Australia: News Media and Digital Platforms Mandatory Bargaining Code

Lord Clement-Jones Excerpts

Thursday 25th February 2021 Lords Chamber

[Baroness Barran (Con)]

I am unable to share the detail of the progress made to date, but I can reassure the noble Lord that the Government are using every opportunity for international dialogue with both our European neighbours and others. This morning, my right honourable friend the Secretary of State met with his counterpart in Australia and he also recently met his counterpart in Canada. We are working in the most collaborative way possible.

[Lord Clement-Jones (LD) [V]]

My Lords, the Australian approach risks legislating in a way that will create its own unintended outcomes. Content and copyright for news publishers is just one part of the problem and can be solved. Market dominance in access to data and in digital advertising is a much bigger issue. We have had many reports urging legislation and action: Cairncross, Furman, the digital task force and now Penrose. Why are the Government dragging their heels in bringing forward legislation to tackle it effectively?

Telecommunications Infrastructure (Leasehold Property) Bill

Lord Clement-Jones Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Thursday 28th January 2021 Lords Chamber

[Lord Vaizey of Didcot (Con) [V]]

My Lords, I refer to my entry in the register of Members’ interests. I was not a Member of this House when the Bill was debated at Second Reading or on Report. Therefore, I begin by saying how much I welcome it. In my experience as the Minister responsible for rural broadband rollout between 2010 and 2016, I soon came to realise that planning is the biggest obstacle that prevents the rapid deployment of the broadband that this country desperately needs. The planning system is hopelessly complex and time-consuming, and imposes enormous costs on operators. Anything that can make their lives easier has to be welcomed. Multi-dwelling units contain dozens of potential recipients of ultrafast broadband. If we can make it easier and simpler for operators to deploy their technology, that is to be welcomed.

I was also delighted that the Government yesterday published a consultation on reforming the Electronic Communications Code. Again, I was the Minister who had a first stab at that, which was obviously not good enough, and that is why we need a second bite at the cherry. I should point out to the noble Lord, Lord Fox, that the foreword to that consultation document contains some heartening statistics on the deployment of gigabit broadband. From memory—I read it only this morning, but I am getting older—some 30% of homes can now potentially receive gigabit broadband. It is good to see the Government pressing ahead on another front.

I should say on operators entering multi-dwelling units that one of the Government’s commitments during the passage of the Bill was to publish a consultation on the code of practice and then a code following Royal Assent. Given that the Bill imposes obligations on landlords and effectively interferes with their property rights, it is vital that landlords are reassured that the operators will adhere to the highest possible standards. The code of practice is also important for some of the smaller operators. There is some nervousness among them. If landlords are worried about operators’ standards when deploying the technology, they will simply take refuge by dealing only with the biggest operators and not allow insurgents, as it were, or start-ups to fibre-up their buildings. I hope that when she responds the Minister can give some reassurance that the code of practice consultation will be issued imminently.

I should also point out that the Bill does not yet cover the issue of shared freeholds, and I hope that the consultation on the Electronic Communications Code, which I am not covers this issue, could be used as a vehicle for looking at how operators can enter buildings where there is a shared freehold—the typical building being a Victorian house that has been split into flats. Some 5 million premises fall within that category and there needs to be some way forward to allow operators to access shared freehold premises.

I am not sure whether the amendment is necessary in practice, but I understand the Government’s motivation to reassure Members of both Houses that the Bill will not inadvertently create monopolies in multi-dwelling units. I should also ask the Minister to respond, either now or in writing, to the concern of some operators about the Government and Ofcom’s ongoing intentions to impose wholesale access on operators. It is one thing to say that an operator should not do anything, intentionally or inadvertently, to prevent a competitor supplying technology to multi-dwelling units, but it is quite another to impose on a company the obligation to allow others to use the infrastructure it has invested in and paid for. What is the direction of travel of the Government and Ofcom, because I know that they have previously thought about imposing wholesale obligations on operators in multi-dwelling units?

However, as I say, I welcome the amendment. My understanding is that any attempt to physically impede competitors from entering a multi-dwelling unit would fall foul of the ATI regulations and, indeed, the EU’s Electronic Communications Code, so I am not entirely certain that the amendment is necessary. However, in the sense of providing statutory reassurance that a much- needed piece of legislation will open up access to ultrafast broadband to many millions of people living in multi-dwelling units the amendment has to be welcomed.

[Lord Clement-Jones (LD) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord Vaizey, and to welcome him to the select band of broadband and telecoms legislation aficionados in this House. As my noble friend Lord Fox said, on Report we welcomed the principle of the previous amendment in the name of the noble Lord, Lord Stevenson, in respect of Part 4A code rights. Likewise, we welcome the Government’s Amendment 2 today.

Strangely enough, however, I do not think that the Government’s amendment is as good as the original, in terms of what the noble Lord, Lord Stevenson, was trying to achieve. It substitutes an arguably unclear negative injunction for a positive duty, where it is clear what is intended. On these Benches, however, as my noble friend Lord Fox indicated, we understand the intention behind the amendment, but how it is interpreted when put into practice will be the test. As he also said, we have throughout been encouraged to hear of the development of open radio access networks and strongly support them.

As the noble Baroness mentioned in her letter to us, in the period between Report and today, we have seen the publication of the Government’s 5G diversification strategy. I see that now NEC acting as the systems integrator will be building a testbed for O-RAN funded by the DDCMS, the new O-RAN project. Will the Minister say when this will be up and running and is this the promised Smart RAN interoperability centre—SONIC—or a precursor to it?

What is the current status of the telecoms diversification task force and the National Telecoms Lab, and what is the status of international collaborations? When developed, these open RAN standards will provide operators with the flexibility to use different vendors and obviate the need to take out existing networks on a change of operator. By the same token, for the consumer it would mean likewise that they are not captive to any particular operator with their equipment. That is a development that we wholly welcome.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, I thank the Government for their amendment. As other noble Lords have said, this was originally raised in the other place by the Labour Party and withdrawn. A similar amendment was tabled by myself and others, supported by the Liberal Democrats, and we had a good debate in Committee. It is important for the progress of the Bill as a whole that these points were picked up. It is very good that the Government have come back with a proposal. Although, as the noble Lord, Lord Clement-Jones, said, the language is slightly different, the intention is clear and similar to what I wanted, because it deals with a real-life issue which could affect consumer choice. Despite the points made by the noble Lord, Lord Vaizey, I would argue that it is pro-competition and will benefit to those involved in this process.

The noble Lord, Lord Fox, raised some interesting points of detail and I look forward to the Minister’s response. The noble Lord, Lord Vaizey, raised some important wider points about the Bill’s narrow focus, which, of course, it cannot be blamed for, in the sense that it is what it is. It is about a particular issue which will unblock the current arrangements, in which non-responsive freeholders can hold back developments wished for by their tenants.

He also made some good points, which I hope we will not lose sight of as we look forward to further work from the Government on this issue: planning issues relating to the access required for new-generation technology; shared freeholders; questions about street works—how we synchronise them and make sure that they are effective; and the use of masts, particularly for 5G and other superstructure, which is not covered by this Bill but obviously needs wider consideration, perhaps in the next round of legislation.

As the noble Lord, Lord Clement-Jones, said, although a blizzard of other issues were raised in his short introduction, it is very good to have the noble Lord, Lord Vaizey, with his extraordinary experience in this area, contributing to this debate. I hope he will keep on with his very focused questions. I am happy to support the amendment and look forward to the Government’s response.

--- Later in debate ---

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, I thank the Minister for her kind words. We have enjoyed working with her over this period. The Bill has been an exemplary one in terms of making sure that the House is able to do its job and that the processes necessary to make it fit for legislation once it leaves Parliament are carried out in the best way. That can be done only if there is a spirit of mutual support and trust, and we certainly had that.

I actually took this Bill over at a relatively late stage. Most of the heavy lifting was done initially by my noble friend Lord Griffiths of Burry Port, and the show was kept on the road by Dan Stevens, our legislative assistant, whose skills and expertise I have drawn on mercilessly. I join the Minister in thanking members of the Bill team, who made themselves very much available and answered our detailed questions in the private meetings that we had.

This is a small but important Bill. As the Minister said, it will affect a lot of people; it will make their lives better and give them access to what has become a utility necessary for modern living. It has been scrutinised carefully in this House, and I am confident that it will play a part in helping to achieve a gigabit-enabled economy across the whole country—something that we need as soon as possible. There remains a lot to do, as we picked up today, but it is good to hear that the consultations on the remaining issues are taking place, particularly on the rollout of 5G and the development of fibre to the home. I urge the department to up its game on this and on a number of other issues that we talked about, and I will be watching from the sidelines.

[Lord Clement-Jones (LD) [V]]

My Lords, I doubt very much whether the noble Lord, Lord Stevenson, could ever possibly watch from the sidelines—but that is an aside.

After an unusually long gap between Report and Third Reading, we are sending the Bill back to the Commons in much better shape than when it arrived. It is still, however, a modest Bill with much to be modest about, to coin a phrase. We on these Benches have never thought that it was adequate in itself to deliver the ambition of one-gigabit-per-second broadband capability by 2025, and of course the goalposts themselves have now been moved by the Government. However, we now have the consultation on changes to the Electronic Communications Code, which is a step forward. I do hope that the Government will see the wisdom of retaining the review mechanism of the code in Clause 3, which the House inserted on Report, which can assess after that what other measures might be needed. We on these Benches will continue to press the Government on their electoral promises.

We also stressed during the passage of the Bill that we would like to see broadband treated as a utility, as with gas, water and electricity, with all the necessary and equivalent rights of entry. The last year could not have demonstrated more graphically the essential nature of good broadband to all our lives, alongside, if not ahead of, all those other utilities. We on these Benches advocate strongly for the universal service obligation to be raised to 25 or 30 megabits per second—that is, superfast levels—which should be treated as the minimum for these rural areas.

That said, I thank the Minister, the noble Baroness, Lady Barran, together with her Bill team, as ever, for their very good nature. I also thank her for her kind words, good nature and patience with us all throughout the Bill and for her willingness to listen, even if she did not always accept our arguments. I also thank the noble Lord, Lord Stevenson, for his collaboration and co-operation during the course of the Bill, which showed how we always achieve better results by cross-party working.

I also thank the noble Lord, Lord Alton, for raising some extremely important questions with reference to human rights abuses and modern slavery. His campaigning has clearly changed the Government’s approach and, despite what the Minister has said, it might become even more relevant in the context of the Telecommunications (Security) Bill, which, as we have heard, will come to this House shortly. Of course, the acid test will come next Tuesday on the Trade Bill ping-pong. This is of great significance in terms of the relationship between human rights and trade as a whole. Like him and many other noble Lords, I urge the Government to reconsider their position ahead of that vote.

Lastly, I thank Sarah Pughe in our whips’ office for her valuable help, and my noble friends Lord Fox and Lady Northover, who have contributed so knowledgeably throughout on different aspects of the Bill that they have given me a very easy run when leading on it.

[Baroness Falkner of Margravine (CB) [V]]

My Lords, it is a privilege to make the concluding speech for the Cross Benches on this Bill today. I place on record our thanks to the noble Baroness, Lady Barran, and the Bill team, who have been so ready to engage with our concerns, albeit to limited avail in the end.

It was the late Robin Cook who, as Foreign Secretary, first set out a framework for the UK to have an ethical foreign policy in 1997. Given where the UK is now—debating sanctions only an hour ago against Russia in defence of human rights and democracy, standing up for the rights of people in Hong Kong and shortly to be in the process of discussing the National Security and Investment Bill—I think he would have been pleased with the progress made in the intervening period, not least with our efforts to prevent Chinese commercial enterprises, under the control of that country’s national security laws, from participating in egregious human rights violations and cashing in their profits in this country.

I first spoke to my amendment preventing firms that are a security threat operating our critical national infrastructure on 19 May 2020 in Committee on this Bill. In the intervening eight months and numerous debates, it was never my intention—and I think I speak for all other noble Lords who have led this charge; the noble Lords, Lord Alton, Lord Forsyth and Lord Adonis, joined by the Front-Bench speakers of the Liberal Democrats and the Labour Party—to prevent the necessary tools needed to roll out broadband to those who need it. Our concerns were well grounded and have, regrettably, come to pass as more information on the treatment of Chinese Uighurs comes to light.

It is also the co-operation between the House of Lords and the other place, so ably led by my noble friend Lord Alton, on these numerous amendments that has allowed us to help the Government to think through where the balance lies in relation to commerce and complicity in human rights abuses that has helped us reach this place today with our amendments. It is now for the other place to decide where that balance lies. I wish the Bill well.

European Union: Visa-free Touring for Musicians

Lord Clement-Jones Excerpts

Tuesday 19th January 2021 Lords Chamber

[Baroness Barran (Con)]

I am slightly taken aback at the noble Lord’s tone; the Government have been incredibly committed to this area. Obviously, there were multiple complex issues that needed to be considered in these negotiations, including the commitments to take back control of our borders and to make sure that our creative industries continue to flourish. We remain entirely committed to both.

[Lord Clement-Jones (LD) [V]]

My Lords, touring musicians and creative artists are deeply angry at this negotiating failure. Is not the root of the problem refusal by the Home Office to extend permitted paid engagement here to 90 days for EU artists, meaning as a result that work permits will now be required in many member states for our artists? Will the Government urgently rethink this and renegotiate on the instrument and equipment carnet and on trucking issues?

[Baroness Barran (Con)]

There were a number of drawbacks to the EU proposals, which did not meet the requirements of our sectors, as I mentioned; they covered only ad hoc performances, they were non-binding and did not address technical staff or work permits. Our door absolutely remains open to reviewing these points, but in the meantime we will do everything we can to support our sectors.

Online Harms Consultation

Lord Clement-Jones Excerpts

Wednesday 16th December 2020 Lords Chamber

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, we welcome moves to protect children and the vulnerable online. We have been calling on the Government to introduce legislation in this area for several years. Their recent record, particularly on age verification, has been—let us call it—patchy. The Statement says that the UK will lead the way with online harms legislation, and we agree that this is a once-in-a-generation chance to legislate for the kind of internet that we all want to see—one that allows access to information, entertainment and knowledge on an unparalleled scale but at the same time keeps children and vulnerable adult citizens safe, and allows people to control the kind of content that they and those for whom they are responsible see online. Social media platforms have failed for years to self-regulate and we must not miss the opportunity afforded by the forthcoming legislation.

We welcome the announcement that Ofcom will be the regulator in this area. The duties to be allocated to it play to its founding principles, which require it to have regard to users of the services that it regulates as both consumers and citizens. We endorse the duty of care approach to regulation, which, if properly legislated for, has the potential to transform the way in which companies relate to their users. The excellent work done on that approach by the Carnegie UK Trust—in particular, Professor Lorna Woods and William Perrin—should be recognised. We support the measures announced in the Statement that seek to protect and enhance freedom of expression. In general, in so far as we can judge the Government’s current legislative intentions, there appears to be a workable and effective scheme of regulations here—but they should get on with it.

As to our concerns, does the Minister agree that the essential principle in play is that what is illegal in the real world must be illegal in the virtual world? However, the corollary is that we need to be clear that our existing laws are fit for purpose and up to date. What plans do the Government have in this complex area? The test for regulatory or criminal actions is to be “reasonably foreseeable harm” to individuals, and criminal acts. What happens to concerns about systems? If we lose focus on social networks, harms to society arising from disinformation or other threats to the integrity of the electoral process, for example, may not be in scope. That simply does not make sense. Does she agree that limiting the regulator to cases where individual harm has to be proven seems unduly restrictive?

Only the largest and riskier companies will fall into category 1. If they do, they will need to reduce the chance of harm to adults which, though not illegal, will presumably involve working with the regulator to reduce such harms as hate speech and self-harm. However, many of the most egregious examples of such activity have come from small companies. Why is size selected as a basis for this categorisation?

The financial and other penalties are welcome but there must be concerns about reach and scope, as many of the companies likely to be affected are based outwith the UK. Also, can the noble Baroness explain why the Government are not insisting on primary legislation to ensure that criminal liability will attach to senior executives for serious and repeated breaches of the law? Can she explain precisely what is meant by the move to the novel concept of “age assurance”? Age verification was the preferred option until recently. Has that now been dropped? Can we be assured that some means will be found to include fraud and financial scamming, possibly through joint action between regulators such as the FSA?

Finally, it is proposed that Ofcom will be empowered to accept “super-complaints”. That is welcome but it references the recent failure of the department to review in time the need for a similar power in the Data Protection Act. Can the noble Baroness update me on progress on that situation and confirm that this legislation could be used to redress it?

[Lord Clement-Jones (LD)]

My Lords, over three years have elapsed and three Secretaries of State have come and gone since the Green Paper, in the face of a rising tide of online harms, not least during the Covid period, as Ofcom has charted. On these Benches, therefore, we welcome the set of concrete proposals we finally have to tackle online harms through a duty of care. We welcome the proposal for pre-legislative scrutiny, but I hope that there is a clear and early timetable for this to take place.

As regards the ambit of the duty of care, children are of course the first priority in prevention of harm, but it is clear that social media companies have failed to tackle the spread of fake news and misinformation on their platforms. I hope that the eventual definition in the secondary legislation includes a wide range of harmful content such as deep fakes, Holocaust denial and anti-Semitism, and misinformation such as anti-vax and QAnon conspiracy theories.

I am heartened too by the Government’s plans to consider criminalising the encouragement of self-harm. I welcome the commitment to keeping a balance with freedom of expression, but surely the below-the-line exemption proposed should depend on the news publisher being Leveson-compliant in how it is regulated. I think I welcome the way that the major impact of the duty of care will fall on big-tech platforms with the greatest reach, but we on these Benches will want to kick the tyres hard on the definition, threshold and duties of category 2 to make sure that this does not become a licence to propagate serious misinformation by some smaller platforms and networks.

I welcome the confirmation that Ofcom will be the regulator, but the key to success in preventing online harms will be whether Ofcom has teeth. Platforms will need to demonstrate how they have reduced the “reasonably foreseeable” risk of harm occurring from the design of their services. In mitigating the risk of “legal but harmful content”, this comes down to the way in which platforms facilitate and even encourage the sharing of extreme or sensationalist content designed to cause harm. As many excellent bodies such as Reset, Avaaz and Carnegie UK have pointed out—as the noble Lord, Lord Stevenson, said, the latter is the begetter of the duty of care proposal—this means having the power of compulsory audit. Inspection of the algorithms that drive traffic on social media is crucial.

Will Ofcom be able to make a direction to amend a recommender algorithm, how a “like” function operates and how content is promoted? Will it be able to inspect the data by which the algorithm trains and operates? Will Ofcom be able to insist that platforms can establish the identity of a user and address the issue of fake accounts, or that paid content is labelled? Will it be able to require platforms to issue fact-checked corrections to scientifically inaccurate posts? Will Ofcom work hand in hand with the Internet Watch Foundation? International co-ordination will be vital.

Ofcom will also need to work closely with the CMA if the Government are to protect vulnerable victims of online scams, fraud, and fake and misleading online reviews, if they are explicitly excluded from this legislation. Ofcom will need to work with the ASA to regulate harmful online advertising, as well. It will also need to work with the Gambling Commission on the harms of online black-market gambling, as was highlighted yesterday by my noble friend Lord Foster.

How will this new duty of care mesh with compliance with the age-appropriate design code, regulated by the ICO? As the noble Lord, Lord Stevenson, has mentioned, the one major fudge in the response is on age verification. The proposals do not meet the objectives of the original Part 3 of the Digital Economy Act. We were promised action when the response arrived, but we have a much watered-down proposal. Pornography is increasingly available and accessible to young people on more sites than just those with user-generated content. How do the Government propose to tackle this ever more pressing problem? There are many other areas that we will want to examine in the pre-legislative process and when the Bill comes to this House.

As my honourable friend Jamie Stone pointed out in the Commons yesterday, a crucial component of minimising risk online is education. Schools need to educate children about how to use social media responsibly. What commitment do the Government have to online media education? When will the strategy appear and what resources will be devoted to it?

These are some of the yet unanswered questions before the draft legislation arrives, but I hope that the Government commit to a full debate early in the new year so that some of these issues can be unpacked at the same time as the pre-legislative scrutiny process starts.

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

I thank both noble Lords for welcoming this full response to the consultation. I am happy to echo them both in their thanks, in particular to Carnegie UK and the important work it has done. We hope very much that the Bill will bring us into an age of accountability for big tech.

In response to the point made by the noble Lord, Lord Stevenson, what is illegal in the real world should indeed be illegal in the digital world. This Bill, when it comes, will help us move towards that. He raised the question about the focus on individuals. Obviously, the level of harm—in terms of the more individuals who are impacted—will be relevant to the sanctions that Ofcom can enforce. But he also raised a wider and very important point about trust in our institutions; clearly, social media and big tech platforms are institutions where the level of trust has been tremendously eroded in recent years. We want to restore that, so that what the big tech platforms say they will do is actually what happens in practice.

Both noble Lords asked about the category 1 companies, how those are defined and whether we will miss important actors as a result of that definition. Category 1 businesses will be based on size of audience but also on the functionality that they offer. For example, the ability to share content widely or to contact users anonymously, which are obviously higher-risk characteristics, could put a platform with a smaller audience into that category 1. Ofcom will publish the thresholds for these factors, assess companies against those thresholds and then publish a list of them. To be clear, all companies working in this area with user-generated content have to tackle all illegal content, and they have to protect children in relation to legal but harmful content. We are building safety by design into our approach from the get-go.

The noble Lord, Lord Stevenson, asked about criminal liability; we are not shying away from it. Indeed, the powers to introduce criminal liability for directors are, as he knows, being included in the Bill and can be introduced via secondary legislation. We would just rather give the technology companies a chance to get their house in order. The significant fines that can be levied—up to 10% of the turnover of the parent company or £18,000, whichever is higher—are obviously, for the larger tech companies, very substantial sums of money. We think that those fines will help to focus their minds.

The noble Lord, Lord Clement-Jones, talked about legal but harmful content. This is a very important and delicate area. We need to protect freedom of expression; we cannot dictate that legal content should automatically be taken down. That is why we agree with him that a duty of care is the right way forward. He questioned whether this would be sufficient to protect children. Our aim, and our number one priority, throughout this is clearly the protection of children.

The noble Lord, Lord Clement-Jones, asked a number of questions about Ofcom. I might not have time to answer them all now, but we believe that the Bill will give Ofcom the tools it needs to understand how to address the harms that need addressing through transparency reports, and to take action if needed. Ofcom will have extensive powers in order to achieve this. He also mentioned international co-ordination. We are clearly very open to working with other countries and regulators and are keen to do so.

Both noble Lords questioned whether the shift from age verification to age assurance is in some way a step backwards. We really do not believe that this is the case. We think that when the Bill comes, its scope will be very broad. We expect companies to use age-assurance or age-verification technologies to prevent children accessing services that pose the highest risk of harm to them, such as online pornography. The legislation will not mandate the use of specific technological approaches because we want it to be future-proofed. The emphasis will be on the duty of care and the undiluted responsibility of the tech companies to provide sufficient protection to children. We are therefore tech neutral in our approach, but we expect the regulator to be extremely robust towards those sites that pose the highest risk of harm to children.

The noble Lord, Lord Clement-Jones, also asked about our media literacy strategy, which we are working on at the moment.

Streaming Platforms: Age Ratings

Lord Clement-Jones Excerpts

Tuesday 8th December 2020 Lords Chamber

Asked by

[Lord Clement-Jones]

To ask Her Majesty’s Government what assessment they have made of the partnership between Netflix and the British Board of Film Classification to establish age ratings for streaming platforms; and what plans they have to encourage other streaming platforms to adopt such ratings.

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

My Lords, while adoption of the British Board of Film Classification’s best-practice age ratings by online platforms is currently voluntary, we welcome their usage by video on-demand platforms. This includes an ongoing partnership with Netflix which, on 1 December, announced that it had become the first platform to achieve complete coverage of its content under the BBFC’s ratings. We will continue to engage with industry to encourage other platforms to do the same and will keep the evidence for legislation in this area under review.

[Lord Clement-Jones (LD)]

My Lords, given that at present, under the audiovisual media services directive, the UK cannot regulate non-UK-based video on-demand services, does the Minister agree that BBFC ratings are the best way to inform parents and children whether content is appropriate, because they are trusted and reflect our national concerns on issues such as violence and discrimination? Will the Government take action to promote and ensure adoption by VOD platforms whether regulated here or not?

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

Lord Clement-Jones Excerpts

Friday 27th November 2020 Lords Chamber

[Lord Clement-Jones (LD) [V]]

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.

[The Deputy Speaker (Lord Brougham and Vaux) (Con)]

The noble Lord, Lord Singh of Wimbledon, has withdrawn, so I call the noble Baroness, Lady Ritchie of Downpatrick.

Communications Act (e-Commerce) (EU Exit) Regulations 2020

Lord Clement-Jones Excerpts

Tuesday 10th November 2020 Grand Committee

[Lord Clement-Jones (LD) [V]]

My Lords, the ending of the country of origin principle on access to the EEA digital internal market in e-commerce is, I am afraid, the inevitable consequence of our regrettable decision to leave the EU and not to seek to stay in the internal market.

I agree with everything the noble Baroness, Lady Wheatcroft, said. I also want to draw attention to paragraph 12 of the Explanatory Memorandum relating to impact. It says:

“A full Impact Assessment has not been prepared for this Statutory Instrument because there is a low level of impact per business. A De-Minimis Assessment showed that ... there were annual time-saving benefits to certain UK businesses”.


For businesses which offer services to the EEA but not the UK, the Government estimate an annual time-saving benefit of circa £0.5 million. This is pretty breath-taking stuff, as I hope to demonstrate. The Government say that this is because they will no longer have to comply with UK legislation, as well as with the domestic legislation of the EEA state where the service is received. This is looking at it very much from the wrong end of the telescope. The Explanatory Memorandum goes on to say that for all businesses in scope:

“This will result in a small annual net direct cost to business of £0.6m over 10 years. Transition costs refer to the cost incurred by businesses when adjusting to new legislation, in this case the time that organisations will have to take to familiarise themselves with this new legislation.”


In their guidance on the e-commerce directive after the transition period, the Government say:

“The eCommerce Directive applies to ‘information society services’. These are defined as any service that is normally provided: for payment, including indirect payment such as advertising revenue … ‘at a distance’ (where customers can use the service without the provider being present) … by electronic means, and … at the individual request of a recipient of the service. This covers the vast majority of online service providers, for example online retailers, video sharing sites, search tools, social media platforms and internet service providers.”


As commentators have said, after the end of the EU transition period, service providers with a place of establishment within the UK will lose the article 3 protection and will need to comply with the relevant legal requirements within the “co-ordinated fields” of the directive in each EEA country in which they operate. UK online service providers may also become subject to “prior authorisation” schemes, such as licensing requirements, in EEA countries where they operate.

What assessment has been made of the amount of digital trade which will suffer from cost penalties as a result of the withdrawal of country of origin protection? The impact on online services could be immense. The loss of these protections will mean that cloud service providers based in the UK and providing services to customers across the EEA will need to consider and take steps to comply with the national rules applicable to their cloud services in each EEA country where they are available. Online advertising, online retail and online contracts as a whole will suffer. This SI was inevitable but it is not without severe consequences. Should there not have been a full impact assessment of the regulations? Has a profound impact assessment of any kind been done?

This is a grossly inadequate debate, without any understanding by the Government of the real impact of this SI on all those businesses engaged in the digital market. I agree with the noble Baroness, Lady Wheatcroft, about Ofcom. I look forward to the Minister’s answer to this and to the impact question.

Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020

Lord Clement-Jones Excerpts

Tuesday 10th November 2020 Grand Committee

[Lord Clement-Jones (LD) [V]]

I thank the Minister for her introduction. I should declare an interest as chair of Ombudsman Services, which deals with customer complaints regarding telecommunications.

I was delighted to hear the noble Baroness extol the virtues of an EU directive, which I think was a bit of a novelty, coming from a Minister. It is sad that we have only three speakers on such an important SI. After all, it encompasses a whole Bill’s-worth of changes to our communications laws. When I first looked at it, I thought, “Well, all I can do is to try to stop the ship sailing on regardless and stick an oar in here and there”, because quite a few substantive issues are involved.

The Government response to the consultation on implementing the European electronics code states:

“a ‘copy out’ approach to the Directive”

is being taken

“where we consider change is needed in UK legislation”,

but in line with

“our overarching approach of a minimal transposition”.

I am not quite sure that we can have it both ways. I am going to kick the tyres on the “minimal transposition” aspect, because the Minister seemed to be quite positive about the impact the directive will have on investment and rollout of our 1 gig capability.

The response also says:

“In some cases, we will adopt an alternative approach to transposition to certain provisions in a way that is tailored to UK markets. We take this approach where there is sufficient justification and evidence for doing so, for example, where it would contribute to the government’s ambitions for digital connectivity.”


We heard some of the positive approach, but I am not quite sure whether we fully heard the more minimal approach. We have heard about further aspects—I think the Minister said that there are two categories they are considering—but we did not hear in the interim about where a minimal approach had been taken.

The Government set out three categories in the response:

“Articles which we consulted on given their potential to support the UK’s digital ambitions”—


fine;

“Incremental changes to the existing framework which we intend to transpose in a minimal way”—

again, there is the use of the word “minimal”; and

“Deprioritised from 21 December 2020 deadline”.

The problem is that there is a rather inadequate approach to this issue in both the Explanatory Notes and the response to the consultation. There is no easy breakout of what changes fall within the three categories. You have to rather laboriously cross-refer when you get to the table which glosses annexe A of the response. I therefore hope that the Minister will forgive me if I go through a few aspects of the statutory instrument and ask a few questions.

The fundamental flaw is where the consumer comes in all this. The list of respondents to the consultation consists solely of telecoms companies. As we go through certain areas, can we be sure that the way the Government have transposed the directive is acting in the best interests of consumers?

The Government say that the transposition of the code

“recasts the objectives and regulatory tools of the current”

European framework on electronic communications

“to place a stronger emphasis on incentivising investment”.

They say that:

“The Regulations support the government’s digital ambitions and plans to deliver nationwide gigabit-capable connectivity ... This will enable Ofcom to support deployment and investments in gigabit-capable networks … These include ensuring that Ofcom’s use of specific market regulatory tools promotes very high capacity networks. Ofcom are also required to promote measures that facilitate a competitive retail market for consumers.”


It would be useful if the Minister could unpack some of those statements. Are they going to speed up rollout? Are they going to make up for the fact that Covid-19 seems to have delayed that 1 gigabit capability rollout?

I can see the benefit of transposing Article 22 in terms of survey information and designation of areas where there is no planned coverage, but what are the other benefits? For instance, what substantive difference will these changes make to rollout of 1 gigabit capacity? Why only the minimum transposition of Articles 76 and 79? The Explanatory Memorandum states:

“There are specific conditions known as significant market power … conditions, which can only be imposed on providers with market dominance. Ofcom must analyse markets on a regular basis in what is known as a market review.”


The Government seem simply to have decided to swallow Article 61 whole and extend the market review to five years, increasing the maximum time between market reviews from three years to five. In a sense, they are therefore making the situation worse from the competitive point of view. Of course businesses that were consulted prefer this, but what about consumers? Does that not precisely show up the problems with the original consultation?

Surely when major developments occur with great speed, as with a consolidation of digital assets—for instance, specialised mast companies such as Phoenix Tower with its significant market shares, or the joint venture between Liberty Global’s Virgin Media and Telefonica’s O₂—these kinds of reviews are required at very regular intervals. There are some aspects which I unreservedly welcome, such as the new protection for certain end-users who purchase a bundle of services. There are the social affordability aspects, too.

When we come to the universal service obligation, we see a certain amount of changes. There is no change to the inclusion of affordability requirements, but it should be said in passing that the 10 megabits per second universal service obligation is still miserably unambitious. We have made that point many times before on these Benches and it was, of course, criticised by one of our own Select Committees. I hope that the Minister will give an indication of when it might change. It seems extraordinary that we have this ambition for 1 gigabit capacity, yet we are still hobbling along on 10 megabits per second as a universal service obligation.

What about the impact assessment? If all these provisions are to be so beneficial, as I hope they will be, why do the Explanatory Notes say that there will be an impact of less than £5 million on the economy? Surely the idea is to incentivise investment. Were we doing absolutely fine before we adopted this directive or was the Minister engaging in a bit of hyperbole? Where do we stand on the impact of these new regulations and what are the substantial changes? Will it mean faster rollout and, if so, in what respect?

It is interesting that the Minister’s colleague, the noble Lord, Lord Vaizey, wrote a very percipient piece in the Telegraph in July. I think the headline was “It’s high time we fixed Britain’s patchy mobile networks”. How will all this contribute to that, or are the Government really just making a virtue out of necessity?

Amazon

Lord Clement-Jones Excerpts

Monday 12th October 2020 Lords Chamber

[Baroness Barran (Con)]

The noble Lord raises an important point, but I remind him that the Government have established a number of groups and reviews, starting with the Furman review, which reported in March 2019, and most recently the digital markets task force. One of the recommendations we have accepted is the development of a code of conduct, just as the noble Lord suggests.

[Lord Clement-Jones (LD)]

My Lords, the chief executive of the CMA described the market position of some of the major US online platforms as “unassailable”. The Government are clearly going to give in to the US on food standards in any trade deal; will they do the same with the digital sales tax and competition regulation?

[Baroness Barran (Con)]

The Government remain determined to create the most innovative pro-growth economy that we can. That is dependent on effective competitions in all markets, particularly digital markets, so that is where our focus remains.

Music Industry

Lord Clement-Jones Excerpts

Thursday 10th September 2020 Lords Chamber

[Baroness Barran (Con)]

Unfortunately, the data my noble friend seeks has not yet been published. We are expecting Arts Council England to provide that data shortly, and it will obviously be shared publicly. In terms of reallocation, an enormous amount of work went into deciding the proportions within the fund, and those reflect where we think funds are needed.

[Lord Clement-Jones (LD)]

My Lords, at a minimum, the furlough and the SEIS scheme should be extended, but we need to go further. The Prime Minister in his Statement yesterday outlined plans to pilot mass testing in Salford for indoor venues. Will the Minister ensure that music venues in the local area are part of these pilots, and will the Government look into underwriting insurance to event promoters in the event of short-notice cancellation in any pilots?

[Baroness Barran (Con)]

I can certainly confirm to the noble Lord that the Government really value the contribution of the arts, including music, are ambitious in trying to get venues open as quickly as it is safe to do so, and are considering all options to do that.