Online Safety Bill [HL]

Baroness Healy of Primrose Hill Excerpts

Friday 11th December 2015 Lords Chamber

[Baroness Howe of Idlicote (CB)]

My Lords, it is a great privilege to have my fifth online safety Bill in Committee, and I thank all noble Lords who have supported me along the considerably long way. Most of the amendments I have tabled to be debated today are in response to the very helpful comments made on the Bill by the Delegated Powers and Regulatory Reform Committee in its fifth report of the Session, published on 20 July.

Your Lordships will know that the purpose of Clause 1 is to provide protection for children and young people from adult content and to provide parents with the tools to do that. I included Clause 1(1)(d) in the Bill to future-proof it for the inevitable growth in the services and devices that will come on to the market and which we do not yet have any concept of. Just to illustrate my point, in November, Ofcom published its annual report on children’s media use, which stated that over half of three to four year-olds and three-quarters of 12 to 15 year-olds use a tablet in 2015 and that tablets are now the device most often used for going online among all age groups except 12 to 15. In its equivalent report from 2010, there was no mention at all of the word tablet. Ofcom also highlighted the challenge facing parents in its latest report, saying:

“The move towards smaller screens makes supervision more difficult for parents, and the proliferation of devices increases the need for parents to keep up to date with technology”.

The world of online access and devices is moving rapidly, and legislation needs to be able to accommodate those changes.

The Delegated Powers Committee raised two concerns about the way in which the future-proofing provisions were framed. The first was that the defence open to internet service providers and mobile phone operators in Clause 1(5) would not be open to any future, additional category of provider. My Amendment 1 ensures that the defence would be made available. Secondly, the committee was concerned about who would be considered a “provider” or “operator” in the context of the Bill’s future-proofing provision. Amendment 2 defines a provider or operator for the purpose of Clause 1(1)(d) of the Bill as a provider of adult content through a medium other than an ISP or MPO.

As with future provision, it is possible in principle that no new technology will develop for relaying adult content beyond ISPs and MPOs, in which case this part of the Bill will remain latent. But in truth, this would seem unlikely, judging by what has happened so far. I should explain that although the Delegated Powers Committee provides a critique of all Bills with delegated powers, I was informed by the chair that it does not provide advice about how to respond. In developing all my amendments in response to the committee, therefore, I have sought the advice of the noble and learned Lord, Lord Mackay, who sadly cannot be here today. His advice was, first, to keep the future-proofing provision and, secondly, that both these amendments address the concerns of the committee as set out in its report. I beg to move.

[Baroness Healy of Primrose Hill (Lab)]

My Lords, I will be brief. I speak in support of Amendments 1 and 2, to which I have put my name. I congratulate the noble Baroness, Lady Howe, on getting to Committee with her important and timely Bill. She was very wise to include a future-proofing provision in the Bill, and the noble and learned Lord, Lord Mackay, has been very wise to advise her to keep it in.

These two amendments address the two points raised by the Delegated Powers and Regulatory Reform Committee report with great clarity. Amendment 1 extends to future forms of providers the same defence currently afforded to internet service providers and mobile phone operators, thereby upholding even-handedness. Amendment 2 tightens the definition of provider to make it absolutely clear that in this context, we are talking about the provision of adult content in an online context by some actor other than an internet service provider or mobile phone operator.

In acknowledging the rapidly moving world of technology, the noble Baroness should be applauded for her farsightedness, as the amendments further strengthen the Bill, and I very much hope that the Committee will support them.

[Lord Ramsbotham (CB)]

My Lords, at Second Reading, I picked up on “duty”, which is the first word in the clause, and suggested that there is nothing more important than the future well-being of our children and the nurturing and developing of their talents. The clause should be very much on the script of the National Security Strategy Committee, because it is up to government to ensure that the points made by my noble friend in moving the amendment, such as evolving technology, are taken into account continually.

I am sure that, in that connection, the whole House, not just this Committee, admires the determination of my noble friend in pursuing this issue over many years, not least following her recent sadness.

--- Later in debate ---

[Lord Morrow]

My Lords, this is a probing amendment which makes explicit two of the matters that the Ofcom report required by Clause 2(6) should cover: an assessment of the filtering of adult content required by Part 1 and the age verification policies referred to throughout the Bill.

One of the great strengths of Clause 1 is that it covers filtering of adult content by all internet service providers and mobile phone operators. Ofcom’s reporting duty should therefore relate to the conduct of all providers. It was very noticeable that in its recent review of filtering by ISPs, Ofcom considered only the big four ISPs that are subject to the voluntary filtering agreement negotiated with the Government. I do not believe that this filtering arrangement is sustainable in the long term unless we are prepared to countenance affording better rights to children fortunate enough to live in households provided for by the big four ISPs than to those living in households serviced by other providers. According to Ofcom’s published facts and figures, the market share of the big four ISPs in 2015 was 88%. That is the same percentage as in 2014 with a slightly different distribution between the ISPs: BT had 32%, Virgin Media had 20%, TalkTalk had 14% and Sky had 22%. That leaves 12% of the market, and therein hundreds of thousands of children, beyond the reach of the agreement.

I am of course aware that, although not party to the agreement between the big four providers, a number of the smaller operators provide good filtering options. A survey late last year discovered that of the 14 smaller ISPs that service homes, four were found to be offering something nearly comparable to the big four but 10 were not. Of those 10, two made it clear that they did provide filtering but it had to be applied by the customer separately; it was not an unavoidable choice during the set-up stage. Seven ISPs could not provide any information about filtering. One expressly said that it did not provide filtering. While the conduct of the four smaller ISPs is encouraging, the provision of filtering options by the smaller providers as a whole is concerning, and serves to underline the need for a common statutory approach.

I note that during the Second Reading debate on the Bill, the Minister, when challenged on this matter, responded in the following terms:

“It is important to note that these providers state at installation and on their marketing materials that they do not have child safety credentials”.—[Official Report, 17/7/15; col. 860.]

The implication of this approach would seem to be that so long as the company makes these statements, it will be okay. This seems rather extraordinary, raising the question: if this approach is sufficient, why can the other providers not do the same? It also jars with the survey that I mentioned earlier where only one of the 10 smaller ISPs clearly stated that it did not provide filtering. I am struggling to believe that this really represents the Minister’s position.

So long as some ISPs offer less protection than that provided through the agreement between the big four providers, and so long as we agree that all children are of equal value regardless of which provider services the homes in which they live, the only solution certainly seems the even-handed one proposed by the Bill, which requires the same minimum filtering from all providers, the conduct of which, subject to my amendment, should be reflected in the Ofcom report.

The case for making the changes proposed in Part 1 of the Bill and my amendment has of course been greatly strengthened since Second Reading as a result of the Prime Minister’s decision to introduce filtering legislation, which he announced in another place on 28 October. In responding to a question about whether the EU net neutrality vote would jeopardise our approach to filtering, the Prime Minister said:

“Like my hon. Friend, I think that it is vital that we enable parents to have that protection for their children from this material on the internet. Probably like her, I spluttered over my cornflakes when I read the Daily Mail this morning, because we have worked so hard to put in place those filters. I can reassure her on this matter, because we secured an opt-out yesterday so that we can keep our family-friendly filters to protect children. I can tell the House that we will legislate to put our agreement with internet companies on this issue into the law of the land so that our children will be protected”.—[Official Report, Commons, 28/10/15; col. 344.]

The words that struck me particularly in that passage were,

“I can tell the House that we will legislate”.

While I do not agree with the EU vote, the fact that it means that Britain will now legislate in this area is very welcome, both because it endorses the statutory approach advanced by this Bill and because it provides an opportunity for addressing the failure of the current approach to cover 12% of the market.

I understand that the Government must have legislation on the statute book by the time the new European provisions come into effect—on, I think, 30 April 2016—so they are very fortunate to have this excellent Private Member’s Bill already in Committee. I hope that the Minister can assure me that the Government will give serious consideration to adopting this Bill to protect ISPs from litigation. If the Government insist on bringing forward their own Bill, I impress upon them the need to require filtering, on the basis mandated by the Bill, for all ISPs that service households with children, not just some. This should also be reflected in Ofcom’s reporting obligation.

I should say in passing that if the Government are going to bring forward their own legislation that will have to be implemented by April next year, they should do so very quickly. There can be no excuse for rushing this through at the last minute when we have known this since the end of June this year. I beg to move.

[Baroness Healy of Primrose Hill]

My Lords, I support the amendment from the noble Lord, Lord Morrow. Ofcom should have to report on the compliance of all ISPs, not just the big four, and all ISPs should be subject to the same filtering obligations where they service households with children, as the noble Lord has said. The Government need to ensure that all providers that service households with children have adequate filters. If the Government now need to make legal provision for filtering, in order to protect the big four from litigation on the basis of EU net neutrality legislation, surely the best way forward is to use this excellent Bill.

[The Lord Bishop of Bristol]

My Lords, I do not want to add too much to the way that the noble Lord, Lord Morrow, has framed his amendment today, but his point is worthy of serious scrutiny, simply because children living in households that are not serviced by the big four ISPs surely require the same level of protection as those in homes whose services are provided by the big four ISPs. Everyone in your Lordships’ House agrees that every child matters; I think that it is not at all controversial to say that.

It is a little confusing that the Prime Minister should seem so robust in his statement in the other place on 28 October, suggesting that the Government wanted to introduce legislation, yet the Minister—unless I misunderstand her—seems very happy to continue with a kind of voluntary regulation. I am not quite sure how that squares up. The point—and the noble Lord, Lord Morrow, makes it well—is that whatever we come up with cannot apply only to some children; surely it must apply to them all.

I would have thought we might regard it as good news that there is a need to introduce some legislation to prevent our approach to filtering being caught up by the new EU legislation, which provides us with an opportunity to correct a serious failing in our current arrangements. I hope that the Government—although I am starting to feel doubtful about this—might seize this opportunity with both hands.

I therefore put two questions to the Minister. First, I assume that the big four ISPs are saying to the Government, “We’re happy to continue providing filtering on the basis that we agreed, but only if you provide us with the requisite legal cover because we’re not prepared to be left vulnerable to litigation once the new EU net neutrality legislation comes into effect”. Will the Minister confirm that this is the point of concern, or at least a part of it? Secondly and more importantly, although she may have already dealt with this, I had thought that the deadline at the moment was 30 April but I think she has said that it has now been extended to December. I would be grateful if she could clarify that.

I hope that the Government are not going to produce an entirely new piece of legislation next year that they then rush through at high speed without the proper scrutiny of your Lordships’ House. That would be wholly unacceptable, and I would dearly love the Government to adopt the Bill.