that it is important to let the regulator make some of these decisions, but the noble Lord, Lord Allan, was right: the regulator needs to know what the Government’s intentions are. I feel that we have opened the book on this, but there is still a lot more to be said about where the Government see the impact of regulation and compliance ending up. In all the battles in other jurisdictions—France, Germany, the EU, Canada, Louisiana and Utah—it all comes down to enforcement and compliance. We need to know more of what the Government hope to achieve in that area. With that, I beg leave to withdraw my amendment.

Amendment 217 withdrawn.