Digital Economy Bill

Baroness Benjamin Excerpts

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

[Baroness Benjamin (LD)]

My Lords, first, I thank the Minister for his opening remarks at the beginning of this debate. I was pleased to hear that the Government are in listening mode as we work our way carefully through this Bill.

When we speak about the crucial subject of the enforcement of the age verification provision, it is vital to remember that we are talking about how we ensure that children and young people are kept safe. All the evidence is that early exposure to pornographic material can be extremely harmful to children. The Economist reported that given the view that sexual tastes are formed around puberty,

“ill-timed exposure to unpleasant or bizarre material could cause a lifelong problem”.

As I repeatedly say, childhood lasts a lifetime.

There is evidence that pornography can lead to unrealistic attitudes to sex, damaging impacts on young people’s views of sex and relationships, putting pressure on how they look or influencing them to act in a certain way. All of that reminds us of the context in which we are having these discussions on the finer points of enforcement. With this context in mind, we need to make sure that the age verification provisions in Part 3 are backed up with the most effective means of enforcement.

We have heard noble Lords set out why they think Amendment 66 would be better than Clause 23, but does it really stand scrutiny? There is a concern about the delay that would result from Amendment 66. Quite apart from the fact that requiring the age verification regulator to enforce the age verification requirement through court injunctions would be much slower and much more expensive than the procedure under Clause 23, there is the fact that Amendment 66 would further delay the provision of effective enforcement, and therefore child protection, through the requirement that IP blocking would take effect only if the Secretary of State at some future point decides to make regulations allowing this. In this regard I am particularly concerned that the drafting of proposed new subsection (1) in Amendment 66 implies that the Secretary of State can consider making regulations only when the BBFC considers that there is an actual person in contravention. The BBFC cannot be ahead of the game and will be on the back foot while it waits for the regulations to be made, if they are to be made at all. This does not make our children and young people safer. I am also concerned that Amendment 66 does not provide legal clarity for ISPs at this stage of the Bill on whether IP blocking will be required and, if so, how that will need to be delivered.

While Amendment 66 does not provide certainty, Clause 23 sets out very clearly its central requirement in subsection (2)(c) that an ISP must,

“prevent persons in the United Kingdom from being able to access the offending material using the service it provides”.

It sets out when that would be required in subsection (1), how it would be implemented in subsection (2) and the obligations on the ISPs in subsection (8). The BBFC knows what it can do; the ISPs know what will be expected of them; and the pornographic websites will be clear that their sites might be blocked if they do not comply with Part 3. In comparison with the much weaker Amendment 66, Clause 23 is so effective that exchanging them would fundamentally weaken the child safety provisions in the Bill. That would be a real tragedy.

Why are we making exceptions for porn merchants? We have had a system in place in the UK for dealing with child abuse images for over 20 years. It is the envy of the world. It has never required prior judicial authorisation. Let us be clear: the Internet Watch Foundation, which runs the system, could at any time be brought to court to explain an action or decision it has taken, because it is subject to judicial review. Not only has the IWF never lost a judicial review case, no one has ever taken one against it. We get rid of terrorist material without requiring any judges or courts to get involved and I have never heard any criticism of that system. But if we are talking about protecting children against porn—oh no. Everything slows down, everything becomes more expensive and we have to get a judge and lawyers involved, because it is suggested that, uniquely, we need prior judicial authorisation.

However, the age verification regulator will have an appeals system. Every decision the regulator takes can be made the subject of a judicial review. If the regulator gets taken to court and loses all the time, perhaps we would need to look at the provisions again, but I have absolutely no reason to believe that would be the case. Therefore I think that Amendment 66 should be rejected, because the material we are talking about here is extremely harmful to children and we want it out of sight as quickly and simply as possible. I am sure that no one in this House would want their children or grandchildren ever to be exposed to or damaged by this vile material. Our overworked courts and judges have enough on their plates. We simply do not need to drag them into this on a routine basis. Let us put our children’s well-being and protection first. I very much hope that the Government will stand by Clause 23 and reject Amendment 66.

[Baroness Howe of Idlicote]

My Lords, like the noble Baroness, Lady Benjamin, I rise to speak against Amendment 66, which in my judgment would seriously undermine the scope for Part 3 of the Bill to be enforced. I have campaigned for child safety online for many years and am far from reassured that the amendment will deliver on that objective. I have also raised repeatedly concern about the quantity and type of pornography accessed in the UK but based in other jurisdictions. I am very pleased that the Government have recognised that this is a significant issue. However, without being able to ensure that foreign websites take the action that is required under Part 3, in practical terms we will be no further forward.

This is no theoretical discussion. In its evidence to the Public Bill Committee in the other place, the British Board of Film Classification said that it planned to target regulation at about 50 sites and that it does not expect any of these to be in the UK. Clause 21 sets out fines but is far from clear about what the Government can do if a site in another jurisdiction refuses to pay a fine; your Lordships can come back to that when we debate the next group of amendments.

Clause 22 has a better international reach but it fails in a number of different scenarios relevant to the discussion on Clause 23: first, if a site offers free pornography; secondly, if it does not use conventional credit cards but relies on payment methods such as bitcoin; and thirdly, if the website does not use a UK-based ancillary service provider. These very brief statements highlight the need for another enforcement option for foreign websites, and I am pleased that many Members in the other place agreed. I commend the work of Mrs Claire Perry, the honourable Member for Devizes, who had the support of 34 MPs from seven parties for her amendment, which had a similar objective to Clause 23. I also congratulate the Government on responding constructively with the introduction of Clause 23.

For Part 3 to be effectively enforced, it is critical that foreign sites know that the UK regulator could block them. The Digital Policy Alliance, in its briefings on the Bill, said that that there would be a major loophole in the Bill without an IP-blocking option. To this end, the proposals in Amendment 66 are deeply problematic. My noble friend Lord Morrow has already mentioned concerns about delays arising from the need for the Secretary of State to produce regulations and the question of whether he or she will use the power. On top of this, court injunctions are expensive and cumbersome, and every website would know that they could be used only very occasionally, which could tempt foreign sites accessing the UK to risk not bothering with age verification.

I am also concerned that Amendment 66 would undermine the admirable work the Internet Watch Foundation does on removing child abuse images. I understand that if blocking of pornographic and prohibited material should require court injunctions, it will form a very difficult precedent for bodies such as the foundation, which help to keep our children safe. If it had to use a court injunction every time it requested that a page should be taken down, that would greatly limit and inhibit its capacity and as such would be a grave and very serious mistake.

By contrast, Clause 23(1) allows the BBFC to use IP blocking, after notifying the Secretary of State, from the day Part 3 comes into effect. The BBFC may need to use this power early into the Bill’s implementation if it cannot trace a foreign website or if the website is unresponsive and does not use credit card payments, which might be blocked under Clause 22. There will be no delay as to when this enforcement power can be used. Secondly, it will give the BBFC the power to ask ISPs to block sites when they need to. It is not saying that they must use this power but that they can. There will be no delay or the expense of going to court to get a blocking injunction. Thirdly, there will be no negative impacts on the Internet Watch Foundation and the admirable work it does on removing child abuse images.

In a context where the majority of online pornography accessed in the UK comes from websites based in other jurisdictions, the provision of a robust and flexible IP blocking mechanism is central to the ability of this legislation to enforce the age verification provisions that are at its heart to keep our children safe. To swap Clause 23 for Amendment 66 would not reflect well on us. In closing, I warmly congratulate the Government on Clause 23 and hope that they and the Minister will stand resolutely by it and against Amendment 66.